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Regional Parties, Interests Take Stock of Redden's Ruling by Barry Espenson Columbia Basin Bulletin - May 9, 2003

A federal court decision this week that sends federal salmon recovery strategists back to the drawing board is seen by some that are party to the lawsuit as vindication.

Others see it as an opportunity for a mid-course correction of what is essentially, they say, a sound Columbia River basin salmon recovery plan.

Salmon advocates have been pointing to what they call an inadequate recovery plan since NOAA Fisheries released its Federal Columbia River Power System biological opinion in December of 2000. The document, essentially, gives federal action agencies the Endangered Species Act license to operate federal hydroelectric projects along the Columbia/Snake rivers.

The BiOp said that planned operations jeopardized the survival of eight of 12 listed salmon stocks. But the NOAA Fisheries document prescribes actions -- in a Reasonable and Prudent Alternative -- that the agency says could be carried out to avoid jeopardy. They included a range of passage improvements within the hydrosystem and "off-site measures to restore habitat, improve hatchery practices and reduce harvest impacts.

The lawsuit filed by a group of conservation and fishing groups said that the document relied too much on "future federal actions, uncertain state and private actions, and action agency measures that are beyond their authority, unfunded, and vague to reach a no-jeopardy finding for its RPA."

The judge agreed in deciding that the federal agency should rework the document after reinitiating consultation with the federal action agencies. The action agencies are the dam operators -- Corps of Engineers and Bureau of Reclamation -- and the Bonneville Power Administration, which markets the power generated in the system. No decision has been made regarding whether Redden's decision would be appealed.

"This decision creates a great opportunity," said Mark Van Putten, president of the National Wildlife Federation. The NWF was lead plaintiff in the lawsuit.

"By rejecting the administration's salmon plan because it lacks scientific credibility, the door is open to fashioning a plan based on sound science that will save salmon and help build a sound economic future for all the region's people - farm, rural, tribal and urban," Van Putten said. "We hope this administration will take an honest look at what's really needed to restore wild salmon in the Snake and Columbia River basin and invest in the future economic opportunities that a restored river resource could offer."

Most of the plaintiffs in the lawsuit say the breaching of four federal dams on the lower Snake River is the most potent tool available to recover listed chinook, sockeye and steelhead in the Columbia's biggest tributary. They say it would ease passage and restore lost mainstem spawning and rearing habitat. The breaching option was rejected by the Corps after an extended public process. The NOAA Fisheries BiOp put it on the back burner, saying it would be reconsidered as soon as 2005 if its aggressive non-breach strategy appeared to be failing.

"The 2000 plan claimed the government could fix the salmon problem without addressing the root cause - the four Lower Snake Dams. We thought all along that the strategy behind the plan was a bit like trying to treat cancer with aspirin. Fortunately, the judge saw it that way, too," said Bill Sedivy, executive director, Idaho Rivers United.

"The federal bureaucrats responsible for recovering Columbia and Snake River salmon have run out of places to hide," said Rob Masonis, regional director, American Rivers. "It is time for them to come forward with a real recovery plan that will achieve the goal agreed to by the four Northwest governors in 2000: restoration of salmon and steelhead to sustainable and harvestable levels. Today's ruling means that the federal government has yet to show it can recover salmon while leaving the four lower Snake River dams in the river."

Other private entities feel that the NOAA Fisheries strategy is on the right track, and that the judge's order will require modifications but not a complete overhaul as the agency was ordered to do when a federal court rejected an earlier FCRPS BiOp in 1993.

Public Power Council attorney Denise Peterson said the judge is ordering NOAA to "shore up its opinion" by following through with federal agency-to-agency consultations that the ESA requires. It may also be the opportunity for others in the region to step forward and add the "certainty" that the judge said is lacking regarding implementation of recovery actions that are not within the authority of the federal agencies.

"The states of Washington, Idaho and Montana were there and spoke up for NOAA," Peterson said of recent oral arguments in the case. Idaho filed in the lawsuit as a defendant intervenor and Washington and Montana as defendant amici.

"It certainly provides an opportunity to improve a plan that was always kind of a work in progress," said Scott Corwin, vice president for marketing and public affairs for the Pacific Northwest Generating Cooperative.

He said the "hyperbole about breaching or other specific actions is unwarranted." Rather NOAA and others need to correct the specific problems with the document that the judge highlighted.

An assistant Washington attorney general involved in the case, Matt Love, said that the opinion is focused on "two significant yet discrete issues" -- the implementation uncertainty of some federal, state, tribal and private actions on which part of the jeopardy analysis relies and NOAA's definition of the "action area" affected by hydro operations.

"We're hopeful that the issues identified (by Redden) can be addressed," Love said. He stressed that it is the federal agencies' responsibility to correct those BiOp flaws.

The state of Washington does support the comprehensive, basinwide approach to salmon recovery that the BiOp represents and plans to do its part.

"Washington still remains supportive of that framework," said Love.

Others involved in the lawsuit feel that NOAA Fisheries will have to reach out beyond the federal family in rebuilding its recovery strategy.

"We're pleased that that ruling has taken place," said Jim Myron, natural resources policy adviser to Oregon Gov. Ted Kulongoski. The process won't be defined until after the May 16 hearing, but Oregon wants to be a part of the BiOp reshaping.

Myron said that in areas beyond the federal agencies' direct control, NOAA Fisheries needs to seek formal agreements -- with states, tribes, private entities -- regarding planned activities that are expected to help the salmon recovery effort.

"We'd like to see them close that loop and get something in writing," Myron said. Oregon is willing to help, he said.

"We're ready to work with NOAA Fishers to do all the state can do" through its Salmon Plan," Myron said. Private entities want to be a part of the process as well.

"If you're going to have some certainty of getting it (off-site actions) done you're going to have to involve the private sector," said John Saven, executive director of the Northwest Irrigation Utilities, a defendant intervenor. "We need to have a seat at table." Like Peterson, Saven said breaching is not an option.

"We continue to believe that the dams and the hydrogenation that they produce is something that needs to be sustained," as well as the navigation, recreation and other benefits from the hydrosystem, Saven said.

Others commenting on the order and opinion include:

• Pat Ford, executive director, Save Our Wild Salmon Coalition: "The best science has told us that the surest way to recover Snake River salmon is to remove the four lower Snake River dams. When are we going to heed that advice and start the job that will bring back the wild salmon and all that they represent?"

• Jeff Curtis, NW conservation director, Trout Unlimited: "Thankfully the Court has recognized that this plan dodged the difficult decisions that must be faced head-on if we're ever going to see real recovery of these fish. Now we can get on with the real work of making the region's salmon economies, communities and natural heritage whole again while there's still time to do so."

• Liz Hamilton, executive director, Northwest Sportfishing Industry Association: "Given that these dams have wiped out an entire fishing economy, we find the federal attorney's proclaimed satisfaction with current run levels incomprehensible. For the feds to claim that their only responsibility is to avoid slipping below the "threatened" bar, is just another slap in the face to struggling fishing communities."

The following filed amicus briefs supporting the plaintiffs: State of Oregon, Nez Perce Tribe, Confederated Tribes and Bands of the Yakama Indian Nation, Confederated Tribes of the Umatilla Indian Reservation and Confederated Tribes of the Warm Springs Reservation of Oregon.

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.

Defendant's Amici are the states of Montana and Washington.