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Feds Seek Stay of Irrigators' Challenge to 2000 Hydro BiOp by Barry Espenson Columbia Basin Bulletin - March 19, 2004

Legal jousting continued last week with the Justice Department asking that a Portland U.S. District Court judge stay one legal challenge to the federal government's salmon recovery plan until a separate lawsuit completes its first stage.

The Columbia Snake River Irrigators Association and Eastern Oregon Irrigators Association on Sept. 30, 2003, filed the second challenge to NOAA Fisheries' 2000 Federal Columbia River Power System biological opinion. It alleges that NOAA erred in concluding that eight basin salmon and steelhead stocks are jeopardized by federal hydro operations and that the agency's jeopardy calculation violated the Endangered Species Act. The BiOp said the federal action -- planned FCRPS operations -- jeopardized eight species, but it offered a "reasonable and prudent alternative" that outlined actions NOAA felt could be implemented to avoid jeopardizing those Endangered Species Act-listed stocks.

The irrigators' attorney, Portland's James Buchal, sought earlier this year to have the lawsuit consolidated with another lawsuit, the National Wildlife Federation v. NOAA. That lawsuit, brought by environmental and fishing groups, claimed the federal agencies violated the law both procedurally and by not using the proper science in making its no-jeopardy determination.

The irrigators feel that using the proper data would reveal that the species are not jeopardized at all by the hydro operations. The conservation groups say the species are jeopardized, and that the BiOp's RPA does not wipe away that jeopardy.

U.S. District Court Judge James A. Redden in May 2003 accepted the conservation groups' arguments that the BiOp relied improperly on certain mitigation actions in making its no-jeopardy conclusion. He ordered that the BiOp be remanded to the agency for reconsideration and correction of the specific flaws he cited. The revised BiOp is due in June. Meanwhile, he forestalled arguments regarding the scientific points made in the conservation groups' complaint.

Buchal's motion to consolidate the two cases was denied on March 2 by Redden. The irrigators' and their attorney pressed forward, however, asking for a judgment in their case that ordered several issues of science be addressed during the BiOp remand.

The irrigators' motion asserts that the defendants (NOAA Fisheries and the Commerce Department):

• must assess whether dam operations jeopardize the continued existence of the listed evolutionarily significant (ESU) as a whole;

• must exclude from their analysis of the "effects of the action" the effects of future federal action not yet authorized through consultations under sections 7 of the Endangered species Act, and

• may not find that dam operations jeopardize listed species on the basis of future state, tribal and private actions with adverse effects on salmon yet to be considered under appropriate ESA procedures. "Congress plainly did not intend to stop agency action on the basis of future, unrelated insults to listed species from other threats," according to the motion.

"It's the whole policy of this administration to run the clock on everything," Buchal said. He said settling the irrigators' issues in their favor would make further litigation unnecessary by wiping away the jeopardy and need for the RPA. The federal government says, on the other hand, say that completing the remand may make the irrigators' claims moot.

"At the outcome of that process, a revised biological opinion will be produced that will supersede the 2000 BiOp. At that time, the plaintiffs in the NWF suit likely will renew some or all of their claims challenging NOAA Fisheries' scientific conclusions (although such claims will by necessity be in the context of the revised biological opinion, since the 2000 BiOp will have been superseded)," according to the federal defendants' support memorandum.

"Rather than allowing preemptive review of selected merits issues in this litigation now, with additional claims to be litigated at a later time in the context of the NWF case, we request that the Court stay all judicial review of claims on the merits here until the revised biological opinion is released," the memorandum says. The document stresses that request for a stay of action in the irrigators' lawsuit is intended only to shift the timing of briefing in the case, and that it is not intended to suggest that the two cases be consolidated. The Justice Department filed a motion in opposition to Buchal's consolidation request.

The federal motion says raising the irrigators' claims now would "unduly interfere with and prejudice the ongoing remand process…."

The memorandum says it would be "an unproductive use of this Court's and the Parties' time to litigate the issues Plaintiffs raise at the same time that the agency is actively and broadly reconsidering the 2000 BiOp in the context of the remand process."

The newly filed federal documents say that the irrigators "will not be disadvantaged by having their claims deferred…." The remand process includes an open forum -- the Attorney Steering Committee -- at which Buchal can provide public input on various aspects of the remand process.

"Plaintiffs will have an opportunity to attempt to influence the outcome (i.e., the resulting biological opinion) in a way that may alleviate some or all of their current concerns. If Plaintiffs remain dissatisfied at the end of the remand process, judicial review would be available for any claims they have against the revised biological opinion," the federal memo says.