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Battle over Hydro BiOp goes Public; Ruckus over RPA by Bill Rudolph NW Fishletter, April 30, 2003

Environmentalist and federal attorneys squared off last week in a packed Oregon federal district court, arguing the latest round of National Wildlife Federation v. NMFS. The debate focused on language in the 2000 hydro BiOp that seemed clear to the federal government, but not to plaintiff environmental and fishing groups, who allege that many of the BiOp actions designed to recover ESA-listed fish are too vague and voluntary, thereby "arbitrary and capricious."

The environmental groups say that federal dams, especially those on the lower Snake River, shouldn't be let off the hook for jeopardizing groups of salmon and steelhead.

The BiOp calls for other entities, besides federal agencies like BPA, to make improvements outside the hydro system in the realms of hatcheries, habitat and harvest, to boost numbers of endangered fish. The government analyses have found that the total suite of actions, including modifying dams and their operations, will likely recover stocks in the long run. Environmental groups don't agree.

Judge James Redden hadn't exactly thrown in his lot with plaintiffs, but he penned a draft opinion that embraced their thinking and called for invalidating the BiOp. He cited environmentalist arguments that claimed the off-site mitigation proposals needed to go through the same consultation process via Section 7 of the ESA as other parts of the BiOp.

Redden also presented a series of questions he wanted answered during the April 21 oral arguments, including one that asked if there was an alternative to the "reasonably certain to occur" standard for off-site mitigation programs.

In court, the judge pointed out that the government admitted most of its recommended actions would require consultation with the USFWS and NMFS, even if they weren't listed separately under individual actions. "The government takes the position this is not really part of the record...or subject to the 'reasonably certain to occur' standard," Redden said in his opening remarks.

He saw no point in discussing "the science of this matter," though a remand at some point may be necessary, he said. "At this juncture, there's a hurdle for the government to get over, for all of us to get over, before we need to get to the science. At least, that's the way I've approached it, and if I'm incorrect in my opinion, why, let me know why."

Government attorneys wasted no time explaining why they thought the judge had misread the BiOp. NOAA lead counsel Sam Rauch tried to clarify the difference between the Reasonable, Prudent Alternative [RPA] to proposed hydro operations spelled out in the BiOp and the basinwide salmon recovery strategies that were outlined as well, and one of the main targets for plaintiffs' arguments.

"It is incorrect to say that this RPA [Reasonable, Prudent Alternative] relies on state, private and federal measures," said Rauch. "To the extent that the RPA relies on this, it relies on this as the implementers for a federal action that is either funding or controlling what is happening."

Rauch said the BSRS [Basinwide Salmon Recovery Strategy] admittedly takes a broader view than the RPA, which only includes federal activities.

As for actions that are part of an RPA to avoid jeopardy of a species, Rauch said NOAA must "presume" that such actions will occur, not just be "reasonably certain" that they will be carried out. "Otherwise, there is no point in doing the analysis," he said.

But Rauch said Section 4 of the ESA also allows for a range-wide recovery analysis that lets the feds implement further actions with states and tribes. He said NMFS has used a sliding scale view to determine if the mitigation measures required by the species "need be in place when the species needs them."

He said the salmon are in "relatively good shape," with two years of record returns, which allowed for some measure of improvement in the short-term, "while the long-term improvements were being planned." He said that is one standard to determine whether actions will avoid jeopardy, and not "arbitrary and capricious."

But Rauch said the more fundamental question is the difference between the recovery strategy and the jeopardy opinion. "In terms of jeopardy, you don't analyze whether or not it is possible at the dams to do everything you can possibly do to ensure that the fish will survive regardless of what anybody else does. That is not the proper test. What you test is: 'Are you appreciably diminishing the opportunity for recovery?'"

Dam Agencies Can't Do Everything
The NOAA attorney said the plaintiffs would like to say that the dam agencies "are responsible, on their own, for the recovery of the species. That is not what the statute requires. The statute requires that the dam agencies do their part to recover the species, and their part is identified in the salmon recovery strategy. But the fact that the salmon recovery strategy identifies other parts for other actors does not mean that NOAA will rely on that for jeopardy."

Earthjustice attorney Todd True said Rauch made a "critical omission" in his statement. "Mr. Rauch said that no RPA action is not federal. The regulatory definition of an RPA is that it is an action that can be taken by the federal agency that's in consultation. That's within its authority. But that's not the end of the story," said True. "That's what got left out of Mr. Rauch's statement, because the next step [is] that we evaluate that RPA through a jeopardy analysis and determine whether the measures of that RPA, together with other things that can be considered under the regulation, will avoid jeopardy."

True cited the BiOp (9-203) to argue that some actions aren't part of the RPA , but are part of the jeopardy opinion. He read from the document: "The RPA also calls for performance standards, a schedule, and a process for ensuring that the off-site mitigation activities of the Action Agencies combined with the activities expected of other Federal and non-Federal entities will achieve necessary survival improvements."

True said the key distinction "is between Mr. Rauch's statement that no RPA action is not federal, which is true by definition of the regulation, and then everything that gets swept in, in the analysis to this, to conclude that those new measures there will avoid jeopardy."

True said the assumption that NOAA gets to "presume" actions will be taken doesn't square with the way the Endangered Species Act is done. It's not an assumption the government is entitled to make, he said.

When Rauch again testified, he said the BiOp citation mentioned by True was not in the document's conclusion section. The NOAA attorney then cited that section (9-282) to make his ultimate point, that the RPA improved upon the recovery strategy by explicitly "making things federal." He said that's where the BiOp explains how the basinwide recovery strategy is applied.

Rauch quoted from the BiOp himself, where language specifically detailed NMFS requirements of "a more reliable expectation of progress" for non-Federal actions in the basinwide recovery strategy that "provide survival improvements needed to avoid jeopardy."

Rauch said the BiOp is not a recovery plan as characterized by the plaintiffs, but a document that fulfills NOAA's obligation, "not to ensure recovery," but also not to diminish the likelihood of survival and recovery of the listed species.

Three Northwest states weighed in on NOAA's side. Idaho Assistant Attorney General Clay Smith told the court the ultimate question in this case is whether the ESA is flexible enough to respond to the complexities in this situation. Washington supported this view as well.

Robert Lane, Montana special assistant attorney general, said that his state was committed to the flexible implementation of both the BiOp and recovery strategy, because the RPAs were based on the "best science" and are uniquely tailored to the tremendous complexity of the recovery process.

Oregon dissented. Thomas Lee, from Oregon's Department of Justice, said his state endorsed the basinwide recovery plan, but that many of the elements of the BiOp are flawed, including its reliance on non-federal actions. He recommended a remand with a one-year time limitation.

Portland attorney Jay Waldron, who represented navigation interests, public power suppliers, farmers and ranchers, told the judge that somehow "we have co-mingled or confused in your mind the RPA which satisfies Section 7 obligations and the basinwide salmon recovery strategy, which is, as I would describe it, an extra, a bonus, something that involves all the public and private entities in the Northwest."

He said these "extras" shouldn't be what the court focuses on to find a failing of this biological opinion. He said it was "his humble opinion, that from the beginning of this lawsuit, the plaintiffs have filed the wrong lawsuit. They are upset about the implementation, they are upset about the science, so therefore they focused you on the basinwide salmon recovery actions which are not as specific as the federal actions under the RPA."

Judge Redden called the arguments "enlightening" and said he didn't know how long it would take before he put out a final opinion, but he said he would get it out relatively soon.