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Lawsuit Challenges U.S. Plan for Salmon by Jonathan Brinckman The Oregonian, May 4, 2001

Conservation and fishing groups want changes in dams, hatcheries and efforts to restore waterways

The federal plan to save Columbia Basin salmon is inadequate and will lead to extinction unless it is overhauled, a dozen conservation and fishing groups charged in a lawsuit Thursday.

Filed in federal court in Portland, the suit challenges the U.S. government's strategy -- including modifications to federal dams, hatchery operations and efforts to restore smaller rivers and streams where salmon spawn.

The National Marine Fisheries Service, the federal agency responsible for endangered salmon, was targeted. The agency's terms for operation of the federal dams -- terms required by the Endangered Species Act -- are deficient and easily ignored, the suit alleges.

Federal agencies last year considered breaching four dams on the lower Snake River to aid salmon but ultimately said the dams should only be removed if the other measures fail.

The Bonneville Power Administration's recent decision to suspend spilling water over dams -- a measure that helps fish -- was attacked. The federal plan calls for millions of gallons of water to be sent over spillways instead of through turbines to give salmon safer passage. But a provision of the plan allows Bonneville to ignore the rules if it declares a power emergency, which it has done twice this year.

"NMFS has apparently given Bonneville a blank check by letting it avoid spill whenever it deems it appropriate," said Dan Rohlf, an attorney representing the conservation and fishing groups. Rohlf is a teacher at Lewis & Clark College's law school.

A fisheries service official reacted sharply, defending the agency's salmon plan and saying that the BPA must be allowed to avoid spill when water supplies are low.

"We think the bottom line is we wrote the best (salmon plan) we could," said Brian Gorman, a spokesman for fisheries service.

Gorman said that if the BPA were forced to spill water for salmon now it would need to buy electricity at enormously expensive prices -- and risk insolvency.

"When we wrote the plan we knew every year would not be a good water year and made provisions for that," Gorman said. "We didn't think out of the gate we would be slapped with this drought."

The lawsuit puts the future of Columbia Basin in the hands of federal court that has supported conservationists in the past. Portland District Judge Malcolm F. Marsh in 1994 ruled for conservationists in a similar lawsuit, throwing out the fisheries service's 1993 salmon plan. The agency issued a new plan in 1995 and that plan led to the plan targeted Thursday. Marsh has said he will no longer consider most salmon-related cases.

"The continuing salmon emergency is hurting people, communities and economies," said Tim Stearns of the National Wildlife Federation, one of the conservation groups which filed the suit. "Federal agencies managing the Columbia and Snake rivers should be steering us out of this mess. Instead they are making it worse."

The lawsuit contends that the federal plan ignores a consensus of scientific findings, including those of federal agencies, on salmon recovery. It says that the fisheries service asks for actions, such as restoring streams, that rely on private and state spending which the agencies that operate dams cannot control. And it says federal commitment to spending on salmon recovery is inadequate.

The lawsuit does not demand that dams be breached. Conservationists Thursday said they still considered breaching the dams the best way to restore Snake River salmon. They said they will press for breaching if they succeed in the lawsuit.

"The purposed of this lawsuit is to put the brakes on the agency's headlong rush to do the wrong thing," said Todd True, an attorney for the Earthjustice Legal Defense Fund. "Then we can worry about seeking the right thing."