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Salmon Win, Bush Loses Appeal on Columbia River Dam Plan by Staff Environment News Service, April 10, 2007

SAN FRANCISCO, California - The Ninth Circuit Court of Appeals Monday rejected the Bush administration's salmon plan for dam operations on the Columbia and lower Snake rivers. The appellate court upheld a lower court ruling that the plan was illegal because it failed to comply with the Endangered Species Act, ESA.

Writing that "ESA compliance is not optional," Judge Sidney Thomas ruled that "agencies may not disregard their ESA duties. ... Rather, they have an affirmative duty to satisfy the ESA's requirements, as a first priority."

Attorney Steve Mashuda of Earthjustice, representing the plaintiff fishing business and conservation groups, applauded the court's ruling. "This decision should compel the federal agencies to look at all recovery options - including removing the four lower Snake River dams, and develop a solution that works for people and fish."

Returns of wild Snake River spring/summer chinook once exceeded 1.5 million fish annually, accounting for more than half of the entire Columbia Basin's spring/summer chinook run.

The plaintiff environmental groups have long held that each of four federal dams on the lower Snake River should be partially removed so that salmon restoration can be effective.

Conservationists say the Lower Granite Dam, the Little Goose Dam, the Lower Monumental Dam and the Ice Harbor Dam kill more salmon than fishermen do - as many as 92 percent of the salmon headed out to sea, and up to another 25 percent on their way back upstream to spawn.

Prior to the completion of the lower Snake River dams in the 1960s and '70s, spring/summer chinook returns often topped 60,000 per year.

Every year salmon and steelhead travel up and down the Columbia River and its tributaries such as the Snake River, hatching in fresh water, migrating downstream to the sea to grow to adulthood, and then returning upstream to spawn.

Last year, only about 17,000 total fish returned past Lower Granite Dam on the lower Snake River, a number that represents little improvement from 1992, when Snake River spring/summer chinook were first protected by the Endangered Species Act.

Writing for the three judge appeals court panel, Judge Thomas ruled, "The district court correctly held that NMFS [National Marine Fisheries Service] inappropriately evaluated recovery impacts without knowing the inriver survival levels necessary to support recovery. It is only logical to require that the agency know roughly at what point survival and recovery will be placed at risk before it may conclude that no harm will result from 'significant' impairments to habitat that is already severely degraded."

"With today's decision, it should be clear that the law, the science, and the economics are in agreement," said Dan Ritzman, Northwest regional director for the Sierra Club, one of the plaintiff groups.

"It is time for this administration to follow the law and follow the science to develop a legal plan to restore Columbia and Snake River salmon," Ritzman said. "Our region needs a scientifically sound, economically viable solution, and that solution includes removing the four dams on the lower Snake River."

In May 2005, U.S. District Court Judge James Redden rejected the 2004 Federal Columbia River Power System plan governing federal dam operations on the Columbia and lower Snake rivers, citing the plan's failure to adequately address restoration of ESA-listed wild Snake River salmon and steelhead.

Judge Redden termed the plan's Biological Opinion by the National Marine Fisheries Service, which treated dams as an immutable part of the natural environment that could not be changed, "arbitrary, capricious and contrary to law." As a result, the plan was remanded by the judge and is currently being redrafted.

The federal agencies responsible for the illegal plan, including the National Oceanic and Atmospheric Administration, NOAA, the National Marine Fisheries Service, now known as NOAA Fisheries, the U.S. Army Corps Of Engineers, and the U.S. Bureau of Reclamation, filed an appeal in federal court late last year.

The state of Oregon filed documents before the appeals court in support of the conservation groups, while the state of Idaho filed documents in support of the federal agencies who wrote the 2004 plan.

In its ruling, the appeals court called the invalidated 2004 plan "little more than an analytical slight of hand, manipulating the variables to achieve a 'no jeopardy' finding." Under this approach, the court determined, "a listed species could be gradually destroyed, so long as each step on the path to destruction is sufficiently modest. This type of slow slide into oblivion is one of the very ills the ESA seeks to prevent."

