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Court Finds Feds No Help to Fish

by Michael Milstein
The Oregonian, April 10, 2007

Columbia Basin - The 9th Circuit belittles the Bush administration's salmon plan,
keeping dam removal in play

(AP Photo 2003) President Bush speaks at the Ice Harbor Lock and Dam near Burbank, Washington. A top federal court Monday slapped down the Bush administration's attempt to get out of doing more for imperiled Columbia River salmon, accusing the government of "analytical sleight of hand" in claiming to help salmon when it really isn't.

The three judges of the 9th U.S. Circuit Court of Appeals in San Francisco came as close as sitting judges do to legally ridiculing the U.S. government's claims, among them defending dam operations that essentially counted dead fish as if they were alive.

While the judges didn't say it, their ruling holds open the chance that hydroelectric dams on the Lower Snake River could be torn out to help salmon despite President Bush's 2003 promise they would remain standing.

The case carries high stakes for the future of protected salmon and the complex of Northwest hydroelectric dams that keep the region's power rates low and let ships navigate the river. The stakes may go higher yet as global warming shrinks river flows and raises temperatures toward the danger zone for salmon -- while making hydroelectric power more sought-after because it does not generate greenhouse gases like burning fossil fuel.

But Monday's appeals court ruling carries a very blunt message for the administration: The game is up. Get with the program on salmon, and do it now.

The federal government went to the appeals court with a much different goal in mind. It was contesting the rulings of U.S. District Judge James Redden in Portland, who is getting increasingly tough with federal agencies responsible for protecting salmon.

Redden has demanded that they come up with a better way to remedy the damage that hydroelectric dams do to fish. Dam turbines, for instance, chew up young salmon migrating toward the ocean.

The judge has warned federal agencies that the Snake River dams might have to be torn out if Congress and the president do not help salmon in other ways. Redden said he will not put up with any more botched federal attempts to reduce the impacts of dams on salmon.

Judges, including Redden, have already rejected three such federal attempts by this and former administrations. The state of Oregon intervened in the case before Redden, arguing against the federal agencies.

The agencies are due to present a new strategy in Portland next month.

In the meantime, the federal government went to the appeals court, asking judges there to dial Redden back. The government complained that the Portland judge was off-base in his rulings and was abusing his power with his demands on the agencies.

But the appeals court backed Redden on every point, in what amounted to a complete legal smack-down of the federal government.

Brian Gorman, a spokesman for the National Marine Fisheries Service, on Monday said government officials were reviewing the ruling and had no comment.

The appeals judges especially belittled the government's reasoning that it could disregard much of the harm dams do to salmon because it involves dam operations, irrigation demands and flood control requirements the government said it has no discretion over.

The government argued that the dams, in effect, were part of the background conditions of the river that were out of its control. Therefore, it contended, it need not make sure they comply with Endangered Species Act rules protecting salmon.

Federal agencies claimed the government would have problems only if they proposed something that would be "appreciably" worse for salmon than the already existing conditions.

But Redden flatly rejected that, and so did the appeals court.

First, the appeals judges said the government could not ignore impacts on species by claiming it has no discretion over them. They also said that under the government's approach, "a listed species could gradually be destroyed, so long as each step on the path to destruction is sufficiently modest."

The appeals judges also backed Redden's finding that the government had to not only help salmon survive, but also to recover.

The Snake River once produced more than 1.5 million spring and summer chinook salmon each year, but in recent years the number of wild-born salmon returning to the river has been only a few thousand.

Environmental, fishing and other groups who have pressed the case in court were thrilled by Monday's ruling, seeing it as extra leverage on behalf of salmon and the river.

"This sends a pretty powerful message to the agency that salmon recovery better be apparent from your actions, not your legal somersaults," said Steve Mashuda, an attorney with Earthjustice, the conservation law group handling the case.

Related Sites:
Ninth Circuit Court of Appeals ruling.

Michael Milstein
Court Finds Feds No Help to Fish
The Oregonian, April 10, 2007

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