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Commentaries and editorials

Government Must Stop Ignoring
Its Flawed Salmon Plan

by Michael Blumm
Register-Guard, October 1, 2011

A Sept. 10 guest opinion by Scott Corwin, executive director of the Public Power Council, mischaracterized U.S. District Judge James Redden's recent ruling against the latest federal plan for protecting endangered Columbia and Snake River salmon.

The court did not simply send the plan back for more details on a fairly narrow issue or give the go-ahead to stick with the plan.

Instead, the court concluded that the Obama administration's plan, like nearly every one of its predecessors over the past 20 years, was "arbitrary and capricious" and ordered a new plan to take effect in two years.

The new plan that Redden ordered must re-evaluate the efficacy of mitigation actions, identify reasonably specific mitigation plans for the life of the plan, and consider whether more aggressive actions, "such as dam removal and/or additional flow augmentation and reservoir modifications, are necessary to avoid jeopardy" to dwindling wild salmon populations.

Redden sharply questioned the government's ability to do what it said it would do. He also doubted that any verifiable improvement in salmon populations would result from actions the government had proposed. The court specifically stated that 1) "the lack of scientific support for NOAA (National Oceanic and Atmospheric Administration) Fisheries' specific survival predictions is troubling," and 2) there was no basis to believe that "expected habitat improvements -- let alone the expected survival increases -- are likely to materialize."

Far from endorsing the scientific analysis in the plan, Redden noted that the government's own scientists, as well as independent scientists who reviewed the plan, "expressed skepticism about whether (salmon survival) benefits will be realized."

Overall, the judge concluded: "Coupled with the significant uncertainty surrounding the reliability of NOAA Fisheries' habitat methodologies, the evidence that habitat actions are falling behind schedule, and that benefits are not accruing as promised, NOAA Fisheries' approach to these issues is neither cautious nor rational."

These are not mere details. They reflect fundamental structural problems with the government's approach to Columbia and Snake River salmon restoration.

For nearly two decades, the government has attempted to avoid major changes to dams and their operations by promising to offset the harm the dams cause by rehabilitating degraded salmon habitat. Judges have now rejected at least four plans that depend on this bait-and-switch approach.

Worse, the government's most recent assessment of endangered Columbia basin salmon populations concluded that few or no populations are improving, and most face increased risk.

Corwin claims increasing salmon returns are reasons to stick with the current plan that the judge said had to be redrawn, citing hatchery returns (not wild fish that are the subject of federal protection) and the millions of dollars unwisely spent on the current plan.

This notion that trying more of the same failed approach is fool's gold.

Redden has given the government one last opportunity to address the harm caused by the dams.

The government should heed the court's message with a new plan that directly addresses the problem the court identified -- the need to make major changes in Columbia basin dam operations.

Michael Blumm is a Jeffrey Bain Faculty Scholar and professor of law at Lewis and Clark Law School
Government Must Stop Ignoring Its Flawed Salmon Plan
Register-Guard, October 1, 2011

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