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Salmon BiOp Challengers Request Court Appoint Settlement Judge, Science Panel for Remand by Staff Columbia Basin Bulletin, October 28, 2011

Legal foes this week filed comments that say the federal government's Columbia River basin salmon protection effort "fails to actually provide a meaningful or transparent" report on progress to-date and asks the judge presiding in the case to appoint a panel of independent scientific experts to ride herd on the process.

The filings by the Nez Perce Tribe, the state of Oregon and a coalition of fishing and conservation groups led by the National Wildlife Federation also ask U.S. District Court Judge James A. Redden to "appoint a settlement Judge or Magistrate Judge to meet with plaintiffs and federal defendants to work to resolve the scope of, and issues that NOAA will address in developing, a biological opinion by January 1, 2014."

The filing comes in a long-running lawsuit regarding NOAA Fisheries' "Federal Columbia River Power System" biological opinion. 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 Endangered Species Act. That conclusion was challenged by the state of Oregon and NWF, with the support of the Nez Perce Tribe.

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."

(For more detailed information see CBB, August 5, 2011, "Redden Orders New Salmon BiOp By 2014; Says Post-2013 Mitigation, Benefits Unidentified")

"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 Jan. 1, 2014 due date for production 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.

Redden also required that the dam operators continue spill operations for fish passage that have been implemented in recent years as outlined in court orders. Those operators, the U.S. Army Corps of Engineers and Bureau of Reclamation, and NOAA Fisheries are defendants in the lawsuit.

And he ordered that annual BiOp implementation reports be submitted to the court and allowed parties to the lawsuit to comment on those reports. NWF, Oregon and the tribe filed comments critical of the "2010 Progress Report" prepared by the Corps, Bureau and the Bonneville Power Administration, which markets power generated in the Columbia-Snake river federal hydro system.

Northwest RiverPartners, which represents power, river and water user interests, gave high marks to the federal agencies for their efforts to implement actions aimed at improving salmon survival.

"The Report outlines the myriad actions being undertaken by federal, state, tribal and private parties to implement one of the most comprehensive, far reaching and expensive plans to protect listed species anywhere," according to RiverPartners.

"The Report describes the steady progress being made in implementing the FCRPS BiOp and to fulfill the requirements of the state and tribal salmon "Accords", including implementation of the 69 specific actions that are part of the FCRPS BiOp's Reasonable and Prudent Alternative (RPA)," RiverPartners said.

The report's data "provides further encouragement that the strategy articulate by NOAA in the BiOp is biologically sound and is producing benefits in both juvenile survival and growth in overall population sizes," according to RiverPartners.

Oregon, NWF and the Nez Perce Tribe disagree.

The report on 2010 activity and progress "offers broad generalizations and opaque tables that fail to illuminate whether the actions broadly described in the RPA are being specifically implemented as anticipated in the 2008/2010 BiOps, whether the survival improvements from these actions are actually accruing as predicted, and what concrete actions the agencies have taken to compensate for any shortfall in either actions or survival improvements," according to comments filed Tuesday by Earthjustice for NWF.

"... 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 steps involve the appointment of a settlement judge and the creation of an independent science panel to review the BiOp work.

"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.

"These processes can occur concurrently with-and need not interfere with-the remand process ordered by the Court.

The Nez Perce comments say it "anticipated that any 'Progress Report' that provides information on the implementation of a flawed BiOp would suffer from the same foundational flaws found in the BiOp.

"That is the case with the 2010 Progress Report," according to the Nez Perce comments. "What is remarkable, however, about the 2010 Progress Report is the extent to which:

1. it does not report on information that the 2010 BiOp itself required, particularly with respect to the habitat actions in the RPA;
2. information that is reported is misleading and selective, and avoids or downplays mention of information that raises doubts about the RPA and might lead to a need to modify either the analysis or the conclusions of the2010/2008 BiOp; and
3. the report contains unsupported conclusions and assertions (e.g., "[r]esults indicate the benefits from the RPA actions implemented to date are likely accruing as expected", Section 1 at 5) that render it nearly impossible for the parties, the Court, or anyone else to assess the accuracy of its assessments."

"For these reasons and for the broader concerns with the remand" the tribe said it decided to join Oregon and NWF in requesting that the judge appoint a settlement magistrate and a science panel.

The NWF comments suggested that after allowing other parties an opportunity to respond to its comments, that the court set a status conference at its convenience to discuss the requests.

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