Columbia Basin Bulletin Issue Summary No. 1

SALMONHYDRO

AND

An Account of Litigation over Federal Columbia River Power System Biological Opinions for Salmon and Steelhead, 1991-2009

Columbia Basin Bulletin Issue Summary No. 1

Salmon and Hydro

An Account of Litigation over Federal Columbia River Power System Biological Opinions for Salmon and Steelhead, 1991-2009

First Edition February, 2009

By Bill Crampton Barry Espenson

Columbia Basin Bulletin

@Copyright by Intermountain Communications, publisher of the Columbia Basin Bulletin. Please respect intellectual property rights. This document may not be downloaded or copied without purchase or permission. If you have information about illegal copying and distribution please contact Bill Crampton at bcrampton@cbbulletin.com or 541-312-8860.

Table of Contents

Editor’s Note ................................................................................4

Introduction .................................................................................5

I. 1991-1995: Three ESA Listings, Four Biological Opinions, Five Court Challenges ..........................................................8

II. 1995-1998: Reasonable And Prudent Alternatives, Spread The Risk, Long-Term Configuration, Adaptive Management; River Governance; Regional Parties Stake Their Positions; A BiOp Finally Passes Legal Muster ...................................12

III. 1998-1999: More ESA Listings; A Supplemental Steelhead BiOp Guiding River Operations; Independent Science Advisory Board Weighs In On Smolt Transportation; Appeals Court Upholds 1995 BiOp; Supplemental BiOps On New Listings, Snake Water ................................................ 32

IV. 1999-2004: Not Just Hydro, But All The ‘Hs’; Recovery In 48 years?; Mitigation Must Be Certain To Occur; Another BiOp Bites The Dust; A Remand; Corps Rules On Snake River Dam Removal ... 37

V. 2004-2008: A New BiOp Says No Jeopardy From Hydro Operations; A New ‘Environmental Baseline’; Redden Says No Again; Discretionary Actions vs. Non-Discretionary (Dams’ Existence); Court Runs The River; Upper Snake River Gets Own BiOp ................. 47

VI. 2008-2009: A ‘Collaborative’ BiOp; New Fish Funding Agreements, New BiOp Support; Montana Finally Likes The Reservoir Plan; Earthjustice Says New Approach Inadequate; Oregon Left As Only State Opposed To BiOp; Should Independent Scientists Evaluate BiOp?; Parties To Litigation Grows; Clean Water Act Now An Issue; A New Round Of Briefings ................................................ 58

VII. Conclusion: Rushing To Redden’s Finish Line ....................72

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Editor’s Note

This 77-page history of Columbia River Basin salmon/steelhead biological opinion litigation, 1991-2009, is a summary and not a complete account that touches on every issue argued in the courts. That would take hundreds more pages. Individual readers with particular interests — i.e., flow, spill, harvest, hatcheries, predation, fish passage at the dams — will find only abbreviated discussions of the role of such issues in Columbia River Basin salmon recovery. (Future issue summaries will address these individual components of salmon recovery in more detail.)

Our goal here is to give the reader a general understanding of the history of biological opinion litigation — how the Northwest moved, in legal terms, from the first salmon listings under the Endangered Species Act to the 2008 Federal Columbia River Power System Biological Opinion — and the major issues involved in case after case.

After all, a biological opinion remains the primary legal plan for how the federal government intends to protect and recover ESA-listed salmon and steelhead in the Columbia/Snake River Basin.

All source material for this issue summary comes from original reporting by Bill Crampton and Barry Espenson in the print newsletter Northwest Salmon Recovery Report (1997-1999) and the on-line newsletter The Columbia Basin Bulletin (1998-present), both published by Intermountain Communications of Bend, Oregon.

Much more information about the salmon and steelhead biological opinions, and all other aspects of Columbia Basin salmon and steelhead recovery, can be found in The Columbia Basin Bulletin’s 11 years of archives ( with an advanced search engine) at www.cbbulletin.com

— Bill Crampton, 2009

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Introduction

Twelve years ago, on March 31, 1997, a line of attorneys filed into federal Judge Malcolm Marsh’s Portland courtroom to argue over whether the federal government was abrogating its duty to protect endangered Snake River wild salmon from extinction.

The lawyers that morning offered a striking portrait of the polarization that plagued salmon recovery since the first listings of Columbia River Basin salmon under the federal Endangered Species Act – Snake River wild sockeye (endangered) in November 1991, and Snake River spring/summer and fall chinook (threatened) in April 1992.

The litigants had come to wage battle over American Rivers vs. National Marine Fisheries Service, a lawsuit challenging NMFS’ 1995-1998 Federal Columbia River Power System (FCRPS) Biological Opinion for Snake River wild salmon.

Though it would be the fifth time in five years a biological opinion for Columbia Basin salmon was to be scrutinized in court, all observers understood that the 1997 litigation would have far more consequences for salmon and the region’s economy than past challenges and rulings.

Indeed, the 1995 BiOp was the most comprehensive declaration to-date of what the federal government intended to do to protect Columbia Basin wild salmon in the near term.

As important, the document detailed the decisions – based on ongoing scientific research – to be made in 1999 that would reconfigure the hydrosystem in a manner that would ensure long-term salmon recovery.

Therefore, the period 1995-1998 was known in salmon recovery circles as the “interim.”

This interim was intended to be the “sound science years” during which fisheries scientists, economists, and sundry bureaucrats – with millions of public dollars in hand – would compile the information necessary for Congress and other policymakers to make wise decisions in 1999 that would sustain and eventually recover Snake River wild salmon.

Since 1992, previous attempts by federal agencies to please federal judges had not gone well. Judges had not been shy about giving agencies some direction in finding the right path through legal obstacles.

In many respects, the ambitious 1995 BiOp was a result of lessons learned from past failures.

All parties involved in Columbia Basin hydropower/salmon issues — states, tribes, local governments, advocacy groups, power and business interests — understood the significance of this new federal salmon recovery plan and its ability to pass legal muster.

Though released four years after the first ESA listings, the 1995 BiOp represented the first time the federal government declared that the Columbia Basin hydropower system “jeopardized” the survival of Snake River wild salmon. As a result, federal agencies proposed “reasonable and prudent alternatives” (RPA) to avoid such jeopardy.

Yet, by 1997 three states — Oregon, Washington, and Alaska — four Basin treaty tribes with fishing rights, and conservation and fishing interests, were contending that those alternatives were, in fact, not avoiding jeopardy for salmon.

The 1995-1997 period was also a time in which salmon recovery coordination – what many called “river governance” – was fraying. The Northwest Power Planning Council, created by the 1980 Northwest Power Act to give states a major role in Basin hydropower and fish and wildlife mitigation issues, had become seriously marginalized by the ESA salmon listings, and

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by its own internal disagreements (upstream vs. downstream interests). Efforts by the federal government to improve coordination and collaboration seemed to please no one.

Should there be a federal salmon czar? A revamped, more inclusive and powerful planning council? Or a brand-new Columbia Basin salmon recovery governing body that included states, federal agencies and tribes?

In this climate of disunity and distrust, the region awaited Marsh’s 1997 ruling on the legality of the 1995 BiOp. All parties knew that whichever way Marsh ruled, it would be a critical turning point in Columbia Basin salmon recovery.

That turning point is reflected in the structure of this issue summary. We take the reader fairly quickly through the early days of litigation leading to the 1995 BiOp case and Marsh’s 1997 ruling. But here we slow down, taking advantage of that case to give readers a sense of where, at that moment in time, the key players stood on how best to reconcile Basin hydropower operations with salmon survival.

Let’s be clear. We call 1995-1997 a turning point, but not a resolution point.

Though the 1995 BiOp and Marsh’s ruling serve as an important foundation for subsequent expanded federal action, the region was still to experience further intense disagreements over salmon recovery, and more FCRPS salmon and steelhead biological opinions – in 2000, 2004, and 2008. Biological opinions were also released for Upper Snake River Bureau of Reclamation irrigation projects.

All of these post-1997 biological opinions have been the subject of significant litigation, with the core issues of salmon recovery discussed in each case.

The biological opinions since 1995, except for one notable exception, have said the Columbia River Basin hydrosystem jeopardizes salmon survival, and that reasonable and prudent alternatives must be implemented to keep wild fish alive and allow recovery to sustainable numbers.

That exception was the 2004 BiOp. NOAA Fisheries, employing a different jeopardy analyses from past biological opinions, concluded that the operation of the FCRPS dams would not jeopardize the continued existence of any listed species.

With the 2004 BiOp, the Bush Administration attempted to make the case that the existence of the Columbia/Snake River dams represented “non-discretionary” actions, and that the focus of salmon recovery should be on “discretionary” issues.

Federal courts rejected this notion, emphasizing that the ESA requires a look at “cumulative” effects from both the “environmental baseline” (the dams) and proposed future actions impacting the threatened and endangered salmonids.

The inability of the federal government to produce a legally viable Columbia Basin salmon recovery plan put one particular man at the center of the storm – federal Judge James Redden.

With his rejection of the 2000 and 2004 biological opinions – and with both rulings subsequently upheld by the Ninth Circuit Court of Appeals – Redden supervised both the production of the 2008 BiOp, guiding the parties through a lengthy collaboration process, and, through injunctions, determining Columbia/Snake River hydro operations during salmon migration seasons.

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In May 2008, the federal agencies presented a new “collaborative BiOp” with a 10-year timeline. The new plan generated far more support from states and tribes than any other previous biological opinion.

Yet, as was the case with all other federal Columbia Basin salmon protection plans since 1992, this one, too, was thrust into court almost immediately – challenged again as inadequate by environmental and fishing organizations and the state of Oregon.

And, as basin salmon recovery moved from a Bush Administration to an Obama Administration, another round of briefings ensued in Judge Redden’s court, culminating with oral arguments scheduled for March 6, 2009.

At the time of this writing, we are awaiting Redden’s ruling on the 2008 BiOp. No doubt, Redden’s decision will be another key turning point for Columbia Basin salmon recovery. If the judge upholds the new, current biological opinion, a recovery plan largely written under one Administration will be implemented by another, along with states and tribes.

And if Redden again rejects a federal salmon protection plan as inadequate? Back to square one?

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I. 1991-1995: Three ESA Listings, Four Biological Opinions, Five Court Challenges

Listings and Lawsuits

On Nov. 20, 1991 the National Marine Fisheries Service identified the Snake River sockeye as an endangered species. On May 22, 1992 the agency listed the Snake River spring/summer and fall chinook as threatened species.

The ESA treats as a species any “distinct population segment of any species of vertebrate ... which interbreeds when mature.”

Under an “interim policy” adopted in 1991 by NMFS, a salmon population was treated as a “distinct population segment” when it was “reproductively isolated” from other population units and “an important component in the evolutionary legacy of the biological species.”

A salmon stock meeting such criteria was stamped as an “evolutionarily significant unit.”

If “in danger of extinction throughout all or a significant portion of its range,” a salmon stock was classified as an “endangered species.” If “likely to become an endangered species throughout all or a significant portion of its range,” it was classified as a “threatened species.”

In August 1992, as a result of the ESA listings, the Bonneville Power Administration published its 1992 Water Management Record of Decision (ROD) setting out a program designed to improve the life cycle of salmon and steelhead.

BPA, an entity of the U.S. Department of Energy, markets the hydroelectric power produced at the Columbia River and its tributaries, including the Snake River, by dams and a power generation and transmission system built and administered by the Bureau of Reclamation and the Army Corps of Engineers.

BPA’s 1992 water management program proposed increasing the voluntary spilling of water over dams and higher flows to benefit salmon.

Prior to publishing the ROD, BPA had prepared a Biological Assessment evaluating the impact of its 1992 operations, concluding that the operations did not jeopardize the listed species. Federal agencies also had collaborated in preparing the statutorily required “1992 Columbia River Salmon Flow Measures Options Analysis/Environmental Impact Statement.”

In May 1992, a coalition of conservation and fishing groups sent federal agencies a 60-day notice of intent to sue for violations of the ESA.

On August 4, 1992 they filed in federal District Court a complaint asking for a court order compelling “defendants to engage in adequate and comprehensive consultation” regarding the impact of the operation of the federal Columbia River Power System on threatened and endangered salmon in the Snake River; to provide sufficient conditions for migrating fish to insure their survival; and to minimize to the maximum extent practicable the incidental take of the listed species by the power system.

These plaintiffs alleged that spring and summer chinook in the Snake River, whose population once exceeded 1.5 million adult fish per year, had averaged only 9,674 wild fish per year from 1980 to 1990, and that Snake River fall chinook, once the most important fall chinook stock in the Columbia River Basin, had declined to 78 wild fish in 1990 and 318 wild adults in 1991.

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The plaintiffs contended that the primary cause of the decline of these salmon was the construction and operation of hydroelectric flood control and water storage projects.

Then came the legal free-for-all. Numerous entities that purchase power from BPA intervened as defendants. Four defendant-intervenors, all of them Federal Columbia River Power System power users, filed cross-claims against the federal agencies. The cross-claims alleged the Administration’s proposed actions would result in substantially higher power rates and would violate the ESA and the Administrative Procedure Act.

BPA moved to dismiss the action against it for lack of jurisdiction. The District Court granted the motion, noting the Northwest Power Act requires any challenge of BPA actions be filed in the Ninth Circuit Court of Appeals.

Under appeal, the plaintiffs argued that BPA’s actions related to the ESA, not the Power Act.

But the Appeals Court upheld the lower court, saying “the determinations here made were final actions by the agency carrying out its authorized mission of managing the river system and enhancing the fish stock. They fall within the exclusive jurisdiction of this court.”

Meanwhile, in 1992 NOAA Fisheries issued its biological opinion on the impact of hydropower operations on the three newly listed salmon species. Its conclusion that the dams would not jeopardize the listed species was first challenged not by environmental interests, tribes, or states, but by power, industry and irrigation groups. (Pacific Northwest Generating Cooperative vs. Brown).

In federal District Court, the plaintiffs contended the agencies should have considered impacts on the entire life cycle of the salmon, not just those impacts connected to the hydropower system.

The plaintiffs charged that the agencies had failed to take into account the impacts of habitat, hatchery and harvest upon the salmon, all in violation of the ESA and the Administrative Procedure Act. These plaintiffs sought declaratory relief and an injunction against the flow measures set out in the April 10 biological opinion.

Federal District Court Judge Marsh ruled that the plaintiffs – power, industrial and agricultural interests — lacked standing to pursue claims under the ESA.

Marsh also ruled that the plaintiffs’ claims as to the defendants’ failure to conduct consultations on habitat and hatchery issues in 1992 were moot because consultations were already underway to address any alleged deficiencies.

On harvest and incidental take authorized under the ESA, the plaintiffs argued that fishing which cannot distinguish among the salmon taken should not be characterized as merely

“incidental” taking of the endangered species.

But the District Court accepted the federal defendants’ position that the authorized take of the listed species was indeed incidental to the permitted salmon harvesting.

On appeal, the Ninth Circuit agreed with Marsh that the habitat and hatchery issues were moot. On harvest, the Appeals Court also agreed with Marsh that the agencies were addressing incidental take of listed fish appropriately.

“It cannot be believed that Congress intended to ban all salmon fishing in the Columbia and Snake Rivers and in the Pacific Ocean whenever one salmon stock, indistinguishable by sight, became endangered. In common sense and in terms of the statute, the few endangered salmon constitute ‘incidental’ take when they are captured,” said the court in upholding Marsh.

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However, on the issue of standing for those representing economic interests, the Appeals Court reversed Marsh.

“The present endangered or threatened status of the species imposes actual costs upon the plaintiffs,” wrote the court. “They have a real economic stake in changing the status. We see no reason why that economic interest is not convertible into a legal interest. Once that legal interest is recognized, the plaintiffs qualify for standing . . .”

Idaho Takes Center Stage

NOAA Fisheries (National Marine Fisheries Service) then issued another biological opinion in 1993 only for operations covering the period April 1993 to January 1994. NOAA concluded that the dams during those 10 months were “not likely to jeopardize the continued existence” of the listed species.

In particular, the biological opinion predicted that the population of two of the listed species would stabilize over the next four life cycles.

NOAA predicted the proposed actions would decrease mortality by amounts ranging from between 2.5 and 11.4 percent for Snake River spring/summer chinook and between 5.1 and 8.9 percent for Snake River fall chinook.

The state of Idaho filed suit against this 1993 BiOp.

The challenge came at the time Idaho Gov. Cecil Andrus was pushing for federal agencies to adopt the so-called Idaho Plan, which called for drawing down reservoirs in the spring on the lower Snake and Columbia Rivers. Idaho contended that drawdowns would increase the river current through the slack water behind the dams, helping flush juvenile salmon migrants to the sea.

Drawdown advocates contended barging fish around the dams had failed to restore fish runs.

And some Idaho interests looked to drawdowns as a way to reduce calls for using southern Idaho irrigation water to increase flows for salmon.

Experimental drawdowns implemented behind two dams had prompted widespread opposition from interests who depend on the reservoirs – barge companies, ports, marinas, irrigators, inland farmers, timber companies and others.

The drawdown issue was not specifically mentioned in Idaho’s challenge to the 1993 BiOp. Instead, Idaho and other opponents of the biological opinion stressed that federal agencies had missed the mark on measuring the true risk of salmon extinction.

In the 1994 case, Idaho vs. NMFS, Judge Marsh struck down the 1993 BiOp as inadequate.

“…the process is seriously, significantly, flawed because it is too heavily geared towards a status quo that has allowed all forms of river activity to proceed in a deficit situation – that is, relatively small steps, minor improvements and adjustments – when the situation literally cries out for a major overhaul.”

Marsh said NMFS’ biological opinion did not protect the listed Snake River salmon from jeopardy as required by the ESA.

“NOAA arbitrarily and capriciously discounted low range assumptions without well-reasoned analysis and without considering the full range of risk assumptions,” Marsh said.

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He noted that “NOAA focused on the system capabilities… rather than stabilization of the species.”

While Idaho’s lawsuit against the 1993 BiOp was pending, federal agencies — the Corps of Engineers, the Bureau of Reclamation, and the Bonneville Power Administration — on Dec. 2, 1993 forwarded a biological assessment to NMFS with a request for consultation on the 1994-1998 operation of the Columbia/Snake river power system.

On March 16, 1994, two weeks before Marsh ruled against the 1993 BiOp, NMFS issued yet another biological opinion (1994-1998 Biological Opinion) that concluded the 1994-1998 hydropower operations would neither jeopardize the Snake River salmon nor adversely modify designated critical habitat.

But with Marsh’s ruling, the federal agencies were forced to reinitiate consultation on the hydropower system’s impacts to listed salmon. Due to timing, the legal errors in the 1993 BiOp had been carried over into the 1994-1998 BiOp.

On August 4, 1994, American Rivers filed suit against the 1994-1998 BiOp. The conservation organization contended the federal defendants violated the ESA by relying on the transportation (barging, trucking) of Snake River smolts as the premise for concluding that 1994-1998 Columbia/Snake hydropower operations were unlikely to jeopardize the continued existence of the listed salmon.

Later that year, Judge Marsh granted the federal defendants’ request for a stay in the proceedings until Feb. 1, 1995 to reinitiate consultation on the 1994-1998 BiOp and bring the opinion into compliance with the District Court’s order rejecting the 1993 BiOp.

On March 2, 1995, NMFS issued a new biological opinion which superseded the 1994-1998 BiOp (released March 1994).

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II. 1995-1998: Reasonable And Prudent Alternatives, Spread The Risk, Long-Term Configuration, Adaptive Management; River Governance; Regional Parties Stake Their Positions; A BiOp Finally Passes Legal Muster

A Sweeping New Biological Opinion

The new 1995 BiOp, far more sweeping than previous recovery plans, declared that existing Federal Columbia River Power System operations did jeopardize the continued existence of ESA-listed salmon stocks.

NMFS also released the “reasonable and prudent alternatives” (RPAs) that would avoid such jeopardy. These RPAs included alterations in flow, voluntary spill, power generation, reservoir levels, and smolt transportation, all of which were (and still are) at the core of disputes over Columbia Basin salmon recovery.

As a follow-up to the RPAs, the federal managers of the Columbia River system – the Army Corps of Engineers, Bureau of Reclamation, and Bonneville Power Administration – signed Records of Decision which pledged that the agencies would adopt measures outlined in the biological opinion. With these RODs, agencies could then declare that their activities did not harm listed stocks of wild salmon.

The 1995 BiOp had plenty to say about flows and spill to improve fish passage and reduce reservoir mortality. But the document was just as notable for its “spread-the-risk” strategy and

“adaptive management” approach – an acknowledgement that scientific uncertainty and lack of consensus dominated basin salmon recovery.

NMFS’ spread-the-risk strategy relied on both transportation of smolts (barging, trucking) and in-river migration (flow, spill) for at least three more migration seasons. This dual method of downriver fish passage was to continue as scientists gathered data for 1999, when, according to the 1995 BiOp, decisions would be made on “long-term configurations.”

At issue was whether most salmon migrants should travel to the ocean in-river or be transported. The in-river strategy would require expensive modifications to dams (largely funded by BPA ratepayers) and potentially deep drawdowns of reservoirs, impacting agriculture, navigation, and power generation. The transportation strategy would demand expensive improvements in smolt collection.

To manage the 1995 BiOp’s interim river operations (the RPAs) and guide the decision-making process (the “decision-path”) to an all-important 1999 decision, NMFS created what it called an adaptive management approach.

The agency contended that this process allowed federal, state, and tribal governments and other interested parties to work cooperatively in managing the hydropower system to the benefit of salmon.

At the top of this new process was an “Executive Committee,” which included top policymakers from federal agencies, state governments, and tribes. The NMFS Northwest Administrator at the time, Will Stelle, chaired the group.

Just below the Executive Committee was the Implementation Team (IT). It was to be composed of senior managers from “all relevant sovereign entities.” The IT was to determine how the

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river should be run under the biological opinions and RPAs. The IT was to supervise a handful of technical teams and settle disputes among those teams.

Those technical teams included the Technical Management Team (TMT), which makes in-season operational decisions regarding the FCRPS, and the System Configuration Team (SCT), which develops proposals and priorities for physical improvements to the dams.

Over time the Executive Committee faded away and has since morphed into the “Federal Executives” – the people at the top of BPA and the regional offices of the Corps, U.S. Fish and Wildlife Service, NMFS, and Bureau of Reclamation. IT, TMT, and SCT are still active.

While NMFS argued at the time that this new management process was effective, others expressed skepticism. Criticisms included lack of clear guidelines, lack of public participation and public scrutiny, erratic attendance, lack of explanations for resulting decisions and no dispute resolution mechanism.

NMFS worked to address these complaints as it essentially used this process to “run the river” under the 1995 BiOp.

