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Judge: Salmon-Saving Efforts Insufficient by Staff Idaho Statesman, May 8, 2003

Ruling reopens debate on dams and water usage

PORTLAND -- A federal judge ruled Wednesday that government programs to protect threatened and endangered salmon runs in the Columbia River Basin do not meet the requirements of the Endangered Species Act.

In a 26-page opinion, U.S. District Judge James A. Redden struck down the so-called biological opinion as violating federal law.

Redden returned the matter to the National Marine Fisheries Service and told the service to develop a plan that complies with the law.

This will reopen arguments over how to recover salmon, including dam removal and using Idaho water for salmon recovery.

Salmon are a living icon of the wild character of the Pacific Northwest that still provide jobs to fishermen and tourism businesses.

“This is huge. As of this point, the federal salmon plan is moot; it´s out the window,” said Bill Sedivy, executive director for Idaho Rivers United, which was a member of the coalition to that filed the suit.

Nez Perce Tribal Chairman Tony Johnson said the ruling means the option of breaching the dams is back on the table.

“We believe that today´s decision gives the Columbia Basin´s sovereigns a tremendous opportunity to ensure that salmon are recovered by actions, not words,” Johnson said.

Drafted in December 2000, the salmon recovery strategy focused on improving habitat and hatchery operations and limiting harvest without breaching the four dams on the lower Snake River as some environmentalists demanded.

“We´ve said from the start this (biological opinion) was folly and wouldn´t do the job because it didn´t deal with hydro power,” Sedivy said.

A coalition of environmental and fishermen´s groups sued in May 2001, claiming the biological opinion “capriciously and without any rational basis” concluded that the plan would not put the fish stocks in jeopardy of extinction.

“We have a real opportunity here, and we want to be sure we get a plan adequate to protect the fish,” said Todd True, an attorney for Earthjustice, one of the plaintiffs.

Sedivy said the ruling can finally redirect the debate over salmon recovery to the real problem — the four eastern Washington dams.

The four dams on the Snake River provide 5 percent of the region´s electricity, enough to power a city the size of Seattle.

They also provide a series of locks that enables barge shipping inland to Lewiston.

“We thought all along that the strategy behind the plan was a bit like trying to treat cancer with aspirin,” Sedivy said. “Fortunately, the judge saw it that way, too.”

True argued that the government has a duty to ensure its actions will not put endangered stocks in jeopardy, as opposed to providing the likelihood that they will not.

“It cannot be based on chance, on the hope that good things will happen in the future,” he said.

The Endangered Species Act, he said, is “an institutional caution. We don´t take chances with species listed as endangered by extinction.”

Samuel Rauch III, arguing for the U.S. Justice Department, said the government is not required to ensure that the stocks will not go extinct, only to “not … diminish the likelihood of recovery” from a threatened species listing.

The question he said, “is will the measures (for survival) be in place when the species needs them?” and noted that salmon runs in recent years have been in relatively good shape.

He said it is not a matter of whether the government is doing all it possibly can do.

“The test is whether it diminishes the opportunity for recovery,” he said, contending that the dam system as currently managed does not.

Questions and answers about salmon survival

WHAT DID THE JUDGE DO?
He struck down the federal plan for saving 12 stocks of endangered salmon in the Snake and Columbia rivers because it did not meet the requirements of the federal Endangered Species Act. The judge said the plan improperly relied on actions, many voluntary and outside the power of the federal government, that may not ever occur to make up for the mortality caused by the federal dams. He said, “the record clearly establishes that NOAA improperly relied on range-wide off-site federal mitigation actions … and non-federal mitigation actions that are not reasonably certain to occur in order to” ensure that salmon will survive.

WHAT HAPPENS NEXT?
The agencies will have to rewrite the plan and may have to take even stronger measures in the meantime.

WHAT WILL THAT MEAN TO IDAHO?
It could mean more pressure on the state´s farmers and water-users to flush more water downstream through the dams to aid salmon migration. It also could make relicensing of Idaho Power´s Hells Canyon dams more difficult.

WHAT DO SCIENTISTS SAY?
Most scientists say breaching the four lower Snake Dams in Washington may be necessary to prevent Snake River salmon from going extinct. A minority of scientists, including those at the National Marine Fisheries Services, said a suite of other measures, including some minor improvements at the dams and habitat improvements throughout the region would be enough to recover the fish.

SO WHY HAVE THE SALMON RETURNS BEEN SO HIGH?
An upswell of cool water filled with nutrients has greatly improved survival of salmon in the Pacific Ocean along with several years of good flows to aid migration from Idaho. This has helped both hatchery salmon, which are not endangered, and endangered wild stocks. But returns still have reached only the low end of what scientists say is necessary to turn around the salmon´s plunge toward extinction.

WHY SHOULD I CARE?
Salmon are an icon of the Northwest´s wild character and still provide food and spiritual sustenance and support a huge economy. The dams provide electricity and a shipping route from the ocean to Lewiston. Measures to aid the fish threaten to increase the costs of farmers, loggers, homeowners and others who depend on the Snake River and its water.