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NW Utilities Take a Historically Bold Stand in Response to Secret Snake River Dams Negotiations by Eric Barker Spokesman-Review, November 1, 2023

LEWISTON -- Parties to the long-running salmon versus dams lawsuit on the Snake and Columbia rivers have reached a tentative but still confidential agreement of sorts that could lead to a multiyear timeout in litigation.

On Tuesday, the plaintiffs and the federal government told the court they will share a jointly developed "package of actions and commitments" with other parties to the lawsuit and "regional sovereigns" over the next 45 days. If the package is approved by a Dec. 15 deadline, they intend to seek a multiyear stay in litigation to allow time for the actions to be implemented. If a final agreement is not reached, the court case that has been on pause for two years, would resume. The contents of the package remain shrouded in the confidentiality that has surrounded the mediated talks that began in 2021 and were twice extended.

During those negotiations, the government said that breaching one or more of the four lower Snake River dams was one of several alternatives being discussed. The Nez Perce Tribe and several fishing and conservation groups have long favored breaching.

The dams impede adult and juvenile salmon during their migrations to and from the ocean and, according to fisheries scientists, lead to lower survival of the fish. But they also generate low carbon hydroelectric power and make it possible for farmers in southeastern Washington and north-central Idaho to cheaply and efficiently move wheat to downriver ports.

"Our thing at Nez Perce and for the salmon and our people is to continue to advocate for salmon recovery to the fullest account that we can," said Shannon Wheeler, chairperson of the Nez Perce Tribe. "If breaching is a part of that, we will look to take the necessary actions that will get us to breach."

Defender intervenors, such as the Public Power Council and its members, were not part of the negotiations from which the package emerged and have not seen its contents. Kurt Miller, executive director of Northwest River Partners, said he doesn't know its details, the degree to which the parties who developed it may be bound to it, or if his members will have a chance to change it. He worries the actions could affect the amount or affordability of power produced at Snake and Columbia river dams.

"We continue to not have confidence in how the government-led process is being conducted," he told the Tribune. "One hundred percent of the negotiations have been conducted by the plaintiffs and the U.S. government and now they are going to bring us in with something already in place that we haven't had a chance to shape. I don't like that and I don't think it is in the best interest of our members."

Justin Hayes, executive director of the Idaho Conservation League, one of the environmental plaintiffs, said he is unable to share much about the package of actions but said its development makes him optimistic.

The Biden administration has not endorsed dam removal but has been more sympathetic to the action than previous administrations. At the onset of the talks, the government committed to seeking a durable long-term strategy to restore salmon.

Last year, the National Oceanic and Atmospheric Administration said breaching one or more Snake River dams is necessary for salmon to be recovered to healthy and harvestable levels. In September, President Biden signed a presidential memorandum calling for a sustained national effort to restore Snake and Columbia river salmon runs to healthy and abundant levels.

Breaching has few supporters in Congress. Rep. Mike Simpson, R-Idaho, unveiled his $33.5 billion concept that would breach the dams and mitigate affected communities and industries two years ago. It has yet to be crafted into legislation and has few supporters on Capitol Hill. But it has prompted his colleagues, such as Congresswoman Cathy McMorris Rodgers, a Republican from Spokane, to author legislation to protect the dams.

The plaintiffs in the court case have won several rounds of the lawsuit that is more than 25 years old and convinced a judge to force the federal government to redo successive versions of its plan that seeks to mitigate harm caused by the dams. The latest iteration of the plan was released in 2020. Instead of breaching, it calls for a host of actions that include efforts to improve inland and estuary habitat, hatchery and harvest reform and spilling water at the dams to help juvenile salmon and steelhead reach the ocean.

Related Sites:
Notice RE: Stay Expiration and Further Proceedings submitted to Court by Plaintiffs, 10/31/23
Joint Motion to Extend Stay US District Court, 8/31/23
Idaho Dept. of Fish & Game v. NAT. MARINE FISHERIES US District Court Oregon, 3/28/94

Memorandum on Restoring Healthy and Abundant Salmon, Steelhead,
and Other Native Fish Populations in the Columbia River Basin

November 1, 2023

The Columbia River and its tributaries, wetlands, and estuaries are the lifeblood of the Pacific Northwest, providing abundant water, power, recreation, agriculture, transportation, and natural resources that have supported livelihoods, cultural and spiritual practices, commerce, and economic growth. The salmon, steelhead, and other native fish populations in the Columbia River Basin (Basin) are essential to the culture, economy, and way of life of Tribal Nations in the region and Indigenous peoples in Canada, and also provide an important food source for endangered orca, which are sacred to many Tribal Nations in the region. In 1855, the United States and four of the Tribal Nations of the Basin entered into treaties specifying that these Tribal Nations reserved the right to harvest fish on their reservations and at all usual and accustomed places. At that time, an estimated 7.5 to 16 million adult salmon and steelhead returned to the Basin each year.

