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BIOP Lawsuit Parties Exploring Mediation Process by Staff Columbia Basin Bulletin - September 21, 2001

The U.S. District Court schedule of events related to a legal challenge of the federal government's salmon recovery strategy was shuffled this week with some filing deadlines moved back.

Meanwhile the court is trying to involve parties to the case in a "conflict assessment" and mediation process it hopes might bring resolution and ward off protracted litigation.

The court on Wednesday moved back the deadline, from Sept. 19 to Oct. 12, for the filing of the administrative record in the case challenging the National Marine Fisheries Service's 2000 Federal Columbia River Power System biological opinion. The BiOp outlines measures, within the hydrosystem and offsite, it feels necessary to avoid jeopardizing the survival of salmon and steelhead stocks listed under the Endangered Species Act.

The administrative record will include the BiOp as well as documents referenced in the BiOp, and planning documents and memos generated by the agency as it prepared the recovery plan.

A key date is Jan. 14, when parties to the lawsuit can file briefs, based on the record, on the merits of the case. Sovereign entities -- states and tribes, have until Nov. 19 to file for intervenor status.

The attempt at mediation will continue in the background.

"We're going to go ahead with the process," said Fred Disheroon, an attorney with the U.S. Justice Department. "We need to see if we can put together a process that meets everyone's concerns." That includes an identification of issues that are critical to the various parties to the lawsuit and to non-parties, such as the states and tribes, Disheroon said.

Todd True of Earthjustice, an attorney for the plaintiffs, said he was not at liberty to discuss either the merits of the mediation process or its inner workings. Those discussions are restricted to those involved.

"The court has certainly encouraged the parties to take that route," True said of the mediation process.

The Public Power Council's Rob Walton said the parties participating in a Wednesday court status conference "pretty much agreed on trying mediation but there was precious little detail."

The complaint filed May 3 by a coalition of 13 fishing and conservation groups claims the 2000 NMFS BiOp violates the Endangered Species 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 Alternatives) are not likely to jeopardize any listed species or destroy or adversely modify their critical habitat."

The complaint asks that the court require NMFS to withdraw the BiOp and reinitiate consultation on operations.

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 NMFS response to the complaint denied all claims.

Oregon U.S. District Court Judge Garr King, in an Aug. 16 letter to "all parties and potential parties" suggested a conflict assessment process be considered as an alternative to a drawn-out court case.

He described an ongoing pilot project in the court "to learn how to assist the resolution of appropriate environmental cases through the use of mediation or a process seeking a collaborative agreement."

"I believe this case may have the potential to better address the concerns of all the parties through such a process," King wrote.

He described conflict assessment as a neutral process that typically involves:

1. conferring with potentially interested persons regarding a situation involving conflict in order to assess the causes of the conflict,
2. identifying the entities and individuals who would be substantively affected by the conflict's outcome,
3. assessing those persons' interests and identifying a preliminary set of issues that they believe relevant, and;
4. evaluating the feasibility of using mediation, consensus-building or other collaborative processes.

King said "that it is difficult for me or individual parties to determine the potential for success, the exact nature of the process parties might accept and even all the 'stakeholders' who may need to be involved, whether or not they are yet a part to this litigation."

He asked that the parties to the lawsuit "cooperate with a confidential neutral convening effort and then, if appropriate, a formal conflict assessment to determine whether the use of mediation is appropriate."

The process is being coordinated by the U.S. Institute for Environmental Conflict Resolution.

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

The Umatilla, Warm Springs and Nez Perce tribes requested and received amicus curae status allowing them to file briefings on the merits of the case and make evidentiary presentations.

The Public Power Council and Northwest Irrigation Utilities have sought and been accorded defendant-intervenor status. The Washington Federation of Farm Bureaus and Franklin and Grant county Farm Bureau's recently filed for defendant-intervenor status.

Pat Ford, executive director of Save Our Wild Salmon, expressed doubts about the mediation process last week during an interview in Washington, D.C. SOWS is not party to the lawsuit but many of the coalition's member groups are.

"We do not expect that mediation to produce an outcome." He said the positions of the federal agencies and the plaintiffs are too far apart. "The feds aren't interested in what we want" and vice versa, Ford said.

"So we expect the case to move ahead" after the mediation period ends.

Ford agreed with making an attempt to reach a settlement through mediation, however.

Lawyers for the plaintiffs estimate that the case will not actually be heard until next year. One reason is that affected states and tribes have not yet intervened but are expected to do so.

Ford said a central part of the case was the challenge to the legality of the BiOp's clause giving BPA authority to suspend requirements for the hydro system in case of an economic or energy emergency.

The plaintiffs argue BPA's authority is unprecedented in the history of the Endangered Species Act and that it is too vague and broad.

"It's unique and, in our view, illegal," Ford said. "It's a blank check."

For example, no standards, criteria or procedures are prescribed for determining an emergency.

BPA seems intent on continuing to suspend the BiOp into next year even though energy prices have dropped and the West Coast electricity crisis has eased, Ford noted.