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Salmon on the Columbia: See You in Court by Daniel Jack Chasan Crosscut, June 17, 2008

The federal agencies are back for a fifth round in federal court, still cooking up very strained arguments for minimal efforts to save the fish. Two things might change the impasse: a new case for saving dams due to climate change, and the bestirring of Congress. Here's a survey of the high-stakes issues.

Will the fifth time be the charm for NOAA Fisheries, or will it be the time when control of the Columbia River hydro system passes to the exasperated federal courts?

Since 1991, when the first Columbia River system salmon populations were "listed," National Oceanic and Atmospheric Administration Fisheries (aka the National Marine Fisheries Service) has issued five official biological opinions on operation of the federal Columbia River power system. The U.S. Ninth Circuit Court of Appeals observed last year that Columbia River dam operations "have been the subject of perpetual litigation since the fisheries in question were first listed." The courts have thrown out three biological opinions. The agency withdrew one on its own. The fifth came out last month.

Now a coalition of environmental and fishing groups, represented by Earthjustice, has challenged the new Opinion in the court of U.S. District Judge James Redden, who tossed out biological opinions issued in 2000 and 2004.

(Technicalities: A species is listed as "endangered" under the Endangered Species Act if it faces a risk of extinction and "threatened" if it faces a risk of becoming endangered. If a federal agency proposes action that may jeopardize the continued existence of a listed species and/or may destroy or adversely modify its critical habitat, the secretary of the Interior or Commerce departments - acting through the U.S. Fish and Wildlife Service or NOAA Fisheries - must issue a biological opinion.)

Last time around, Judge Redden made it clear that his patience was wearing thin. If the government failed this time to craft an opinion that complied with federal law, he wrote, "the courts would be required to 'run the river.'" Judge Redden could take control of the entire federal hydro system, just as U.S. District Judge William Dwyer took control of Northwestern national forests during the spotted owl wars of the early 1990s. Exactly how that would work isn't clear.

Basically, the plaintiffs argue that NOAA Fisheries has proposed doing the same old things but somehow expects a great new result. (Plaintiffs have won on this issue time after time. Betting on NOAA Fisheries in Judge Redden's court would be like going to a bullfight and betting on the bull.)

Four years ago, the Bush administration introduced a novel theory - that the dams had become part of the environmental baseline, part of nature, so to speak, so that the government didn't have to consider their adverse effects. The administration also basically focused on the survival of listed salmon populations to the exclusion of their recovery. Redden slapped those arguments down, and the Ninth Circuit sustained him. Endangered Species Act "compliance is not optional," the court observed. "Like the district court, we cannot approve NMFS's insistence that it may conduct the bulk of its jeopardy analysis in a vacuum."

The earlier, 2000 opinion, on the other hand, frankly found that continued operation of the hydro system would jeopardize the recovery of listed salmon populations. To mitigate the effects of dam operations, it proposed an array of habitat improvements that would in theory allow the fish to recover. The proposed actions under the control of federal agencies clearly wouldn't suffice, so the "bi-op" included things that other people would have to do. Here, too, Judge Redden didn't buy that approach and the 2000 bi-op was thrown out because the feds relied on actions that weren't "reasonably certain to occur."

So where could the administration turn? This time, the feds are proposing a narrower range of habitat fixes. Earthjustice attorney Steve Mashuda points out that the "reasonably certain to occur" standard limits the government's options, so this proposal is actually more modest than the one put forward in 2000. He says, "it's hard to understand how doing less will result in more survival."

It is indeed. Actually, the feds this time have focused less on survival than on recovery, which they have based on an unprecedented standard. The requirements of the Endangered Species Act will be met, they argue, as long as a salmon population is "trending toward recovery." What does that mean? Presumably, by definition, if it's not trending toward extinction, it's trending toward recovery. That can mean a population gains another fish or two per generation, or just that it isn't losing any fish. Neither federal law nor federal regulation nor any scientific report on Columbia River salmon has ever mentioned "trending toward recovery."

The new standard, reduced to an extreme, means that if a viable population would be 100,000 fish, and you have 100, but next year you're likely to have 101, you're doing just fine. The fact that you won't reach 100,000 fish in any foreseeable future doesn't matter. There's no fixed standard and no fixed time. "As long as tomorrow is better than today, OK," Mashuda says. "We could be shooting for recovery in 1,000 years."

This kind of standard is both novel and dubious. The longer a population remains seriously depleted, the greater the chance of some disaster wiping it out. If you're a threatened or endangered species, "the longer you stay in the emergency room, the greater your chance of dying," Mashuda explains.

What the federal agencies want to avoid above all is exactly what the environmental groups most desire: breaching the four lower Snake River dams. One can look at the past 15 years of voluminous documents and expensive litigation as an elaborate dance around that central question. Breaching the dams is "probably the biggest elephant in the room," Mashuda says. The 2000 bi-op acknowledged breaching as a possibility if all else failed. The last bi-op and the current one avoid the B-word. But when Redden remanded the last bi-op to NOAA Fisheries for another try, he made it clear that breaching had to be on the table.

You'd never know that breaching was an option from the current document. Instead of breaching, even as a last resort, the feds plan to rely even more heavily on barges and trucks to get young salmon around the dams. Environmentalists have been pointing out for decades that this doesn't seem to have brought salmon populations back from the brink, although, to be fair, it may have kept them from going over the brink.

Barging "has turned from a short-term experiment to a long-term solution," Mashuda laments. In effect, the government assures us, "don't worry, the habitat's fine - because we aren't letting the fish stay in it." He wonders, "are we going to do that for next 100 years?"

If a migratory fish can migrate only through the intervention of human beings and the motive power of diesel engines, projected out through the generations into the indefinite future, has it become functionally extinct?

And speaking of other elephants in the room, what happens if a changing climate makes the unnaturally high temperatures of the water in dam pools even more unlike the habitat to which salmon are naturally adapted? The plaintiffs object to the bi-op's rather cursory treatment of climate change. They point out that the bi-op gives the subject little space, and that actions long contemplated for other reasons now masquerade as efforts to mitigate the effects of higher temperatures.

Still, one might argue that increasing concerns over global climate change - and soaring energy prices - have shifted the argument to where the benefits of preserving the hydro system and its current dams now clearly outweigh the costs of other forms of generating energy. That's a plausible argument, but the bi-op doesn't address it.

The administration may want to make a case for such changed circumstances, at which point it can always call in the "God Squad," the Cabinet-level committee that can decide whether or not the economic costs of saving a listed species outweigh the environmental benefits. The God Squad determines whether the agency proposing action has any "reasonable and prudent alternatives." Neither the Bush administration nor its predecessors has chosen to ask for its opinion. Presumably, they have always figured they'd lose. The God Squad has rarely been invoked, one reason being, as Mashuda suggests, that asking it "to vote on extinction" is basically an admission of failure.

Mashuda also suggests that the climate-change argument isn't a slam dunk. Energy prices and climate change may increase the value of hydropower, but if you put everything on the table, you'd also have to weigh the unique value of Snake River fish, which live at higher elevations, in colder water, than other Columbia Basin stocks. "We have been looking at Snake River stocks as an anchor for Columbia Basin salmon in a warmer world," he says.

Barring an appeal to the God Squad, the action for now remains squarely in Judge Redden's court. But there may be one other avenue for resolution. Congress might finally be forced to act if Redden really does take over, or threaten to take over, the hydro system. So Congress has managed to duck the issue, understandably fearful of all the battling regional interests who would be stirred up. Says Mashuda: "Our position has been that Congress is going to have to deal with it at some point."