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Attorneys Present Pros/Cons of Columbia/Snake Salmon BiOp at Federal Court Oral Argument Hearing by Staff Columbia Basin Bulletin, June 26, 2015

The 74 "Reasonable and Prudent Alternatives" in NOAA Fisheries' 2014 Federal Columbia River Power System biological opinion for salmon and steelhead are producing results, according to government and tribal attorneys as they gave their oral arguments Tuesday in defense of the BiOp before Judge Michael H. Simon in U.S. District Court in Portland.

On the other hand, the coalition of environmental, conservation and fishing advocates, along with the State of Oregon and the Nez Perce Tribe, say that NOAA Fisheries, after trying five times in 14 years, still has it wrong and that the uncertainty in this BiOp will not keep threatened and endangered salmon and steelhead from their route to extinction.

They also argued that the latest plan needs to go through a National Environmental Policy Act process, which requires an environmental impact statement, which the governmental agencies - the U.S. Army Corps of Engineers and the Bureau of Reclamation - have yet to do. That means, the plaintiffs said, that the RPAs have not been evaluated.

At the same time, the defendants wondered aloud in court whether they could ever offer up a BiOp that would satisfy the coalition of groups and that wouldn't also result in yet another challenge.

Some 13 species of salmon and steelhead that migrate through the federal Columbia/Snake river basin hydropower system are listed as threatened or endangered under the federal Endangered Species Act. Biological opinions and their RPAs are intended to ensure naturally-spawning fish avoid extinction and recover to sustainable populations.

Attorney Michael Eitel, representing the three government action agencies responsible for salmon recovery in the Columbia River Basin, said getting to this point, the latest BiOP, has included the most rigorous and collaborative consultation process ever and has been years in the making.

The process included a team of experts and independent science review to come up with a mitigation package (the RPAs) "that is massive throughout the whole freshwater life cycle of the salmon, all to affirmatively improve the survival of these species," he said. "The prospects for recovery are better for salmon under this RPA."

"Yet, no matter how collaborative the planning is, the plaintiffs will never be satisfied," Eitel said. "They will always want more."

A coalition of fishing and conservation groups headed by the National Wildlife Federation challenged in July 2014 NOAA's 2014 BiOp, which had replaced the 2008 BiOp and the 2010 supplemental BiOp.

Years earlier NWF successfully obtained legal rejection of the 2000 and 2004 BiOps. The 2008 and 2010 BiOps too were rejected.

The states of Idaho, Washington and Montana, the Nez Perce Tribe, Kootenai Tribe of Idaho, Confederated Salish and Kootenai Tribes, Confederated Tribes of the Umatilla Indian Reservation, Confederated Tribes and Bands of the Yakama Nation, Confederated Tribes of the Warm Springs Reservation of Oregon, Confederated Tribes of the Colville Reservation, Inland Ports and Navigation Group, Northwest River Partners, and the Northwest Power and Conservation Council are participating in this latest lawsuit.

The Nez Perce Tribe is the only Indian tribe to side with the plaintiffs. The State of Oregon joined the suit as a plaintiff-intervener in late September 2014, as it had done in past legal challenges to the federal salmon BiOps.

With thirteen attorneys lined up to speak - four for the plaintiffs and nine for the defense - Judge Michael H. Simon, new to this biological opinion case (he replaced retiring Judge James Redden last year), continually interrupted the attorneys to ask clarifying questions and to challenge assertions by attorneys on both sides.

He had not offered opening comments and his closing comments were directed to the attorneys, who he said had provided precise and helpful information that will help him decide the case, which he will decide later this year.

Simon clearly had studied the issue and was prepared for the oral arguments. However, at no time did he show his hand as to how he would rule. He had most recently been involved with legal cases about culling double-crested cormorants in the Columbia River estuary and removing and killing sea lions at Bonneville Dam. He approved the measures in each case.

Earthjustice attorney Todd True said the 2014 BiOp's jeopardy standard is contrary to the law and doesn't define recovery let alone address how to achieve recovery of the 13 species of Columbia and Snake river salmon and steelhead listed under the ESA. He added that hydro operations will actually reduce survival of the listed species along with their likelihood of recovery.

"The 2008 to 2018 BiOp is a ten-year BiOp. Must we get to no jeopardy by 2018?" Judge Simon asked True.

"Yes," True answered. "There is not an option to get to 2018 and say 'Whoops!'"

All actions might take multiple generations of fish to finish, Judge Simon said of the 74 RPAs. What does it mean if it takes several lifespans for each species?

True said that is not spelled out in the BiOp. "Some actions may accrue more immediate benefits, but we don' know that." He said the BiOp should say "here is what we have at the end of ten years: here is what we can do later. We just don't have that." The BiOp needs an end point to measure against, he added.

Attorney Stephen Mashuda argued for the plaintiffs that it "would be impossible to avoid jeopardy without considering the impacts on jeopardy of climate change," which the BiOp doesn't do, he said.

NOAA limits impacts (of climate change) to a 10-year term, but relies on benefits from RPAs that may not accrue for decades. "That mismatch leads to an artificial and inflated picture," he said.

