the film
Commentaries and editorials

Parties File Briefs Supporting
Keeping BiOp in Place

by Barry Espenson
Columbia Basin Bulletin - June 20, 2003

Federal agencies, all four Columbia River basin states and farming, navigation, irrigation and utility interests last week all rallied to the support of the NOAA Fisheries' salmon and steelhead protection strategy that has been declared illegal in U.S. District Court.

All say that the biological benefits and legal and economic stability provided by NOAA Fisheries' 2000 biological opinion must be maintained, despite its flaws. Judge James A. Redden has said the BiOp must be fixed. Federal attorneys say that none of the deficiencies cited by Redden are "incurable."

The flood of filings came in response to a request by fishing and conservation groups and lower Columbia treaty tribes that the BiOp be vacated as a result of Redden's May 7 opinion. Redden wrote that "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 ESU's, the jeopardy opinion in the RPA is arbitrary and capricious."

During a May 16 hearing it was agreed that NOAA would have a year to correct the deficiencies in the plan cited by Redden. The parties did not agree, however, on what would happen in the interim. The plaintiffs in the lawsuit, and intervenor tribes, want the document completely vacated.

The defendant NOAA Fisheries and numerous supporters want the BiOp's fish prescriptions to remain in place while the agency works to correct the document's cited shortcomings. Their response to the plaintiff's arguments were due by June 13. The plaintiffs were due to respond to the defendant filings by today (June 20), and then the judge could either call for oral arguments or decide the issue.

The plaintiff's May 30 memorandum says that the federal Administrative Procedures Act states that federal agency actions, findings and conclusions found to be arbitrary and capricious must be set aside.

"Any other outcome in this case would pose a greater risk to salmon and steelhead by encouraging improper reliance on an invalid opinion as sufficient to protect ESA-listed species when NOAA, the action agencies and others all should be considering -- and taking -- additional steps to ensure the survival of these species while NOAA evaluates how to comply with the law." The action agencies are U.S. Army Corps of Engineers and Bureau of Reclamation, which operate the federal dams, and the Bonneville Power Administration, which markets the power produced in the hydrosystem.

The conservation and fishing groups filed the original complaint in May 2001, citing what it called "serious, substantial, and fundamental defects" in the BiOp. The complaint said the NOAA Fisheries analysis of listed salmon and steelhead populations understates the risk of extinction and that its reliance on non-hydro/non-harvest actions to improve survival and avoid jeopardy are speculative and voluntary.

The 10-year BiOp analyzes the biological effects of planned federal hydrosystem operations on 12 ESA-listed basin salmon and steelhead stocks and declares that the operations jeopardize the survival of eight of those stocks. It then outlines a "reasonable and prudent alternative" -- 199 separate mitigation actions -- the agency says avoids jeopardizing the species. Those actions include research and fish passage improvements along the Columbia/Snake mainstem corridor as well as "off-site" work to improve habitat and tributary passage and make refinements to hatchery and harvest techniques that intended to reduce impacts to listed fish. The actual operations of the dams also are tailored in an attempt to both enhance passage through the system (via spill, flow augmentation and other strategies), meet regional power demand and facilitate the steady commercial barge traffic.

The federal government says it can and will correct the deficiencies. In its June 13 filing, U.S. Justice Department called disingenuous the plaintiffs' claim that the court must vacate the biological opinion during the remand.

"Not only do the plaintiffs ignore the legal parameters that govern remand decisions, they erroneously argue that leaving a biological opinion in place would be unprecedented," according to the federal opposition to the plaintiffs' motion to vacate. The federal attorneys say that the plaintiffs have, in separate cases, used the opposite argument.

"The plaintiffs' argument of convenience aside, there can be no real dispute that this Court has the equitable discretion to leave the biological opinion in place during remand," according to the federal brief. The federal document also says there is no urgent reason to vacate the BiOp.