Actions since 1855, including the Federal Government's construction and operation of dams in the Basin, have severely depleted fish populations. Thirteen salmon and steelhead populations are listed as threatened or endangered, other populations of those fish have been extirpated, and other native fish populations have also declined, causing substantial harm to Tribal Nations and other communities reliant on salmon and steelhead. Despite decades of hard work, ingenuity, expense, and commitment across Federal, Tribal, State, and local governments and a wide range of stakeholders, the populations of salmon, steelhead, and other native fish populations in the Basin continue to decline or have not recovered to the level that would warrant removing any population from the list of threatened and endangered species.

It is time for a sustained national effort to restore healthy and abundant native fish populations in the Basin. For these reasons, and by the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:

Section1. Policy. It is a priority of my Administration to honor Federal trust and treaty responsibilities to Tribal Nations -- including to those Tribal Nations harmed by the construction and operation of Federal dams that are part of the Columbia River System (CRS) -- and to carry out the requirement of the Pacific Northwest Electric Power Planning and Conservation Act (Public Law 96-501) to operate, manage, and regulate the CRS to adequately protect, mitigate, and enhance fish and wildlife affected by the Federal dams in the Basin in a manner that provides equitable treatment for fish and wildlife with the other purposes for which the Federal dams are managed and operated.

In recognition of these priorities, it is the policy of my Administration to work with the Congress and with Tribal Nations, States, local governments, and stakeholders to pursue effective, creative, and durable solutions, informed by Indigenous Knowledge, to restore healthy and abundant salmon, steelhead, and other native fish populations in the Basin; to secure a clean and resilient energy future for the region; to support local agriculture and its role in food security domestically and globally; and to invest in the communities that depend on the services provided by the Basin's Federal dams to enhance resilience to changes to the operation of the CRS, including those necessary to address changing hydrological conditions due to climate change.

Sec. 2. Federal Implementation. (a) All executive departments and agencies (agencies) with applicable authorities and responsibilities, including the Department of the Interior, including the Bureau of Indian Affairs, the Bureau of Land Management, the Bureau of Reclamation, the United States Fish and Wildlife Service, and the United States Geological Survey; the Department of Agriculture, including the United States Forest Service and the Natural Resources Conservation Service; the Department of Commerce, including the National Oceanic and Atmospheric Administration; the Department of Energy, including the Bonneville Power Administration; the Department of the Army, including the United States Army Corps of Engineers; and the Environmental Protection Agency, are directed to utilize their authorities and available resources to advance the policy established in section 1 of this memorandum.

(b) Within 120 days of the date of this memorandum, all agencies with applicable authorities and responsibilities, including those agencies identified in subsection (a) of this section, shall review their programs affecting salmon, steelhead, and other native fish populations in the Basin, including any program with authority or responsibility with respect to the CRS, for consistency with the policy established in section 1 of this memorandum. As soon as practicable following such review, agencies shall, consistent with applicable law, identify and initiate any steps necessary to advance that policy.

(c) Within 220 days of the date of this memorandum, all agencies with applicable authorities and responsibilities, including those agencies identified in subsection (a) of this section, shall provide the Director of the Office of Management and Budget (Director) an assessment of the agency's programs that can advance the policy established in section 1 of this memorandum and the resources such programs need for this purpose. Based on the assessment, each agency shall prioritize these activities to the extent feasible in their program and budget planning.

Sec. 3. Intergovernmental Partnership. The Chair of the Council on Environmental Quality (Chair) and the Director shall explore opportunities and mechanisms to develop an intergovernmental partnership, including through a memorandum of understanding, to advance the policy established in section 1 of this memorandum within the United States; the States of Oregon, Washington, Montana, and Idaho; the Tribal Nations of the Basin, including the Columbia Basin Treaty Tribes (the Nez Perce Tribe, the Confederated Tribes and Bands of the Yakama Indian Nation, the Confederated Tribes of the Warm Springs Reservation of Oregon, and the Confederated Tribes of the Umatilla Indian Reservation); the Upper Columbia United Tribes (the Confederated Tribes of the Colville Reservation, the Coeur d'Alene Tribe of Indians, the Spokane Tribe of Indians, the Kalispel Tribe of Indians, and the Kootenai Tribe of Idaho); the Upper Snake River Tribes (the Burns Paiute Tribe, the Fort McDermitt Paiute‑Shoshone Tribe, the Shoshone-Bannock Tribes of the Fort Hall Reservation, and the Shoshone-Paiute Tribes of the Duck Valley Reservation); and other Tribal Nations, as appropriate. Within 120 days of the date of this memorandum, the Chair and the Director shall submit a report to the President with an update on progress in developing this intergovernmental partnership.

Sec. 4. General Provisions. (a) Nothing in this memorandum shall be construed to impair or otherwise affect the ability of heads of agencies to meet the requirements of sections 2 and 3 of this memorandum before the deadlines in those sections or to produce additional materials not specifically requested in this memorandum.

(b) Nothing in this memorandum shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department or agency, or the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(c) This memorandum shall be implemented consistent with applicable law and subject to the availability of appropriations.

(d) This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

(e) Independent agencies are strongly encouraged to comply with the provisions of this memorandum.

Sec. 5. Publication. The Chair is hereby authorized and directed to publish this memorandum in the