Nonetheless, environmental and fishing groups filed suit against NMFS in 1996, contending the RPAs were not being implemented properly and that the 1995 BiOp jeopardy standard was inadequate.

Narrowing Alternatives For Long-Term River Operations

As the legal wheels slowly rolled in 1996-97, the most significant effort under the 1995 BiOP was the narrowing of alternatives for long-term river operations. The biological opinion required the Corps to evaluate for the Lower Snake River two natural river drawdown options (seasonal and permanent) and seasonal spillway crest drawdown.

Also being evaluated were surface bypass/collection systems designed to release migrating juvenile salmon directly into the river (on the downstream side of the dam) or collect and load the fish onto barges for transport to below Bonneville Dam.

In a December 1996 report – The Lower Snake River Juvenile Salmon Migration Feasibility Study – the Corps determined both seasonal spillway crest drawdown and seasonal natural river drawdown were “imprudent” due to high cost (billions of dollars), long implementation time (10-15 years), low biological benefits, damage to environmental and cultural resources from fluctuations, and fish passage difficulties.

Due to the Corps’ feasibility study, the region in January 1997 (as guided by the 1995 BiOp) found itself with these options for saving Snake River wild salmon:

• permanentdrawdownoftheLowerSnakeRiverdamstonaturalriver;• installationofsurfacebypass/collectionfacilities;• thecurrentfishrecoveryprogram;• orsomecombinationofallthree.

Taken off the table were seasonal drawdowns and drawdowns of just a few feet (minimum operating pool).

With this study, in reality, the alternatives for the Columbia/Snake River mainstem were:• expandedbarging(withnewsurfacebypass/collectortechnology–bargeeveryfishyoucan

collect); • SnakeRiverdamstonaturalriver(breachingordamremoval);

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• SnakeRiverandJohnDaypooldrawdowns(naturalriverontheSnakeandsomekindofdeep drawdown at John Day Dam to improve passage and reduce mortality when the fish hit the Columbia);

• Maximizingin-riverconditions(surfacecollectionatthedams,returnfishtotheriver,improve mainstem habitat conditions).

“The Court Must Intervene”

The parties gathered before Judge Marsh on March 31, 1997 to argue a case (the challenge to the 1995 BiOp) that would influence the fate of the salmon and the operation of the federal Columbia River power system — flows, spills, drawdowns, power generation, navigation, irrigation – more than any other single event in the coming years.

“The Court,” said the plaintiffs in American Rivers vs. NMFS, “must intervene to enforce the law and create an opportunity for the kind of major changes widely recognized as necessary to protect listed salmon and required by law, but thus far beyond the reach of the defendants.”

Would Marsh take over management of river operations? Or would he hesitate to entangle his court in this web of creaky bureaucratic processes, clashing science, politics and polarized issues?

The briefings for the case had shown Marsh that in reality salmon recovery suffered most from the fact that nobody seemed to be in charge.

The Northwest’s salmon recovery managers disagreed on whether NMFS’ 1995 BiOp met the mandate of the Endangered Species Act.

They disagreed on NMFS’ implementation of the biological opinion and the federal government’s management of river operations.

They disagreed among themselves on flow, spill, smolt transportation and reservoir drawdowns. They disagreed on how and where to spend the half-billion dollars a year on basin salmon recovery. They even disagreed on which bureaucracy should be in charge of what, who should run the meetings, and who should set the agenda for those meetings.

In other words, name the subject and Judge Marsh found a dispute, and an inability by the parties to resolve that dispute.

The plaintiffs facing Marsh in March 1997 were American Rivers, Idaho Rivers United, Oregon Natural Resources Council Action, Idaho Steelhead and Salmon Unlimited, Northwest Sport Fishing Industry Association, Pacific Coast Federation of Fisherman’s Associations, Institute for Fisheries Resources, Federation of Fly Fishers, Trout Unlimited, and Sierra Club.

Oregon participated as an intervenor on the side of these plaintiffs. Arguing as “friends-of-the-court” on the plaintiffs’ side were the states of Washington and Alaska and jointly the Confederated Tribes and Bands of the Yakama Nation, Confederated Tribes of the Umatilla Indian Reservation, Confederated Tribes of the Warm Springs Reservation and the Nez Perce Tribe.

Plaintiffs Focus on ‘Jeopardy Standard’

The plaintiffs, the challengers, contended that NMFS inappropriately changed the standards of

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salmon recovery to such a degree that river operations arising from the 1995 BiOp were simply inadequate to save Snake River wild salmon.

At issue was the “jeopardy standard,” which determines the degree of alterations for the Columbia/Snake hydropower system in order to save the salmon. The Reasonable and Prudent Alternatives (RPA) under the biological opinion — the alternatives to status quo river operations — must not leave the endangered stocks in “jeopardy.”

Clearly, the criteria used to reach a “no jeopardy” determination are crucial. The jeopardy standard, in essence, is the target that federal agencies must reach through modification of river operations.

Plaintiffs challenging the 1995 BiOp told Judge Marsh that a group of federal, state and tribal representatives worked with NMFS in 1994 to develop a jeopardy standard suitable for determining reasonable and prudent alternatives to current river operations. This group, said the plaintiffs, determined that recovery should be based on achieving survival threshold levels over short-term and long-term time frames.

With this approach, said the plaintiffs, NMFS appeared willing to set a jeopardy standard that called for a “moderate” likelihood of achieving recovery over a 24-year period, and a “high” likelihood of exceeding recovery levels at 48 years.

However, plaintiffs charged in court that when NMFS released the final 1995 BiOp, the agency “inexplicably” had significantly weakened the jeopardy standard. The plaintiffs contended that NMFS dropped the requirement of a moderate probability of recovery over the 24-year period and weakened the demands for recovery at 48 years.

These changes made the difference between a jeopardy and no-jeopardy finding, said the plaintiffs. They told Marsh that no matter how high the standards in the long-term, if the salmon “cross an irreversible extinction threshold in the near term, they will not survive.”

From the plaintiffs’ point of view, these lower standards for recovery – the basis for a no-jeopardy ruling – simply lead to alterations in river operations inadequate to recover and sustain populations of wild Snake River salmon.

The lower recovery standard, charged the plaintiffs, had led NMFS to weaken “hydrosystem operation measures from those the agency previously had recognized as both capable of being implemented and necessary to protect listed species.”

They told Marsh that a lower recovery standard had resulted in NMFS requiring less than adequate water from the Upper Snake River for flow augmentation and requiring less water for fish from behind Grand Coulee Dam’s Lake Roosevelt and from the Brownlee Reservoir on the Snake River.

Plaintiffs said NMFS had also reduced the level of spill at Little Goose and Lower Monumental dams on the lower Snake River.

In sum, plaintiffs said by changing the jeopardy standard, NMFS “substantially weakened requirements for flow and spill measures to benefit listed salmon.”

But plaintiffs didn’t stop there. They alleged that even what they viewed as the less-than-adequate changes were not being implemented by NMFS, Corps, and Bureau.

The conservation and fishing organizations complained summer flow targets for fish in the Columbia and Snake rivers were not being met.

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They alleged that NMFS had reached an “undisclosed agreement” with the state of Montana that allowed Libby and Hungry Horse reservoirs to be maintained at higher summer elevations than that required by changes under the biological opinion.

NMFS, in court, was also accused of: improperly curtailing spill at John Day, The Dalles and Bonneville dams; failing to secure implementation of a John Day drawdown, which the RPA specified should take place as soon as possible after March, 1996; and failing to move fast enough on installing spillway and other fish passage modifications at Ice Harbor and John Day dams.

In addition, the plaintiffs contended that since the issuance of the biological opinion in March 1995 new “scientific assessments of Columbia River salmon and hydrosystem operations have concurred with the Court’s assessment that a major overhaul of the FCRPS must occur promptly if salmon are to survive.”

They said the Independent Science Group’s report Return to the River “makes clear that the 1995 BiOp avoided taking the steps necessary to protect listed salmon.” They noted that the report promoted a “normative river” concept that includes efforts to restore salmon habitat through reservoir drawdowns and “efforts to restore more natural river flows to aid migrating fish.”

So, concluding the 1995 BiOp and RPA would not avoid jeopardy of listed salmon, the plaintiffs asked that Judge Marsh “intervene to enforce the law….”

An Aggressive Oregon on Flow Targets

Of all the briefs, however, Oregon’s was the most aggressive in attacking the biological opinion and the way federal agencies had implemented it.

Oregon was particularly angered over NMFS’ handling of target flows for fish.

“The federal defendants failed to attain these required flows with alarming frequency. During the spring of 1995, the target flows were missed 31 percent of the time on the Snake and 17 percent of the time on the Columbia. During the summer of 1995, the target flows were missed 55 percent of the time on the Snake and 84 percent on the Columbia. Spring 1996 was somewhat better, owing to a good water year. Yet during the summer – when meeting target flows most depends on federal defendants altering status quo of past river operations – the flows were missed 63 percent of the time on the Snake and 40 percent on the Columbia.”

Oregon, more than any other party, has consistently pushed for more water for salmon from upriver Montana and Idaho reservoirs. In 1997 the state told Judge Marsh, “With target flow ranges being missed as river flows dropped below the minimums necessary to avoid mortality in the migrating salmon, the federal defendants failed even to provide the reservoir volumes specifically identified in the BiOp.”

Oregon told Marsh the 1995 failure to draft Montana’s Libby and Hungry Horse reservoirs and Idaho’s Dworshak Reservoir on the Clearwater River left 744,000 acre feet of water in the reservoirs that should have gone to downstream salmon.

“Clearly,” said Oregon, “additional water was and continues to be necessary to meet the flow targets.”

On spill, Oregon complained NMFS and the federal agencies were not achieving 80 percent fish passage efficiency away from the turbines as required under the biological opinion. The

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state contended that NMFS had improperly curtailed spill and that “state and tribal requests were not followed, and no written, science-based explanation for rejecting the state and tribal position was provided.”

And more so than other parties, Oregon objected to the process NMFS had set up to manage the 1995 BiOp and RPA – Executive Committee, Implementation Team, and Technical Management Team.

The state complained about lack of guidelines, late agendas, spotty attendance and inability to adequately plan for the meetings. Oregon told the court that such meetings “are frequently ineffective at problem analysis and problem solving.”

The state asked Judge Marsh to order NMFS to meet flow targets or reinitiate consultations with agencies, states, and tribes if they intended to deviate from the biological opinion. Oregon also asked for “judicial oversight of a dispute resolution mechanism.”

Washington, Tribes, Alaska Weigh In

The state of Washington, too, wanted Marsh to order NMFS to explain why it changed direction on the jeopardy standard. The state said that when federal agencies depart from the biological opinion’s alternatives to river operations, “NMFS must solicit the expertise of state and tribal fishery biologists in order to ensure that it uses the best scientific information available.”

Washington also called for a dispute resolution process supervised by the court.

The four lower Columbia River treaty tribes filed a joint friend-of-court brief saying NMFS violated the ESA and the court’s ruling in Idaho vs. NMFS by adopting changes to river operations that merely promise “further improvements based on future actions to be implemented sometime in the next century but, that by its own admission, will not meet the listed species biological requirements in the short term; and, in the long term, still appears to be insufficient for species’ survival and recovery.”

The tribes contended the jeopardy standard was diluted from the alleged earlier proposal “for non-science reasons.”

The tribes said the new jeopardy standard “reflects a conscious decision to significantly decrease the likelihood” that listed stocks will survive. “NMFS’ selection of a jeopardy standard that leaves the salmon populations so debilitated that they only retain the vigor to someday recover at 50 percent probability is maddening to the tribes.”

Interpreting the standard to mean that the federal defendants only required a 50/50 chance that listed salmon would recover by the year 2050, the treaty tribes wondered if it would be another 50 years beyond that, to the year 2100, “before populations are robust enough to provide the fisheries promised them in 1855.”

The tribes agreed with the plaintiffs that key elements of the RPA interim operation had not been implemented, notably meeting flow targets and implementing a John Day drawdown to minimum operating pool.

The Spokane Tribe on the Upper Columbia River, in a friend-of-the court brief, said it found itself “in a perplexing situation within the wide-ranging issues in this complex case.”

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The Tribe was most concerned with the impacts of the 1995 BiOp and RPAs upon Lake Roosevelt behind Grand Coulee Dam. The biological opinion called for a 10-foot drawdown of Lake Roosevelt to provide water for Snake River migrating salmon. The Tribe feared that when water is not being delivered from elsewhere as required, such as from the upper Snake-Clearwater River or Kootenia River systems, “the region looks to Grand Coulee to mitigate for such failures. This has cumulative adverse impacts on resident fish and wildlife, water quality, cultural sites/resources and tribal enterprises which are important to the Spokane Tribe (and Colville) even though the incremental contribution of water may be minor for the system as a whole and impacts on hydroelectric power general negligible.”

The Spokane Tribe in 1997 told Judge Marsh that “Lake Roosevelt and the Spokane and Colville Tribes are being asked to assume increasing burdens” arising from “the failure to require equitable water supplies from other storage systems in the basin.

“These are Snake River fish; they need Snake River waters” rather than more water from Lake Roosevelt, said the Tribe.

The Spokane Tribe called for continued court jurisdiction over biological opinion issues. But the Tribes said it was “wary of Oregon’s and Washington’s requests for a court-ordered forum-dispute resolution mechanism,” fearing such a process would be dominated by salmon managers at the expense of those concerned about impacts to resident fish.

“Decisions on FCRPS operations to save the listed species cannot be the exclusive province of the salmon managers,” said the Tribe.

Alaska also filed a short brief on the plaintiff’s side and focused mostly on temperature issues. The state contended that the 1995 BiOp’s flow policies favored protection of emigrating spring and summer juvenile chinook over later emigrating fall chinook populations by allowing water temperatures to rise above 70 degrees in late summer.

The biological opinion “gives inadequate consideration to the effects of high water temperatures in the hydro system on adult fall chinook salmon during spawning migration.

“Having appropriate temperature regimes for adult fall chinook to reach the spawning grounds is as demographically important, if not more important, than striving to achieve appropriate flow regimes for juvenile spring/summer chinook migrants.”

Alaska also expressed concern that NMFS’ research favored “transport over normative river condition.” The state said “the only prudent option is to restore the river to normative river conditions to the maximum extent possible.”

Federal Agencies Answer Criticism, Defend BiOp

Regarding the plaintiffs’ and tribes’ primary allegation – that the jeopardy standard for endangered salmon was changed at the last minute and not properly explained – the federal defendants called the argument “specious.”

“Once all the inflammatory language is sorted through, it becomes evident that the real dispute is not over whether the salmon are going to survive under the RPA. This is largely accepted. Rather, the dispute is whether the salmon should have a 50-100 percent chance of recovery as opposed to a 70-100 percent chance of recovery (i.e. risk tolerance) and how long should that recovery take,” said the defendants, adding that “neither of these decisions present a scientific question which could be resolved in this forum. Instead, they are both policy decisions vested

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in the sound discretion of the federal agencies.”

The defendants stated emphatically that the “recovery standard did not change. The recovery standard used in the final biological opinion is the same standard that was used in the draft biological opinion circulated for public comment…”

The federal attorneys told Marsh that the plaintiffs misunderstood the process and information leading to the final version of the 1995 BiOp, including a jeopardy standard plaintiffs did not like.

Marsh, therefore, was presented with strikingly different scenarios on how the final jeopardy standard was developed and adopted, and it would be up to him to sort out the detailed, process-laden arguments.

The defendants also addressed the charge by plaintiffs that NMFS didn’t properly use or interpret the computer modeling evaluating how future management actions might improve salmon survival. The models generally studied the effectiveness of smolt transportation versus in-river migration.

At the time, there were two competing models offering differing results: one used by the Bonneville Power Administration and University of Washington (CRiSP), and one developed by states and tribes (FLUSH).

The federal defendants said “any use of the computer model results must be viewed with extreme caution. Predictive models of most federal actions do not exist.”

These “warring models” offered contradictory information and NMFS was not able to state which was correct.

That was one reason why the 1995 BiOp/RPA kept options open, with the hope that further research might determine which model was best in determining alterations to river operations.

On flow augmentation, the federal defendants contended the plaintiffs misinterpreted the language and intent of the biological opinion with regard to flows. The defendants said the flow targets were based on “the biological needs of the fish,” but made clear such targets would not always be achievable.

“The purpose of the flow objective was to state what the science indicated would increase salmon survival,” said the defendants. “The RPA could not change the fact that for the interim the system was not reasonably capable of fully satisfying the long term needs of the listed fish under all conditions.”

Simply put, the plaintiffs were not recognizing the flexibility of the flow targets and the practical constraints on the river’s power system to deliver the full flows during all runoff conditions.

Still, defendants said that in 1996, spring seasonal average flow objectives were met in both the Columbia and Snake, while in summer 1995 seasonal average flow was met in the Snake, but not in the Columbia; and in the summer 1996 the seasonal average flow was met in the Columbia and almost achieved in the Snake.

On reservoirs, the federal defendants said the challengers were simply wrong in interpreting the 1995 BiOp and RPA in a way that requires reservoirs to be drafted to a certain level. If NMFS determines the water isn’t needed for salmon, then the reservoirs shouldn’t be drafted.

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In contrast, plaintiffs “would drain the reservoirs even if the salmon do not need the water. The RPA never states that the reservoirs shall be drafted. The RPA, however, requires . . . an effort to meet the seasonal flow objectives.”

One tool for meeting flow objectives, said the federal defendants, is water stored in reservoirs. But since the 1995 BiOp did not require that reservoirs be drafted, “a failure to draft the reservoir cannot be a basis for re-initiation of consultation.”

As for spilling water over dams to pass fish, the defendants contended Oregon’s view of spill was not nearly as black-and-white as the state’s brief suggested.

The uncertainty over whether salmon are better served by transportation or in-river migration calls for flexibility, said the federal agencies. “The biological opinion adjusts the balance between these alternatives by adjusting the amount of spill provided, and therefore adjusting the amount of fish transported, according to the actual river conditions; the greater the river flow, the greater the spill and the more fish migrate in-river.”

The federal attorneys dismissed the notion that the ISG report Return to the River offered new information that required a re-initiation of consultations and possible revisions to the 1995 BiOp. Both plaintiffs and defendants noted that the ISG report addressed the decline of Columbia River salmon. But, said the defendants, “This case is not about Columbia River salmon. This case is about listed Snake River salmon. Thus, the ISG’s statements about drawing down reservoirs to benefit salmon in the Hanford Reach (above the confluence of the Snake and Columbia) are completely irrelevant to any aspect of this litigation (of the biological opinion) which focuses on Snake River salmon.”

If the plaintiffs wanted to cite the ISG report as a reason for new consultations, they “would first have to prove that the ISG report actually contained some new information about the listed species.”

The federal defendants said plaintiffs had failed to prove that the ISG report revealed new information which would indicate that current improvements to river operations “are not sufficient to avoid jeopardy.”

Idaho on Flow Augmentation, Flow Targets

Idaho, in its defense of the biological opinion, said Judge Marsh should “decline the Plaintiffs’ invitation to take over river management.”

Not surprisingly, the state’s brief focused on the issues of flow augmentation and flow targets.

Idaho stated that the 1995 BiOp established a “seasonal average flow objective” as opposed to daily flow targets. In addition, the biological opinion “does not make meeting seasonal average flow targets mandatory but refers to these flow objectives as a ‘goal.”’ Idaho stressed that NMFS acknowledges “this goal cannot be reached in every water year, particularly low water years.”

“Plaintiffs have re-written the Biological Opinion to make it fit their positions,” said Idaho. In doing so, they have “moved the goal posts back” and then claimed that the defendants “have not gone far enough.”

Idaho noted the plaintiffs had charged “egregious implementation failure” because flows were lower than target levels. “These charges hinge on the Plaintiff’s interpretation of the Biological Opinion as requiring that flow targets be met each day during the entire migration period.” But

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Idaho cited language in the 1995 BiOp that it said showed the targets are “seasonal average” flows.

“Thus,” said Idaho, “the Biological Opinion’s flow targets are met even if flows fall below targets during portions of the migration – so long as the seasonal average remains above the target level.”

On reservoirs, Idaho said Oregon “goes an extraordinary step further than American Rivers (plaintiffs) by asking the Court to ‘interpret’ the Biological Opinion to require that reservoirs must always be drafted as deeply as necessary to maintain certain minimum flows on a daily basis during the migration season.”

But Idaho said the biological opinion requires NMFS to insure that operations do not harm other portions of the Columbia River Basin ecosystem and resident fish and wildlife populations that rely on reservoirs.

Idaho argued that historical flows indicated that the daily targets Oregon advocated were simply not achievable and that Oregon “reveals a surprising lack of understanding and good judgment about the Snake River Basin . . . .”

Idaho cited flow levels dating back to 1916 that it said showed that the daily flow targets are “utterly out of reach.”

The state told Judge Marsh that historical flows show that “even seasonal flow targets cannot be met in all years and the more aggressive flow targets advocated by Oregon wholly ignore hydrological reality.”

Idaho also said NMFS must be flexible in its application of flow augmentation and reservoir drawdowns because of the “intense scientific controversy” regarding the benefits of flow augmentation.

Idaho describes NMFS as caught between “warring belief systems.”

“The state and tribal model suggested that reducing smolt travel time through flow augmentation was very important. The Bonneville Power Administration model suggested that exact opposite, that travel time reductions made little difference to salmon survival.”

Idaho took issue with the plaintiff’s contention that the ISG report offered new information requiring biological opinion revisions that toughen flow requirements. In fact, said Idaho, the

“ISG report raises fundamental questions about the role of flow augmentation and actually undermines the thrust of their flow augmentation arguments.”

Concerning the implementation process, Idaho said Oregon’s complaints did not “paint a fair picture.” Idaho said while the process was far from perfect, federal, state, and tribal parties are

“working hard to develop a consensus-oriented decision-making process that will put current complaints to rest.”

Idaho said that while courts should be used to address violations of law, “it is not necessary to put the Court in the role of a perpetual process police.”

Montana Says Plaintiffs Not Concerned with Resident Fish

“What Oregon wants, and presumably what the plaintiffs want, is future releases from storage at Libby Dam and Hungry Horse Dam in addition to normal releases to make up for water they believe should have been released in 1995,” said Montana in its defense of the biological

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opinion in Marsh’s court.

Oregon and the plaintiffs “fail to recognize any flexibility in the BiOp and also fail to recognize the legitimate needs of resident fish. They see the BiOp as an inflexible document that would allow drastic drawdowns of Montana’s reservoirs without concern for our resident fish.”

Montana argued that the flow regime being suggested by plaintiffs and Oregon would harm resident fish in the reservoirs. The state also said unnaturally high summer flows harm the riverine habitats and the species they sustain.

“To Montana, it makes no sense to engage in flow augmentation efforts to the extent it further harms endangered resident fish or contributes to resident fish being added to the endangered species list.”