"The 2000 biological opinion was based on the fact that the salmon were not in any immediate peril of extinction and that there was time to allow for protective measures set forth in the reasonable and prudent alternative ("RPA") to take effect. In addition, the salmon have been experiencing record returns such that they are doing even better than the 2000 biological opinion predicted.

"Given the improved status of the stocks, there is simply no need for the Court to set aside the opinion on remand creating a great deal of uncertainty and disruption throughout the Pacific Northwest.

"There can be no serious question that setting aside the opinion will have a disruptive effect. The plaintiffs themselves admit that there is no way to operate the river system without some take of listed species. It does not matter whether the system is operated under the current opinion or in some manner that the plaintiffs desire, there will be take. Indeed, even conservation measures, such as the transportation program, take fish.

"Nevertheless, the plaintiffs ask the Court to expose the employees of the various action agencies to potential criminal and civil liability and the agencies themselves to injunctive claims by vacating the biological opinion during the remand.

"The threat of criminal or civil liability combined with a complete inability to comply with the requirements of the Endangered Species Act absent the coverage of the current biological opinion puts the federal agencies and their employees in an untenable position and creates a great deal of uncertainty in terms of the regional power supply as well as regional flood control, irrigation, and navigation demands," according to the federal brief.

A host of other parties to the lawsuit joined the federal government in asking Redden to leave the BiOp in place during the remand.

The states of Idaho, Montana and Washington filed jointly saying they, and Oregon, remain supportive of "not only the Biological Opinion's overall approach but also the efficacy of the 199 action items contained in the RPA." They pledged to work with NOAA to address issues identified by the court. Implementing the RPAs provide biological benefit, the states say.

"Granting Plaintiffs' motion instead will have precisely the opposite effect by placing the very legality of the FCRPS's operation in question and disrupting, if not halting, activities that even Plaintiffs concede are beneficial to salmon and steelhead," according to the states' brief.

Oregon, in a separate brief, urged a "middle ground."

"The court should preserve the biological opinion, with its beneficial limitations and requirements. But this court also should retain jurisdiction to hear motions regarding any proposed measures to ensure that jeopardy is avoided, in light of the opinion's adjudicated defects," said the Oregon brief. Oregon is the only one of the four states to side with the plaintiffs in the lawsuit.

"That disposition would avert the untenable result of operating the FCRPS without a biological opinion and incidental take authority, while also providing an appropriate forum to determine what provisional relief is appropriate, in the court's equitable discretion, to promote the survival and restoration of Columbia and Snake River salmon and steelhead," Oregon said. Fish mortality caused by the FCRPS would be a violation of the ESA if not for existence take permit.

For Bonneville ". continued effective implementation of the existing biological opinion is essential to BPA's performance of its power marketing, system operation, and fish and wildlife mitigation and recovery responsibilities," BPA CEO Steve Wright said in a declaration filed with the court. He pointed out that the BiOp's fish operations are figured into their management planning and operational decision-making.

"Vacating the existing biological opinion would undermine the necessary coordinated federal management of the FCRPS to meet multiple purposes, diminish BPA's ability to provide an adequate, reliable power supply and threaten the adequacy of BPA funds to cover all of BPA's obligations, including expenditures of the BiOp's offsite measures and for implementation of the Columbia Basin Fish and Wildlife Program."

The BiOp and one issued by the U.S. Fish and Wildlife Service related to listed bull trout and sturgeon, provide "Reclamation with the legal framework and biological justification to carry out actions intended to benefit the listed species," J. William McDonald, Bureau of Reclamation regional director, said in a declaration filed with the court. "Without those BiOps in place, Reclamation would be required to substitute its own judgment about the biological adequacy of disputed actions for that of NMFS."

"Additionally, without the guidance of a BiOp in place, Reclamation will likely need to respond to the challenges from several sides about the appropriateness of the actions it may take."

Without the take statement, the agency would be subject to third party lawsuits, he said, since some level of mortality would occur with operation of the FCRPS.

