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Judge Calls for more Briefs in BiOp Decision
1-Year Remand Likely

by Bill Rudolph
NW Fishletter, May 20, 2003

Oregon US District Judge James Redden heard advice from both environmental and government attorneys May 16 on how to proceed with his decision earlier this month that the Biological Opinion for Columbia Basin hydro operations was illegal because it relied on too many fish recovery actions that were uncertain to occur.

Earthjustice attorney Todd True argued that the BiOp should be declared invalid. Earthjustice has already filed a 60-day notice to sue the federal government for operating dams under an "illegal" BiOp. He argued that the Administrative Procedures Act called for the BiOp's termination.

Federal attorney Fred Disheroon said that invalidating the BiOp would create chaos in both hydro operations and financially strapped agencies that would be charged with writing a new one. He said the case law was clear--"the court must look at the magnitude of disruption."

Judge Redden called for Earthjustice and the government to file briefs within a month to argue these points. He had discussed whether earlier efforts at mediation could be revived to settle the suit, but neither side seemed much interested. Disheroon told the judge that the plaintiffs had walked away from the table during that effort. It's one of few public remarks made by any party to the mediation, which remains secret to this day.

The judge seemed inclined to settle the action soon. "I have a recurring nightmare that we're still talking up here about the fish problem and somebody catches the last one," Redden said. He said he was inclined to give NOAA Fisheries a year to satisfy his May 7 ruling with status updates every 90 days.

So for now, the BiOp still hovers over the region. If it is thrown out while NOAA revises it, environmental groups could sue to add more fish recovery elements. As long as it stays in place, NOAA is immune from such lawsuits. "We don't think they're [defendants] doing enough to protect the fish," said True.

Tim Weaver, representing the Yakama Nation, said his clients felt that the feds' argument was more about protecting BPA's concerns than the fish. "We've never seen the zero-aluminum-ingot option, but we've seen the zero-fishing option," Weaver told the court.

Though breaching the four dams on the lower Snake wasn't mentioned at the May 16 hearing by True, lead plaintiff National Wildlife Federation was not shy about bringing it up after the judge's May 7 ruling. "We and others have long maintained that based on the best scientific evidence, restoring the river will require removing the four lower Snake River dams," said NWF's executive director Mark Van Patten. "We also maintain that if the dams are removed, investments will be needed to replace the hydroelectric energy and barge transportation the dams created."

The notice to sue letter filed May 9 by Earthjustice alleges that 5 to 15 percent of migrating juvenile salmon and killed in passing each mainstem dam and associated reservoir. They also say the dams are responsible for killing migrating adults "in large numbers."

The Earthjustice letter says, that after the judge's ruling "the hydro system must be operated to avoid jeopardy without reliance on future uncertain federal, state, and private actions to offset hydrosystem-caused harm. It is apparent from the 2000 BiOp itself that such means have not yet been identified. Once the hoped-for beneficial off-site actions are taken out of the analysis, it is also apparent that current operation of the FCRPS [Federal Columbia River Power System] is jeopardizing listed species and adversely modifying critical habitat, in violation of the ESA."

But regional NOAA Fisheries administrator Bob Lohn said he was encouraged by the judge's remarks. He said his agency must choose whether to respond to the technical issues of the ruling and more carefully "document" the certainty of fish recovery actions outside the hydro system, or undertake a more intense analysis that uses more and better information than was previously available.

Lohn said he couldn't claim all the credit for improved fish numbers, which have benefited from a huge improvement in ocean conditions over the past few years. Many smolt-to-adult return rates have improved ten-fold since the BiOp was released in 2000.

At that time, language in the document said NOAA acknowledged "a state of perilous decline" of many salmon and steelhead stocks, a point echoed by Judge Redden in his opinion. Snake River escapements of wild spring Chinook dipped below a thousand fish in both 1995 (764 chinook) and 1999 (597 chinook), but have bounced back significantly since then. In 2000, the spring escapement was 3,332 fish, in 2001 it reached 17,195 fish, and 2002 saw more than 34,000 wild spring chinook return to the Snake.

In some circles, these big fish numbers mean that the BiOp's scientific foundation is too negative, since the extinction risk for the listed stocks was calculated when they were at rock bottom levels. "The sooner they throw out the BiOp, the better," said one Northwest scientist extensively involved in salmon recovery.

1999 Portland Billboard But in their initial filings, Earthjustice and others claimed that the federal analysis painted too optimistic a picture of fish populations. The groups cited a study by Trout Unlimited that said the Snake spring chinook could be extinct by 2016. The analysis, called "The Doomsday Clock," had been panned publicly by several scientists.

In general, Lohn said the fish are doing much better, and the current BiOp is working, noting that the court has never said it wasn't working. He pointed out that only two of the 199 BiOp actions are truly behind schedule.

However, this year's "findings" letter by the federal fisheries agency, released May 14, says that schedule slippage in the areas of subbasin planning and action effectiveness monitoring "will likely impact the Action Agencies' ability to demonstrate 'that proposed actions can increase life stage survivals,' and that they are 'being implemented at a scale sufficient to avoid jeopardy' -as called for as part of the 2005 and 2008 check-ins."

The letter also says that unless an alternative means of assessment can be developed quickly, at this year's check-in, NOAA Fisheries will need to evaluate whether the BiOp's reliance on offsite mitigation may be more uncertain beyond the 2005 check-in "and any significance for avoiding jeopardy.

Lohn told NW Fishletter that the two areas are behind schedule for different reasons. The sub-basin planning effort, overseen by the Power Planning Council, has been slow to materialize, but is now underway. Just two weeks ago, the council voted to fund fledging planning efforts in several more subbasins.

The complicated monitoring and evaluation effort was included in the 2003 Bush administration budget, Lohn said, but the $12 million appropriation was axed by Congress. He said $15 million has been proposed for the coming year.

Bill Rudolph
Judge Calls for more Briefs in BiOp Decision; 1-Year Remand Likely
NW Fishletter, May 20, 2003

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