Montana said a “close reading” of the 1995 BiOp revealed not hard flow targets, as suggested by plaintiffs, but “flexibility in regard to summer flow augmentation . . .” and that summer flow target at McNary Dam “is a seasonal average objective that does not necessarily have to be met every day of that period in every year.”

The state’s brief promoted the use of the “Integrated Rule Curves” (IRCs) as superior to both the biological opinion and the plaintiff’s approach to the use of Libby and Hungry Horse water for salmon. The IRCs were adopted by the Northwest Power Planning Council in 1994 as a way to balance water for salmon, and healthy reservoir and river habitat for Montana’s trout and other species.

Plaintiffs had complained about Montana and the federal government in 1995 negotiating an agreement that strayed from the biological opinion and avoided 20-foot drafts of the two reservoirs. Montana said the 1995 agreement allowing reservoirs to be operated within 10 feet of the IRCs “was within the spirit of trying to practice ecosystem management as provided by the BiOp . . .” The state said plaintiffs failed to note that in 1995 the same amount of upriver water was delivered for salmon due to a “swap” with water from Canada’s Arrow reservoir.

Montana disagreed with “any justification for any future make-up water.” The state told Judge Marsh that “it must be recognized that to a certain extent what was not released from Montana reservoirs in 1995 was released from storage in Canada. That would seem to indicate that the plaintiffs are less interested in the fact that water was made available than they are in the fact that it did not come directly from the reservoirs behind Libby Dam and Hungry Horse Dam – so they don’t just want water, they want the water from the reservoirs in Montana.”

Regarding Oregon’s request for court supervision of management of the 1995 BiOp, Montana said if the Court assumed oversight of the process, “Oregon’s complaints make clear the Court can be assured of being plagued by complaints by many parties over not only substantive decisions, but endless complaints over the process itself.”

“Rather than embracing the arguments of the plaintiffs for a court-ordered dispute resolution process with continuing court oversight,” suggested Montana, “this Court should allow the present dispute resolution process to go forward and work itself out. The Court can remain a neutral forum not mired in details of process disputes, and therefore have its resources available to decide actual cases and controversies.”

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Industry Challenges ‘Anti-Dam’ Agenda

In the 1997 biological opinion litigation one of the most active groups for industry was the Columbia River Alliance, representing agricultural interests, community groups, forest products producers, labor unions, industry, navigational interests and utilities.

The CRA told Marsh that NMFS, prodded by courts, states, and tribes, had “set flow targets and biological thresholds” that could not be achieved “with or without dams in the Columbia River Basin.”

In opposing the plaintiffs’ motions, the CRA said NMFS had extended its power beyond the Endangered Species Act, “causing the expenditure (and waste) of hundreds of millions of dollars, in service of the State and Tribal anti-dam agenda.”

The CRA argued that the biological opinion was misguided because it was based on NMFS’ unrealistic assumption that “each and every fish dying in the river dies because of the FCRPS operations, despite substantial scientific data to the contrary.”

The Alliance said it also was “unrealistic to expect that removing the dams will recover the salmon.” Without properly addressing harvest and hatcheries, “it is unlikely that salmon recovery would occur even if all eight dams were removed.”

On the jeopardy standard, CRA said NMFS adopted an approach “far more rigorous” than that required under the ESA.

A “reasonable and prudent alternative” means an action that can be implemented under an agency’s legal authority, said the CRA. But NMFS adopted RPAs, such as natural river drawdown options that “cannot be accomplished without additional Acts of Congress. Unless they adopt the transportation strategy advocated by CRA, the dam operators lack discretionary authority to put salmon populations out of jeopardy, particularly in the face of a harvest and hatchery regime continuously grinding down less productive wild stocks.”

NMFS’s advice on long-term structural changes should be considered not requirements, but “recommendations.” Therefore, any failure to follow NMFS’ advice is not a violation of the ESA.

CRA argued that NMFS and the federal agencies have flexibility – adaptive management – in choosing and implementing RPA options. Attempts by plaintiffs to limit this flexibility “is best understood as a political strategy by the States and Tribes to foreclose the exercise of informed scientific judgment in salmon recovery, just as the States and Tribes are rushing to promote PIT-tag research that calls drawdown efficacy into question, and to promote their ‘normative river vision.’”

As for the charges that NMFS “inexplicably” changed the jeopardy standard at the last minute, CRA argued that it was simply not true. The standard didn’t change because it was not “finally formulated” until NMFS finalized the 1995 BiOp. The documents being circulated among states and tribes prior to that point were never NMFS’ positions, says the CRA. NMFS did review data offered by states and tribes, but was never required to adopt “politically-driven” thresholds by the “anti-dam” faction.

CRA said research models used by tribes and states “overstate the benefits of flow and understate the benefits of transportation.” In addition, the modeling NMFS did use failed to properly consider harvest.

“Had NMFS eliminated future harvest from the modeling, as its regulations require, it would

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have observed the computer models predicting rapid recovery for fall chinook,” said the CRA. “Pessimistic model runs on fall chinook do not point to problems with FCRPS; they point to NMFS’ continuing failure to solve the impact of destructive mixed-stock harvests on endangered salmon stocks. Harvest rates on endangered Snake River fall chinook remain far above sustainable levels, with or without the FCRPS.”

On flow augmentation, the CRA said NMFS was properly implementing the biological opinion because flow targets “are not hard constraints.” CRA added that there is “a wealth of evidence in the record demonstrating that the flow targets have little discernible relationship to salmon survival.” The Alliance also contended that “higher flows delay and impede adult migration,” which has “the most adverse effect on endangered Snake River salmon.”

On spill, the CRA bluntly stated that the NMFS spill program “is harmful to migrating Snake River salmon” due to the resulting increase in excessive levels of total dissolved gas. CRA contended that NMFS’ own research revealed that “in-river survival fell about 13 percent” due to high gas levels, and that in 1996 “both flow and spill correlated negatively with salmon survival.”

Regarding the claim that the new science from the ISG report should prompt new consultations, and revisions to the 1995 BiOp, the CRA said there was no “new science to consider.” The ISG’s Return To The River “is best understood as a political document.”

The Alliance said the report “is essentially anti-scientific in its call for abandonment of any attempts to prove that flow augmentation will assist fish, and its declarations that technological approaches to fishery management have failed.”

Finally, the CRA said a court-supervised implementation process, as requested by plaintiffs and Oregon, would “run afoul” of federal administrative law.

“The Court ought not to be drawn into the quarrel over the long-term future of the FCRPS,” said the Alliance. “Since NMFS has yet to gather the data necessary to make a rational decision among long-term options, there is even more reason for the Court to avoid entangling itself” in this matter.

And the CRA worried that a court-supervised process would be shielded from public scrutiny, arguing that federal law expresses a “preference against secret salmon decision making . . .”

Judge Marsh Upholds BiOp, Spread The Risk Continues

In a 32-page opinion issued April 3, 1997 there was not much to indicate that Judge Marsh was optimistic the federal government’s plan to save endangered Snake River salmon would succeed.

Still, the judge could find no evidence that NMFS’ efforts to save the salmon were “unreasonable or arbitrary and capricious.”

With that, Marsh, in language tinted with pessimism, let stand NMFS’ 1995 BiOp and the agency’s methods of implementation. Barring subsequent successful legal challenges, Marsh’s ruling in American Rivers vs. NMFS suggested that the Northwest in the short term should expect few changes in the federal government’s handling of salmon recovery.

Certainly Marsh’s ruling was a watershed event in the legal history of Northwest salmon recovery. By refusing a request that he take over management of the Federal Columbia River Power System, and by not calling for any significant changes, Marsh kept in place NMFS’

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“spread the risk” strategy that relied on both transportation of smolts and in-river migration (relying on spill) for at least two more years.

This dual method of downriver fish passage was to continue as scientists gathered data for 1999, when decisions on “long-term system configuration” were scheduled to be made.

Marsh discussed the difficulty of balancing the needs of salmon with other species. “The action agencies are in the unenviable position of having to assess the ‘reasonableness’ and ‘prudence’ of proposed mitigation measures by balancing the needs of the listed Snake River salmon against the competing needs of the other threatened species and the needs of resident ecosystem.”

And regarding the friend-of-the-court briefs, Marsh observed that “one common theme” emerged: “all expressed the view that they have had to bear more than their fair share of the water allocation burden relative to fish passage improvements.”

In three pages of background, Marsh reminded the parties that in rejecting NMFS’ 1993 BiOp in Idaho vs. NMFS, he found that federal agencies “disregarded relevant, credible scientific information from state and tribal authorities” and that NMFS “failed to adequately explain” its jeopardy standard. “I noted that NMFS focused upon then current capabilities rather than needs of the listed species,” Marsh said.

“Unlike the 1993 BiOp,” wrote Marsh, “the current version expressly acknowledges the need for substantial change” and major modifications to the Snake and Columbia River federal hydropower system.

Marsh cited fish mortality figures that predicted a slight survival improvement under the 1995 BiOp compared to river operations without implementation of the reasonable and prudent alternatives.

“Even if fully implemented,” said Marsh, “the picture is not that rosy. A lot is left to chance and it is the acceptance of that risk as part of the BiOp which forms the heart of the current controversy.”

The 1995 BiOp’s Central Theme

Marsh noted that compared to the 1993 BiOp, NMFS substantially “modified its jeopardy standard” into a five-step evaluation, with lifecycle models forming “a central part of the jeopardy analysis.”

The judge said the “central theme of the BiOp’s philosophy in addressing FCRPS modifications was expressed in its ‘spread the risk’ policy.” He noted the uncertainty about solutions.

“Like many life threatening diseases, a cure is not readily apparent,” wrote Marsh. “Therefore, the ultimate task is to find the cure to keep the disease from becoming terminal and save the patient without killing him in the process.”

Marsh cited “three major points of disagreement that have sharply divided the federal agencies, state agencies, tribal experts and other interests: (1) the extent of salmon survival throughout the FCRPS; (2) the effect of flow measures on survival throughout the FCRPS; and (3) the relative benefits of juvenile transportation.”

NMFS “relied heavily upon these differences in adopting its spread-the-risk policy.”

Marsh said the 1995 BiOp focused “upon interim measures designed to ensure survival and

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potential recovery.” The interim RPAs under the biological opinion called for “immediate structural improvements and modifications, evaluations, studies, and most critical to this dispute, improved flows through the Columbia and Snake rivers through reservoir draw downs and increased spill at projects during critical migration periods. RPA flow modifications include reservoir draw downs to within specified limits and flow targets during spring and summer seasons on the Snake River and lower Columbia.”

NMFS, said Marsh, acknowledges that “its flow and spill proposals ‘substantially alter’ FCRPS operations compared to the 1993 and 1994 BiOps.”

Jeopardy or No Jeopardy

Marsh discussed the debate over whether NMFS properly considered information from lifecycle models favored by environmentalists, Oregon and tribes, and whether the agency failed to provide adequate explanation for its jeopardy standard.

“Limitations of lifecycle models relative to future predictions have been repeatedly emphasized throughout the present and past BiOps,” notes Marsh. “This is truly educated guess work at best.”

NMFS, said Marsh, “has explained that there was no ‘change’ in recovery standards and the record bears this out…There was no shift in policy.”

The judge said the fact that “NMFS selected the least attractive option from the states’ and tribes’ point of view does not make the decision an arbitrary or capricious one.”

NMFS “has provided a reasoned evaluation of…the jeopardy analysis and has adequately explained its limited reliance upon lifecycle model results. Further, given the present number of uncertainties facing the action agencies relative to the question of the best overall mitigation strategy (i.e. transportation v. improvements to in-river migratory conditions), I see no way I could find that NMFS’ failure to select a single strategy to pursue at this time is arbitrary or capricious.”

Marsh agreed with NMFS that only long-term system configurations would achieve sufficient improvements in salmon survival.

“Whether the salmon may be saved in time to benefit from such long-term improvements is the risk that NMFS and the action agencies have assumed within this process. Given the dwindling numbers, time is clearly running out. As a long-time observer and examiner of this process, I cannot help but question the soundness of the selected level of risk acceptance, but the ESA says nothing about risk tolerance, and limits of judicial review dictate that I not interfere with a federal agencies’ exercise of professional judgment or their reasoned decisions.”

Because he could not find NMFS’ jeopardy selection or explanation “unreasonable or arbitrary and capricious” Marsh denied plaintiffs motions challenging the jeopardy standard.

Flows, Spills, and Drawdowns

Remember that plaintiffs argued not only did NMFS issue alterations to river operations based on a faulty recovery standard, but that even the less-than-adequate changes were not being implemented.

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But Marsh said he found “nothing in the BiOp to suggest that flow measures are ‘required.’ Throughout the BiOp, flow measures are repeatedly referenced as ‘targets.’’’

The judge pointed out that NMFS had opted for a “flexible approach” and that flows “are moving targets which rely heavily upon a variety of both controllable and uncontrollable factors.”

Marsh wrote that “flows are timed and gauged in-season to maximize migratory benefits.” Further, “evidence in the administrative records supports the federal defendants’ position that flow targets generally were met.”

On drawdowns, Marsh said “the BiOp carefully explains why the total drawdown approach advocated by the states and tribes was rejected.” NMFS is seeking balance to reduce impacts on “resident ecosystems” and “to ensure flexibility and avoid potential harm to either listed species or resident stocks.”

On spill, Marsh said NMFS balanced “the cost of flow against the few remaining salmon expected to pass” the dams. “This action is consistent with the BiOp’s overall flexible approach” and consistent with the policy that decreased fish numbers during late August may “dictate that use of available water may be preferable during other times of the juvenile migration.”

In addition, the 1995 BiOp only required “reasonable and prudent” measures and “continuing spill with sufficient effect fails to fall within this limitation.”

On the John Day drawdown, Marsh said he found “that the federal defendants have complied with their responsibilities under the BiOp; whether Congress provides funding for the project is a matter further beyond the scope of my review than any other issue presented.”

On Oregon’s complaints about NMFS’s decision-making process (Executive Committee/Implementation Team/Technical Management Team) the judge said this “Adaptive Management Program” is “a voluntary one adopted by the federal agencies to aid in developing a more comprehensive consultation process.” Absent a violation of the Endangered Species Act,

“I lack jurisdiction to review their manner of compliance.”

Finally, Marsh responded to the plaintiffs’ argument that the Independent Science Group’s report Return to the River provided new information on salmon recovery that should have prompted NMFS to revise the biological opinion.

“The report recommends efforts to restore salmon habitat through reservoir drawdowns and efforts to restore more natural river flows to aid migrating fish,” noted Marsh. “However, plaintiffs fail to identify any ‘new’ information included in this report but which is not considered in the BiOp.

“While I disagree with the Columbia River Alliance’s charge that the document is ‘anti-scientific,’ I agree the report draws policy conclusions and makes recommendations based upon information and theories which have been well-known to the federal agencies at least since IDFG vs. NMFS.”

Welcome To The Balkans

By approving the 1995 BiOp, Marsh gave the green light to the process NMFS used to manage Columbia River Basin flows, spills, fish passage and reservoir drawdowns.

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Yet, eleven days later the state of Montana pulled out of this “adaptive management program,” (AMP) which NMFS called the Regional Forum.

“I am aware of the recent ruling from Judge Marsh in the American Rivers case,” said Montana Gov. Marc Racicot in an April 15, 1997 letter to NMFS Northwest Administrator Will Stelle. “That decision embodied a confidence in the NMFS process that I do not share. The legal issues before the court had nothing to do with whether this implementation forum actually functions to integrate the needs of Snake River salmon with other resource needs along the river. It does not.”

Racicot said the Northwest Power Planning Council would be the “most appropriate forum to resolve regional resource management issues of the Columbia River Basin.”

In essence, Montana pulled out of the Regional Forum because of its disgust over the way NMFS handled deep summer drawdowns of reservoirs behind Libby and Hungry Horse dams in order to provide higher flows for salmon.

A month later, in mid-May, the four lower Columbia River treaty tribes also withdrew from NMFS’ adaptive management decision-making process.

The tribes expressed concern that NMFS set up a flawed process which failed to properly recognize tribal sovereignty and treaty rights. For that reason, the tribes never really were formal members of the Regional Forum.

The tribes objected to NMFS using “the multiple committees of the AMP as replacement for government-to-government consultation,” which is part of the federal government’s tribal trust responsibilities.

In addition, the tribes said the AMP was not “widely supported. The state of Montana has chosen not to participate. Other sovereigns are skeptical that this process is sound. Many believe that NMFS has not demonstrated the leadership or foresight to manage a federally controlled process like the AMP to achieve salmon restoration.”

This semi-breakdown of the Regional Forum kicked into a gear a year-long effort to reform river governance that became known as the “Three Sovereigns” process.

“The Columbia River is our own answer to the Balkans. It is controlled in various fashions by two nations, four states and 13 sovereign tribes,” said Oregon Gov. John Kitzhaber in a major speech six months after Marsh’s decision on the 1995 BiOp.

“We must create a new forum of state, federal and tribal representatives to decide Columbia River issues,” Kitzhaber said. “This forum may be a modification of the existing Northwest Power Planning Council, or it may be a new entity. In any event, it must include participation of the four states, tribal interests and the federal government – and it must have real authority to make decisions on the allocation of resources and the coordination of activities in the Columbia River Basin.”

In other words, to be successful a new forum had to reduce the Balkanization plaguing salmon recovery. Yet nearly 30 agencies, organizations and processes – many operating independently of one another – had key roles in Basin salmon recovery.

For Columbia Basin salmon recovery, the degree of political consensus generated by the Three Sovereigns process was notable. The four Northwest governors, tribal leaders, and Stelle, regional administrator for NMFS, all enthusiastically endorsed the process, committed staff to work groups, and expressed hope that the product would be a new governance forum with

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real authority.

Council members and staff, too, participated in the process, along with the Army Corps of Engineers, Bonneville Power Administration and Bureau of Reclamation. Environmentalists expressed hope that a new forum would break the “gridlock” over decisions on drawdown, spill, barging and future funding for salmon recovery.

So for over a year representatives of a half-dozen federal agencies, four state governments, and 13 tribes worked on a Memorandum of Agreement among the parties that would create a “Columbia River Basin Forum” to coordinate and make recommendations on Basin fish and wildlife issues. One of the primary tasks would be to create a “unified plan.”

But as the process neared release of a draft MOA for public comment, power and agricultural interests criticized the Three Sovereigns process as ill-defined and lacking in stakeholder participation.

Concerned that the Three Sovereigns process might move too far afield from the balancing act demanded by the Northwest Power Act, the river user community made clear that it wanted the Northwest Power Planning Council to be the lead organization for crafting a single salmon recovery plan.

Council members responded by announcing they would launch a collaborative effort with NMFS, tribes and stakeholders to develop a “framework” that could lead to a single, multi-species plan for the Basin.

In essence, Columbia Basin salmon recovery policymakers were trying to move the decision-making process away from federal biological opinion control based on specific ESA listings and toward regional “system planning” that considered protections for both listed and unlisted fish and wildlife.

This attempt in 1997 to balance power and industry needs with fish and wildlife protection and restoration had come full circle with a very similar effort many years earlier.

A History of Failure

Twenty years earlier, Northwest fisheries managers (federal, state, tribal), federal power managers, and power interests came together as the Ad Hoc Pacific Northwest Power and Fisheries Committee.

Three “sovereigns” and “stakeholders” sat at the same table to hammer out a compromise over conflicting visions of the proposed Northwest Power Act.

The marriage of power production and fish protection in 1979-80 sprung from two pressing needs.

Northwest utilities – public and private – were seeking a legislative solution that would improve the Bonneville Power Administration’s ability to accurately predict future power supply and demand, and fairly allocate federal power among public utilities, private investor-owned utilities, and industrial customers, notably the aluminum industry.

At the same time, fisheries advocates – noting the sharp decline in salmon runs and potential for listings under the ESA – pushed for legislative language in the Power Act which put fisheries restoration on a par with power production.

BPA’s customers, however, were wary that early versions of the “fish language” would create

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an open checkbook for fish mitigation, which might endanger the authorized uses of the hydroelectric projects, limit power supplies and raise rates.

With a stalemate looming, the Columbia River Fisheries Council (state, tribal, and federal fisheries agencies) and Public Power Council formed the Ad Hoc Committee, which successfully crafted language reflecting both compromise and consensus.

Using the Ad Hoc Committee’s work, Congress created a Northwest Power Planning Council charged with writing Basin fish and wildlife programs which “protect, mitigate and enhance fish and wildlife . . . while assuring the Pacific Northwest of an adequate, efficient, economical and reliable power supply.”

The work was celebrated as a path-breaking way to balance environmental protection with economic need. The Ad Hoc language suggested the Power Act could be squared with the ESA.

Salmon could cohabit with hydro.

Under the Power Act, the Council issued Fish and Wildlife Programs in 1982, 1984, and 1987, which indeed preserved for the region an adequate, efficient, economical and reliable power supply. (To this day, Northwest ratepayers – consumer and corporations – enjoy electricity prices well below the national average.)

But Council fish protection programs failed to deter ESA listings. By 1990 it became clear NMFS soon would be listing as threatened or endangered one or more runs of dwindling wild Snake River Basin salmon.

Once again Northwest power and fish interests, at the behest of Oregon’s U.S. Sen. Mark Hatfield and the four Northwest governors, came together at one table to develop a regional recovery plan for Snake River wild salmon.

Called the Salmon Summit, 30 representatives of federal and state agencies, conservation groups, tribes, utilities and river users met regularly from the fall of 1990 to April 1991. But they failed to achieve consensus on such key issues as smolt transportation, flow augmentation, water quality and temperature problems, harvest or artificial production.

In November 1991, NMFS listed the Snake River sockeye salmon as endangered. In April 1992 came the listings for the Snake River fall chinook and Snake River spring/summer chinook.

With the listings, NMFS and the Council began plowing the same fields. One used the ESA and the other the Power Act, but both were seeking actions and authorities leading to improvements in salmon survival.

Partly responding to the pressing needs of the ESA, the Council in late 1991 began a program amendment process culminating in late 1994 with a revised Fish and Wildlife Program calling for increased flow augmentation, increased spill, and dam drawdowns to minimum operating pools.

The final product enraged river users, who contended the program at best would achieve a small gain in salmon survival while imposing unacceptable economic impacts. Environmentalists mocked the plan as too little too late.

The resulting political firestorm led to substantial changes in Council membership, left the Council program largely dead on arrival, and the Council itself unsure of its role.

Meanwhile, NMFS moved forward with biological opinions and recovery plans aimed solely at the delisting of specific Snake River stocks, resulting in the 1995 BiOp essentially becoming

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the region’s interim guiding document for river operations related to salmon protection — taking command of flow, spill, and smolt transportation. And it established the timetable aimed at making long-term decisions in 1999.