A declaration from the Corps of Engineers' Reservoir Control Center chief, Cynthia Henriksen, describes the FCRPS as "a very large and extremely complex system designed to meet multiple uses for a multitude of stakeholders."

The operations designed for fish are interwoven with water and fish managers helping chart the course over the long-term and in real-time.

Those multi-state and multi-agency regional forums established by the previous BiOp recommend operations to the action agencies in support of the BiOp. They consider real-time fish and project data while weighing multi-purposes, she said.

"This type of forum is very effective and without them and the guidance provided to them in the BiOp, operational decisions within the basin to meet fish needs would be uncertain and possibly disrupted," according to Henriksen's declaration. "If the BiOp is set aside, it is probable the court will be presented with a variety of operational plans that may be conflicting and will have to assess the impact on the multiple uses authorized for the system."

Stakeholders for those multiple uses all weighed in, asking that the judge leave the BiOp in place during the remand. Among those filing briefs were the Northwest Power Planning Council, the Public Power Council, the Washington state and Grant and Franklin Farm Bureau Federations, the Northwest Irrigation Utilities the Inland Ports and Navigation Group and, collectively, Columbia-Snake Irrigators Association, the Eastern Oregon Irrigators Association and the Washington Potato Commission. Individual members of those river user groups also filed declarations in the case.

No one argues that BiOp off-site measures, such as habitat improvements, are being implemented and are a benefit to salmon, the Northwest Power Planning Council brief says. The Council's Fish and Wildlife Program, funded by BPA, is the mechanism for implementing many of those projects, and the Council doesn't want the progress stopped.

"The federal operating and fish and wildlife agencies must remain actively interested in, focused on and supporting the implementation of these measures. Yet we risk losing the focus and support in the uncertainty of a vacated biological opinion," the NWPPC brief says.

The Northwest Irrigation Utilities' "overarching concern is that irreparable harm to Northwest citizens in the near term may result from managing FCRPS resources in the absence of a scientifically-grounded, expertly coordinated and administered plan of operation, and in the absence of any demonstration that such a course benefits, the listed species."

The NIU brief says that "additional power supply costs, and decreased power supply reliability and perhaps availability, are to be expected from the relief Plaintiffs seek in this proceeding. This could exacerbate the severe economic state of many Northwest inhabitants, particularly those communities dependant upon irrigated agriculture."

The Inland Ports and Navigation Group said that "leaving the BiOp in place is unlikely to cause actual harm to listed species and vacating the BiOp will cause significant disruption to and unnecessarily waste significant public resources. This disruption will acutely impact navigation and the commerce and communities that depend on it."

The federal government responded to the plaintiff's request by saying that even seemingly small changes to FCRPS operations could affect other river uses.

"The plaintiffs erroneously assume that the Court found that more (and more certain) actions needed to be taken to avoid jeopardy. On this basis, the plaintiffs indicate that they will bring an injunctive case against the action agencies should the Court vacate the current opinion," the federal briefs says. "At the same time that they argue that they affirmatively will bring injunctive litigation to impose as-yet-unspecified changes in the operation regime, they argue that vacating this opinion will not in any way be disruptive.

"However, the stated intention to seek injunctive relief indicates the disruption that could be caused by vacatur. Any such case would create enormous uncertainty in a very complex management structure that influences much of way the Pacific Northwest operates. "A June 2 order started the one-year remand clock ticking, though the judge said that an extension would be allowed for "good cause." Redden will require that the federal government submit a status report to the court every three months. He said the court would hold a status conference within 10 days of the quarterly report submittals. The federal government has 60 days from June 2 to file an appeal.

Barry Espenson
Parties File Briefs Supporting Keeping BiOp in Place
Columbia Basin Bulletin, June 20, 2003

See what you can learn

learn more on topics covered in the film
see the video
read the script
learn the songs
discussion forum
salmon animation