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One Last Round for 2014 BiOp Fight by Bill Rudolph NW Fishletter, July 6, 2015

The fight over the 2104 hydro BiOp entered the public arena June 23, as attorneys for fishing and conservation groups sparred with government litigators during oral arguments [National Wildlife Federation v. National Marine Fisheries Service] in open court, which was overflowing.

New BiOp judge Michael Simon of the U.S. District Court for the District of Oregon refereed the bout and was careful not to tip his hand with his questions and comments.

At the end of a long day in his federal courtroom in Portland, Simon said he planned to do a lot more studying before he decides on whether NMFS's latest plan for operating federal dams and im-proving ESA-listed fish runs passes muster. Whatever he decides may not make much difference at this point, since the latest version of the 10-year plan runs out in 2017, but it could help pave the way for the next one.

The new judge at times delved deep into the BiOp weeds. Simon queried government officials regarding "delayed mortality," along with a certain table in the BiOp that seemed to indicate wild spring Chinook numbers were declining in the upper Grande Ronde River, with that run on its way to extinction.

But government attorneys said any delayed mortality cannot be measured, which shows the value of the feds' life-cycle analysis. As for the table in question, the feds said the judge was not looking at the information correctly, and that the highs and lows in the population are a lot different from the averages noted in the table.

"These dynamics are very complicated," said U.S. Department of Justice attorney Michael Eitel. The government promised to send him an explanation of how to read those tables correctly. (Later, one federal official told NW Fishletter that only 62 percent of juvenile spring Chinook from the upper Grande Ronde even survive to Lower Granite Dam.)

The dynamics in the courtroom were complicated as well. Plaintiff attorney Todd True, who has led the legal challenges to various hydro BiOps over the past 20 years, led the charge, supported in the latest litigation by attorneys from the state of Oregon and the Nez Perce Tribe.

But gone are the days when plaintiff lawyers expounded at length on the runs "spiraling towards extinction." In the current battle, they have focused on legal interpretations of the feds' jeopardy analysis that the previous BiOp judge, James Redden, never ruled on.

Much of the day was spent picking over the particulars of legal terminology in other cases that plaintiffs used to argue the jeopardy analysis is illegal.

Simon also questioned plaintiff attorneys regarding their allegation that the government ducked its legal obligations by not preparing an EIS for the entire BiOp. He seemed somewhat sympathetic to plaintiffs' arguments that an EIS should have been written, and was not impressed by the government's claim that plaintiffs should have brought up the issue years ago when comments were being addressed during the writing of the 2008 BiOp.

But the judge asked plaintiffs' attorney True what purpose an EIS would serve at this point. True said a programmatic EIS could show where the region's energy should go to protect the salmon, which could include more spill at dams; whether the habitat restoration program should be larger or smaller; and maybe look at "bypassing" dams on the lower Snake River--a code word for breaching the dams, long an ultimate goal of these many years of litigation.

True also said the region is still "in a rut on flow augmentation" and more water from the upper Snake might be available to aid migrating fish below Hells Canyon, which seemed to dismiss the 20 years of negotiation that led to a historic water-rights adjudication settlement and promised 487,000 acre-feet in annual flow augmentation from the upper Snake.

True also argued that NOAA can't tie any of the increases in fish numbers to the Reasonable, Prudent Alternative (RPA) developed by NMFS and Action Agencies--74 different measures that allow the dams to operate without jeopardizing ESA-listed runs--which include improvements to dam passage, hatchery operations, and a huge habitat-restoration program in tributaries and the Columbia River estuary.

True said correlations are not necessarily causation, and factors outside the RPA are likely responsible for increases in fish survival--ocean conditions, high flows, high involuntary spill levels, and the court-ordered spill.

But Simon was skeptical. "So what if they [NMFS] can't tie specific improvements to a specific action item," asked the judge. "What are the legal consequences of that?"

"A little success doesn't cure the problem that this biological opinion has," True replied. The judge ended by saying he didn't think the fact that the feds couldn't tie improvements to a specific action had any legal significance.

Government attorney Eitel said the BiOp's actions are actually reducing jeopardy to ESA-listed fish, but they don't have to reach any "line," as True argued, where no potential jeopardy must be reached, as long as the actions do not appreciably reduce the likelihood of survival and recovery.

"It's not a rigid standard," Eitel said, and that is why the agencies are looking at the life cycle of the fish in question, to determine what those species need for survival and to improve their prospects for recovery.