With the ESA and 1995 BiOp, NMFS, until then a fairly obscure federal agency in the Columbia River Basin, had become the basin’s top salmon recovery decision-maker.

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III. 1998-1999: More ESA Listings; A Supplemental Steelhead BiOp Guiding River Operations; Independent Science Advisory Board Weighs In On Smolt Transportation; Appeals Court Upholds 1995 BiOp; Supplemental BiOps On New Listings, Snake Water

Three Steelhead Listings And Another BiOp

By mid-1998, three more Columbia Basin salmon and steelhead species joined the ESA list. Upper Columbia River steelhead had been listed endangered, while Snake River Basin steelhead and Lower Columbia River steelhead had been listed as threatened.

As a result, NMFS issued a draft 1998 Supplemental FCRPS Steelhead BiOp in early spring that agencies used to guide river operations that year. The final steelhead biological opinion was released on May 14, 1998.

At its core, the 1998 steelhead BiOp, considered a supplement to the 1995 BiOp for Snake River wild salmon, reaffirmed NMFS’ commitment to “spreading the risk” by putting some fish in barges and trucks and moving others with spill, with the hopes of determining which passage brings home more adult salmon.

Fisheries scientists believed that 2 to 6 percent of migrating smolts must return as adults for a salmon run to be sustainable. Adult returns approaching 6 percent offered a chance for rebuilding a run. For example, in spring of 1997 about 90,000 wild Snake River salmon left Idaho, eastern Oregon and eastern Washington for the ocean. If only 1,800 returned as spawning adults in 1999 and 2000, the runs would be approaching sustainable levels. About 5,400 adults would be needed to rebuild these populations.

Transportation was the leading fish passage strategy since the 1970s. Adult return numbers for both wild and hatchery Snake River fish did not come even close to the necessary 2 percent to achieve recovery – hence, the ESA listings.

Electronic tagging (PIT-tag) data from 1988 to 1994 showed Smolt-To-Adult Return Rates (SARs) below 1 percent, with the highest about .9 percent for hatchery steelhead. In 1994, 14,014 wild, ESA-listed chinook were PIT-tagged, and only 13 returned as adults, for an SAR of .09 percent.

However, NMFS’ Stelle, in a Jan. 7, 1998 speech to the Columbia River Alliance, said the SARs for the 1995 class were “around 1.5 percent to 2 percent, the low end of the recovery spectrum with our strongest year class, good water years and questionable ocean conditions.”

It should be noted that much debate raged over these SAR issues, with some saying the numbers showed transportation will never recover salmon runs, and others saying the runs would be in an even worse state in the Snake River absent transportation.

ISAB Weighs In On Smolt Transportation

Soon after the Stelle speech, in early spring 1998, the Independent Scientific Advisory Board, which serves as independent science advisors for NMFS and the Northwest Power Planning Council, issued a review of juvenile transportation, expressing skepticism that barging and trucking young fish was a useful long-term recovery tool.

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Both these documents – the steelhead biological opinion and ISAB report — released at almost the same time, spring 1998, prompted again fierce debate over the efficacy of barging.

“It is impossible to reconcile a maximum transport approach to salmon recovery with protection of the remaining diversity of salmon and steelhead populations in the Snake River Basin,” said the ISAB.

For the short-term, however, the ISAB, recognizing the deadliness of the hydro system as configured in 1998, recommended a “1998 management approach that divides juvenile emigrants throughout the migration season between barging and natural emigration.”

In endorsing a spread-the-risk strategy, the scientists said “available information does not support taking the majority of emigrants of any stock into transportation.”

Indeed, the ISAB was most notable for stressing to policymakers that transportation was being applied to all migrants without really knowing the impacts on individual species, life history types and populations. The scientists suggested that transportation’s selectivity might be eroding the genetic diversity necessary to sustain salmonid populations.

In other words, transportation might improve survival of one listed stock, while becoming a factor in the decline of others. Such decline, the ISAB suggested, erodes the overall genetic diversity in the basin, thereby putting in motion a downward spiral for all stocks.

NMFS’ Stelle said the ISAB report “confirmed our strategy over the last several years. We cannot put all our eggs in one basket.”

It’s important to note that the spread-the-risk strategy was primarily a springtime operation. In the summer, when flows dropped, voluntary spill for fish passage ended and full transport began.

So how many fish should be collected and transported? How many fish should stay in the river? Stelle suggested that about half of the fish would be transported and half would remain in-river.

Under the 1995 BiOp, 56 percent to 74 percent of chinook (hatchery and wild) were collected and transported. However, under the 1998 steelhead BiOp, the percentage of transported fish increased to about 62 percent to 75 percent for Snake River wild chinook and 63 percent to 77 percent of wild and hatchery steelhead combined.

One reason for the increase of transported fish: In past years for study purposes, some fish collected and detected at the collector projects were returned to the river and considered

“in-river” fish. However, the PIT-tag data was suggesting that fish collected at multiple dams returned at a lower rate than fish collected only once.

Therefore, NMFS in the steelhead biological opinion was abandoning the put-back approach. All fish collected would be transported, thereby reducing the stress of multiple collections.

River Operations Under The Steelhead BiOp

The 1998 steelhead BiOp also called for increased voluntary spill for fish passage during the spring migration at Lower Granite, Little Goose, Ice Harbor and John Day dams, costing BPA more in “foregone revenues.” (Under an annual $435 million “fish cap” during those years, $183 million had been reserved for power revenue losses due to spill. In 1997, a high water year, BPA’s foregone revenues had amounted to less than $100 million.)

The steelhead biological opinion also: set new flow targets for the mid-Columbia River to

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improve migration travel time for listed steelhead; recommended more water be released earlier from Upper Columbia reservoirs in average runoff years; called for no changes in summer operations – maximize collection and transportation; and proposed a “Lower Columbia River System Configuration Study” that would look at alternatives to make Bonneville, John Day, The Dalles, and McNary dams more fish friendly, setting 2004 as the target date for completion.

In the 1998 steelhead BiOp, NMFS, citing 30 years of study, concluded that “transportation is an effective means of helping to reduce the number of juvenile chinook killed in the existing hydropower system, and to thereby increase the number of adults returning to upriver dams and hatcheries.”

Yet, reflecting on the most profound uncertainty regarding Columbia Basin salmon recovery, NMFS, in that same document, said “there are no conclusive research results regarding transportation’s ability to improve returns to the spawning grounds or to provide sufficient adult return rates to provide for the recovery of upriver runs.”

Therefore, NMFS justified the increased use of spill so the evaluation comparing survival rates of transported and in-river fish could continue. The agency noted that if drawdown was rejected as a long-term strategy, such evaluations would be vital since the choice essentially would be reduced to transportation versus spill.

1995 BiOp Gets Appeals Court’s Blessing

Americans Rivers and others had taken Marsh’s upholding of the 1995 BiOp (and in essence the supplemental 1998 steelhead BiOp) to the Ninth Circuit U.S. Court of Appeals, with oral arguments heard Jan. 11, 1999.

In its appeal, American Rivers claimed that NMFS had erred by not analyzing the effects of dam operations and corresponding “critical habitat” separately. They also challenged NMFS’ two-tiered jeopardy standard that judged survival and recovery differently and took the Corps of Engineers to task for failure to draw down John Day reservoir.

American Rivers argued that the critical habitat section of the ESA jeopardy standard “provides a different and more protective standard of protection than the jeopardy prong,” so should have been examined separately.

NMFS argued that its jeopardy analysis of hydrosystem impacts had properly “encompassed” effects on salmon’s critical habitat.

The Appeals Court upheld Marsh and the 1995 BiOp. “American Rivers offers nothing in the language of section 7 (ESA’s jeopardy provision), its legislative history, or the case law to support its claim that the critical habitat prong always requires a separate analysis with a substantively higher level of protection.

“On the facts of this case, NMFS reasonably explained the close relationship between jeopardy and critical habitat and identified certain effects of the dam operations (e.g. reduction of water velocity, increase in water temperature) that both jeopardize the species themselves and adversely modify the species’ critical habitat....

“Given NMFS’s expertise in this area, the nature of the proposed action (dam operations) and the species’ habitat at issue here, we cannot say that NMFS’s conclusion in the 1995 BiOp that the jeopardy analysis ‘encompasses’ the critical habitat analysis was arbitrary and capricious.”

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The Appeals Court also agreed with an earlier court decision that the Corps of Engineers did not violate the ESA by failing to draw down the John Day Reservoir as specified in the 1995 BiOp.

The Corps, a co-defendant, said it was unable to implement the drawdown to “minimum operating pool” because it did not have the means to mitigate for the losses the drawdown would cause. Mitigation would have been, in large part, to irrigators who would have been unable to draw water from the reservoir at the lower level and for land purchases.

“The COE has been unable to secure mitigation because Congress has expressed doubts about the efficacy of the drawdown and has frozen funding pending further studies,” according to an Appeals Court memorandum.

“Thus, the failure to draw down the reservoir does not violate section 7(1)(2). Indeed, the COE would arguably violate the express terms... if it proceeded with the drawdown in the absence of the required mitigation,” the Appeals Court wrote.

The three-member Appeals Court panel also denied an American Rivers claim that a “reinitiation of consultation” was required because the biological opinion was modified by the failure to draw down the reservoir.

“Here, the 1995 BiOp clearly contemplated operation of John Day at greater than MOP for an indeterminate period before the necessary mitigation could be secured,” the Court said.

American Rivers also objected to the NMFS biological opinion’s two-tiered jeopardy standard — requiring a “high” likelihood of survival but only a “moderate to high” likelihood of recovery.

The argument is one of interpretation, the Appeals Court said.

“The regulations set no quantitative measure nor does it preclude NMFS from selecting one measure to determine appreciable reduction of the likelihood of survival and another to determine the applicable reduction of the likelihood of recovery. NMFS’s two-tiered jeopardy standard is a case-specific application and interpretation of ‘appreciable reduction.’ “

“Nothing in Section 7 of the ESA precludes this interpretation, and we defer to NMFS’ expertise in this complex arena.

“Nor did NMFS adopt this standard without considerable analysis.... We decline to second-guess NMFS’s scientific judgment,” said the Appeals Court in its 1999 opinion upholding the 1995 BiOp.

Six More Columbia Basin Stocks Listed, ‘Extinction Is Not An Option’

NMFS, in March 1999, listed under the ESA nine more populations of salmon and steelhead in Washington and Oregon, including some with habitat in metropolitan Portland and Seattle. It marked the first time federal protection had been extended to salmon found in streams in heavily populated areas of the Pacific Northwest.

“Our goal here is to restore salmon,” said Department of Commerce Secretary William M. Daley in announcing the new listings. “But we know that we cannot accomplish that alone. As we have all said repeatedly, extinction is not an option! We want to work together with state and local officials to preserve, for future generations, healthy salmon stocks along with clean and productive rivers and streams.”

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The new listings included three threatened salmon stocks in Puget Sound — Puget Sound chinook, Hood Canal summer run chum and Ozette Lake sockeye, and six Columbia basin stocks — threatened Lower Columbia and Upper Willamette chinook and endangered Upper Columbia River spring-run chinook, Columbia River chum salmon and threatened Upper Willamette and Middle Columbia river steelhead.

The 1999 decisions brought to 12 the number of Columbia basin salmon and steelhead stocks that were listed under the ESA.

NMFS issued another supplemental biological opinion on Feb 4, 2000, that considered the effects of FCRPS operations on the six species listed as threatened or endangered in March 1999.

NMFS determined the 1995 BiOp’s Reasonable and Prudent Alternatives, as modified by the 1998 Steelhead BiOp, and combined with a few additional interim measures, would not jeopardize the continued existence of any newly listed species for the rest of the interim period, 1995-1999.

During that same period, a second supplemental biological opinion was issued regarding one of the central issues of basin salmon recovery – flow augmentation from Idaho to speed travel time for migrating smolts down the Snake and Columbia rivers.

The new supplemental biological opinion evaluated and documented the Bureau of Reclamation’s planned operation to comply with the 1995 BiOp’s mandate to deliver 427 thousand acre-feet (kaf) of upper Snake River water for flow augmentation and to review the operation of all BOR projects in the Snake River system above Lower Granite Dam.

The 1995 BiOp, in order to aid late-migrating Snake River fall chinook, called for boosting Snake River summer flows. It required the Corps to release about 1 million acre feet from Dworshak Reservoir and the Bureau to secure 427 kaf of Upper Snake water on a willing-seller basis. The biological opinion also required the Bureau to attempt securing additional upper Snake water “from willing sellers.”

NMFS in May 1997 first requested ESA consultation with the Bureau of Reclamation on the continued operation and maintenance of its 10 projects in the upper Snake River basin. The Bureau projects were upstream from Brownlee Reservoir on the Idaho-Oregon border. Brownlee is one of three dams owned by the Idaho Power Company that make up the Hells Canyon Complex. The complex had since 1959 blocked salmon and steelhead access to the upper Snake.

In the two supplemental biological opinions, the long-term, decision-making process was unchanged from that set out in the 1995 RPA – that 1999 would be the year for deciding the best long-term configuration of the hydro system in order to recover salmon.

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IV. 1999-2004: Not Just Hydro, But All The ‘Hs’; Recovery In 48 years?; Mitigation Must Be Certain To Occur; Another BiOp Bites The Dust; A Remand; Corps Rules On Snake River Dam Removal

Now It’s All the ‘Hs’

The great promise of the 1995 BiOp, and in many ways its most striking feature, was the commitment to making important decisions for long-term salmon recovery in 1999-2000.

Up to this point, the hydropower system continued to be the primary focus of salmon recovery. Would 1999, therefore, be the “year of decision” where it would be decided whether dams and salmon, with certain fish passage improvements, could co-exist? Or would it be time to consider the removal or breaching of lower Snake River dams?

Beginning in 1999, the newly formed nine-agency “federal caucus” set a goal of developing a comprehensive “All-H” recovery strategy that would address all human activities — habitat, harvest, hatcheries and hydropower — that had contributed to the decline of salmon and other aquatic creatures in the basin.

In other words, a new biological opinion dealing with the Columbia River basin hydropower system would be just one element of a much broader strategy, not the sole focus.

NMFS’ much anticipated — and late — new biological opinion issued on Dec. 21, 2000 (essentially the “1999 decision” promised in the 1995 BiOp), superseded all previous FCRPS biological opinions and, with its companion document — the “All-H” recovery strategy — reflected the new federal caucus ‘ approach of making hydropower merely one of four “Hs.”

Unlike the 1995 BiOp, the new plan assumed improvements in habitat conditions, hatchery practices, harvest strategy and non-breaching adjustments to the dams. The biological opinion set goals to increase survival in locations other than in the hydro system and established performance standards that were to be met by 2010.

The new FCRPS biological opinion concluded that listed salmon and steelhead could be recovered without dam breaching. The focus, instead, would be on improving tributary and estuary habitat and a “radical overhaul of the hatchery system” to minimize harm to listed fish.

Tributary spawning streams where many salmon spend their first year of life and the freshwater-saltwater interface were considered by NMFS to be places in a salmon’s life cycle where the opportunities to reduce mortality were the greatest.

“Breaching those dams remains an option if the recovery efforts don’t meet strict performance standards included in the strategy,” said Donna Darm, then-acting NMFS regional administrator. “This approach challenges hydropower system operators, hatchery and fishery managers, users of habitat and virtually everyone who influences the life cycle of the fish to meet rigorous survival goals over a defined period.”

And the document flat-out stated that dam breaching would not be the federal agencies’ call — it would require congressional authorization.

It said that in five years, NMFS would review all populations for any decline and would work with the three federal agencies (USBR, COE and BPA) to determine how to halt any measured decline, including seeking alternative recovery strategies.

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There was one noticeable change from the July draft 2000 BiOp and recovery plan. The final documents said that studies needed to implement a breaching option would not be started unless the prescribed measures receive a failure report at scheduled check-ins. The draft had called for first-year studies.

“At the three- and five-year check-in points if we’re not making the performance standards there is a mechanism here that requests the Corps of Engineers to begin the preliminary engineering and design studies that are necessary to move us on to dam breaching,” said Brig. Gen. Carl Strock of the Corps during a press briefing held on the day of the 2000 BiOp’s release.

“It would then take 5-7 years to implement such an action if authorization was received,” he said.

The 2000 biological opinion covered operations of the FCRPS for 10 years. And though it did cover some of Reclamation’s irrigation projects in the Columbia Basin, it reserved that agency’s operation of its projects in the upper Snake basin for a separate ESA consultation in recognition of then ongoing Idaho water rights negotiations that would affect the operation of those projects.

The immediate reaction to the 2000 FCRPS BiOp focused mostly on dam breaching. Industry groups read the biological opinion as saying that breaching was off the table while environmental groups saw a plan with a quicker trigger than was included in the July 27 draft to get to what they called the “safety net” of dam breaching.

In statements issued following the release of the new biological opinion, fishing and conservation groups said the document was a challenge both to President-elect George W. Bush, who opposed dam breaching during his campaign swing through the Northwest, and to Congress to fund one of the most comprehensive and expensive recovery efforts ever for any species.

“This plan is better than the July draft because it adds stronger accountability to the 2- and 5-year evaluations and provides a potential path to dam removal,” said Bill Arthur of the Sierra Club.

However, Bruce Lovelin, Columbia River Alliance executive director, said breaching was unlikely.

“The federal agencies spent over $20 million to evaluate dam breaching and concluded that it is very expensive and they don’t know its effect on salmon,” Lovelin said. “Barring a successful legal challenge and a radical shift in science, we are comfortable dam breaching will not occur.”

Columbia River Inter-Tribal Fish Commission member tribes were quick to criticize the plan, and threaten litigation.

“If they suggest that tribal input is reflected in these plans we haven’t seen it,” said Randy Settler, then-Yakama Nation Fish and Wildlife Committee chair and participant in government-to-government consultations that preceded the 2000 BiOp’s release. Federal plans have failed to integrate tribal recommendations submitted during yearlong policy and technical consultations with top officials of the Clinton Administration, he said.

“The fact that they failed to use artificial production to rebuild runs tells us that they’re not interested in what’s working in places like the Umatilla, Clearwater and Yakima basins,” said Donald Sampson, then-CRITFC executive director. “Tribal input is not reflected in these plans,” said Samuel N. Penney, chairman of the Nez Perce Tribe. “Habitat restoration, reduced harvest, and flow augmentation cannot lead to successful recovery if salmon are not able to

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survive the dams.” He stressed that the tribes had long felt “breaching is the option with the highest probability of restoring healthy salmon populations.”

“The tribes are probably going to be forced into a legal challenge to this,” Charles Hudson, CRITFC spokesman, said. “That’s not what we wanted. But this may be a case where we’re forced to.”

2000 BiOp: Will Salmon Populations Grow Fast Enough To Recover In 48 years?

The 2000 BiOp said that in 2008, NMFS would ask two crucial questions: Are salmon populations growing? If yes, are they growing fast enough to achieve recovery in 48 years?

The 2000 BiOp covered continuing dam operations and utilized a jeopardy standard similar to the 1995 BiOp. It stated that mortality from hydropower operations, “when combined with mortality occurring in other life stages,” must leave listed species with “a high likelihood of population survival and a moderate to high likelihood of population recovery.”

Hydropower operations would be deemed to cause jeopardy to a listed species if “the effects of the proposed or continuing action, the effects of the environmental baseline, and any cumulative effects, and considering measures for survival and recovery specific to other life stages” would leave the listed species with too low a likelihood of survival and recovery.

To aid its analysis, NOAA Fisheries identified “survival and recovery indicator criteria,” including interim recovery abundance-level targets for some of the stocks.

The 1995 FCRPS biological opinion had evaluated the likelihood of recovery within 48 years. Because many thought it may be unrealistic to expect populations to return to recovery abundance levels within this time period, NOAA Fisheries for the 2000 BiOp evaluated both the 48-year and the 100-year probabilities of whether the species had a moderate to high likelihood of recovery under the proposed action.

NMFS evaluated the status of the species relative to a standardized criterion of 5 percent probability of absolute extinction in assessing whether the species has a high likelihood of survival under the proposed action.

A 100-year period evaluation “captured both short- and long-term risk because a population that has a certain probability of extinction within a short time frame, such as 24 years, will have at least that probability of extinction in 100 years,” according to the document.

The 2000 BiOp found that eight listed species would be jeopardized by the proposed operation of the dams: Snake River steelhead and Snake River fall and spring/summer chinook, Upper Columbia River steelhead and spring chinook, Columbia River chum, Mid-Columbia River steelhead and Snake River sockeye salmon. The biological opinion said that Upper Willamette steelhead and chinook salmon and Lower Columbia River steelhead and chinook ESUs would not be jeopardized.

NOAA Fisheries therefore proposed reasonable and prudent alternatives to the proposed hydropower actions, and analyzed whether, in conjunction with the environmental baseline and cumulative effects, these efforts would increase survival rates enough to enable the listed species to achieve the survival and recovery criteria.

That baseline, in ESA parlance, is the “the past and present effects of all Federal, State, or

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private activities in the action area, the anticipated effects of all proposed Federal projects in the action area that have already undergone formal or early section 7 consultation, and the effect of State or private actions which are contemporaneous with the consultation in process….” It included the existence of the dams themselves.

The action area included spawning and rearing habitat, areas of “growth and development” and adult and juvenile migration corridors that are affected by the Corps and Bureau projects. It stretched from Chief Joseph Dam on the Mid-Columbia in central Washington and the Hells Canyon Complex on the Idaho-Oregon border down to the Columbia River estuary and near-shore ocean environment.

Cumulative effects, some positive and some negative, “include the effects of future state, Tribal, local, or private actions, not involving Federal activities, that are reasonably certain to occur within the action area…”

Effects could come in the form of legislation, administrative rules, or policy initiatives or such things as changes in land and water use patterns, including ownership and development intensity that could affect listed species or their habitat.

NOAA Fisheries’ initial hydro analysis found the reasonable and prudent alternatives insufficient to avoid jeopardy.

Therefore, the agency also appraised the impact of off-site mitigations, including hatchery and habitat initiatives outlined in a Basinwide (All-H) Salmon Recovery Strategy (BSRS).

So beyond hydropower — when efforts in the other “Hs” were put into the equation — NOAA Fisheries found these sufficient to improve survival rates so as to enable the listed species to avoid jeopardy.

Mitigation Not Reasonably Certain To Occur?

Six months later, in May 2001, the 2000 BiOp was challenged by the National Wildlife Federation and other fishing and conservation groups.

Joining the legal fight that unfolded over the next two years were plaintiffs’ amici (“friends of the court”) — Oregon, the Nez Perce Tribe, Confederated Tribes and Bands of the Yakima Indian Nation, Confederated Tribes of the Umatilla Indian Reservation, and Confederated Tribes of the Warm Springs Reservation of Oregon.

