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Attorneys Promise more Lawsuits Over Northwest Salmon Issues by Bill Rudolph NW Fishletter, February 6, 2004

One message came out loud and clear from a recent two-day session that updated ESA issues for Northwest lawyers--don't expect any letup in salmon litigation anytime soon.

In fact, Peter Goldman of the Washington Forest Law Center promised another lawsuit once Washington state's Forest and Fish Agreement is crafted into a habitat conservation plan for state's timber industry that's designed to satisfy ESA requirements for fish protection, along with federal and state obligations for timber harvest on private lands.

Goldman said the buffer zones along salmon streams do not offer enough protection for fish. He said when trees fall across creeks, improving riparian habitat, a stream may flood outside the buffer zone into areas of less protection.

Some environmental groups had already taken the Forest and Fish Agreement to federal court, but their lawsuit was ruled premature because NMFS had not yet reviewed the state board's final rules.

Earthjustice attorney Patti Goldman was beaming from a recent win (Washington Toxics Coalition et al v. EPA) in Washington District Court, where federal judge John Coughenour signed an order establishing interim no-spray zones for pesticide (containing any of 54 different ingredients) applications along streams home to West Coast salmon populations listed under the ESA (20 yards for manual spraying, 100 yards for aerial spraying, with some exceptions). The judge issued the order while EPA consults with NMFS over the use of certain pesticides near streams inhabited by listed fish populations.

Coughenour's ruling also called for labeling certain pesticides as "salmon hazards" at points of sale in urban areas.

Former NMFS regional administrator Will Stelle, who now practices law in Seattle, sparred with Earthjustice attorney Todd True over the Redden decision (NWF v. NMFS) last May that invalidated the biological opinion that governed the Columbia River hydro system.

Stelle said federal agencies took a creative approach to the Endangered Species Act, while the Oregon judge made "a fairly literal interpretation" of the law, finding fault with the government's reliance on future actions that either hadn't undergone consultation or were not reasonably certain to occur, namely off-site mitigation by states, tribes and private groups expected to improve salmon productivity enough to let the hydro system off the hook for jeopardizing endangered or threatened runs.

Stelle said the Redden decision revealed the flaws in the ESA , namely that most factors of decline can't be used when consulting over a single plan such as the habitat conservation plan completed by mid-Columbia PUDs. Screening out future federal efforts that haven't yet gone through ESA consultation leads to a highly distorted view of the future, Stelle said. He questioned who won and what did they win in the BiOp remand.

"Did good science win? No, not at all." Stelle said.

By sending the BiOp back for remand, he said the region does not have a robust risk assessment of trends in the future. According to the ex-NMFS official the fix is "quite simple," to change the ESA regulation that's based on a 1981 solicitor's opinion (Spradley).

Earthjustice attorney Todd True, who represented plaintiffs in the BiOp lawsuit, spoke at the same gathering. Politicians who drafted the ESA never thought it would be used to review something like the Columbia River hydro system, said True, but the law "can work in new situations."

True said the 2000 BiOp suffered from an excess of "bureaucratic creativity," noting that he didn't think the intent of the original law, for example, would have called for salmon mitigation "two states away" from the hydro system in another stage of the fishes' life.

Just a few weeks ago, True's group filed another lawsuit that deals with the hydro BiOp. After mediation led by Idaho Sen. Mike Crapo (R) failed to head off a threat by environmental groups to go after more water for ESA-listed salmon in Idaho, Earthjustice filed against NOAA Fisheries in Oregon District Court calling for an evaluation to determine how much water from the upper Snake is needed to help fish migrating past lower Snake dams.

NOAA Fisheries had earlier completed a separate biological opinion for the upper Snake projects, which are operated by the Bureau of Reclamation, and issued a finding that their operation did not jeopardize the listed species.

The hydro BiOp that governs operation in the lower Snake and Columbia rivers now calls for 427,000 acre-feet of water from Idaho on a willing buyer-willing seller basis, but environmental groups say that more water is needed to reach flow targets designated in the BiOp. Water users are concerned that if environmentalists prevail, farmers could be forced to take a million acres of land out of production.

Yet another water fight may be headed for the US Supreme Court. The Pacific Legal Foundation said it will ask the country's highest court to review a recent decision involving water users in northeast Washington's Methow Valley, who lost an appeal in the Ninth Circuit Court over an earlier decision that upheld the action of the US Forest Service to regulate water across federal land on its way to private ditches. Defendants had claimed that federal authorities were usurping water rights granted by the state. PLF attorney Russell Brooks said the ruling would upset nearly 200 years of Western water law if it is upheld.