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Former U.S. Attorney to Lead BIOP Mediation Effort

by Barry Espenson
Columbia Basin Bulletin - January 25, 2002

Former U.S. Attorney for Oregon, Sid Lezak, has agreed to lead a mediation effort among the parties involved in a lawsuit that claims a 2000 National Marine Fisheries Service Federal Columbia River Power System biological opinion is doomed to failure and should be rewritten.

U.S. District Court Judge Garr King in a Tuesday order pushed back the briefing schedule in the case to accommodate the mediation effort. The plaintiff's opening briefs, originally scheduled for Jan. 31, are now due March 7. NMFS filed the administrative record in the case in October. Oral arguments in the case are scheduled July 8.

"We've reached an agreement with the parties in the case to spend at least a month or so trying to get mediation going," Fred Disheroon of the U.S. Justice Department, which requested the mediation.

He was unwilling to predict the outcome of the mediation effort, but stressed this week that it isn't an all-or-nothing effort. The ideal solution for NMFS would be to settle all of the plaintiffs' issues and render the lawsuit moot. If not, "maybe you could resolve some of the issues," Disheroon said.

"The BiOp itself calls for a lot of cooperation with the salmon managers," Disheroon said. The federal government would like to follow that same approach during the mediation effort, he said.

The complaint was 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.

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 states of Idaho, Montana, Oregon and Washington, Northwest Irrigation Utilities, the Public Power Council, the Franklin and Grant County Farm Bureau Federations, the Washington Farm Bureau Federation, and the Inland Ports and Navigation Group received defendant intervenor status.

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

Barry Espenson
Former U.S. Attorney to Lead BIOP Mediation Effort
Columbia Basin Bulletin, January 25, 2002

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