Intervenor-defendants included Idaho, Northwest Irrigation Utilities, Public Power Council, and amicus Pacific Northwest Generating Cooperative, Washington State Farm Bureau, Franklin County Farm Bureau, Grant County Farm Bureau and Inland Ports & Navigation Group. Defendant’s amici were the states of Montana and Washington.

NWF and its coalition contended the “no-jeopardy” conclusion improperly relied on future federal, state, and private mitigation actions that had not undergone section 7 consultations and/or were not reasonably certain to occur.

The plaintiffs said NOAA Fisheries analysis “understates the risk of extinction and depends on non-hydro/non-harvest actions to avoid jeopardy that are speculative and voluntary.”

They said “offsite” habitat improvements called for in the Basinwide Salmon Recovery Strategy document released simultaneously with the 2000 BiOp erroneously included state, tribal and private actions in its analysis of potential salmon survival improvements.

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The lawsuit contended that the federal plan ignores and minimizes a consensus of scientific findings, including those of federal agencies, on salmon recovery.

The plaintiffs also said the plan relied too much on state and private decisions that were beyond federal control and thus may not occur. Federal actions may not occur either, since the Bush Administration’s 2002 budget barely maintained salmon funding at status quo, even though the new plan required at least doubling those funds if it was to be implemented, the coalition said.

NOAA Fisheries said the 2000 BiOp properly considered future mitigation activities and said its jeopardy rationale and analysis applied the best science available.

The plaintiffs had asked that the RPA and “incidental take statement” authorized by the 2000 BiOp be declared illegal — “arbitrary and capricious” — and that NOAA Fisheries be required to withdraw the biological opinion and begin consultations with federal hydro operators on a new strategy.

Litigants over the next two years would plead their case before U.S. District Court Judge Garr King and later, Judge James A. Redden.

Redden, in a “draft opinion” issued April 15, 2003, said the plan’s dependence on so-called federal, state, tribal and private off-site mitigation measures to boost fish survival is

“untenable.”

“My conclusion is that the RPA adopted by NOAA to avoid jeopardy to salmon species, both for the short-term and the long-term, fails to identify off-site mitigation measures that are reasonably certain to occur,” the judge wrote.

He concluded, in the draft, that the defendant’s request for summary judgment “should be granted on the issue of the ‘no-jeopardy’ 2000 BiOp being invalid because it relies upon a flawed RPA analysis . . . .” The draft order and opinion was intended, Redden said, to focus oral arguments scheduled the following week.

Therefore, one of the primary issues debated April 21, 2003 was whether desired state, tribal and private actions described in the federal Basinwide Salmon Recovery Strategy were improperly used in the jeopardy analysis.

Justice Department attorney Sam Rauch insisted that the analysis did not rely on non-federal actions outlined in the BSRS.

“There are other things to be done out there, but NMFS does not rely on them,” Rauch told the judge.

Rauch rattled off a long list of RPA habitat and hatchery measures that would in great part be implemented by state, tribal and private, and other federal agencies entities but funded with federal dollars. The list included habitat and hatchery projects channeled through the Northwest Power and Conservation Council’s fish and wildlife program, and its developing subbasin planning process. The Council-directed activities are funded by the Bonneville Power Administration.

“It is incorrect to say this biological opinion relies on state and private actions,” Rauch said.

The 2000 BiOp strategy was described as an “aggressive, non-breach” approach to improving salmon survival. The document distinguished between a narrower “action area” analysis and a broader “rangewide” analysis involving the federal and non-federal off-site habitat, harvest, and hatchery proposals listed in the BSRS, according to federal attorneys.

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The action area encompassed the mainstem Columbia and Snake rivers from Chief Joseph Dam and Hells Canyon Dam down to and including the estuary and plume (near-shore) ocean of the Columbia River, but not, as an example, the Bureau’s upper Snake River projects except for the flow augmentation provision.

The federal government contended that some of the federal actions and the state, regional, and tribal off-site habitat and harvest mitigation actions proposed in the BSRS comprised its range-wide analysis. Those actions were not subject to ESA consultation as long as there was adequate monitoring and evaluation standards in place on an ongoing basis to insure that the salmon species are not being jeopardized by the failure to implement the actions, NOAA Fisheries said.

Federal attorneys argued that NOAA Fisheries did not specifically rely on the implementation of off-site range-wide measures in concluding that “action,” when mitigated by RPA measures, did not jeopardize the listed salmon and steelhead.

During the oral arguments Earthjustice’s Todd True said the biological opinion analysis improperly plugged in BSRS measures that were not RPA measures and thus are not reasonably certain to occur.

“The RPA and jeopardy analysis relies on future actions (by state, tribal and private entities) that the federal agencies cannot enforce,” True told the judge. Likewise, the analysis included federal actions that had the required section 7 consultation and thus are also not certain to occur, True said. He used as an example the Interior Columbia Basin Ecosystem Management Project, which was part of NOAA Fisheries’ RPA justification. The ICBEMP was to guide Forest Service and Bureau of Land Management long-term management of habitat.

True called the BSRS “a collection of ideas about what might be done” to recover salmon populations. The law says uncertain future actions can’t be the basis for a jeopardy finding, he said.

“The ESA is centered on the concept of institutionalized caution,” True said, meaning NOAA Fisheries had the responsibility to assure that the stocks won’t go extinct.

True also said that “many of the RPA actions themselves are vague.”

Redden: 2000 BiOp No Jeopardy Opinion “Arbitrary and Capricious”

On May 7, 2003, Judge Redden granted motions for summary judgment invalidating the strategy.

NOAA Fisheries had relied on a reasonable and prudent alternative again, but had included some mitigation measures that were not reasonably certain to occur and/or had not undergone section 7 consultation, both of which are required by the ESA and its regulations, the judge said.

Redden called NOAA Fisheries’ action area definition “unreasonably narrow” and arbitrary and capricious under the ESA.

“NOAA’s definition of the action area in the 2000 BiOp is limited to the immediate area, i.e., the Columbia and Snake Rivers, impacted by the FCRPS operations, where the effect on the 12 salmon ESUs is most direct.

“Contrary to the mandate of the ESA implementing regulations, NOAA’s action area definition

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does not encompass the range-wide area, where the impact is perhaps less direct but no less certain to occur,” Redden wrote.

“Indeed, in the 2000 BiOp, NOAA recognized the necessity of assessing biological impacts on the 12 salmon ESUs far beyond the limited action area…,” Redden said. “In chapter 7 of the 2000 BiOp, NOAA specifically addresses the same range-wide off-site federal and non-federal mitigation actions that it now argues are not part of the action area.”

The judge noted that the BSRS answered “yes,” to its own question, “does this plan as a whole have a reasonable chance of being implemented….”

“The problem with this analysis is that the regulatory standard is not ‘reasonable chance’ but ‘reasonable certainty,’” Redden said in his order.

“The fact that NOAA includes a ‘hedge’ against non-performance of the range-wide mitigation actions in the form of periodic check-ins is laudable but does not obviate the lack of certainty in the actions,” the judge wrote.

“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 ESUs, the no-jeopardy opinion in the RPA is arbitrary and capricious.”

Redden did not pass judgment on the Basinwide Salmon Recovery Strategy.

Redden Outlines Path To ESA Compliance

Judge Redden in a June 2, 2003 order on motions for summary judgment created a path for bringing the FCRPS biological opinion into ESA compliance.

The order established a one-year period for NOAA Fisheries, in a “remand,” to complete the work. It left the terms of the 2000 BiOp in place during the remand, and it required quarterly status reports to the court on the progress of this rewriting of the biological opinion.

During a May 16, 2003 hearing, attorneys for the various parties to the lawsuit had agreed that a year would be allowed for NOAA Fisheries to address Redden’s concerns. Federal attorneys, supported by Northwest states and river user groups, had urged the judge to leave the biological opinion in effect during the yearlong court-ordered remand which sent NOAA back to the drawing board. The plaintiffs wanted the 2000 BiOp thrown out.

To settle the argument about whether the document should be vacated, Redden ordered a series of briefings.

A June 13, 2003 federal brief said there was no urgent reason to vacate the biological opinion.

“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 alternatives (“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,” the federal brief said.

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In a June 20 response, Earthjustice said that, since the basis for the no jeopardy opinion and take statement are improper, the document should be invalidated.

That is “necessary because only such a step will allow full and adequate protection of Columbia basin salmon and steelhead in accordance with the procedural and substantive requirements of the Endangered Species Act,” according to the June 20 memorandum filed by attorneys for the lead plaintiff, the National Wildlife Federation.

“NWF has stated clearly and unambiguously that it may institute further proceedings in order to seek relief for violations of the ESA against the federal action agencies if they do not take steps to fully protect salmon and steelhead from harm while they decide how to comply with the ESA,” according to the memo. The plaintiffs’ attorneys earlier had indicated that relief may include changes in hydro operations.

The plaintiffs’ brief stressed that “the inadequate 2000 BiOp and RPA cannot serve as a shield to protect the federal action agencies from their legal duties under the ESA and that these agencies must take any additional steps that may be necessary to avoid harm to salmon and steelhead” during the remand.

On July 1, 2003 Redden issued an order stating that “Plaintiffs do not make any convincing argument that an injunction at this stage, while the 2000 BiOp is on remand, will substantially increase the jeopardy to the affected salmon. Nor do plaintiffs effectively counter the concerns of NOAA and the defendant-intervenors that an injunction would substantially disrupt federal power operations in the Columbia River Basin and expose the action agencies to unwarranted liability arising from take of salmon during the remand period.”

“The court has found serious flaws in the 2000 BiOp that need to be addressed and remedied in the immediate future,” the judge’s July 1 order said. “The court, however, has not yet ruled on the issue of the science supporting the 2000 BiOp. In the absence of any showing by plaintiffs that an injunction will, at this stage in the proceedings, somehow enhance the survivability or recovery of the affected salmon, the balance of equities favors allowing the 2000 BiOp to remain in place during the remand.”

Redden did eventually grant NOAA Fisheries two motions for extensions that resulted in a remand of 18 months. Both were granted to allow NOAA Fisheries the opportunity to engage in the required consultations and development of mitigation measures that were reasonably certain to occur.

The reaction to Redden’s rejection of the 2000 BiOp brought the dam breaching issue to the fore, as tribes and fishing and conservation groups said the “aggressive, non-breach” strategy, as described by NOAA Fisheries, was not enough. They claimed vindication through the opinion.

“We need a plan to protect fish, not dams. Unless BPA provides actions certain to restore salmon . . . and fund them, Snake River dam breaching is back on the table,” said Don Sampson, executive director of the Columbia River Inter-Tribal Fish Commission at the time. CRITFC represents the Nez Perce, Umatilla, Yakama and Warm Springs tribes.

Sampson said the BiOp remand could result in an improved, evidence-based biological opinion containing stronger language directed toward the Corps, Bureau and BPA.

“The 2000 plan claimed the government could fix the salmon problem without addressing the root cause — the four lower Snake dams. We thought all along that the strategy behind the plan was a bit like trying to treat cancer with aspirin. Fortunately, the judge saw it that way,

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too,” said Bill Sedivy, executive director, Idaho Rivers United.

Others said they felt the 2000 BiOp was only slightly off target, requiring modifications but not a complete overhaul, or the inclusion of dam breaching.

Public Power Council attorney Denise Peterson said at the time the judge was ordering NOAA Fisheries to “shore up its opinion” by following through with federal agency-to-agency consultations that the ESA requires.

She said the order offered an opportunity for others in the region to step forward and add the “certainty” that the judge said was lacking regarding implementation of recovery actions that are not within the authority of the federal agencies.

Oregon officials said the judicial opinion nudged NOAA Fisheries in the right direction. They said that in areas beyond the federal agencies’ direct control, NOAA Fisheries needs to seek formal agreements — with states, tribes, private entities — regarding planned activities that are expected to help the salmon recovery effort.

Feds Say Dam Removal No Alternative

During the legal debate over the 2000 BiOp, the Corps completed the Lower Snake River Juvenile Salmon Migration Feasibility Report/Environmental Impact Statement – the result of a seven-year evaluation of dam breaching and three other alternatives for improving salmon survival.

The study, released in September 2002, determined that the economic, user and environmental impacts of dam breaching would be substantial, without an indication that the action by itself would recover listed stocks of salmon and steelhead.

The Corps chose “adaptive management” (major improvements to fish passage at the dams) as the preferred alternative.

The breaching alternative involved removing four dams — Lower Granite, Little Goose, Lower Monumental and Ice Harbor — to return a 140-mile stretch of the lower Snake River to more natural riverine conditions. The other pathways evaluated were: maintain the existing system with planned improvements to fish passage systems; maximize barge/truck transport of juvenile fish around the dams; and, make major system improvements such as surface bypass systems for juvenile fish.

The dams and locks cost $36.5 million dollars to maintain annually, according to the study. That cost included the maintenance of fish facilities and the fish transportation program. The annual value of power, transportation and water supply provided by the lower Snake River dams was tagged at $324 million.

The study’s estimated cost of implementing the proposed structural improvements and changes in operations was estimated at $390 million dollars over a period of 10 years.

Operational changes proposed included improving the coordination and implementation of spill, flow augmentation and juvenile fish transportation.

Structural changes included both near- and long-term improvements, the Corps’ Walla Walla District said. In the near term, the Corps proposed spillway improvements, upgraded adult fish passage systems, upgraded juvenile fish facilities and additional fish transportation barges. Proposed long-term improvements included turbine upgrades, removable spillway weirs and

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surface bypass structures.

“A key factor in selecting the alternative includes compatibility with the National Marine Fisheries Service and U.S. Fish and Wildlife Service 2000 Biological Opinions on the operation of the Federal Columbia River Power System,” said Lonnie Mettler, Walla Walla District project manager for the feasibility study.

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V. 2004-2008: A New BiOp Says No Jeopardy From Hydro Operations; A New ‘Environmental Baseline’; Redden Says No Again; Discretionary Actions vs. Non-Discretionary (Dams’ Existence); Court Runs The River; Upper Snake River Gets Own BiOp

A New BiOp, A New Environmental Baseline

At the end of the remand process, NOAA Fisheries filed a new biological opinion for the Columbia River hydropower system on Nov. 30, 2004. The challenged 2000 BiOp had now been formally replaced.

In the 2004 BiOp, NOAA Fisheries concluded that the operation of the FCRPS dams would not jeopardize the continued existence of any listed species nor destroy or adversely modify critical habitat for three of those species.

“The revised biological opinion meets two important objectives,” said Bob Lohn, regional administrator for NOAA Fisheries’ Northwest region in Seattle. “First, it addresses the concerns of the federal District Court. Second, it updates actions taken under the opinion to ensure continued progress in protecting the ESA-listed stocks.”

A biological opinion cover letter from Lohn to the regional chiefs of three federal action agencies said their Updated Proposed Action (UPA) “is not likely to jeopardize twelve listed species or one proposed-to-be-listed species of Columbia River salmonids.”

The UPA, judged by the new biological opinion, outlined planned operations for the 14-dam FCRPS and 19 Bureau projects (not including those above Hells Canyon in Idaho).

The 2004 BiOP built on actions described in the 2000 version — a strategy federal officials said was showing signs of success.

NOAA Fisheries said the 2004 BiOp employed different jeopardy analyses from those of the past by parsing out the “unavoidable effects” of the dams themselves.

The analyses instead attached a value to the believed negative effects from the planned operations and compared them with effects from hypothetical operations perceived to be optimal for fish – the best possible while still answering legal obligations to manipulate the dams to provide power, flood control, irrigation, navigation and other uses.

Federal officials touted the planned installation of surface bypass technology at the dams to provide a more benign migration route for salmon and steelhead. Increased predator control was also called for in the 2004 BiOp to help improve fish survival. Planned habitat improvements in tributaries and in the estuary were also outlined in the new strategy.

The biological opinion did recommend that summer spill be adjusted downward. Proponents of spill reductions for a month in spring and at summer’s end argued that spill at that time of year benefits few fish and imposes huge costs on the system in terms of foregone power generating opportunities.

Exactly one month after the 2004 BiOp was issued, the fishing and conservation groups filed a supplemental complaint outlining “defects in the 2004 FCRPS BiOp,” while emphasizing it was not an all-inclusive list.

The move triggered yet another round of litigation.

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The Columbia/Snake River Irrigators Association and the Eastern Oregon Irrigators Association filed a separate challenge to the 2004 BiOp in early January 2005, saying NOAA Fisheries failed to “utilize the best available scientific evidence” in violation of the ESA. The irrigators said the biological opinion “grossly overstates asserted impacts of the action subject to consultation.”

The irrigators’ Feb. 11 request for summary judgment said the 2004 BiOp’s analysis needed to be reworked. The biological opinion illegally “requires dam operators to offset all other sources of salmon mortality.”

“Proper implementation… would have confined the ‘agency action’ to dam operations, and concluded that those operations did not jeopardize the fish, thereby obviating the need to include any offsite mitigation,” according to the irrigators’ summary judgment memorandum.

“Similarly, a proper interpretation of the ‘action area’ would not include ‘all tributary basins to which adult fish return and therefore are potentially affected by a reduction of marine-derived nutrients.’ “

The irrigators also said the 2004 BiOp improperly included ocean and freshwater harvest of salmon in its environmental baseline. They said those effects on salmon and steelhead should be judged in a separate biological opinion.

The complaint filed by Earthjustice for the fishing and conservation groups said the new biological opinion failed to provide a legal or rational basis for purportedly partitioning the existence of the dams and non-discretionary operations of the federal action from the so-called discretionary operations.

And, said Earthjustice, the 2004 BiOp erred in its reliance on a reference operation that “has no basis in law and is incomplete and irrational in any event, and the failure to consider all of the federal projects that are part of the action, including the BOR projects in the upper Snake Basin.”

Earthjustice said the 2004 BiOp’s jeopardy analysis “improperly fails to actually evaluate whether the proposed action (once properly identified), when combined with the effects of the environmental baseline and cumulative effects, and in light of the current status of the species, is likely to jeopardize the survival and recovery of the species as required by the ESA and its implementing regulations.”

The document filed in Portland’s U.S. District Court asked the federal judge to order NOAA Fisheries to withdraw the biological opinion and its incidental take statement.

“The 2004 FCRPS BiOp fails to utilize the best scientific and commercial data available,” according to the Dec. 30, 2004, request for summary judgment.

During oral arguments in April 2005, David Leith of the Oregon Attorney General’s office told Judge Redden that the 2004 BiOp wrongfully assumed that “existing structures will not be modified in any way” when it attempted to isolate the effects of its action – the actual operations of the dams. The Updated Proposed Actions’ impacts are measured against those of a so-called “reference” operation that theoretically represents “the best the system can do for fish,” Leith said.

The UPA was developed by the action agencies, and judged by NOAA Fisheries in the biological opinion. The survival gaps between that reference operation and the UPA are what the mitigation actions in the federal documents attempted to close.

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Leith said that survival gap was artificially narrow because structural improvements that could be made to improve survival — such as removable spillway weirs and fish-friendly turbines — were improperly included in the UPA and not the reference operation.

“The reference action does less for the fish than the proposed action” because of such omissions, Leith said.

The 2004 BiOp said that “each of the dams already exists, and their existence is beyond the scope of the present discretion of the Corps and [BOR] to reverse.” Federal attorneys argued that the “Action Agencies were not required to consult” on any elements of the pre-existing project beyond their current statutory discretion or control.

Justice Department attorney Fred Disheroon during April 2005 oral arguments defended the 2004 BiOp’s analytical rigor and outcome. He rebutted Leith’s argument, saying the baseline is intended to be “a snapshot of what’s there,” and should not include future actions.

“They are trying to stack the deck” in asking to lump future capital improvements into the reference operation, Disheroon said.

Likewise, lumping cumulative effects on fish mortality into the “action” would, in effect, force the hydrosystem to “clean everybody’s house.”

The coalition and Oregon seek to impose “additional obligations on the federal agencies that the law itself, Section 7, does not impose,” Disheroon said.

Such an additive approach “doesn’t make sense,” Clay Smith of the Idaho Attorney General’s office told the judge. Idaho was an intervenor in the case on the side of the federal government.

Smith said the ESA calls for an assessment of the proposed action only, not “pick up the tab for everyone else.”

“You’re being asked to engage in a massive substitution of judgment” for what is a “reasonable” NMFS interpretation of the ESA and its implementing regulations, Disheroon said. As long as that opinion is judged reasonable, it must receive deference under the law.

“They (the plaintiffs) are simply saying that we didn’t do it the way they thought it should be done,” Disheroon said.

Redden Says No Again

Judge Redden in May 2005 declared the 2004 BiOp arbitrary and capricious because: (1) of the improper removal from the environmental baseline of elements of the proposed action that NOAA says are beyond the action agencies’ control; (2) it used a comparison of the effects of the proposed action with a reference operation, rather than aggregating the anticipated effects for analysis; (3) of the flawed critical habitat determinations; and (4) the failure to consult adequately on both recovery and survival in the jeopardy determination.

The judge rejected the irrigators’ two main arguments.

“The Irrigators’ second motion for summary judgment addresses one issue — the science used by NOAA in the 2004BiOp. I decline to address this issue for the same reasons I did not address it in NWF v. NOAA,” Redden wrote. “In any event, since I have concluded the 2004BiOp is invalid for reasons other than the science used by NOAA, the Irrigators’ second motion for summary judgment is moot.”

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“…whether the effects of the harvests are accounted for in the jeopardy analysis as ‘cumulative effects,’ or as part of the environmental baseline is not the key issue,” Redden said. “The key issue is that the effects be accounted for one way or another in order to provide an accurate picture of the current status of the listed species which, after all, is the purpose of the exercise.

“I conclude NOAA’s inclusion of the effects of future tribal treaty harvests in the environmental baseline and the effects of future state-managed harvests as cumulative effects for the purposes of the jeopardy analysis in the 2004BiOp is not arbitrary and capricious and not contrary to law.”

Redden’s opinion chided NOAA Fisheries, saying, “Rather than implementing its promises on remand, NOAA had abandoned the approach of the 2000 BiOp and instead the 2004 BiOp relied on an analytical framework NOAA had not used before. The 2004BiOp failed to follow the approach NOAA had used in prior biological opinions of adding the effects of the proposed action to the environmental baseline and any cumulative effects to determine whether, in light of the status of the species, the proposed action would cause jeopardy.”

Redden said the 2004 BiOp also failed to adequately consider the proposed action’s impacts on the listed species’ chances of recovery.

In an October 2005 order, Redden remanded the 2004 BiOp and required that a new strategy be developed by the federal agencies in collaboration with Columbia River basin states and tribes. Meanwhile, he left the terms of the 2004 BiOp in place.

