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State, Tribal Coalitions, Feds Oppose Inserting Science Panel, Settlement Judge into BiOp Remand by Staff Columbia Basin Bulletin, November 18, 2011

Judge James A. Redden in a recent e-mail invited the federal government to respond to an Oct. 25 request that a court-appointed panel of independent scientist and a settlement judge be added to an ongoing process aimed at shoring up the strategy for protecting Columbia River basin salmon and steelhead stocks listed under the Endangered Species Act.

He got more than he asked for.

The Columbia Snake River Irrigators Association, and two coalitions -- made up of the states of Idaho, Montana and Washington and of the Kootenai Tribe of Idaho, the Confederated Salish and Kootenai Tribes and the Colville Confederated Tribes-- all asked permission to respond to the Oct. 25 proposal.

And, in case the U.S. District judge says yes, all three also filed briefs Wednesday on the topic. Today Redden issued orders granting the "motions for leave" to file the comments from the irrigators, tribes and states.

So did the U.S. Justice Department, which had been given a Nov. 16 deadline by the judge to respond to the Oct. 25 requests from a coalition of fishing and conservation groups led by the National Wildlife Federation, the state of Oregon, and the Nez Perce Tribe.

Those requests said "... NWF respectfully asks the Court to take two steps, both within the context of the current remand, to bring sufficient accountability to the remand to ensure that it results in a scientifically sound and legally adequate revised biological opinion." Those requested steps would involve the appointment of a settlement judge and the creation of an independent science panel to review the work being done to repair NOAA Fisheries Federal Columbia River Power System biological opinion.

"An independent review of the agencies' implementation of the BiOp would inform the Court whether federal defendants are meeting the Court's expectations during this remand period," according to comments filed by Oregon's Attorney General's Office. "And a settlement judge could bring all the parties together, and move them towards a biological opinion that satisfied each side, while also satisfying the expectations of the Court and the underlying requirements of the law.

The federal document filed this week asks that the judge "decline" the requests, insisting that the process in place for fortifying the BiOp is well on its way to satisfying the judge's concerns about the government's strategy for boosting salmon stocks. That plan is NOAA Fisheries' 2008/2010 Federal Columbia River Power System biological opinion.

(For more information, see CBB, Oct. 28, 2011, "Salmon BiOp Challengers Request Court Appoint Settlement Judge, Science Panel For Remand" www.cbbulletin.com/413581.aspx)

Redden in an Aug. 2 opinion and order said federal defendants had failed "to identify specific mitigation plans to be implemented beyond 2013. Because the 2008/2010 BiOp's no jeopardy conclusion is based on unidentified habitat mitigation measures, NOAA Fisheries' opinion that the FCRPS operations after 2013 will not jeopardize listed species is arbitrary and capricious."

"The ESA prohibits NOAA Fisheries from relying on the effects of uncertain and speculative actions that are not 'reasonably certain to occur,'" Redden wrote.

The judge ordered a court-monitored remand with a Jan. 1, 2014, due date for delivery of "a new biological opinion that reevaluates the efficacy of the RPAs in avoiding jeopardy, identifies reasonably specific mitigation plans for the life of the biological opinion, and considers whether more aggressive action, such as dam removal and/or additional flow augmentation and reservoir modifications are necessary to avoid jeopardy." RPAs (reasonable and prudent alternatives) are mitigation actions, such as changed hydro operations and habitat restoration, listed in the BiOp for implementation.

The judge says the BiOp is based on habitat mitigation measures for 2014 and beyond that have yet to be identified. He ordered the federal agencies to, in collaboration with sovereign states and tribes, identify mitigation actions through the term of the BiOp that assure sufficient fish benefits to avoid jeopardizing the species. Such actions are intended to improve survival of fish negatively impacted by the dams.

The BiOp, issued in May 2008 and supplemented in 2010, says that, when planned mitigation actions are factored in, federal Columbia-Snake hydro projects do not jeopardize the survival of salmon and steelhead stocks that are protected under the ESA. That conclusion was challenged by the state of Oregon and NWF, with the support of the Nez Perce Tribe.

The defendants in the lawsuit are NOAA Fisheries, which is responsible for protecting ESA listed species, and the U.S. Army Corps of Engineers and the Bureau of Reclamation. The Corps and Bureau operated the dams in FCRPS hydo projects in the Columbia and Snake River basins. Also involved as an "action agency" is the Bonneville Power Administration, which markets power generated in the federal hydro system.

