[3] Niners Hear BiOp Appeal From All Sides

Parties in the ongoing litigation [NWF v. NMFS] over the 2004 hydro BiOp squared off June 1 in San Francisco before a three-judge panel of the 9th U.S. Circuit Court of Appeals. The panel heard the arguments, asked some questions, thanked the participants, then gave no indication when they would decide the appeals.

The crux of the debate centered on how to interpret a section of the Endangered Species Act that deals with the jeopardy analysis of the ESA-listed fish stocks.

Plaintiff environmental and fishing groups, supported by a district court decision last year, argued that federal agencies that operate federal dams on the Columbia and Snake rivers must ensure the analysis of those operations considers all adverse effects of the baseline, including mortality from dam passage and other sources.

In the 2004 BiOp, NOAA Fisheries changed the way it analyzed the effects of dams on fish by putting the existence of dams in the environmental baseline, and estimating effects of proposed operations compared to a hypothetical "reference" operation that maxed the operations for the benefits to fish. The result was a no-jeopardy decision.

During oral arguments last week, environmental attorney Todd True called the latest jeopardy analysis a big departure from the earlier BiOps, and the state of Oregon said it was futile and stupid to separate the dams' existence from their operation.

The groups were echoing points from their earlier successful challenge to the 2004 BiOp, when they convinced U.S. District Court judge James Redden that the jeopardy analysis was flawed. Redden sent the BiOp back for another rewrite, and called for extensive collaboration with states and tribal agencies, where it now sits in legal limbo. A new document is expected by next February.

In their latest brief before the appeals court, federal attorneys argued that the ESA's jeopardy analysis never meant that the agencies responsible for running the dams should bear the responsibility for mitigating the effects of the dams' existence, since the projects were all constructed before the law was written, anyway.

The feds also argued that plaintiffs had misconstrued ESA Section 7 language to assert that baseline action and cumulative effects must always be added together when making a jeopardy determination. They said such a state of affairs would hamstring federal efforts by constricting agency choices to either do nothing at all, force the undertaking of a huge action to correct all previous adverse effects, even from non-federal "actors," or seek an exemption through the intervention of the God Squad.

The feds argued that the ESA "does not create affirmative obligations on the part of federal agencies to turn back the hands of time or compel agencies to undertake conservation measures."

They said that plaintiffs cannot change Congress' intentions by reinterpreting the regulations or imposing a standard not required by the law. The feds also argued that the District Court erred by telling NMFS it must conduct a separate analysis of the effect of dam operations on recovery, in addition to the jeopardy analysis.

In an earlier BiOp--the 2000 document the court also threw out--federal authorities did try to assess the likelihood of listed fish stock recovery over the next 100 years.

That's the approach both the judge and the environmental groups are pushing for now, but the feds say that it was "a unique and previously untried method," and would require speculation about the future implementation of actions needed to recover the fish. Besides, they said in their brief, the judge had already found such speculation improper since he had whacked the 2000 BiOp principally because it did not ensure such actions were "reasonably certain" to occur.

The feds were backed up by the state of Idaho, which filed an appeal brief taking both the National Wildlife Federation and the state of Oregon to task. Both had "blurred the hard edges of the issues," Idaho said, and wrongly interpreted ESA language to mean that any action proposed for mitigating dam losses must also make up losses from other non-federal actions if the cumulative effects appreciably reduced the stocks' likelihood of survival.

The Niners' panel also heard from the Columbia/Snake River Irrigators Association that had appealed Judge Redden's decision tossing out their own challenge to the 2004 BiOp, alleging that it was based on "junk science."

Irrigators' attorney James Buchal argued that the feds had overestimated dam mortality because their analysis left out a factor for natural mortality due to the death of some juvenile fish during their downriver migration, regardless of dams located in their path. He also said the feds' basic analysis was flawed because it failed to account for the effects of temperature on the survival of juvenile salmon, which is the factor that correlates best with fish survival. -B. R.

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