“The many failures in the past have taught us that the preparation or revision of NOAA’s biological opinion on remand must not be a secret process with a disastrous surprise ending,” Redden wrote in his Oct. 7, 2005 remand order.

“I recognize NOAA alone is charged with the responsibility of drafting a valid biological opinion,” Redden of the ESA prescribed consultation process for federal agencies. “So far, they have not succeeded.”

“During the remand period, NOAA and the Action Agencies, Army Corps of Engineers, and Bureau of Reclamation shall collaborate with the sovereign entities, including the States of Idaho, Montana, Oregon, and Washington, and the Tribes who are parties or amici in this action (the Nez Perce, Umatilla, Yakima, Warm Springs, and Kootenai Tribes) to achieve the goals of:(a) Developing items to be included in the proposed action; and(b) Clarifying policy issues and reaching agreement or narrowing the areas of disagreement on

scientific and technical information.”

What followed was a 2 1/2-year process that involved literally hundreds of meetings of representatives of the involved sovereigns – federal, state and tribal governments – at technical and policy levels. They continued long-running arguments about the proper role of flow, spill, smolt transportation, reservoir drawdowns, harvest, hatcheries and habitat in promoting the health of salmon and steelhead stocks.

Discretionary or Non-Discretionary

The federal government and Idaho in December 2005 appealed Redden’s decision to the Ninth Circuit.

During briefing in the Appellate Court federal and Idaho attorneys argued that a jeopardy

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determination on the net impacts on listed species stemming from actions guided by the 2004 BiOp is within the discretion of the agencies.

“Thus, contrary to the District Courts’ conclusion, the dams are not properly characterized as part of the agency action,” contended a federal brief.

“Because the dams are preexisting structures which the Action Agencies are powerless to remove, NMFS properly assigned the effects attributable to the dams’ existence to the environmental baseline.”

NMFS’ jeopardy analyses “sensibly make the agencies accountable for their decision-making and render the BiOp meaningful by focusing on discretionary actions the agency can actually take to prevent or ameliorate potential threats to listed species.”

That battle in the Ninth Circuit ended, for the most part, with an April 9, 2007, opinion affirming Redden’s rulings. Idaho twice asked for rehearings before the Appellate Court but was denied both times.

“After a careful review of the record, we conclude that the District Court correctly determined that the jeopardy analysis of the 2004 BiOp contained structural flaws that rendered it incompatible with the ESA,” according to the unanimous opinion rendered by the Ninth Circuit panel of circuit judges made up of A. Wallace Tashima, Sidney R. Thomas and Richard A. Paez.

“Its rejection of the 2004 BiOp was entirely appropriate, and it did not abuse its discretion in entering the remand order,” said the Ninth Circuit panel.

The Ninth Circuit opinion agreed with Redden in saying that the “2004 BiOp was legally deficient because its jeopardy analysis did not adequately consider the proposed action’s impacts on the listed species’ chances of recovery.”

“At its core, the 2004 BiOp amounted to little more than an analytical slight of hand, manipulating the variables to achieve a ‘no jeopardy’ finding,” the Ninth Circuit opinion said.

Court Injunctions Run The River

Even before their success in convincing Redden to reject the 2004 BiOp, the fishing and conservation groups led by the National Wildlife Federation wanted to ensure the remanded biological opinion did not entirely guide Columbia River hydro operations during the upcoming salmon migration season.

On July 17, 2004, a year before Redden’s ruling, Earthjustice filed a motion in U.S. District Court in Portland requesting a preliminary injunction prohibiting the Corps of Engineers from implementing the new spill reduction plan and forcing NOAA Fisheries to withdraw its endorsement of the plan.

The state of Oregon and four Columbia River treaty tribes filed briefs in support of the motion.

The 2004 strategy called for an elimination of voluntary spill throughout August at the Columbia’s The Dalles and Bonneville dams, and at Ice Harbor (lower Snake) and John Day (Columbia) from Aug. 26 through Aug. 31. The injunction request said the change represented a 35 percent reduction in summer spill volume from levels called for in the 2000 BiOp.

The summer spill plan, developed by the BPA and the Corps in cooperation with NOAA Fisheries, said that any resulting fish losses would be mitigated through “offset” actions

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elsewhere that improve survivals. The plan was developed under so-called adaptive management provisions of the remanded biological opinion.

“…the decision to depart from the mitigation requirements of the 2000 FCRPS BiOp and eliminate summer spill in August poses an immediate and serious risk of irreparable harm to Snake River fall chinook, far above the level of harm already acknowledged by the agencies,” according to the motion filed by Earthjustice for the 19 fishing and conservation groups.

BPA and the Corps had estimated that the new plan would provide equal or better biological benefits overall than the 2000 BiOp operations, for listed and unlisted fish, while allowing BPA a net gain of from $18 million to $28 million in power sales. The revenue gain would come from larger volumes of water channeled through turbines instead of spill gates, resulting in the generation of saleable electricity.

Federal attorneys, and those representing power and other economic entities, argued that the spill reduction/offset plan was indeed biologically sound and better served the public interest by helping keep power rates down.

Redden, however, on July 31, 2004 approved the preliminary injunction request.

“We should not be cutting back on what is an effective mitigation tool,” said Redden.

Federal attorneys a week later filed an emergency motion with the Ninth Circuit asking that it stay the District Court injunction requiring the Corps to implement the spill strategy.

The Ninth Circuit on Aug. 13 denied the federal request without comment.

A similar scenario played out the following year with NWF again seeking a spill injunction.

On March 21, 2005, the groups requested a preliminary injunction requiring that the hydro system spill program be expanded beyond 2004 BiOp prescriptions to allow more juvenile salmon to migrate toward the ocean in-river rather than being transported.

The preliminary injunction request, filed in Redden’s U.S. District Court in Portland, asked that federal dam operators be required to use “reservoir drawdown, flow augmentation and other measures” to boost flows in the lower Snake and Columbia rivers.

The coalition said its plan would decrease water particle travel time and thus move juvenile fish more quickly toward the ocean. Increased spill at the four lower Snake dams and the Columbia’s McNary Dam would also help increase fish survival, the injunction request said, noting that spill was the favored means of passage for in-river juvenile salmon.

The groups said tribal analysis indicated salmon survival that summer would be doubled as a result of operations under the requested injunction.

The coalition also said implementing the injunction would cause power losses of $43.3 million, not $102 million (a peak estimate developed by BPA) with a resulting 11-cent to 54-cent boost in monthly charges to the average electric consumer.

The injunction did not specify how the enhanced flows would be produced other than some combination of drawdown of mainstem reservoirs and upstream storage reservoirs. Mainstem drawdowns were projected to increase water velocity, and the fishes’ migration pace, by reducing the overall surface area of the flows. The drawdown of storage reservoirs at Libby and Hungry Horse in Montana, Dworshak in Idaho and Grand Coulee in Washington were also sources of water to amplify flow.

“Tellingly, Plaintiffs provide no quantitative demonstration of whether, or to what extent,

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their proposal will improve survival. In fact, it would likely have less benefit to salmonids than currently planned operations,” according to the federal brief that cited a declaration filed by NOAA Fisheries’ regional administrator, Bob Lohn.

“Harm could potentially result from a variety of sources, not the least of which is the unjustified departure from the approach of maximizing juvenile transportation in the summer, which has been consistently implemented in recent years and supported high returns” of adult fish, according to the federal filing.

The federal attorneys said that the coalition’s request “essentially asks this court to usurp the role of the defendant Action Agencies (BPA, the Corps and the Bureau) to balance their multiple statutory obligations in operating the system of dams and associated facilities in the Columbia River Basin.

“Plaintiff’s seek to substitute their own views as to the status and biological requirements of the affected salmonid evolutionarily significant units (ESUs) for those of the National Marine Fisheries Service (NMFS), as well as their own technical and policy views for those of the Action Agencies.”

The federal filing said the plaintiffs had not demonstrated any measurable benefit to fish and failed to prove “irreparable harm” would occur if the 2004 BiOp operations were carried out.

A BPA analysis of the proposed injunction’s “potential costs to ratepayers” focused on the drafting of storage reservoirs in the FCRPS system to increase flow volume.

The estimated net cost (lost revenue from additional spill applied against increase power revenues due to flow augmentation) to BPA in 2005 was estimated at $52 million. The cost of refilling depleted reservoirs in fiscal year 2006 would be $50 million in foregone generating revenues, according to the BPA analysis.

On June 10, 2005, Redden granted an injunction, ordering dam operators to spill water for fish at three lower Snake and one Columbia River projects during summer months. The judge, however, denied the flow/drawdown request.

In his order, Redden reasoned that too much uncertainty remained about the potential benefits of increasing river water velocity, which would decrease the in-river migration time. He urged interested federal, state, tribal and other parties to immediately “engage in collaboration to resolve the issues raised by flow.”

Ordering that more flows be extracted from storage reservoirs “would put this court into micromanagement, big-time,” Redden said.

Federal defendants, Idaho and the BPA Customer Group immediately requested in the Ninth Circuit Court of Appeals a stay of the lower court ruling. Oral arguments on the merits of the appeal were heard July 13 in Seattle.

Federal attorneys argued that Redden, in issuing the injunction, abused his power and did not properly defer to agencies’ expertise or consider the record of evidence.

They said the injunction should be removed because it was based on Redden’s flawed legal assessment that NOAA Fisheries’ jeopardy analysis was invalid.

“The injunction requires the Corps to provide large amounts of summer spill at the dams, which will significantly reduce the number of fish transported in barges, leaving a large portion to migrate under the adverse in-river conditions in this low-water year. In so doing, the court has substituted, at best, an experiment without the means of evaluating the effects of spill on

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summer migration for the considered scientific judgment of NMFS as to what will work best to ensure salmon survival for this summer,” according to a federal brief filed with the Appeals Court.

Plaintiffs, on the other hand, told the Appeals Court there was ample scientific and legal evidence to back Judge Redden’s decision.

The appellate panel unanimously concluded “that the district court did not abuse its discretion in granting a preliminary injunction. It had rejected the biological opinion upon which the summer operations were premised, and it had concluded that continuation of the status quo could result in irreparable harm to a threatened species. Those are precisely the circumstances in which . . . the issuance of an injunction is appropriate.”

In its 36-page opinion, the Ninth Circuit judges made clear several times they were not judging the merits of Redden’s ruling invalidating the 2004 BiOp. Nor did they state whether they agreed with the contents of Redden’s summer spill order.

“A district court’s order with respect to preliminary injunctive relief is subject to limited appellate review, and we will reverse only if the district court abused its discretion or based its decision on an erroneous legal standard or on clearly erroneous finding of fact.

“Mere disagreement with the district court’s conclusions is not sufficient reason for us to reverse the district court’s decision regarding a preliminary injunction.”

The Ninth Circuit’s July 26, 2005 ruling said the lower court’s order to spill water for fish passage during late summer at five federal Columbia Basin mainstem dams did not abuse the court’s discretion and was “well-grounded in governing statute.”

At the same time, the three-judge panel “remanded” back to Redden for consideration the question of whether the spill order requires modification, or “narrow tailoring.”

In response, Redden issued a Dec. 29, 2005 order for managing the hydro system during the spring and summer of 2006.

He approved with modifications a new federal government plan to provide more spill at dams for juvenile salmon passage but he forestalled decisions on requested manipulations of flow regimes.

The judge, in a thumbs up/thumbs down response to a request for alterations to the federal plan, cited the “continuing uncertainty regarding the relative benefits” of transportation vs. spill in turning back a federal proposal to cut off spill for Columbia/Snake juvenile smolt migrants from late April through May.

The new federal plan for late summer spill increased spill at dams with fish collection facilities over the 2004 BiOp, but represented a relatively small incremental difference over the regime proposed by the National Wildlife Federation, the judge said.

In his order Redden adopted the federal defendants’ proposals for the amount and timing of spring and summer spill at FCRPS dams, except that (a) in the late spring, the Corps was ordered to continue to spill in the same manner as in the early spring; and (b) in the summer, the Corps was ordered to continue to spill through Aug. 31.

At the time the injunction request was filed, BPA estimated the summer spill would cost from $73.2 million to $74.5 million, mostly in foregone revenue. That shifting of the bottom line had to be passed on to the region’s power consumers in the form of higher electric rates.

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Redden said “eliminating all spill and relying exclusively on collection and transportation of juveniles at Lower Granite and Lower Monumental dams from April 20 through May 30, and at Little Goose dam from May 26 through May 30” was a “radical departure” from the long-followed “spread-the-risk” policy. He also faulted the federal plan’s Aug. 15 spill cutoff date.

A year later, in December 2006, an agreement regarding 2007 spill operations that mirrored 2006 operations was reached by BPA, the Confederated Tribes of the Warm Springs Reservation, the Nez Perce Tribe, Confederated Tribes of the Umatilla Indian Reservation, Confederated Tribes and Bands of the Yakama Nation, and Confederated Tribes of the Colville Indian Reservation. The Corps agreed to provide fish passage operations in accordance with the agreement.

And the following year, during a Dec. 12, 2007 litigation status conference, the federal defendants agreed to “roll over the 2007 operations through September 2008” if the plaintiffs would agree to not seek a preliminary injunction until after issuance of the 2008 BiOp. The fishing and conservation groups ultimately agreed.

Upper Snake River Gets Own BiOp

On May 2, 2001 NOAA Fisheries issued the first stand-alone biological opinion for the Bureau of Reclamation’s upper Snake River irrigation projects.

The 2001 upper Snake BiOp was originally intended to cover an interim one-year period, awaiting completion of ongoing Snake River Basin Adjudication (SRBA) negotiations. The SRBA was a legal proceeding concerning water rights in Idaho State Court, which included a sub-proceeding for adjudicating the claims of the Nez Perce Indian Tribe. The tribal water rights were being sought, in part, to support anadromous fish.

When it was evident that the complex SRBA negotiations would require more time to complete an agreement, the Bureau requested initiation of formal consultation on the continued operation and maintenance of its Upper Snake projects and submitted to NOAA Fisheries an amended biological assessment of effects.

The action proposed in the November 7, 2001 consultation was identical to that considered in the 2001 Upper Snake BiOp. NOAA Fisheries determined that its previous no-jeopardy determinations continued to be appropriate and, therefore, reissued the 2001 opinion on Jan. 24, 2002 for a three-year term.

The SRBA parties reached agreement in May 2004 on the Nez Perce Water Rights Agreement. Consequently, in November 2004 the BOR issued a new biological assessment for its upper Snake projects, including the portion of the Nez Perce Water Rights Settlement terms dealing with the projects. NOAA Fisheries issued a new opinion on March 31, 2005 covering the 30-year term of the SRBA settlement.

In a suit originally filed to challenge NOAA Fisheries’ 2001 BiOp for the Upper Snake projects, a coalition of environmental and sportfishing organizations led by American Rivers submitted to federal court an amended complaint on Sept. 29, 2005 challenging the 2005 Upper Snake biological opinion for alleged violations of the Administrative Procedures Act and ESA.

The complaint asserted 1) it was improper to consult on the upper Snake projects as an action separate from the FCRPS, and 2) NOAA Fisheries’ analysis of jeopardy and critical habitat adverse modification was flawed for the same reasons as already found for the ESA

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consultation for the FCRPS.

On May 23, 2006, Judge Redden ruled that 1) the Upper Snake Projects were a separate action from the FCRPS and could be the subject of its own BiOp, and 2) that NOAA Fisheries’ ESA analysis was arbitrary and capricious for using the same flawed comparative jeopardy analysis used in the FCRPS 2004 biological opinion.

“Federal defendants’ decision to segment the upper Snake River operations from the FCRPS operations crystallizes the need for a comprehensive approach to the jeopardy analysis,” Redden said in his opinion. “If NOAA segments the Columbia and Snake River Basin into two separate actions (or several actions, as NOAA claims it has the authority to do) and uses a comparative analysis, the agencies effectively preclude any jeopardy conclusion, as each agency will be able to conclude that its action is not jeopardizing listed species when compared to the environmental baseline, which of course includes the operations of the other agency and vice versa.

“In essence, each agency ends up pointing their finger at the other, while ignoring the needs of listed Columbia and Snake River salmon and steelhead,” Redden said.

“As was the case in the 2004 FCRPS BiOp, NOAA’s jeopardy analysis in the 2005 Snake BiOp did not consider the combined effects of the proposed action and the existing environmental baseline, and thus did not provide the comprehensive review that was required under the ESA,” Redden said.

If separate biological opinions are prepared, each must include the other system’s impacts in those combined effects, he said.

Idaho’s congressional delegation, led by senior U.S. Sen. Larry Craig, immediately blasted the decision.

“Once again, a federal judge is trying to run the river with blatant disregard for the critical needs of the Northwest. He is clearly advocating for one side while ignoring the necessary balance between people and the environment,” according to a statement released by the delegation. “Not only does this ruling jeopardize the careful and long collaboration process between the federal, state, and local governments and the tribes, but it also jeopardizes the potential for a long-term solution.

“We do note that the judge put the remand of the Upper Snake and Federal Columbia River Power System BiOps on the same schedule and agreed they should remain segmented. With these objectives in mind, we will watch very carefully the way that the region responds to the judge’s ruling, particularly with regard to the way the remand order is implemented.”

“Let there be no mistake: We will protect Idaho’s water and the Nez Perce Agreement,” the delegation said.

In October 2006 the judge remanded the 2005 Upper Snake biological opinion to federal agencies and ordered that a new biological opinion be issued within a year.

“A combined consultation will be more likely to achieve the comprehensive analysis required by the ESA, but the decision to produce one biological opinion or two ultimately lies with the action agencies,” Redden said in his remand order.

The remands proceeded on parallel tracks. A new Upper Snake biological opinion was eventually completed and released on May 5, 2008 (along with new Columbia River Basin biological opinions).

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The Coalition for Idaho Water immediately announced that it was “pleased” with the final biological opinion for the Upper Snake River basin irrigation projects, but wary of new legal attacks. The coalition is made up of more than 50 different organizations representing Idaho counties, cities, chambers of commerce, industrial, municipal and commercial water users, and agricultural groups.

“The new Upper Snake biological opinion continues the essential components of limiting the amount of water coming from Idaho for flow augmentation, adherence to state law, and acquisition of water only from willing sellers,” according to Norm Semanko, a coalition spokesman. “The term of the opinion is through 2034 which clearly provides continued, long-term certainty for Idaho water users.”

“The ball is now in the environmentalists’ court. As they have in past, we fully expect them to challenge the new biological opinion, including operation of Bureau of Reclamation dams and reservoirs in Idaho, and to seek to take more water from Idaho, regardless of the impacts on our economy and way of life,” Semanko said.

Earthjustice, representing American Rivers and others, said the time was not immediately ripe to challenge the Upper Snake BiOp.

“Instead, and without waiving any claim it may have against the new Upper Snake BiOp, American Rivers currently anticipates that it will eventually seek leave to file such a complaint but that it also may ask to have proceedings on that complaint stayed until the merits of the claims against the 2008 FCRPS BiOp are resolved,” Earthjustice told Redden. “American Rivers believes that parallel proceedings on both the 2008 FCRPS BiOp and the 2008 Upper Snake BiOp would be unnecessarily burdensome to the parties and the Court.

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VI. 2008-2009: A ‘Collaborative’ BiOp; New Fish Funding Agreements, New BiOp Support; Montana Finally Likes The Reservoir Plan; Earthjustice Says New Approach Inadequate; Oregon Left As Only State Opposed To BiOp; Should Independent Scientists Evaluate BiOp?; Parties To Litigation Grows; Clean Water Act Now An Issue; A New Round Of Briefings

New BiOp Emerges From 30 Months Collaboration

The FCRPS BiOp remand, originally scheduled to be completed in one year, began to stretch the timeline with several requests for extensions to accommodate a complicated collaboration with states and tribes, and to allow more time to hone the biological analysis.

Judge Redden approved the extension requests, each time demanding evidence showing the process was building toward a legally and biologically defensible product.

The 2 ½-year federal ESA consultation ended May 5, 2008 with NOAA Fisheries’ release of three biological opinions the agency said represented the most comprehensive strategy yet developed to protect listed Columbia basin salmon and steelhead species.

Two of the new biological opinions replaced strategies declared illegal in federal court — NOAA Fisheries’ 2004 Federal Columbia River Power System BiOp for 14 Columbia/lower Snake river dams and the 2005 upper Snake River BiOp for 12 Bureau irrigation related projects in eastern Oregon and southern Idaho.

The new 2008 FCRPS BiOp detailed strategies for improving salmon survival through the hydro system and described planned off-site actions, such as habitat restoration, intended to mitigate for hydro impacts. It laid out a 10-year timeline. A third set of documents outlined a plan for managing salmon harvests for Indian tribes in Washington, Idaho, and Oregon, and for state-managed fisheries. It was based on a plan developed in U.S. v Oregon, a court-supervised process focused on protecting treaty fishing rights.

Each biological opinion included in its biological analysis effects on fish caused by the other two “actions.”

“These biological opinions not only meet the law’s requirement to protect fish, they also improve the prospects for recovery,” said Lohn at NOAA Fisheries. “In these opinions, we’ve taken a close look at all of the major factors — the hydro system, habitat, hatcheries, and harvest — and are making sure that they’re all working toward healthy salmon runs.”

The federal documents said it was “biologically not necessary to include dam breaching” as one of the biological opinion’s mitigation strategies. Also, the federal agencies stressed again, as they did in 2000, that they had no congressional authority to pursue breaching and that breaching would provide limited benefits.

“The 2008 FCRPS Biological Opinion supports a comprehensive, All-H strategy including continued fish passage improvements at the Snake River dams such as surface collection and bypass improvements, as well as offsite actions including habitat and hatchery improvements, to meet the needs for listed fish,” according to a summary document. “This approach benefits not only Snake River fish, but also Upper Columbia and Mid-Columbia salmon and steelhead.”

For the first time the FCRPS BiOp aimed planned hydro system improvements at achieving

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specific performance standards — 96 percent per dam passage survival for spring juveniles and 93 percent per dam passage survival for summer juvenile migrants averaged across the Columbia or Snake river dams by the end of the 10-year period.

BPA CEO Steve Wright said the new FCRPS biological opinion would cost an estimated $75 million more per year to implement than the 2004 version. That had the potential to push up rates for BPA’s preference wholesale power customers by 3 percent.

That estimated rate increase jumped to 4 percent when the costs of new memorandums of agreements with four treaty tribes — the Colville, Umatilla, Warm Springs and Yakama — and the states of Idaho and Montana were added in. An additional MOA was signed with Idaho’s Shoshone-Bannock Tribes in November 2008.

The 10-year fish and wildlife funding agreements with the tribes included a mix of mitigation measures, targeting ESA stocks and non-listed fish and wildlife. The ESA portion was included in the $75 million calculation.

