[3] Niners Soundly Reject 2004 BiOp Appeal
The 9th Circuit Court last week issued an opinion that supported Oregon District Court Judge James Redden's May 2005 ruling that tossed out the 2004 hydro BiOp.
It was not unexpected. In fact, federal agencies had a press release on file since last August ready to issue when a negative decision was announced. The statement by federal agencies re-iterates their commitment to the collaborative process with states and tribes to produce a new BiOp.
The optimistic NMFS also had a different press release at the ready in case the Niners ended up supporting the federal appeal. But few attorneys were still holding out hope after last June when oral arguments were heard in Portland. By then, many had thought federal attorneys had botched the appeal.
And judging by the strong language in the Niners' decision, NMFS never had a chance. The three-judge panel excoriated the feds for the sea-change in their jeopardy analysis that the 2004 BiOp had represented over the 2000 BiOp, which had been successfully challenged by environmental and fishing groups.
The feds had changed their analysis to determine whether proposed hydro operations jeopardized the survival or recovery of ESA-listed fish stocks by adding the dams' existence to their baseline analysis, and proceeded to develop a "reference" hydro operation maxed-out for fish benefits to compare it with other potential actions designed to improve fish survival through the hydro system. The differences in survival between the operations turned out to be relatively minor--a fact that federal scientists had been saying for some time, that future modifications to dams would gain only a few percent more in survival benefits.
But Oregon federal judge James Redden ruled that the jeopardy analysis was faulty and the Niners' three-judge panel totally agreed with him. They called the 2004 BiOp "analytical sleight-of hand," with the feds "manipulating the variables to achieve a 'no jeopardy' finding. Statistically speaking, using the 2004 BiOp's analytical framework, the dead fish were really alive. The ESA requires a more realistic, common sense examination. For these reasons, the district court's rejection of the 2004 BiOp's jeopardy analysis was entirely correct."
The panel also said that NMFS didn't analyze recovery impacts "without knowing the inriver survivals necessary to support recovery."
The Niners took issue with the feds' notion that certain FCRPS operations were non-discretionary -- obligations by other agencies governing flood control, irrigation and power generation -- and as such, were not tweakable in the reference operation. And by not adding up all "cumulative effects" on the listed fish to the proper baseline effects, the Niners said NMFS had failed to put proposed dam operations "in the present and future human contexts" where such jeopardy should be properly assessed.
The Niners said the 2004 BiOp didn't point to any improvement in the fishes' status or the impacts of FCRPS actions, and its new approach "attributed only a much smaller portion of the fishes' perilous condition to the proposed operations under review," and left out any clear consideration of the impact of proposed operations on listed species chances of recovery, "which had been a prominent feature of earlier analyses."
Attorney Steve Mashuda of Earthjustice, representing a coalition of fishing business and conservation groups, applauded the court's ruling. "This decision should compel the federal agencies to look at all recovery options -- including removing the four lower Snake River dams, and develop a solution that works for people and fish."
But that's not likely to happen, since federal agencies have already made it clear in the current remand collaboration that breaching the dams will not be a strategy under review.
Norm Semanko, executive director of the Idaho Water Users Coalition, pointed to other language in the Niners' decision that expressly limited the ability of a District Court judge to order dam removal or any other outcome from the collaborative process. Semanko said that provision serves as a permissible procedural restriction rather than an impermissible substantive restraint.
Semanko also raised the specter of possible lawsuits by some stakeholders over harvest issues related to ESA fish.
According to the Niners' ruling upholding Redden's interpretation of the jeopardy requirement, Semanko said "that aspect means any human-caused activity that results in a loss of endangered fish, such as commercial or recreational harvest, will now have to come under close scrutiny to see if it violates the Endangered Species Act."
The panel also denied the appeal filed by the Columbia-Snake Irrigators Association which had questioned the scientific basis of the 2004 BiOp, even though it came up with a no jeopardy finding. The irrigators also objected to the feds putting fish mortality from current and future tribal harvests in the baseline analysis.
Irrigators' attorney James Buchal said he was waiting for his client to decide whether they would head for the Supreme Court over the issue. "The same day it [9th Circuit] rejected putting non-discretionary dam operations into the 'environmental baseline' as 'manipulating the variables to achieve a "no jeopardy" finding'," said Buchal, "it approved the Service's decision to put most in-river salmon harvest into that baseline. The Service put harvest mortality into the baseline so that dam operators could only reach 'no jeopardy' by mitigating not only the adverse impacts of their departures from the best possible 'reference operations', but from the overfishing as well. Yet the published opinion falsely claimed that putting mortality into the baseline meant that it was not 'considered at all in the basic jeopardy analysis', and amplified this lie with a sound bite for the media: 'using the 2004 BiOp's analytical framework, the dead fish were really alive.'"
NMFS spokesman Brian Gorman said it was up to the US Solicitor General to decide whether the government will appeal.
Back in May 2005, when both federal attorneys and NMFS officials were explaining their new analysis to Judge Redden, they touted the new approach. Justice Department attorney Fred Disheroon said the previous BiOp [2000] had been wrong to include so many recovery actions and include fish mortality from the dam's existence in its jeopardy analysis. He called the 2000 BiOp an anomaly, not the usual method used in 1,200 agency consultations, but the agency had enough information to conduct a "traditional analysis" in the latest BiOp.
When the 2004 draft BiOp was released that September, NOAA regional administrator Bob Lohn explained the change in focus. Lohn said newer survival data on fish passage had allowed his agency to change the environmental baseline by separating effects of the federal dams' operations from their existence. He said the new analysis, which also reflected the improved numbers of salmon and steelhead in ESA-listed runs throughout the Columbia Basin, led the agency to conclude that the operation of the hydro system did not jeopardize the listed stocks. -B. R.
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