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Appeals Court Rules Dam Plan Violates ESA by Jim Camden The Spokesman-Review, April 9, 2007

A federal judge in Portland was right to reject the government's plan for operating Columbia and Snake River dams that could push some runs of salmon closer to extinction, an appeals court ruled today.

The 9th U.S. Circuit Court of Appeals said a 2004 federal plan, known as a Biological Opinion or BiOp, violates the Endangered Species Act because the federal agency that wrote it didn't properly consider whether changes to the river systems would harm or destroy habitat for endangered salmon and steelhead.

The law requires that federal agencies take no action that results in "destruction or adverse modification" of critical habitat for endangered animals, the three-judge panel said. The agency, then known as the National Marine Fisheries Service, made significant mistakes in the way it put together the BiOp. Among those problems was the failure to consider a way for those runs of salmon to recover, not just survive, the appeals court said.

Federal agencies that operate the dams have argued that they must balance the system's power, irrigation and transportation needs with the need to protect endangered salmon. But U.S. District Judge James Redden ruled in 2005 that their latest plan does not measure up to requirements in the Endangered Species Act.

He had previously ruled that their 2000 BiOp was inadequate, a decision also upheld by the appeals court.

The ongoing court battle pits some state wildlife agencies, sport fishermen, tribes and environmental groups against NOAA Fisheries, the Bonneville Power Administration, U.S. Army Corps of Engineers, barge operators and irrigated farmers.

The appeals court acknowledged the ongoing dispute, starting its opinion with the comment that the appeals "bring us once more to the Pacific Northwest, for another round in the complex and long-running battle over salmon and steelhead."

Related Sites:
Ninth Circuit Court of Appeals ruling.