The federal power marketing agency in 2008 had $600 million to $700 million in annual fish and wildlife costs for ESA and non-listed stocks, Wright said. BPA has obligations to mitigate for impacts to fish and wildlife caused by the construction and operation of the federal Columbia basin hydro system.

In response to the release of the new biological opinions, Northwest RiverPartners said its members must be involved in the implementation process to help assure the huge planned investment is spent efficiently and toward sound scientific purposes. RiverPartners represents agricultural interests, electric utilities and large and small businesses.

“The answer to salmon recovery is not to throw more money at it, but to ensure that the dollars are well spent and deliver results,” said Terry Flores, executive director of the alliance. “To accomplish that, the customers making the investment must have a place at the implementation table along with the states and tribes.”

Others immediately criticized the federal strategy as yet another failed plan.

The state of Oregon, a foe of the 2004 FCRPS BiOp and legal adversary of NOAA Fisheries during related legal proceedings, said renewed litigation was likely. Gov. Ted Kulongoski, in an opinion piece published May 6, 2008 in Portland’s Oregonian newspaper, said the new plan

“falls short of what needs to be done.

“Instead of improving river conditions for migrating fish, the plan reduces flow, which will result in slower movement through the river system, which reduces survival,” the governor wrote. Likewise, he said, spill at the dams for fish passage will be ratcheted down.

“This new plan is not a credible approach to the recovery of wild salmon and steelhead,” Kulongoski said.

He said that the state preferred to negotiate for improvements but “thus far, such negotiations have yielded little. If it requires another round of litigation, and that is my only option, then I will pursue that option” to gain the improvements the state desires.

Attorneys for the fishing and conservation groups that challenged the 2004 FCRPS BiOp said the new version appeared to fail both legal and scientific tests.

“This plan looks like it does even less” than the 2004 plan, Earthjustice attorney Todd True said during a press conference held following the NOAA Fisheries announcement. He said Earthjustice and its clients would review the document carefully before deciding whether to

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again to take legal action.

RiverPartners was critical of the new harvest biological opinion.

“…the direct killing or harvesting of salmon under the protection of the Endangered Species Act continues to be neglected,” Flores said. “The biological opinion released today on Lower Columbia commercial, sport and tribal harvest allows the continued taking of listed fish instead of conserving them.

“Our concern is that the massive investment being made by regional electricity customers will be compromised if harvest is allowed to continue at unsustainable rates,” Flores said.

New Agreements on Fish Funding, New Support For BiOp

The memorandums of agreements, signed with the tribes and states, among other things, pledged support for the new federal salmon protection plans.

The agreements were negotiated with BPA, which markets power generated in the hydro system, and the dam operators, the Corps and the Bureau.

The agreements — called the Columbia Basin Fish Accords — changed the legal dynamics considerably. The Umatilla, Warm Springs and Yakama tribes had been severely critical of past biological opinions and in the past added their voices to the chorus demanding lower Snake River dam removals.

The MOAs were expected to “augment and advance the FCRPS RPA and its implementation. These actions inform and buttress the conclusions NOAA reaches for the FCRPS Biological Opinion,” the 2008 FCRPS BiOp summary says.

The accords said the involved parties agreed that the federal government’s requirements under the ESA, the Clean Water Act and the Northwest Power Act were satisfied for 10 years and that they would work together to support these agreements in all venues. Negotiations leading to the agreement were kindled during the 2004 BiOp remand collaboration.

“These accords move the focus away from gavel-to-gavel management and toward gravel-to-gravel management,” said Steve Wright, BPA administrator. “By putting litigation behind us and putting actions to help fish in front of us, we will better ensure that Columbia Basin fish will benefit.”

“These fish accords respect the sovereignty of the tribes. They break from the history of federal agencies developing a plan themselves, and then telling the tribes what they would or could provide for salmon. This did not work. Misunderstandings, hard feelings, and litigation are what we produced,” said Ron Suppah, chairman of the Confederated Tribes of the Warm Springs Reservation of Oregon. “The foundation of these accords is respect among sovereigns — respect for the expertise and authority of the tribes.”

The agreements were harshly criticized by the state of Oregon and by the fishing and conservation groups that had successfully challenged the 2004 BiOp. They said “the MOA cannot shield the federal government’s legal liabilities under the ESA….”

Montana Finally Gets The Reservoir Plan It Wants

The 2008 FCRPS BiOp included for the first time long-sought changes to summertime

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operations of Libby and Hungry Horse dams in northwest Montana.

The new plan required a 10-foot drawdown of the two reservoirs during August and September to augment flows for salmon hundreds of miles downstream in the Columbia. The new operations represented a much slower, shallower draft than the 20-foot August drawdown required by previous biological opinions.

The state of Montana each summer since 1996 had argued for the change, saying it would benefit Montana resident fish populations, notably bull trout, above and below the dams and have little, if any, negative effects on salmon. The rapid drawdowns disrupt the habitat and productivity of the resident fish in the reservoirs and below the dams.

But getting those features codified in the complex, interwoven rules for hydro operations across the Columbia Basin involved disputes and litigation with competing interests in the basin.

“It has seemed so simple for so long,” said Bruce Measure, one of Montana’s two representatives on the Northwest Power and Conservation Council. “But from a standpoint of getting it done, yes, this has been like pushing a boulder uphill for a lot of folks for many years.” Brian Marotz, a fisheries biologist with Montana Fish, Wildlife and Parks, said the research supporting Montana’s position stretches back even farther.

“We’ve been working on this for nearly two decades and it’s finally being implemented,” Marotz said. “We won on the science a long time ago, and this is very important for our natural resources.”

Montana officials have long pointed out that the Libby and Hungry Horse releases were barely measurable at McNary Dam on the Columbia River, and they have long been skeptical of the actual benefits to salmon. In arguing its case, Montana has pointed to a February 2003 Independent Scientific Advisory Board report that said:

“The prevailing flow-augmentation paradigm, which asserts that in-river smolt survival will be proportionally enhanced by any amount of added water, is no longer supportable. It does not agree with the information now available.”

Additionally, the NPCC in 2003 “mainstem” amendments to its fish and wildlife program urged the federal dam operators to adopt the operations desired by the state of Montana.

Based largely on data collected in studies of Snake River fish, the scientists said rapid fluctuations in flow, which are related to increases and decreases in electricity generation at the dams, may have the greatest impact on fish survival, particularly during periods of low flows.

The new 2008 BiOp said the Montana reservoirs can be drawn down 20 feet during lowest-water years.

Earthjustice: ‘Another Legally Inadequate Plan’

When the new biological opinions were released, Lohn at NOAA Fisheries said it was now “up to the plaintiffs to decide if they will bring legal action.” Lohn said he hoped they would take time to fully understand the approach and, eventually, choose to let it play out.

But a review of the new federal documents did not bring satisfaction to the coalition led by the National Wildlife Federation, or the state of Oregon.

Six weeks later, on June 17, 2008, the coalition filed a complaint in Oregon’s U.S. District Court in Portland alleging the new FCRPS BiOp is “not materially different” from biological

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opinions issued in 2000 and 2004 that were declared illegal.

“In fact, in some vital respects the actions considered in the 2008 FCRPS BiOp provide less protection for ESA-listed salmon and steelhead,” according to the complaint filed by Earthjustice for the coalition of fishing and conservation groups.

“Today we are taking the only action we can against another legally inadequate plan from the Bush Administration,” said Todd True, senior managing attorney for Earthjustice in Seattle.

“Despite two years of work and a clear warning from the federal courts that the administration cannot ignore the Endangered Species Act, we now have a plan that is worse than ever,” True said. “Our only option is to ask the courts to intervene again, hold the government accountable, and require it to obey the law.”

The supplemental complaint says “The Prospective Actions, which form the RPA for the 2008 FCRPS BiOp, are either largely the same as — or in some cases, represent a retreat from — almost every major area of hydrosystem actions proposed in the 2000 and 2004 FCRPS BiOps. In fact, except where they have been reduced, these measures have largely been in place since adoption of the RPA in the 1995 FCRPS BiOp.” “Notwithstanding the extraordinary length of these documents and a relentless effort to convey a sense of complexity in their analysis, the core judgment about whether the 2008 RPA for FCRPS operations avoids jeopardy and destruction or adverse modification of critical habitat for ESA-listed salmon and steelhead is remarkably thin, subjective, biased by a persistent optimism, and ultimately at odds with the best available scientific information as well as the law and this Court’s guidance for how to comply with it,” according to the supplemental complaint.

RiverPartners and others involved in the litigation defended the collaboration process and NOAA Fisheries’ science, and faulted the fishing and conservation groups’ motive.

“The litigants appear to be the only ones not looking out for the fish with their single-minded focus on dam removal,” RiverPartners’ Flores said. “In the midst of the world seeking remedies for climate change, they persist in demanding removal of the lower Snake River dams, a renewable source of clean electric power.”

“It makes no sense to remove renewable, non-polluting power generation from the Snake River and replace it with fossil-fired power plants that accelerate global climate change,” Flores said.

“This plan addresses all of the issues Judge Jim Redden has raised in the courtroom. It includes an unprecedented, rigorous science analyses, has strong support in the region and major funding commitments,” Flores said.

Glenn Vanselow, executive director of the Pacific Northwest Waterways Association, said, “We expect the region and, ultimately, the court to embrace this new BiOp. It is time to end the lawsuits and get to work on fish recovery. The new BiOp does more to help recover Endangered Species Act-listed fish than any set of actions this region has undertaken before.”

“The main shortcoming of previous BiOps, lack of certainty about habitat improvements, has been resolved through agreements with the region’s tribes,” he said.

An Idaho legal brief said the “supplemental” complaint motion filed June 17 in District Court improperly attempted to continue a case that was the province of the U.S. Court of Appeals for the Ninth Circuit.

Redden’s orders regarding the 2004 FCRPS biological opinion were appealed by the federal government and Idaho, and Redden’s decisions were affirmed by the Ninth Circuit. Idaho later

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sought a rehearing in the Ninth Circuit based on what it felt was a precedent established in a different lawsuit that would apply in the NWF v NMFS case.

The Ninth Circuit denied the rehearing and in doing so issued an amended opinion April 24, 2008, that addressed the supposed precedent and otherwise left its previous verdict intact.

“After a careful review of the record, we conclude that the district court correctly determined that the jeopardy analysis of the 2004 BiOp contained structural flaws that rendered it incompatible with the ESA,” the panel opinion said in its second affirmation of Redden’s 2005 decisions.

“Our conclusion is not altered by the Supreme Court’s recent decision in National Association of Home Builders v. Defenders of Wildlife, which was filed after our opinion was published but before we received the petition for rehearing.” The appellate panel said the facts of the cases differed so the claimed precedent did not apply.

Idaho in early June petitioned the Ninth Circuit again for a rehearing, asking that the appeals of Redden’s decisions be dismissed as moot, that the appellate panel’s amended opinion be vacated and that Redden be ordered to vacate his final judgment of the 2004 BiOp. The past judgments are moot, Idaho said, because the 2008 biological opinion had been issued, superceding the 2004 document.

“The 2008 biological opinion’s issuance, in Idaho’s view, not only moots the appellate proceedings — which are directed to the now-superseded 2004 biological opinion — but also requires vacatur relief,” according to the brief filed in District Court along with a request to Redden to dismiss the challenge to the new biological opinion. Idaho said the U.S. District Court does not have current jurisdiction in the lawsuit.

The Ninth Circuit in August denied the rehearing request without comment. That decision rendered Idaho’s dismissal request in District Court moot.

Oregon Now Only State Opposed To New BiOp

The state of Oregon on July 22, 2008 asked the court to send federal agencies back to the drawing board to develop a Columbia/Snake hydro system strategy that makes imperiled salmon stocks, not the power system, the top priority.

The new biological opinion is severely flawed scientifically and includes “a novel and unsustainable interpretation of the ESA,” according to the supplemental complaint filed by Oregon’s Attorney General’s Office. The new plan, if anything, is less adequate than 2000 and 2004 BiOps struck down in District Court, the state said.

“This court has repeatedly admonished NOAA that the imperiled condition of federally protected Columbia and Snake River salmon and steelhead cannot adequately be addressed merely by minor adjustments to the status quo,” according to Oregon’s complaint.

“Repeatedly, this court has rejected NOAA’s efforts to justify inadequate proposed operations-driven by allegiance to status quo power production — through novel methodologies and defective science. With the 2008 BiOp, we return again to that same juncture.”

Oregon’s filing said it intended to send a 60-day notice of intent to sue the action agencies for parallel and additional violations of the ESA arising out of the implementation of the RPA in the 2008 BiOp.

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Should Redden Employ Independent Scientists To Evaluate BiOp?

Meanwhile, Earthjustice approached Redden about the possible use of independent scientists to evaluate the new biological opinion’s key components.

“NWF and Oregon believe that the use of these experts would be appropriate and could be structured consistent with the requirements for judicial review of the 2008 FCRPS BiOp as well as any request for injunctive relief,” according to a brief filed July 22 with U.S. District Court that asked for a status conference to discuss the topic and other issues related to ongoing litigation.

“If the Court were to convene an independent science panel now, it would elevate the opinions of these particular scientists (some of which have no attachment to this region) above those that have participated in the court ordered collaboration, intimately know these issues, and have spent the last three years investing themselves in developing an action and biological opinion that is not only good for the region, but complies with all applicable laws,” according to the federal brief.

Redden scheduled an Aug. 21, 2008 in-court status conference to discuss suggestions that a scientific expert or panel of experts be used during legal proceedings, and to hear federal arguments against that prospect.

“I share Federal Defendants’ concern that appointing an independent scientific panel to ‘review of the merits of the 2008 BiOp’ before or during summary judgment might ‘run afoul of established record review principles,’” Redden said in a letter to litigants, quoting language from the July 25 federal protest.

“Additionally, an independent scientific review at this stage of the proceedings would present numerous procedural and practical difficulties,” Redden said. The judge had adopted a proposed briefing schedule for the lawsuit that would begin in September 2008 and conclude with oral arguments in early December 2008.

“Nevertheless, I would like to hear Plaintiffs’ and Oregon’s proposals for such a review,” Redden said of the planned conference. His letter pressed the point that the use of independent scientists may be appropriate at some point in the future.

“I have made clear that if I find that this biological opinion is legally flawed, I may not remand it to the Action Agencies. Instead, I may vacate the biological opinion and enter orders of preliminary and/or permanent injunction, as may be necessary,” Redden wrote.

“In fashioning any potential injunctive relief, I believe the court does have the authority under Federal Rule of Evidence 706 to seek independent expert advice regarding the feasibility and efficacy of additional or different mitigation measures to assist listed salmon and steelhead migrating through the FCRPS,” according to the judge’s letter.

“Indeed, during injunction proceedings related to the defunct 2004 BiOp, the government seemed to acknowledge that the court could appoint an independent scientific panel to assess the science and efficacy of spill, transportation, and flow augmentation in assisting juvenile salmon pass through the FCRPS during the spring and summer,” Redden said.

“I want to make clear that I am in no way prejudging the merits of the 2008 FCRPS BiOp and Plaintiffs will ultimately bear the burden of demonstrating both that the BiOp is legally flawed and that they are entitled to injunctive relief,” Redden wrote.

“Nevertheless, it makes sense to prepare for and to discuss all of our options in the event that

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Federal Defendants’ biological opinion fails yet again.”

Also slated for discussion was whether or not the court had authority to appoint an independent scientific panel to assist during settlement negotiations – in the event the new biological opinion is judged to be flawed — “and/or to propose additional or different mitigation measures to assist listed species?” Redden’s letter said.

“Such a process might assist the court and the parties in reaching a settlement agreement, and may obviate the need to vacate the 2008 FCRPS BiOp in its entirety,” Redden said.

Redden announced following the Aug. 21, 2008 hearing that a scientific panel would not be convened for the time being.

Litigation List Grows

As the time to start legal briefing in the lawsuit approached, the list of litigants began to grow.

Northwest RiverPartners in mid-July asked to join the proceedings as a defendant-intervenor, replacing what was called the BPA Customer Group. Redden approved the request.

The Columbia-Snake River Irrigators Association, saying it wanted to refute “erroneous views concerning the relationship between river velocity and salmon survival to be proffered by the State of Oregon and plaintiffs,” on Aug. 4 asked to intervene in the renewed litigation.

The request also said the organization also wants to use upcoming legal proceedings to “vindicate their interests, and those of the Region, in improved harvest management.”

Earthjustice attorneys, representing the NWF, on Aug. 12 asked the court to deny the CSRIA’s intervention request.

They said CSRIA’s harvest interests “are implicated, if at all, by a separate final agency action that is not the subject of NWF’s or intervenor-plaintiff State of Oregon’s complaints.” Harvest actions were the subject of a separate biological opinion also completed in May.

The CSRIA had challenged the 2004 BiOp but that legal bid was rejected by Redden, who also denied the irrigators’ request to intervene in the lawsuit that ultimately resulted in the salmon strategy being overturned. Redden said the request came outside the timelines allowed by law.

The CSRIA challenged those Redden decisions in the Ninth Circuit, and asked that the Appellate Court support its bid to have the District Court judge ousted from the biological opinion proceedings. The Appeals Court upheld the District Court’s decisions.

The irrigators had twice asked that Redden be disqualified, claiming in a 2007 filing with the Ninth Circuit that the judge “continued extraordinary and unlawful proceedings in the NWF case to steer federal decision-making concerning the FRCRPS, providing special procedural rights for fishing interests, and continued to gather and review evidence from a variety of ex parte sources and information presentations…”

Ancer L. Haggerty, chief judge for Oregon’s U.S. District Court, had twice denied the requests to recuse Redden, concluding he “has exhibited neither actual bias nor the appearance of bias.”

Redden on Aug. 20, 2008 granted the CSRIA intervenor status based on their “protectable interests in how the John Day Dam and its reservoir are operated in order to avoid the interruption of their irrigation activities.”

In granting the CSRIA’s intervention request, Judge Redden said, “I conclude Irrigators have

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adequately shown that their interests in those operations are not adequately represented by an existing party and that their intervention in this action to protect those interests is now appropriate.”

The NWF opposed the intervention, saying the irrigators were adequately represented by the Washington Farm Bureau, but the CSRIA argued that the bureau was no longer active in the litigation except as a member of Northwest RiverPartners.

“Irrigators, however, have no right to intervene in this action to challenge harvest decisions made in a separate biological opinion arising in another case,” the judge said of a NOAA harvest biological opinion also released in May, 2008 that stemmed from the ongoing U.S. v Oregon lawsuit.

“In addition, Irrigators have not shown that they are uniquely positioned among all the parties in this action to present their views of the appropriate science that the government should have considered in making decisions in the 2008 FCRPS BiOp, at least on issues not specifically related to John Day Dam operations and its reservoir level,” Redden wrote.

“Accordingly, the court will not hesitate to strike any pleadings or evidentiary materials submitted by Irrigators that extend beyond issues directly related to how the 2008 FCRPS BiOp impacts John Day operations and its reservoir level.”

Redden on Aug. 7 had added Montana’s Confederated Salish and Kootenai Tribes to the legal roster as an intervenor-defendant. The tribes wanted to be sure they were on equal legal footing in debates over hydro operations that can affect resident fish and other tribal resources.

“This litigation focuses on salmon populations with needs that are not the same as the needs of resident fish in CSKT aboriginal territory,” according to the July 31 tribal request to intervene. “As a result, the life-cycles and biological demands asserted for downriver salmon populations are not necessarily consistent with the life-cycles and biological demands of the CSKT’s resident fish. These differences are an important component of the CSKT’s claims and necessitate CSKT participation.”

Clean Water Act Issues Enter the Fray

Earthjustice on Sept. 3 asked the court for permission to expand the legal challenge to include claims the 2008 FCRPS biological opinion allowed dam operations that are in violation of the Clean Water Act.

The complaint said the dams were being operated without state water quality certifications, which made their ESA operational “permit” illegal. The system’s dam operations take place in Idaho, Montana, Oregon and Washington.

The complaint said agencies operating federal dams were in violation of Section 401 of the CWA, which says that “[a]ny applicant for a Federal license or permit to conduct any activity… which may result in any discharge into the navigable waters, shall provide the licensing or permitting agency a certification from the State in which the discharge originates….” The provision is intended to assure federal activities abide by state water quality regulations.

The new complaint, citing legal precedent, asserted that dam operations are indeed discharges.

“The Corps and BOR have violated section 401 of the CWA because they have not secured the required state certifications for the continued maintenance and operation of the fourteen major hydroelectric dams of the Federal Columbia River Power System (“FCRPS”) and the numerous

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dams involved in nine BOR-operated irrigation projects (collectively the “Columbia River Projects”) prior to receiving a federal permit from NOAA Fisheries.”

The complaint says NOAA’s 2008 BiOp “incidental take statement” fits within the CWA’s description of a “permit.” The CWA says that “[n]o license or permit shall be granted until the [required] certification . . . has been obtained” by the permitting agency or waived by the state.

Federal attorneys opposed the request that existing claims of ESA and Administrative Procedures Act violations be supplemented with charges that the NOAA Fisheries biological opinion also violated the CWA.

The U.S. Justice Department filing said that adding CWA issues “will unnecessarily complicate this case, usurp the time and resources of the parties, and distract attention from the central issues in the case.” It also said the requested supplemental complaint would inappropriately raise “novel” issues in the long-running litigation and was not filed in a timely manner.

The federal brief said that if the NWF wanted to pursue the CWA claims it should do it in a separate lawsuit.

But Redden on Sept. 12, 2008 granted the National Wildlife Federation request.

“NWF’s CWA claims will not unnecessarily complicate or delay the resolution of this case,” the judge wrote. “As Federal Defendants acknowledge, the CWA claim presents a ‘purely legal issue.’ As such, no evidence will be necessary.

“The CWA and the Endangered Species claims arise out of the same final agency action and rely on the same administrative record. There will be no delay in briefing the claims because NWF intends to address the claims in its forthcoming summary judgment motion.

“Contrary to Federal Defendants’ argument, judicial resources would be best spent addressing all of NWF’s claims in this case, rather than requiring NWF to file a separate action…,” Redden said.

He also said he was not convinced that the CWA claims were untimely, noting that some litigants had brought up the issue in comments on NOAA’s 2008 BiOp and the NWF had touched on the issues in its 60-day notice of its intent to sue the U.S. Army Corps of Engineers and Bureau of Reclamation over hydro operations.

“In any event, it is difficult to see how NWF should have raised this claim in 2000 when the Supreme Court did not make clear that hydroelectric dams were subject to CWA permitting requirements until 2006,” Redden said.

A New Round of Briefings

Briefing in the challenge to the new federal salmon recovery plan began Sept. 19, 2008 with Earthjustice’s and Oregon’s filing requests for summary judgment, which said the 2008 BiOp employs a “newly lowered bar” that fails to properly assess, in scientific or legal terms, the listed species’ chances of recovery.

