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NMFS Lawyers Asks Judge to Order Mediation in BIOP Lawsuit

by Bill Rudolph
NW Fishletter, January 18, 2002

NMFS attorneys have asked OR District Court Judge Garr King to order mediation to settle the lawsuit (National Wildlife Federation v. NMFS) environmental and fishing groups filed last May, challenging the legality of the 2000 hydro BiOp. King said Dec. 20 he would take the NMFS request under advisement and asked the parties where they stood on the issue and whether they could pursue mediation and briefings at the same time.

King had already suggested mediation and assigned a consulting group the task of scoping it out. But in a Dec. 12 letter to the court, the US Institute for Environmental Conflict Resolution said that after interviewing the parties, it had concluded the groups had not agreed to pursue mediation.

King said he would defer ruling on a mediation order until he decides whether a judge or magistrate is available to undertake the process, but will issue his decision soon.

Department of Justice attorney Fred Disheroon said the plaintiffs and some of the tribes are "not too interested" in mediation, but the judge could order it anyway. He said NMFS suggested it because the government hopes mediation could come up with a BiOp that satisfies everybody. Disheroon said the government considers a lengthy lawsuit to be wasteful when mediation could provide an opportunity for all parties to settle their differences and get a coordinated effort under way.

Plaintiffs in the case say the hydro BiOp's reliance on off-site mitigation efforts to help boost listed stocks is misguided and illegal. They claim this approach relies on "speculative and voluntary actions" by other federal agencies and state and private entities outside of the authority of the Action Agencies--the BuRec, Army Corps and BPA--involved with the hydro system.

"We don't see where things could go," said Earthjustice attorney Todd True. "But we will do what we have to do." Like Disheroon, True said he hopes mediation can come up with an agreement that satisfies everybody, but reiterated that his group doesn't think the new BiOp satisfies the law.

John Saven, director of intervenor defendant Northwest Irrigation Utilities, agreed with the federal motion. "I think people are better off at the end of the day talking, trying to resolve their differences," Saven told NW Fishletter. He said there is a compelling body of evidence to justify the BiOp, and his group would support it if it comes to that. But if the case goes into mediation, "we would like to put a few things of our own on the table, including actions for fish that are more beneficial than those in place today. Mediation would give us an opportunity to explore those issues."

Plaintiffs in the suit include the National Wildlife Federation, Idaho Wildlife Federation, Washington Wildlife Federation, Sierra Club, Trout Unlimited, Pacific Coast Federation of Fishermen's Associations, the 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, the Northwest Energy Coalition, the Federation of Fly Fishers and American Rivers.

Intervenor defendants include 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.

Amica include the Umatilla and Warm Springs Tribes, the Yakama and Nez Perce Tribes, the Northwest states and the NW Power Planning Council.

Bill Rudolph
NMFS Lawyers Asks Judge to Order Mediation in BIOP Lawsuit
NW Fishletter, January 18, 2002

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