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Mediation in BIOP Lawsuit Fails; Flurry of New Filings by Barry Espenson Columbia Basin Bulletin - October 11, 2002

An eight-month effort to resolve issues through mediation has ended, coincident with a cavalcade of new filings in the lawsuit brought to challenge the federal government's Columbia Basin salmon recovery plan.

Plaintiffs in the case, National Wildlife Federation, et al. v. National Marine Fisheries Service, are asking the court to require NMFS to withdraw its 2000 Federal Columbia River Power System biological opinion and reinitiate consultation on hydrosystem operations.

Elaine Hallmark and former U.S. Attorney for Oregon Sid Lezak led the mediation effort, which began in late January.

"The mediation was confidential so there's not much we can say," Hallmark said of U.S. District Court Judge Garr King's order that discussions not be made public. She said that the many participants in the case "worked hard and in good faith" during the mediation but were unable to resolve the many complicated issues. She said the judge was informed via letter in late September that the mediation effort had ended.

The original complaint, filed in May 2001 by a coalition of 13 fishing and conservation groups, claims the 2000 NMFS BiOp violates the Endangered Species Act and Administrative Procedures Act by "arbitrarily, capriciously and without any rational basis concluding in the 2000 FCRPS BiOp that the actions set forth in the (Reasonable and Prudent Alternative) are not likely to jeopardize any listed species or destroy or adversely modify their critical habitat."

The lawsuit cites "serious, substantial, and fundamental defects" in the BiOp -- saying the NMFS analysis of listed salmon and steelhead populations understates the risk of extinction and that reliance on non-hydro/non-harvest actions to avoid jeopardy are speculative and voluntary.

A July 2001 NMFS response to the complaint denied all claims.

The administrative record in the case was filed by NMFS in October 2001. The BiOp says that the proposed operation of federal dams and reservoirs jeopardize the continued existence of eight Endangered Species Act listed salmon and steelhead stocks. But the document outlines RPA measures, within the hydrosystem as well as offsite habitat, hatchery and harvest actions, it feels necessary to avoid jeopardy.

Briefings in the case were scheduled to begin this past January but were postponed in order to give the mediation a chance to work.

The judge in July outlined a new briefing schedule that was to begin Sept. 20 and stretch out over the next four months. The revised schedule has oral argument beginning Feb. 21, 2003.

But, the case took a new turn in recent weeks. Earthjustice and Pacific Environmental Advocacy Center attorneys on Sept. 23 pressed for a decision, asking for a summary judgment that the BiOp is arbitrary and capricious and not in accordance with the law. The two organizations represent the plaintiffs in the case.

Federal attorneys quickly responded Sept. 30 with a "motion to strike" three declarations -- from Drs. Gretchen R. Oosterhout, Nicolaas W. Bouwes and Mr. David R. Marmorek -- filed in support of the request for summary judgment. The opening brief was 60 pages long -- an agreed upon limit for briefs -- but the declarations include another 136 pages.

"Furthermore, this case is to be resolved solely by reference to the administrative record unless plaintiffs can carry their substantial burden to demonstrate that one of four limited exceptions to record review apply," NMFS said in its motion to strike. "Plaintiffs have not even attempted to make such a showing and could not make one in any event." NMFS' motion cited Supreme, Ninth Circuit and District Court of Oregon precedent for limiting the courts review to the administrative record.

That administrative record includes 107 volumes (enough to fill 17 copy paper boxes, says Earthjustice attorney Steve Mashuda) that explain the bases for the BiOp, NMFS says.

"The brief itself is barely more than an index to the voluminous amount of improper extra-record material," NMFS' motion to strike says. "Accordingly, both the declarations themselves and the resultant brief must be striken." It asks the court to order that the plaintiffs file a compliant 60-day brief within 30 days.

"The plaintiffs' declarations are nothing more than expert reports. As indicated, the government did not expect that it would have to locate and consult with rebuttal experts. However, should the plaintiffs' expert reports be allowed to stand, the government may well need to conduct discovery regarding the experts qualifications, sources of information and conclusions," said NMFS' memorandum in support of its motion to strike.

