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Federal Judge Hears Oral Arguments on BiOp

by Barry Espenson
Columbia Basin Bulletin - April 25, 2003

Will Rule Soon

A federal judge who has said he is predisposed toward overturning the federal government's plan for Columbia River basin salmon recovery said Monday he gained "food for thought" from hearing oral arguments in the lawsuit pressed by conservation groups.

U.S. District Court Judge James A. Redden launched the hearing by telling the crowded courtroom that "the government has a very difficult and daunting task" to convince him that the recovery strategy did not rely on improper factors.

The lawsuit takes to task the Federal Columbia River Power System biological opinion issued by the NOAA Fisheries (National Marine Fisheries Service) in December 2000. The document addresses the impacts of the federal hydrosystem on 12 basin stocks of salmon and steelhead that are listed under the Endangered Species Act.

The BiOp said that planned hydrosystem operations did jeopardize the existence of eight of those listed stocks, but prescribed 199 other actions that could be taken to avoid jeopardy. The list (Reasonable and Prudent Action) included hydrosystem fixes to improve survival as well as actions taken "off-site" to improve harvest and hatchery practices and habitat. The agency's biological analysis showed that the combination of survival improvements would avoid jeopardizing the species.

The plaintiffs have asked that the RPA and "incidental take statement" authorized by the BiOp be declared illegal -- "arbitrary and capricious" -- and that NOAA be required to withdraw the BiOp and begin consultations with federal hydro operators on a new strategy.

The lawsuit says the RPA improperly relies on future federal, state, and private mitigation actions that have not undergone the section 7 consultation required by the ESA and/or are not "reasonably certain to occur, a requirement of federal implementing statutes.

Redden, in a "draft opinion" issued April 15, said the plan's dependence on so-called federal, state, tribal and private off-site mitigation measures to boost fish survival is "untenable."

"My conclusion is that the RPA adopted by NOAA to avoid jeopardy to salmon species, both for the sort-term and the long-term, fails to identify off-site mitigation measures that are reasonably certain to occur," the judge wrote.

He concluded, in the draft, that the defendant's request for summary judgment "should be granted on the issue of the 'no-jeopardy' 2000 BiOp being invalid because it relies upon a flawed RPA analysis, and in all other respects denied as moot."

A host of participants in the lawsuit are now awaiting Redden's final word. In closing the hearing, the judge said he would issue an opinion soon. Both sides in the argument agreed that, if the final opinion mirrored the draft, NOAA fisheries should be given a deadline to complete the BiOp revision. They disagreed, however, about what should happen in the interim.

Justice Department attorney Sam Rauch said that the agency should continuing following the terms of the existing BiOp until the new strategy is completed. Earthjustice attorney Todd True said the current BiOp should be invalidated.

"It can't stay in place," True said.

One of the primary issues debated Monday was whether desired state, tribal and private actions described in the federal "Basinwide Salmon Recovery Strategy" were improperly used in the jeopardy analysis. The recovery strategy was released simultaneously with the BiOp and describes a wide range of activities intended to improve fish survivals. And while the BiOp RPA, by law, describes actions with direct federal links, the BSRS goes beyond that.

In his draft opinion, Redden noted that, "NOAA concluded that '[t]he increased reliability of implementing the [BSRS] measures, together with other ongoing Federal measures. ensure that each of the eight ESUs will have a high likelihood of survival and a moderate-to-high likelihood of recovery.' "

True argued that the BiOp analysis improperly plugged in BSRS measures that were not RPA measures and thus are not reasonably certain to occur.

"The RPA and jeopardy analysis relies on future actions (by state, tribal and private entities) that the federal agencies cannot enforce," True told the judge. Likewise, the analysis included federal actions that had the required section 7 consultation and thus are also not certain to occur, True said. He used as an example the Interior Columbia Basin Ecosystem Management Project, which is part of NOAA's RPA justification. The ICBEMP is to guide Forest Service and Bureau of Land Management long-term management of habitat.

True called the BSRS "a collection of ideas about what might be done" to recover salmon populations, and said the law says uncertain future actions can't be the basis for a jeopardy finding.

"The ESA is centered on the concept of institutionalized caution," True said, meaning NOAA had the responsibility to assure that the stocks won't go extinct.

True also said that "many of the RPA actions themselves are vague."

Rauch insisted that the analysis does not rely on non-federal actions outlined in the BSRS.

"There are other things to be done out there, but NMFS does not rely on them," Rauch told the judge.

Rauch rattled off a long list of RPA habitat and hatchery measures that would in great part by state, tribal and private, and other federal agencies entities but funded with federal dollars. They include habitat and hatchery projects channeled through the Northwest Power and Conservation Council's fish and wildlife program, and its developing subbasin planning process. The Council-directed activities are funded by the Bonneville Power Administration. BPA is one of the three federal "action" agencies charged with implementing the BiOp. Other action agencies are the Corps of Engineers and Bureau of Reclamation, which operated the dams.

"It is incorrect to say this biological opinion relies on state and private actions," Rauch said.

The original complaint against NOAA Fisheries, filed in May 2001 by a coalition of fishing and conservation groups, claims the 2000 NMFS BiOp violates the ESA and Administrative Procedures Act by "arbitrarily, capriciously and without any rational basis concluding" that the BiOp avoided jeopardy. The BiOp strategy has been described as an "aggressive, non-breach" approach to improving salmon survival. Most if not all of the groups signed on as defendants have pushed for the additional measures of removing four dams on the lower Snake River to ease fish passage and provide additional habitat.

Listed as plaintiffs in the lawsuit are: National Wildlife Federation, Idaho Wildlife Federation, Washington Wildlife Federation, Sierra Club, Trout Unlimited, Pacific Coast Federation of Fishermen's Associations, 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, American Rivers, Federation of Fly Fishers and Northwest Energy Coalition.

Lined up with NMFS as intervenor defendants are the state of Idaho, Northwest Irrigation Utilities, Public Power Council, Washington State Farm Bureau Federation, Franklin County Farm Bureau Federation, Grant County Farm Bureau Federation and Inland Ports and Navigation Group.

Plaintiffs' "Amici" are Oregon and the Umatilla, Warm Springs Tribes, Yakama and Nez Perce tribes. Defendant's Amici are the states of Montana and Washington.

Barry Espenson
Federal Judge Hears Oral Arguments on BiOp
Columbia Basin Bulletin, April 25, 2003

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