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Commentaries and editorials

Filings by Plaintiffs, Tribes, Oregon
Express Remand Concerns

by Staff
Columbia Basin Bulletin, October 20, 2006

Documents filed this week in U.S. District Court contend federal agencies are hampering a year-long collaborative process by dismissing the so-called "10-Step Conceptual Framework" as the means for determining whether Columbia River Basin hydro projects jeopardize the survival and recovery of protected salmon and steelhead.

The comments from a coalition of fishing and conservation groups, four treaty tribes and the state of Oregon came in response to federal agencies posting of its "Remand Collaboration Status Report" of Oct. 6.

Most of the comments, however, were directed at the contents of a Sept. 11 memo from D. Robert Lohn, NOAA Fisheries regional administrator.

The "Metrics and Other Information that NOAA Fisheries Will Consider in Conducting the Jeopardy Analysis" memo describes "the kinds of metrics to be used" in NOAA's jeopardy analysis. It lines out potential variables for both the recovery and survival "prongs" of the jeopardy determination.

The agency in July had distributed an outline of the analytical approach it will use to conduct the jeopardy analysis.

"The Metric Memo describes an approach and standards for a jeopardy analysis in the current remand that have little, if anything, to do with the 10-step Conceptual Framework for analyzing jeopardy that focuses on the needs of fish and has been the agreed centerpiece of this remand process," according to a response filed for the fishing and conservation groups filed by Earthjustice Monday.

The groups challenged NOAA's 2004 biological opinion on the Federal Columbia Power System soon after its release.

Judge James A. Redden in May 2005 declared the BiOp invalid, saying, among other things, that the determination the hydrosystem did not pose jeopardy was based on faulty analysis. A total of 13 basin salmon and steelhead stocks are listed under the Endangered Species Act.

Redden in October 2005 ordered that the BiOp be reworked in collaboration with sovereign states and tribes.

According to Earthjustice, Oregon and the tribes, the 10-step framework was developed early in the process by the sovereigns as the tool for the jeopardy analysis.

The steps include identifying recovery goals and current fish status and survival "gaps" between the two; apportioning blame for the various causes of such gaps; describing federal and non-federal actions that could be used to fill the gaps; analyzing an "All-H" approach, certainty of implementation and effectiveness; identifying research, monitoring and evaluation needs and contingencies and emergencies; developing governance and oversight schemes, and finally, producing a new BiOp.

The Metric Memo "represents a substantial and troubling deviation from that original framework," according to a response filed by the Oregon Attorney General's office.

As an example, it ignores the first step -- identifying the desired status of the species, according to the Oregon brief. That step is necessary to evaluate whether the proposed "action" or BiOp's reasonable and prudent alternative satisfies that recovery prong.

"Instead, NOAA now indicates that the recovery prong of the jeopardy analysis will be deemed satisfied, provided the species is 'trending toward recovery,'" according to Oregon. Other steps appear to be missing as well, including the gap analysis and apportionment of mortality, according to Oregon and the tribes.

"The recent retreat from the Conceptual Framework is not necessary, and it moves the remand collaboration to the brink of failure," the Oregon brief says. It urges the involved federal agencies to "reaffirm their previous agreement, and their previous commitment," to the 10-step framework.

"NOAA's recovery metrics appear to be primarily metrics of persistence (i.e. survival), if that -- not recovery. The Treaty Tribes are even more concerned with NOAA's stated metrics of survival," according to a response filed by the Nez Perce, Umatilla, Warm Springs and Yakama tribes.

Discussions during recent retreats in Boise and Spokane for the collaboration's Policy Work Group "were divorced from the current status of the runs and the survival and recovery needs of the listed fish," the tribal brief says. "Little, if any, agreement was reached on measures that will provide additional protection to ESA-listed fish.

"Shortly after the parties invested considerable time and effort into the PWG retreats, NOAA Fisheries continued its own retreat from the jeopardy framework by issuing its 'metrics' memo discussed above," the tribes said.

The Earthjustice filing said that "if the federal agencies are not going to employ the collaborative Conceptual Jeopardy Framework for their jeopardy analysis in this remand, the Court may want to consider whether to leave the 2004 BiOp in place during the remainder of the remand."

Earthjustice faulted the memo for only saying that information developed during the collaboration will be "considered" and that the agency rejected using the framework for the jeopardy analysis.

The memo itself starts with a caveat, saying it was an attempt to display metrics and qualitative information it believes would be useful in preparing the BiOp.

"The use of phrases such as NOAA Fisheries 'intends,' 'will consider,' or 'will examine,' are illustrative of our current thinking but should not be understood as an absolute commitment to that particular type of analysis," according to the memo.

"We are interested in the comments of the parties to the remand collaboration as to whether these metrics or others are best suited for these analyses, and will consider them when NOAA Fisheries determines which metrics are ultimately relied upon in preparing the biological opinion," the memo says.

The NOAA memo says the current status of each stock will be evaluated with a baseline analysis and that it will prepare an overview of the causes of mortality and threats to each stock. That will include "estimates" of the hydro share. In the end it will judge whether planned mitigation measures are sufficient to "reasonably expect" that the stocks are either already trending towards recovery and will maintain that trend or will start on such a trend.

"The work products of the remand collaboration, as well as comments provided by the Plaintiffs, will be duly considered in the jeopardy determination and be part of the administrative record for the consultation," the memo says.

An Oct. 3 cover letter to the status report stresses that the ESA makes NOAA the ultimate decision maker.

It said the federal agencies would "continue to make a good faith effort through the collaboration" to develop items to be included in the proposed action and clarify policy issues and narrow areas of scientific and technical disagreement.

" Federal Defendants do not waive any argument that the legal analyses or actions described in they Conceptual Framework are not required by the ESA or agree that the approach under consideration is one that will be, or should be, applied outside the FCRPS remand process."

Redden has scheduled an Oct. 27 to discuss the remand progress. The status report suggested that an extension of the February completion deadline may be necessary.

Documents related to the BiOp litigation can be found at

Filings by Plaintiffs, Tribes, Oregon Express Remand Concerns
Columbia Basin Bulletin, October 20, 2006

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