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Judge to Take Briefs on Whether BiOp Stands During Rewrite by Barry Espenson Columbia Basin Bulletin - May 16, 2003

A federal judge, and the lead attorneys for those involved in the lawsuit, agreed today (May 16) that the federal government should be allowed a year to recast a Columbia River Basin salmon recovery plan that was judged by the court last week to be legally flawed.

Still unanswered whether the recovery plan -- which says the federal Columbia/Snake River hydroelectric generation system is being operated in compliance with the Endangered Species Act -- will remain in effect while its flaws are corrected.

U.S. District Court Judge James A. Redden, during this morning's status conference, gave the plaintiffs in the case 10 working days to file briefs in support of their request that the 2000 Federal Columbia River Power System biological opinion be set aside. NOAA Fisheries, which produced the BiOp, would then have 10 days to submit arguments supporting its contention that the recovery plan remain in effect while its defects are corrected. Redden would then make a ruling on the issue.

U.S. Justice Department attorney Fred Disheroon told the judge that the BiOp's vacation could have huge ramifications, in essence making all of its planned fish survival improvement actions legally vulnerable. Redden's opinion and order of the previous week declaring the plan "arbitrary and capricious" focused on so-called "off-site" mitigation actions, such as habitat improvement. The judge said that NOAA depended on actions that were not "reasonably certain to occur" as the law requires.

Disheroon said that if the BiOp is shelved, "the incidental take coverage provided for the hydrosystem would be removed." He said that, if the BiOp were set aside, anyone could go to court to demand injunctive relief. That could result, for example, in a court order that a specific spill regime be implemented at a dam or dams to facilitate spill passage. Continuing the example he said that court-ordered spill regimes could hamper the Corps of Engineers' fish transportation program because, in most cases, BiOp-prescribed spill must be stopped during the time the migrating juvenile salmon are loaded onto the barges. He said at least two court opinions support the validity of the transportation program.

Likewise, court-ordered operational changes could also tilt the balance that was struck, in the BiOp, between improving fish survivals and operating the hydrosystem to generate electricity.

"It could affect Bonneville's ability to maintain the power system," Disheroon said. He predicted a flurry of legal activity if the BiOp were to be vacated.

Todd True of Earthjustice told the judge that the BiOp, and the associated ESA "take" permits, should be immediately vacated.

"We do believe that they are not doing enough to protect the fishery," said True, lead attorney for the coalition of conservation and fishing groups that filed the lawsuit. Leaving the BiOp in place would prevent the implementation of needed actions that are not in the federal recovery plan, he said.

The plaintiffs in the case last week filed the ESA-required 60-day notice of intent to sue the BPA, the U.S. Bureau of Reclamation and the Corps. The May 9 letter to the agencies says that -- because of Redden's order declaring the BiOp illegal -- the hydrosystem is now illegally "taking" ESA-listed salmon and steelhead, as well as adversely modifying their critical habitat. The groups ask that the agencies, which operate hydrosystem and sell the power generated, "discuss the significant ESA violations described herein and seek a mutually acceptable solution to them.."

True called Disheroon's concerns misplaced.

"The idea that the region will fall apart if this opinion is set aside does not hold up," True said.

Redden during the course of today's discussion that he would like to see "something done with this lawsuit before we entertain 57 others." At a couple different points in the hour-long discussion he said that he didn't want to be in the courtroom listening to arguments about salmon recovery "while the last fish is being caught."

"I can assure you that we won't file 50 lawsuits," True told the judge. Groups could however push for changes in BiOp spill and flow regimes and other actions that they feel necessary.

The lawsuit against NOAA Fisheries was filed in May 2001 by a coalition of fishing and conservation groups. It says the December 2000 NMFS (now known as NOAA Fisheries) BiOp violates the ESA and Administrative Procedures Act by concluding that a mixture of passage improvements at the hydro projects and reservoirs and improvements to habitat and to harvest and hatchery regimes would improve fish survival to the point those eight stocks would not go extinct. The BiOp judged that hydrosystem operations would jeopardize the survival of eight of 12 listed Columbia Basin stocks, then prescribed actions in a "Reasonable and Prudent Alternative" or RPA that would mitigate for hydrosystem impacts.

"NOAA's reliance on federal range-wide, off-site mitigation actions that have not undergone section 7 consultation and non-federal range-wide, off-site mitigation actions which are not reasonably certain to occur was improper and, as to eight of the salmon ESUs, the jeopardy opinion in the RPA is arbitrary and capricious," Redden wrote in his May 7 opinion and order.

ESA Section 7 establishes an interagency consultation process to assist federal agencies in complying with their responsibility to avoid jeopardy to listed species or destruction or adverse modification of critical habitat. Under this process, a federal agency proposing an action that "may affect" a listed species, including salmon, must prepare and provide NMFS with a "biological assessment" of the proposed action's effects. The remand would trigger that process again.

The plaintiff's request for summary judgment concluded that, "NMFS improperly relies 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."

Listed as plaintiffs in the lawsuit are: National Wildlife Federation, Idaho Wildlife Federation, Washington Wildlife Federation, Sierra Club, Trout Unlimited, Pacific Coast Federation of Fishermen's Associations, Institute for Fisheries Resources, Idaho Rivers United, Idaho Steelhead and Salmon United, the Northwest Sport Fishing Industry Association, Friends of the Earth, Salmon for All, Columbia Riverkeeper, American Rivers, Federation of Fly Fishers and Northwest Energy Coalition.

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.

Plaintiffs' "Amici" are Oregon and the Umatilla, Warm Springs Tribes, Yakama and Nez Perce tribes. Defendant's Amici are the states of Montana and Washington.