"Today's ruling is a victory not just for salmon, but for the economy and the people of the Pacific Northwest, and our way of life, which includes stable jobs, good fishing, reliable energy, and abundant salmon," said James Schroeder, senior environmental policy specialist with the National Wildlife Federation, the lead plaintiff in the case.

"This decision from the court clears the way for development of real, honest solutions that will benefit the entire region, solutions that put neither fishing nor farming communities at risk," said Schroeder. "But to get there, we must have real leadership and resolve in the region to finally examine what it will take to meet our responsibility to restore salmon in the Columbia basin."

Other plaintiffs in the case include Idaho Wildlife Federation, Washington Wildlife Foundation, Sierra Club, Trout Unlimited, Pacific Coast Federation of Fishermen's Associations, Institute for Fisheries Resources, Idaho Rivers United, Idaho Steelhead and Salmon United, Northwest Sportfishing Industry Association, Friends of the Earth, Salmon for All, Columbia Riverkeepers, Northwest Energy Coalition, Federation of Fly Fishers, and American Rivers.

The ruling comes as poor salmon returns on the Columbia River prompted the Pacific Fisheries Management Council last week to curtail fishing seasons for commercial trollers in Washington for the third consecutive year.

The catch quota for Washington trollers is down 50 percent from what it was last year. The quota for Washington trollers for this year's fall chinook season in the Columbia north of Cape Falcon is 14,000 to 16,000 salmon, while the expected combined troll quota for both commercial and tribal vessels for chinook harvest is expected to be below 51,000.

"This is an incredible blow to fishermen who have to try and make a living on a fraction of their salary this year," said Joel Kawahara, a member of the board of the Washington Trollers Association and a troller based in Quilcene, Washington.

"Washington state fishermen are continuously cutting their seasons back to accommodate the shrinking limits because we want to keep our jobs and keep fishing in the future," said Kawahara. "But our backs are up against the wall for the third year in a row."

Washington trollers, catching their upper limit of 16,000 fish will receive roughly $1 million, compared to 27,258 fish yielding roughly $1.7 million last year.

At last week's Pacific Fisheries Management Council meeting, trollers, charter fishermen and gillnetters participated in a roundtable discussion with representatives from the offices of Congressmen Norm Dicks, Jim McDermott, Adam Smith, and

Jay Inslee, as well as people from the offices of U.S. Senators Maria Cantwell and Patty Murray. The fishermen expressed their concern for their jobs and the need for leadership to deliver real salmon solutions.

"The federal government has repeatedly failed to deliver an effective recovery plan for salmon in the Columbia and Snake Rivers, and hard working people in the Northwest are paying the price for that failure. We're asking our Northwest leaders to fill that void and deliver real solutions," said Steve Wilson, a commercial fisherman who lives in Federal Way, Washington.

David Bitts, a salmon troller based in Eureka, California, said, "I'm not sure how many years we can be expected to bounce back from the loss in revenue. We really appreciate the efforts to secure economic aid for our struggling fishermen this year, but, in the future we'd rather have real solutions and sustainable salmon runs."

"We have been forced to turn to the courts because the federal government has repeatedly failed to deliver an effective salmon plan, and our elected leaders have failed to step in to fill the void," said Zeke Grader, executive director of the Pacific Coast Federation of Fishermen's Associations, an organization of commercial fishing groups throughout California, Oregon, Washington, and Alaska.

"With salmon returns continuing to decline and fishing seasons being curtailed again, it is clearer than ever that we must change the way we manage water in this basin," Grader said. "These court rulings set the table for our region to finally examine what is required to meet our responsibility to restore salmon in the Columbia Basin, and in the process, protect and restore the resources, economies, and way of life of the Pacific salmon states."

Related Sites:
Ninth Circuit Court of Appeals ruling.