The plaintiff's responded Monday, opposing the motion to strike.

"One of NWF's primary contentions in this litigation is that NMFS failed to properly consider a number of important and relevant factors in the 2000 BiOp, failed to provide an explanation for its conclusions that is supported by the available evidence, and failed to address or explain how it considered credible evidence that conflicts with its conclusions," according to the plaintiffs' Oct. 7 memorandum. "Each of these points can properly be established, in part, by appropriate use of extra-record evidence. The court should deny NMFS' attempt to keep NWF from putting before the court evidence about issues that the agency has swept under the rug."

The plaintiffs' memorandum said that the declarations from "qualified scientists" describe and explain:

• those relevant factors that NMFS' jeopardy analysis has failed to address;
• critical gaps between the evidence before the agency and the conclusions the agency has reached as well as omissions in the agency's analysis, and
• the complex, technical issues presented in the 2000 BiOp and administrative record.

The declarations also identify relevant and credible evidence in the record that conflicts with the agency's analysis and conclusions, according to the plaintiffs' memorandum.

The declarations were an attempt to analyze and synthesize the enormous contents of the administrative record, Mashuda said.

"Our argument is that these are things that are not out of the ordinary," Mashuda said of the inclusion of the outside declarations.

On Thursday, Oct. 3, King granted NMFS' motion to stay the briefing schedule pending resolution of the motion to strike.

"Once that motion has been resolved, the briefing schedule will be reinstated as appropriate," Judge King wrote.

The plaintiff's request for summary judgment concluded that, "NMFS improperly relies on future federal actions, uncertain state and private actions, and action agency measures that are beyond their authority, unfunded, and vague to reach a no-jeopardy finding for its RPA. Contrary to basic requirements of administrative law, NMFS also fails to explain how it considered, weighed, and combined the available evidence and analyses, both favorable and unfavorable, about all of these actions to arrive at its 'ultimately qualitative' judgment that the RPA would avoid jeopardy.

"NMFS compounds these errors by failing to account for the aggregate effects of incidental take it has authorized in the 2000 BiOp and other opinions, and by relying permanently on transporting salmon in barges and trucks to avoid finding that FCRPS operations under its RPA adversely modify critical habitat and jeopardize these species.

"In the end, NMFS' RPA for FCRPS operations puts the fate of imperiled Northwest salmon and steelhead species admittedly at the brink of extinction, at the mercy of vague, uncertain, unfunded, unenforceable and ineffective actions by federal, state, and private parties," according to the plaintiffs' memorandum in support of the motion for summary judgment. "NMFS does little more than venture a hopeful guess that everything will work out, leaving these species, like Blanche DuBois in Tennessee Williams' play "A Streetcar Named Desire," to 'depend on the kindness of strangers' for their very survival. The ESA does not permit NMFS to impose this extraordinary risk on these species."

Listed as plaintiffs in the lawsuit are: National Wildlife Federation, Idaho Wildlife Federation, Washington Wildlife Federation, Sierra Club, Trout Unlimited, Pacific Coast Federation of Fishermen's Associations, Institute for Fisheries Resources, Idaho Rivers United, Idaho Steelhead and Salmon United, the Northwest Sport Fishing Industry Association, Friends of the Earth, Salmon for All, Columbia Riverkeeper, American Rivers, Federation of Fly Fishers and Northwest Energy Coalition

Lined up with NMFS as intervenor defendants are: Northwest Irrigation Utilities, Public Power Council, Washington State Farm Bureau Federation, Franklin County Farm Bureau Federation, Grant County Farm Bureau Federation and Inland Ports and Navigation Group.

Participating in the lawsuit as amicas curiae parties are the states of Idaho, Oregon and Washingington, the Northwest Power Planning Council and the Umatilla, Warm Springs Tribes, Yakama and Nez Perce tribes. The status allows them to file briefings on the merits of the case and make evidentiary presentations