The federal brief filed Wednesday says the federal agencies are "fully committed to following the Court's remand order.

"The agencies are aggressively implementing the RPA actions and obtaining scientific and technical data to support mitigation measures and the completion of a new or supplemental biological opinion by 2014. In particular, the agencies are continuing to work with local experts and through established forums to identify specific habitat restoration projects - in the estuary and tributary habitats - through 2018." As now written the BiOp is scheduled to be in place through 2018.

"Consistent with the Court's order, Federal Defendants will continue to collaborate with the States and Tribes in carrying out the remand, and the agencies are committed to ensuring transparency and that the remand is grounded in numerous points of independent scientific reviews," the federal filing says. "The imposition of additional process on top of the already extensive and transparent processes functioning under the RPA and in the Region ensures only one thing: that time and resources will be diverted from administrative actions to implement the RPA and address those deficiencies identified by the Court in its Remand Order."

"Now is the time to stay the course, capitalize on the momentum achieved, and take those remaining aggressive steps to improve and refine the holistic approach to salmon protection embodied in the FCRPS BiOp and RPA. For these reasons, we respectfully request that the Court decline Plaintiffs' requested relief," the federal brief concludes.

In a footnote to its Wednesday filing, the federal government explained that it had on Sept. 30 filed a notice of appeal of Judge Redden's ruling but has not decided whether to pursue that appeal. It also noted that despite filing an appeal, federal defendants did not seek to stay the court's remand order, which called for continued implementation of the existing BiOp through 2013, and fully intend to comply with the court's direction.

The Wednesday filing from the three tribes from the upper Columbia basin also asked the judge to reject the request from the plaintiffs in the lawsuit.

"The KTOI, CSKT and CCT oppose plaintiffs' suggestion that the Court divert the parties from the current remand path to a settlement judge/expert panel path. Such a wholesale revision of the remand process and jettisoning of the Court's clear and careful remand Order is unwarranted, inappropriate, and undermines the comprehensive process of independent science review and adaptive management established by the 2008/2010 Biological Opinion," the tribes' brief says.

"The BiOp is not broken; rather, it must be given time to work," according to the tribal brief. It noted that the Nez Perce Tribe and state of Oregon are a part of the ongoing remand process.

"It is puzzling that the Nez Perce Tribe and the State of Oregon take this position despite being sovereigns with whom the federal defendants have an undisputed obligation (and opportunity) to collaborate," the upriver tribes' brief says.

The states of Idaho, Montana and Washington also urged that the request be squashed.

"Plaintiffs' suggested modifications to the remand order reflect a desire to broaden the scope of the remand and add new layers of review," the states' Nov. 16 brief says. "The suggestions are based upon erroneous claims that the federal government and the collaborating sovereigns are unwilling and/or incapable of addressing this Court's unambiguous remand order requiring the federal government to identify useful mitigation measures that are specific and reasonably certain to occur.

"Because the Three States remain confident that the regional collaboration of sovereigns is committed to a scientifically and legally sound BiOp, and because Plaintiffs' suggestions would duplicate parts of the remand, would add unnecessary layers of review with attendant delay, and would be corrosive to the regional collaboration that has already developed, we oppose the suggested procedural modifications to the remand order," the states' brief concludes.

The brief filed for the Columbia Snake River Irrigators Association, amicus and intervenor-defendant in the lawsuit, didn't weigh in either in favor, or opposed to the NWF proposal.

But. . . "to the extent the Court is disposed to appoint an expert panel to assess the RPA and its implementation, the Irrigators suggest that the panel be composed of industry and non-industry resource planners and resource economists," the CSRIA brief said. "Such expertise, rather than fishery science, can provide valuable advice to the Court as to whether the current 'collaborative process' -- driven largely by representatives of those seeking and obtaining funding for particular projects -- is at all a coherent response to the judicial and statutory mandates to protect salmon."

The NWF, Oregon and Nez Perce Tribe "have perhaps unwittingly drawn attention to the most substantive weakness underlying the federal defendants' salmon management and recovery effort: their persistent failure to subject salmon mitigation and recovery measures to any form of cost-effectiveness analyses. Insofar as no other party appears prepared to demonstrate both why such an approach is legally required and how only sound management utilizing cost-effectiveness analyses can ensure that scarce recovery resources are employed to maximize biological benefits to the salmon. . .," the irrigators brief says.

For more information and documents related to BiOp litigation go to www.salmonrecovery.gov