Further, Mashuda said, the BiOp doesn't look scientifically at the freshwater impacts of climate change - it looks at impacts qualitatively - and it assumes that ocean conditions will remain the same as in the past.

Climate change data is difficult to quantify at this time, Eitel said, explaining why the BiOp does not consider climate change in any quantitative way. "The science is not there."

Oregon attorney Stephanie Parent said that critical habitat is essential for recovery, but the migratory corridor through the eight Columbia and Snake river dams that juvenile and adult salmon and steelhead must negotiate is also essential.

"Dams impact the fish for the entire length of their migration," she said. "Improving tributary habitat cannot make up for the degradation in the main migratory corridor. We must get fish through the migratory corridor and relying on tributary habitat improvements doesn't demonstrate their survival through that corridor. Many populations remain at low levels and are at a high risk of extinction."

She pointed to the population of salmon in Marsh Creek, Idaho which is pristine habitat and should produce an abundant population. Yet, the smolt to adult return is just 0.9 percent, she said.

At some point in the future the region will see the benefits from the RPAs, but these benefits are uncertain benefits and they may never materialize, she said. For now, the number of smolts that return to spawn in many cases are too low for the populations to replace themselves. "It's arbitrary to not consider this limiting factor -- in-river survival."

Rebuilding salmon populations will come in large part by addressing the dams downstream, said Dave Cummings of the Nez Perce Tribe. The tribe is concerned that the BiOp has avoided analyzing the risks to the species presented by the hydrosystem.

"Does the BiOp need to address recovery now?" Cummings asked rhetorically. "That is the nature of the Endangered Species Act. An eyes-wide-open analysis is long overdue."

Eitel said it's wrong to conclude that dam operations are not part of recovery.

While the RPAs are heavy with habitat projects, he said in-river survival levels have improved, largely due to modifications at dams, such as spillway weirs, and better in-season operations that move juveniles downriver faster. For example, in 2008, survival for juvenile salmon through The Dalles Dam was 91 percent, but today that has improved to 98 percent, he said.

"In fact, reach survival and passage throughout the system is improving under these RPAs," Eitel said. "We're not degrading, we're improving."

"Does that take into account delayed mortality?" Judge Simon asked.

"No, delayed mortality is a big uncertainty," Eitel said. "We can't define it because there is no comparison point. So, reach survival estimates are just to Bonneville Dam. However, it is picked up in the life-cycle analysis - recruits to spawners."

In another exchange with Eitel, Judge Simon asked if in fact the BiOp wasn't actually predicting extinction in two graphs, one on page 80 of the BiOp, the other on page 90. If taken at face value and computed out through several generations of upper Grand Ronde River chinook, he said, the number of wild chinook would drop from the current 31 fish to just one within a few spawning generations.

While NOAA disputed the calculations, it was unable to show how the fish would not decline in population over the years.

Romney Philpott, attorney for the government agencies, argued that an EIS for each of the RPAs would be burdensome, but Judge Simon said the actions could be considered in one EIS and that burden is not a criteria the court can consider.

The states of Idaho, Montana and Washington were represented as intervener-defendants by attorney Michael Grossman. He said the tributary habitat RPAs are important and that, as the region implements these RPAs, there is already momentum that he asked the court not to interrupt.

"I think as part of this collaboration that brought all of us together, we created a process that already is moving forward," he said. "That momentum is key and is moving in the right direction. If we don't make progress, reconsultation is possible. I urge the court to recognize this momentum."

In his rebuttal, True said that the plaintiffs disagree on the starting point of the 2014 BiOp. "It allows the fish to slowly step down until they reach extinction. It can't be the case that the starting point is jeopardy," he said. "'Some growth' doesn't answer the question," he said in reply to an earlier statement by the government's legal counsel regarding progress with the RPAs.

When asked by Judge Simon whether the 2014 BiOp should be tossed out, True said, "It's not chuck it all. It's deal with the uncertainty. You just can't take the numbers and put them in the bank."

Related Pages:
State Of Oregon Again Joins Plaintiffs In Challenging Feds' Columbia Basin Salmon/Steelhead Plan by CBB, October 3, 2015
Groups File Challenge Against New Federal Columbia Basin Salmon/Steelhead Recovery Plan by CBB, June 20, 2014
Groups Challenge In Ninth Circuit BPA's Record Of Decision Accepting Feds' New Hydro/Salmon Plan by -CBB, May 30, 2014
Fishing/Conservation Groups File Sue Notice On Challenging Salmon BiOp In Ninth Circuit by CBB, April 4, 2014
NOAA Fisheries Issues New Salmon/Steelhead Biological Opinion For Columbia/Snake River Power System by CBB, Jan. 17, 2014
NOAA Fisheries Releases Draft 2013 Salmon/Steelhead BiOp, Says 2008 Biological Analysis 'Still Valid by CBB, Sept. 13, 2013
Redden Orders New Salmon BiOp By 2014; Says Post-2013 Mitigation, Benefits Unidentified by CBB, Aug. 5, 2011
Federal Agencies Release Draft Plan Detailing 2014-2018 Actions To Meet BiOP Salmon Survival Targets CBB, Aug. 23, 2013