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Legal Sparring Begins on 2010 Supplemental Salmon BiOp by Staff Columbia Basin Bulletin, August 27, 2010

Oregon Wants Document 'Vacated'

A coalition of fishing and conservation groups and the state of Oregon late last week asked that they be allowed to refresh their legal arguments for the withdrawal of the federal government's plan for assuring protected salmon and steelhead aren't jeopardized by Columbia-Snake river hydro projects.

The motions for leave to file "supplemental" complaints, as well as "proposed" supplemental complaints, were filed Aug. 20 in Portland's U.S. District Court.

The coalition, led by the National Wildlife Federation, and Oregon say that NOAA Fisheries' May 2010 supplemental biological opinion for the Federal Columbia River Power System continues a trend of illegal federal strategies for protecting fish stocks that are listed under the Endangered Species Act.

They also charge that the U.S. Army Corps of Engineers and the Bureau of Reclamation are violating the law by implementing a flawed BiOp. The two agencies operate the dams in the FCRPS. The BiOp judges whether dam operations jeopardize listed stocks and outlines measures, such as fish-friendly operations and off-site work such as habitat improvements, that NOAA Fisheries feels are necessary to avoid jeopardy.

If updated complaints are allowed by Judge James A. Redden, they would be the sixth for NWF and the third for Oregon in litigation that was triggered by the 2000 BiOp, which was declared illegal by the judge and replaced with a 2004 version which was also declared legally flawed.

After nearly three years in ESA consultation with the dam operators and in consultation with states and tribes, NOAA Fisheries produced the 2008 BiOp, which was immediately challenged by Oregon and NWF. Among the primary arguments was that the BiOp's biological underpinning - its jeopardy analysis - was flawed.

The numerous parties involved debated the merits of the 2008 BiOp and Redden heard oral arguments. But, after hearing the judge's doubts about the legality of the plan, the Obama Administration requested that it be allowed to review the product completed during President George W. Bush's tenure.

In September of last year, the federal government declared the 2008 BiOp legally and scientifically sound, but also produced an Adaptive Management Implementation Plan that was intended to shore up the salmon strategy.

Trouble is, the judge said he did not believe the AMIP was legally admissible in the litigation and ordered the involved agencies to redress that issue in remand. Over this past winter the federal agencies renewed ESA consultation. The end product was the May supplemental FCRPS BiOp that melded the 2008 BiOp and AMIP and attempted, at Redden's behest, to take a look at scientific advances since the development of the 2008 strategy.

The result is a new plan built on the same, shaky foundation, Oregon and the coalition say.

"The 2010 BiOp does not address or alter in any way the legally-flawed jeopardy standard developed exclusively for the 2008 BiOp," according to a brief filed last Friday for NWF by Earthjustice.

"Consequently, the 2010 BiOp does not eliminate (a) the reliance in the 2008 BiOp on future federal actions that have not undergone ESA consultation; (b) the reliance in the 2008 BiOp on undefined and uncertain tributary and estuary habitat actions and speculative survival improvements from these actions; (c) selective reliance on favorable inferences (where they are available) and the disregard of unfavorable information where it contradicts NOAA's preferred no-jeopardy conclusion, including, but not limited to, unfavorable information about the reliability of NOAA's specific survival improvement predictions, omitted negative adjustment factors, overstated positive adjustment factors, and unexplained qualitative conclusions," the NWF brief says.

"The 2010 BiOp also fails to remedy the failure of the 2008 BiOp to provide an actual jeopardy analysis for endangered Snake River sockeye.

"And the 2010 BiOp does nothing to alleviate the failure of the 2008 BiOp to incorporate the foreseeable effects of climate change into a prudent and appropriately precautionary evaluation of the RPA."

"Both before and after the issuance of the 2008 BiOp, this court repeatedly admonished NOAA that the imperiled condition of federally protected Columbia and Snake River salmon and steelhead could not adequately be addressed merely by minor adjustments to the status quo," according to a brief filed Aug. 20 by the Oregon Attorney General's office.

"Repeatedly, this court has rejected NOAA's efforts to justify inadequate proposed operations-driven by allegiance to status quo power production-through novel methodologies and defective science. With the 2008 BiOp, even as amended and integrated into the 2010 Supplemental BiOp, we return yet again to that same juncture.

"NOAA has once again demonstrated its inability-or unwillingness-to produce a biological opinion that complies with the ESA, and, following two more years of litigation, marked by institutional intransigence and at best incremental progress towards the protection of these species, the time has come for measures.that will ensure compliance. At a minimum, the 2010 Supplemental BiOp must be vacated. Time is literally running out for these populations, Meaningful changes in hydrosystem operations readily could occur, and must occur, if we are to reverse the unacceptably high risk of extinction of several ESUs in the basin."

A June 8 order by Judge Redden outlined a briefing schedule regarding the supplemental BiOp. The plaintiffs were required to file motions for leave to file supplemental complaints along with proposed supplemental complaints no later than August 20. The three federal agencies, represented by the U.S. Department of Justice, had until today (Aug. 27) to file the administrative records for the case related to the development of the AMIP and the supplemental BiOp.

Then Oregon, NWF and allied parties (the Nez Perce Tribe) will have 45 days to file supplemental summary judgment motions. Following the filing of any motions the federal defendants will have 45 days to file cross-motions for summary judgment and opposition memoranda.

The judge said that "the parties should limit their briefing to the issues raised by the 2010 Supplemental Biological Opinion, and whether it affects the validity of Federal Defendants' 2008 Biological Opinion" and not rehash arguments about the 2008 documents.

The June 8 order said that no further briefmg will be allowed without permission of the court, and that the court will set a hearing date for oral argument at its convenience.

For more information and documents related to BiOp litigation go to www.salmonrecovery.gov