Oregon Judge may Toss Out Hydro Biological Opinionby Bill Rudolph
NW Fishletter, April 30, 2003
A draft opinion by a federal judge sent to parties involved in ongoing litigation over the hydro Biological Opinion suggests that he may soon rule that the federal document is invalid. Oregon District Court Judge James Redden sent out his draft opinion recently, along with a set of questions he wanted answered during oral arguments (see ruckus.htm) scheduled for April 21.
If the BiOp is dumped, the huge subbasin planning effort spearheaded by the Northwest Power Planning Council and funded mostly by BPA also could be in jeopardy.
The BiOp lawsuit was originally filed in May 2001 by the National Wildlife Federation, along with 15 other environmental and fishing groups. The groups claim that the BiOp's "no-jeopardy" decision on the effect of federal dam operations on ESA-listed fish was arbitrary and capricious. The groups want the BiOp withdrawn and consultation re-initiated by BPA, the US Army Corps of Engineers and the federal Bureau of Reclamation. When the suit was originally filed, the plaintiffs admitted they were using the tactic to press for breaching the four federal dams on the lower Snake River.
In part, the plaintiffs argued that the Reasonable, Prudent Alternative [RPA] to proposed operations advanced in the BiOp-- which actually contains 199 separate actions--was too dependent on off-site mitigation efforts to improve ESA-listed salmon and steelhead stocks.
But Judge Redden's draft opinion says NOAA's position is untenable because the wide-ranging harvest, habitat and hatchery measures that the federal agency expects to use as a hedge against salmon extinction are outside the action area "and, therefore, apparently, need not be 'reasonably certain to occur.'"
The judge said the main problem lies in the lack of "reasonable certainty" that many of the programs will be implemented. He cited the fish agency's rationale in the BiOp itself, in which NMFS concluded that the recovery plan had a "reasonable chance" of being implemented, and if it was, there was a reasonable expectation to conserve the species involved.
"The problem with this analysis is that the regulatory standard is not 'reasonable chance' but 'reasonable certainty,'" Redden said. "The fact that NOAA includes a 'hedge' against non-performance of the off-site mitigation programs in the form of periodic check-ins is laudable but does not obviate the lack of certainty in the programs."
He cited an amicus memo filed by Washington state, which concluded that, without citing any specific authority, the mitigation measures in the BiOp that "will be completed by the NWPPC [Northwest Power Planning Council], States, the Tribes and private parties are reasonably certain to occur because of the Action Agencies' obligation to fund, implement and contribute to such action."
Judge Redden then cited the state of Oregon's position, which supported the plaintiffs' argument, concluding that the BiOp failed to satisfy standards of Section 7 of the ESA because it relied "on actions for which necessary funding is unavailable, actions for which agencies lack authority, and actions that are not reasonably certain to occur because of the lack of binding agreements."
NOAA's position relied on two false premises, Redden argued. First, there are different analyses for the "action area" hydro system programs and "range-wide" mitigation programs. Second, there is no case law, statute or regulation that supports the position that those range-wide actions "need not be reasonably certain to occur."
Redden presented a list of questions for the parties to answer, including which authority supported the proposition that "range-wide" future mitigation actions described by NOAA are not within the "action area" of the 2000 BiOp for purposes of the "reasonably certain to occur" standard. He also wanted to know if there was an alternative to this standard for off-site mitigation programs.
If NOAA doesn't rely on future non-federal off-site mitigation programs for hatcheries, harvest and habitat, Redden asked what other factors in the RPA the agency relied on to avoid a jeopardy finding.
Last, he asked all parties if the remaining issues would be moot if the court concluded that the RPA relied on "improper factors."
"We're pleased we can focus our answers where the judge has asked for more clarity," said NOAA Fisheries spokesman Brian Gorman. NOAA Fisheries released a "findings" letter last year that found implementation of the BiOp was mostly on track. Of the 124 actions that required definition, implementation, or completion by 2003, 94 were being "implemented as expected." The other 30 actions had either a modified schedule or scope. Gorman said this year's findings letter will be out "shortly."
Last January, lead NOAA counsel Sam Rauch told a group of attorneys at a Seattle legal seminar that uncertainty over the success of future BiOp fish mitigation efforts was a "big issue" in the lawsuit. He also said he doubted the lawsuit would lead to dam removal, but that the "God Squad" would likely be called into action.
The seven-member "God Squad," headed by Interior Secretary Gale Norton, has the power to override government decisions with respect to ESA enforcement. Other squad members include the secretaries of the Army and Agriculture, the chair of the Council of Economic Advisers, the NOAA administrator, and one individual from the affected state.
PNGC spokesman Scott Corwin was more optimistic. "We think we have better arguments that should bring the court around from this draft." His group has amicus status in the litigation.
Northwest Irrigation Utilities, the Public Power Council, Franklin County, Grant County and Washington state farm bureaus are intervenor defendants, along with the Inland Ports and Navigation Group, and the states of Idaho, Montana and Washington.
Plaintiffs' amici include the state of Oregon, along with the Nez Perce, Yakama, Umatilla and Warm Springs Tribes.
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