The motions asked that the strategy be declared illegal because the biological opinion violated the CWA, ESA and APA.

Also on Sept. 19 the Nez Perce Tribe filed a brief in support of the two motions for summary judgment.

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“NOAA has once again produced a biological opinion in which the demands of river users come first and the survival and recovery needs of endangered and threatened salmon and steelhead come last,” the tribal brief says. That goes contrary to Congress’ directive in the ESA, according to the tribe.

NOAA “again unapologetically adopts another novel approach to a jeopardy analysis, one developed specifically for this case and one that departs markedly from the requirements of the Endangered Species Act (ESA), its implementing regulations, agency guidance, and past agency practice that actually followed the law,” according to the motion filed by Earthjustice for the coalition.

“In addition, the analysis that implements this new framework is riddled with errors, consistently optimistic assumptions, and a disregard for relevant information…’”

The ESA says that a proposed action causes jeopardy if it “reduces appreciably the likelihood of both survival and recovery” of the protected species in the wild, according to the Oregon motion.

NOAA’s jeopardy analysis fails to take that measure, instead depending on a “trending toward recovery” methodology that the state says is “scientifically meaningless.”

“A ‘trend towards recovery’ is found, satisfying the 2008 biological opinion’s recovery prong, if data from the period selected shows increased abundance in any degree, without any consideration of the given species’ viability,” the Oregon motion says.

“But a trend of somewhat increased abundance indicates nothing about the prospects for recovery. That is particularly so where, as here, the analysis fails to account for environmental fluctuations — most significantly, ocean conditions and snowpack — within the selected time period.

“Indeed, a trend of somewhat increased abundance, by itself, is scientifically meaningless,” the Oregon motion says. “Such a trend may bode well, but it also is consistent with a species at dire risk of extinction, persisting at such low abundance that density-based constraints on short-term productivity (which tend to keep abundance steady for viable populations) are little to no constraint.”

“In sum, the 2008 biological opinion establishes a jeopardy standard that can be accommodated without significant disruption to the power system,” according to Oregon’s motion.

“NOAA’s ‘analytical sleight of hand’ conveniently allows it to avoid any consideration — much less serious consideration — of lower Snake River dam breaching,” according to the Nez Perce brief.

“The Nez Perce Tribe is a leading advocate for breaching the four lower Snake River dams and investing in affected local communities as the best biological alternative for rebuilding the Snake River salmon and steelhead runs.”

‘Federal Agencies Have Done What We Asked Them To Do’

The state of Washington on Sept. 26 officially joined the legal defense of the latest federal Columbia/Snake river hydro system biological opinion.

“In Washington’s view, the federal agencies have done what we asked them to do: conducted

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an honest assessment of the science, listened to our concerns and endeavored to accommodate different perspectives where possible, explained the reasoned path chosen where there were divergent views, and ultimately adopting a reasoned scientific analysis while following the legal requirements of the ESA,” according to a memorandum filed with the U.S. District Court in Portland.

The motion to intervene as a defendant in the long-running litigation was approved by Redden Sept. 29. Washington has long been involved in the litigation with amicus status and had often been at odds with the federal government in past legal challenges to FCRPS biological opinions.

“Unfortunately, for many years Washington experienced a command and control approach by the federal agencies that, as detailed in some of our prior filings, was neither collaborative nor productive,” the Sept. 26 memo said of its criticisms of biological opinions produced in 2000 and 2004.

“Fortunately, the federal government’s efforts with regard to the 2008 BiOp reflect a substantial change in its willingness to work collaboratively to produce a legally valid and biologically sound BiOp,” Washington’s memorandum said.

“Because the federal government listened carefully, utilized the best science available, explained its decisions where no consensus could be reached, and issued an opinion that conforms to the legal standards mandated by the ESA, Washington believes it is time to stop debating the strategies for operating the FCRPS in a way that will preserve listed fish and allow them to recover. It is time to implement those operational strategies, including the performance standards and adaptive management practices that aim for success.”

“The primary focus of Washington’s intervention as a defendant is to argue against any claims that the 2008 BiOp is invalid on ESA and APA grounds, and further to participate in any motion practice for injunctive relief seeking to supplant FCRPS operations under the BiOp.

“Because this litigation now involves a claim under the Clean Water Act not raised in prior litigation over FCRPS BiOps, some additional discussion regarding Washington’s role with regard to that claim is warranted,” Washington’s memo said.

Dressed-Up Complaints?

Newly formed legal coalitions responded Oct. 24, 2008 in defense of the 2008 FCRPS BiOp.

Calling a new Columbia River basin salmon protection plan a worsening of the status quo “reflects a stubborn and dogmatic refusal to look honestly at the effect of past mitigation, current data, and recent fish counts,” according to documents filed by federal attorneys in U.S. District Court.

“The fact is that while these dissenting parties dress up their complaints as claims about analytical methods and scientific judgments, at bottom their challenges are really driven by philosophical views about how the FCRPS should be run and, certainly for NWF and the Nez Perce Tribe, about whether the Snake River dams should even exist,” the Oct. 24 federal memorandum said.

Likewise the Umatilla, Warm Springs and Yakama tribes – though criticizing previous biological opinions — filed a joint motion in defense of the 2008 BiOp.

The Colville Tribes, Kootenai Tribe of Idaho and Confederated Salish and Kootenai Tribes also weighed in, asking Redden to reject the NWF and Oregon challenges, as did Northwest

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RiverPartners and the Northwest Power and Conservation Council.

The Oct. 24 federal filing said that NOAA Fisheries has delivered exactly what the reigning judge in the long-running lawsuit demanded.

“Federal Defendants have heeded this Court’s admonitions and submit that the FCRPS BiOp does just what this Court directed: After an extensive and fully transparent collaboration with the regional State and Tribal sovereigns, Federal Defendants have produced a comprehensive BiOp that is grounded firmly in sound science, that significantly improves the status quo, and that fully complies with the ESA and this Court’s and the Ninth Circuit’s orders,” the federal memo said.

The Umatilla, Warm Springs and Yakama tribes said the 2008 BiOp, and salmon recovery atmosphere as a whole, is far from the status quo. Unlike FCRPS strategies of the past that the tribes have contested, the new version is a “plan with action.”

“The first cases prompted huge changes in hydrosystem operations and configuration, subsequent cases added habitat restoration, predator control, and the use of supplementation to the restoration arsenal.

“Most recently, victories brought accountability, collaboration, and massive commitments of additional funding to the effort,” the brief filed by the three tribes said. “For the tribes, the legal fight was always about securing meaningful actions to improve salmon.”

“These tribes hope that we can go to work. The MOA-Accord, in combination with the 2008 BiOp and U.S. v. Oregon agreement, uses tribal science, best available science and information, and addresses salmon restoration challenges wherever they occur.”

The federal memo said that Oregon and the Nez Perce Tribe are being disingenuous in saying that NOAA Fisheries’ biological analysis is defective. The FCRPS and harvest biological opinions, as well as a biological opinion for Bureau projects on the upper Snake River, share the same scientific underpinnings — NOAA’s Supplemental Comprehensive Analysis.

Yet Oregon signed on to the harvest agreement and the Nez Perce support both the harvest agreement biological opinion and the Upper Snake strategy.

“It seems Oregon is satisfied with NOAA’s analysis when it comes to fishing, but not when it comes to hydropower,” the federal memo said.

“The Nez Perce Tribe is equally forgetful.”

In their brief, Idaho, Montana and Washington defended NOAA’s analytical methods.

“The 2008 biological opinion is legally valid and biologically sound,” the states said.

NOAA “has produced a comprehensive approach to developing and analyzing FCRPS operations, working though the unprecedented remand collaboration effort with the Columbia Basin’s states and tribes.

“This collaborative approach has brought a fresh perspective on the means for undertaking an FCRPS biological opinion. Prior biological opinions looked at the status of the fish and the impact of the FCRPS on them from a system-wide perspective.

“In contrast, and most fundamentally, the 2008 biological opinion reviews and evaluates the status and needs of fish from the perspective of each population. This information is then rolled up to the evolutionarily significant unit (‘ESU’) or distinct population segment (‘DPS’) level (collectively, ‘ESU’), thereby directly tying development of the proposed FCRPS actions to

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the specific needs of a particular ESU.

“The States believe this ESU-specific approach more accurately reflects the evaluation requirements imposed by the Endangered Species Act (ESA) because it recognizes that the needs of each ESU are different, and that the solutions to address those needs must also be different. The resulting suite of proposed actions, therefore, provides a stronger overall response to the needs of each ESU.”

RiverPartners said NWF was off base in claiming that the biological opinion was invalid because it contained an incidental take statement that requires state certification under CWA.

“By asserting a claim that no state or tribe has ever asserted nationally, let alone in this case, Plaintiffs seek to give the state and tribal sovereigns veto power over the FCRPS and its governing BiOp, and to transfer to them the ultimate authority to protect listed species, even though the ESA unmistakably vests that authority uniquely in the Services.”

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VII. Conclusion: Rushing To Redden’s Finish Line

Flurry Of Filings As Decision Approaches

The final months of 2008 and the first days of 2009 witnessed a continual flurry of legal filings as the parties approached Redden’s highly anticipated March ruling on the legitimacy of the 2008 BiOp.

Fishing and conservation groups, this time led by American Rivers, took the legal fight over the new biological opinion to the Ninth Circuit. A petition filed Nov. 6 by Earthjustice asked the appellate court to review the Bonneville Power Administration’s Aug. 12 “record of decision” to implement the biological opinion.

The petition contended the new Columbia River basin salmon protection plan was illegal and put the power marketing agency on a path leading to failure.

The petition said BPA’s decision violated the ESA, the Clean Water Act and the Administrative Procedure Act. It asked the court to vacate the ROD.

Bonneville plays a key role in planning and implementing hydro operations and in funding fish and wildlife projects as mitigation for the impacts caused by the dams’ construction and operation. But recall that BPA cannot be tabbed as a defendant in federal district court —The Northwest Power Act of 1980 gave the U.S. Court of Appeals exclusive jurisdiction in challenges to BPA actions.

Since the Nov. 6, 2008 filing, the petitioners and BPA have been asked to consider court mediation as a means of settling disputes. If mediation falls through, briefing on the petition is slated to begin after a court-ordered deadline of March 6, 2009.

Meanwhile, in District Court, each side in the dispute got one more shot before year’s end during the regularly scheduled briefing on Oregon’s and National Wildlife Federation’s request for summary judgment in their challenge of the 2008 BiOp.

NWF on Nov. 18 again attacked the biological opinion and its supporting jeopardy analysis. “The latest jeopardy standard diverges from the requirements of the ESA, its implementing regulations, the relevant case law, and a prior jeopardy framework that correctly identified the elements of a jeopardy analysis for salmon and steelhead.”

It also “improperly relies on future federal actions that have not undergone consultation as well as uncertain habitat actions to support its no-jeopardy finding and that it fails to objectively account for the considerable uncertainty of NOAA’s calculations, relies on the assertion of a qualitative judgment that is not rationally explained, includes errors and inconsistent use of available data, and fails to address relevant and available information,” the Nov. 18 brief said.

“Indeed, it does not even provide a jeopardy analysis for endangered Snake River sockeye.”

Oregon, too, was aggressive in its arguments against the biological opinion. “The federal defendants (hereafter, NOAA) paint a picture in which, through the Herculean efforts of the federal agencies, the past concerns of the courts have been addressed, the listed species are on their way to recovery, and the few if any remaining issues will be deftly handled through ‘adaptive management,’” said the state in its Nov. 18 filing. “As NOAA describes it, there is little reason for disagreement, as all legitimate points of contention have been addressed through collaboration and accord with most — indeed, all but the most intransigent — of the sovereigns.”

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The Nez Perce also weighed in on Nov. 18. “After reading the Federal Defendants’ Opposition and Cross-Motion for Summary Judgment, one comes away with such a pervasive feeling of agency annoyance at the obligations imposed by the ESA, rather than any sense of executive duty to carry out federal law, that one feels compelled to recall the fundamental purpose of the ESA and remember what is at stake in this case.”

Oregon added that the federal briefs in the case were missing the plaintiffs’ main point.

“…NOAA insinuates that the parties opposing the biological opinion are using this litigation as a Trojan horse to advance a dam-breaching agenda. Oregon rejects that accusation,” Oregon’s brief said.

“Contrary to NOAA’s insinuation, it is the failure to implement prudent operations that is far more likely to bring the region to the brink where dam-breaching becomes a necessary contingency.”

Feds and Others Take Up December Defense of New BiOp

Federal attorneys and those of other entities, in briefs filed in mid-December, again took up the defense of the 2008 BiOp and the process that produced it.

A federal brief filed Dec. 17 said that the plaintiffs were asking the court to accept their own, flawed interpretation of two key ESA passages — whether the agency action is “likely to jeopardize the continued existence” of listed species and if it will “reduce appreciably the likelihood of both the survival and recovery of a listed species…”

“Plaintiffs’ efforts to convince the Court that their criteria can be found under the guise of regulatory interpretation fails, as the Ninth Circuit has spoken directly to this issue,” the federal brief said of a previous appeals court ruling.

“In the absence of specific language providing for such a requirement, the Ninth Circuit concluded that ‘we are not free to impose on the agency [our] own notion of which procedures are best or most likely to further some vague, undefined public good,’” the federal brief said of the legal requirement that the expert agencies’ views be given deference.

“…whether Plaintiffs agree with NOAA’s interpretation is beside the point. NOAA has set forth a reasonable interpretation of both the statute and regulation — after undergoing public comment — and even if other interpretations were plausible, NOAA’s interpretation must be given ‘controlling weight unless it is plainly erroneous or inconsistent with the regulation.’

“Despite the many arguments to the contrary, the reality is that with the Court’s oversight, the 2008 BiOp has crossed the end line — it is fully consistent with the ESA, the best scientific information, and importantly, this Court’s orders. Perhaps recognizing this, Plaintiffs do not credibly rebut the legal and scientific validity of the BiOp, but instead attempt to convince the Court to move the end line.”

Actions mandated by past biological opinions have improved conditions for fish and past court directives, such as the ordered collaboration with states and tribes, have led to improved recovery strategies. The new 2008 BiOp and project-funding MOAs build on that progress, according to the federal brief.

“Plaintiffs seek to distract the Court from this conclusion by arguing that NOAA’s analysis is arbitrary for a variety of technical reasons, none of which NOAA ignored, and all of which were discredited by the best available science,” the federal brief says. “The fact is that we do not have a complete understanding of the lifecycle of salmon, and there is no one correct view

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of the science. The current state of knowledge does not provide a definitive, simple solution as to the specific actions necessary to meet the statutory requirements.

“This Court recognized the state of the science, and urged the parties to collaborate to seek better understanding of the various views that would lead to greater alignment,” the federal brief says. “This approach has resulted in success with more agreement in the region today than has ever existed before.

“While consensus does not equal scientific validity, the obverse is also true. The outliers to consensus have been unable to convince the majority that their views represent the best available science.

“Those who have heeded the Court’s urging to actively participate in a collaborative effort await the ruling of this Court in order to determine whether their efforts will be rewarded with the opportunity to focus on implementation activities for the next ten years and continue to rely on the collaborative process to resolve issues that will invariably arise as new information becomes available.”

In a striking reversal from cases past, three states joined the defense of the 2008 BiOp. “Having failed to achieve all of their individual goals during the remand collaboration, Plaintiffs and Oregon return to litigation with a vengeance,” according a joint filing from the states of Idaho, Montana and Washington.

And Northwest RiverPartners again joined the legal fray. “This latest round of summary judgment briefing demonstrates that Plaintiffs’ singular goal is not to aid the region’s Endangered Species Act (“ESA”) listed salmon, but to continue to tie the Federal Columbia River Power System (“FCRPS”) in perpetual litigation in efforts to foment Congressional interest in Plaintiffs’ dam removal agenda,” according to the group’s Dec. 17 brief.

“After an unprecedented collaborative federal, state, and tribal effort to devise a proposed action together with a reasonable and prudent alternative (‘RPA’) that does far more than what the statute requires for a singular consultation — an effort recently augmented by a billion dollars of additional mitigation funds from the Bonneville Power Administration— Plaintiffs remain unsatisfied,” said RiverPartners.

Plaintiffs Ask Judge To Run The River in 2009

Meanwhile, as the challenge to the biological opinion was vigorously debated, the state of Oregon and the NWF coalition asked the judge via a preliminary or permanent injunction to order increased flow augmentation and spilling of water for fish passage at Columbia/Snake river federal dams during the spring and summer of 2009 as a means of improving the lot of listed salmon and steelhead.

The Nov. 25 motion asked for spring and summer regimes that would send greater water volumes through spill gates than was prescribed in the 2008 BiOp or was required under past injunctions granted by the court.

The injunction asked that the court order the Corps and Bureau to spill as much water as possible 24 hours per day from April 3 through Aug. 31 at the four lower Snake dams and from April 10 through Aug. 31 at the four Columbia mainstem hydro projects. The limit would be total dissolved gas caps established by Oregon and Washington. Spill stirs up TDG, which at higher levels can be harmful to fish.

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As an example, springtime spill at John Day Dam would be from 27,000 to 131,000 cubic feet per second more under the injunction proposal than it would under the 2008 BiOp prescription.

The injunction request also asked that reservoirs be tapped more deeply to improve the chance that water flow and velocity targets described in a 2000 FCRPS BiOp were met and that the reservoir behind the lower Columbia’s John Day Dam be lowered to help speed migrating salmon toward the Pacific Ocean.

The injunction motion suggested a resumption of the 20-foot drafts of western Montana’s Libby and Hungry Horse reservoirs by the end of August. The 2008 BiOp recommended 10-foot drafts by the end of September. The coalition cited Dworshak and Grand Coulee as other sources of flow augmentation water and suggested the purchase of water from the Idaho Power Company, which owns three dams on the Snake in Hells Canyon along the Idaho-Oregon border.

The injunction motion said that the John Day reservoir should be operated at minimum operating pool — 5 feet lower that the 2008 BiOp recommended — from April 10 to Sept. 30 each year, with necessary operational flexibility (typically a one foot operational range).

Decreasing the cross-sectional area of the reservoir channel by partial drawdown would have the effect of speeding water particle travel time, which in turn would speed fish passage through the reservoir and improve their survival chances, Oregon and NWF said.

The states of Idaho, Montana and Washington were immediately critical of the injunction request.

“The participants in the collaborative remand found, after much discussion and analysis, that measures pertaining to spill and flow in this biological opinion are based upon the best available scientific information,” according to a statement issued by the states.

“More spill, without regard to the location, the timing, the length, and the rate, is not going to benefit all ESUs, may not benefit any, and may harm some,” the statement said. “Contrary to this straightforward proposition, [plaintiffs] continue to advocate a ‘one size fits all’ theory, which rests on the proposition that more spill is always better,” Idaho, Montana and Washington said.

The injunction briefing schedule set up by Redden initially called for a response from the defendants — NOAA, the U.S. Army Corps of Engineers and the Bureau of Reclamation — by Feb. 13, 2009.

Redden Lays Out The Timeframe For Decisions

Following the Dec. 17 filings in the challenge to the 2008 BiOp, Judge Redden closeted himself to absorb the thousands of pages of testimony and other legal documents. The biological opinion, including its Supplemental Comprehensive Analysis, totaled nearly 2,000 pages.

Redden notified litigants that planned oral arguments on cross motions for summary judgment would be moved from Jan. 16 to Feb. 20 so “the court may adequately examine the extensive briefing.” He later moved back to March 6 oral arguments on the summary judgment requests.

Redden on Jan. 9 voided the briefing schedule on the Nov. 25 preliminary injunction request regarding 2009 Columbia River hydro operations. His two-sentence order said “We will discuss a revised briefing schedule and oral argument date for the preliminary injunction

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motion at the March 6, 2009 oral argument.”

Delaying the injunction arguments until after March could result in spring operations more similar to those of the recent past than to those described in either the new biological opinion or the injunction. Fish operations — spill, in particular — start in early April as the flow of juvenile salmon from Columbia and Snake river tributaries toward the ocean begins.

A springtime injunction debate could potentially be completed before the more contentious summer operations begin.

But to bring some clarity to spring operations, the Dec. 18 brief filed by the U.S. Department of Justice for NOAA and the action agencies informed the court that there will be “no curtailment of spill in mid-May” as prescribed in the new biological opinion.

The 2008 BiOp called for a shift to maximize transport operations, and the elimination of voluntary spill for fish passage at three lower Snake River dams, from May 7 to May 20 in years when flows are greater than 65,000 cubic feet per second.

NOAA modeling indicates that steelhead survival, as measured in smolt-to-adult returns, is higher in that time frame and under those conditions for juvenile fish that are transported downstream aboard barges compared to survival of fish that migrate in-river. The NWF and Oregon debate those statistics, preferring that the migrants travel downstream in-river.

“Operations will continue to provide the same amount of spill at each project throughout all of May,” according to the Dec. 18 federal brief. “This is a nearly identical spring operation as to the one that occurred in 2008, with minor modifications to account for new data, structural improvements, and new research projects.”

Because of their belief that the mid-May spill operations posed a greater risk to steelhead, the federal agencies “have decided to limit this modification to only one year so that new data may be collected to determine the full extent of these effects,” the federal brief said.

Either Way, Redden Will Mark A Milestone

By mid-February, parties to the litigation over the 2008 BiOp had made clear where they stood. Those views would be repeated during oral arguments in front of Judge Redden, which at the time of this writing was slated for March 6, 2009.

Clearly, Redden’s decision would serve as another major milestone in the story of Columbia Basin salmon recovery. Would the federal government’s new 10-year plan for protecting and recovering 13 species of salmonids listed under the ESA pass legal muster? Or would Redden rule the 2008 BiOp inadequate? And if so, would he keep the biological opinion in place while yet another rewrite takes place? Or would he throw out the 2008 BiOp, tell the parties to start over from scratch, and in the interim have the courts “run the river?” And whichever way Redden ruled, would one or more parties take an appeal to the Ninth Circuit? Would that court once again uphold Redden’s decision?

Eighteen years after the first ESA listings – enough time for four to five salmonid lifecyles depending on how one counts the years – would the region be able to move from nearly continual litigation to effective implementation of recovery efforts which finally remove Columbia Basin salmon and steelhead from the Endangered Species Act?

Time will tell.

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Editor’s Note: The Columbia Basin Bulletin continues to report on Columbia Basin salmon recovery litigation in detail. For information about developments taking place beyond the time-frame covered by this Issue Summary, please visit www.cbbulletin.com

To register feedback about this Issue Summary or the Columbia Basin Bulletin please write Editor Bill Crampton at bcrampton@cbbulletin.com