He also took issue with Oregon's comments about critical habitat, which argued that the feds should compensate for the hydro system itself. He said habitat actions can't do that alone, and the state's remarks pretend there is nothing being done in the hydro system to improve survival.

Federal attorneys earlier had testified how much ESA fish survival had improved under the RPA, and will help the runs deal with future adverse affects of climate change. At dams, for instance, more fish are moving past modified projects with the same volume of water compared to previous years. Eitel said before 2008, juvenile survival of yearling Chinook at The Dalles Dam was 91 percent. After extensive modifications, which included hazing of avian predators, survival has gone up to 96 percent.

He said during a low-flow year like 2010, improvements at the dams helped juveniles transit the hydro system "significantly faster" than in earlier years.

As for habitat improvements in the tributaries and estuary, Eitel said "expert judgment" using the "best available science" has governed BiOp actions in these areas.

In his closing remarks, Eitel said the fundamental point is that the biological opinion is an expert opinion put together not just by agencies, but sovereigns as well, and was put together in a rational manner. There will always be disagreements in these areas, he said, but that disagreement should not suffice to overturn this biological opinion.

Comments from tribal attorneys representing the Colville, Kootenai, Warm Springs, Umatilla and Yakama tribes also supported the BiOp and its collaborative efforts, along with remarks from the state of Washington, which also spoke for Montana and Idaho.

Attorney Beth Ginsberg, representing intervenor-defendant Northwest RiverPartners, discussed the issue brought up by her client's declaration that the state of Oregon was supporting the same federal jeopardy analysis found in two other BiOps (upper Snake and harvest) that it said was illegal in the hydro BiOp.

Judge Simon questioned her about it. "Even if you're right, so what?" he asked.

Ginsburg said it made a difference for both pragmatic and public-policy reasons. She said the "dense" technical arguments Oregon had made in declarations filed earlier with the court focused on mainstem passage and called for more spill at dams. More spill would be economically harmful to NRP members, she said--that was the pragmatic reason.

But she said Oregon should also be consistent, for public-policy reasons, in supporting the federal analysis in both the Columbia Basin harvest BiOp and the Federal Columbia River Power System hydro BiOp.

Stephanie Parent, representing Oregon, said her state's positions were not inconsistent, but the actions were different in the two BiOps, and the harvest actions under review didn't have nearly the large magnitude of harm caused by dam operations.

BPA customer groups seemed pleased with the proceeding. "The coalition of federal and state agencies, most Columbia River Basin tribes, the Inland Ports and Navigation Group, and Northwest RiverPartners brought their A-game to the courtroom," said NRP Executive Director Terry Flores. "Their comments emphasized collaboration, the agreed-to science and the fact that BiOp measures are actually working to benefit fish."

Flores also said RiverPartners took the air out of Oregon's arguments by noting that, on the one hand, the state is promoting the harvest of fish, while in Simon's courtroom they maintain the salmon are going extinct.

The June 23 hearing could be the last round in a battle that began many years ago. The latest version of the hydro BiOp fleshed out the previous BiOp with more habitat actions, as ordered by now-retired federal judge Redden in August 2011.

Redden faulted the original salmon plan for not having specific actions for improving habitat beyond 2013. The new supplement contains more actions that focus on tributary and estuary improvements to be completed between 2014 and 2018, when the BiOp ends.

The latest BiOp also calls for beginning the fish-barging program earlier, mainly to improve wild steelhead numbers. The added spill in recent years has reduced the number of fish collected for barging, and has likely had an adverse effect on steelhead returns. For the 2015 season, though, the court-ordered spill regime was maintained by action agencies.

After 2015, the new BiOp's summer-spill program will end earlier in August than in past years. If fewer than 300 smolts show up at Snake River dams for three consecutive days, barging will be terminated.

The new BiOp also calls for more action to reduce avian predation, namely by reducing the size of the cormorant colony in the estuary and the tern colonies in the upper Columbia.

The suit's plaintiffs include the National Wildlife Federation, Washington Wildlife Federation, Idaho Wildlife Federation, Sierra Club, Pacific Coast Federation of Fishermen's Associations, Institute for Fisheries Resources, Idaho Rivers United, Northwest Sportfishing Industry Association, American Rivers, International Federation of Fly Fishers, Salmon for All, NW Energy Coalition, Columbia Riverkeeper and intervenor Oregon.