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Salmon-Protection Plan Falls Short, Judge Rules by Associated Press Seattle Post-Intelligencer - May 8, 2003

PORTLAND -- A federal judge ruled yesterday that government programs to protect threatened and endangered salmon runs in the Columbia River Basin do not meet the requirements of the Endangered Species Act.

In December 2000, NOAA Fisheries issued a strategy for protecting Columbia Basin salmon, known as a biological opinion, that focused on improvements to habitat, hatchery operations and harvest limitations without breaching four dams on the lower Snake River. Some environmentalists wanted the dams breached.

A coalition of environmental and fishermen's groups sued in May 2001, claiming the opinion "capriciously and without any rational basis" concluded that the plan would not put the fish stocks in jeopardy of extinction.

U.S. District Judge James Redden heard oral arguments April 21. His 26-page opinion yesterday agreed with the plaintiffs. He sent the biological opinion back to the National Marine Fisheries Service and told the service to develop a plan that complies with the law.

"We have a real opportunity here and we want to be sure we get a plan adequate to protect the fish," said Todd True, an attorney for Earthjustice, one of the plaintiffs.

True argued that the government has a duty to ensure its actions will not put endangered stocks in jeopardy as opposed to providing the likelihood that they will not.

"It cannot be based on chance, on the hope that good things will happen in the future," he said.

The Endangered Species Act, he said, is "an institutional caution. We don't take chances with species listed as endangered by extinction."

Samuel Rauch III, arguing for the Justice Department, said the government is not required to ensure that the stocks won't go extinct, only to "not ... diminish the likelihood of recovery" from a threatened species listing.

The question he said, "is will the measures (for survival) be in place when the species needs them?" and noted that salmon runs in recent years have been in relatively good shape.

He said it is not a matter of whether the government is doing all it possibly can do. "The test is whether it diminishes the opportunity for recovery," he said, contending that the dam system as currently managed does not.

Plaintiffs argued that the biological opinion underestimates the risk of extinction and that conservation measures that do not affect the dams directly are speculative and voluntary.

"The biological opinion found a lot of things that might happen, that it hoped would happen, such as improved stream flows or restoration of habitat in estuaries," True said. "They feel that if all those things happen, they might be able to protect the fish."