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NW Fishletter #241, January 18, 2008

[1] BiOp Plaintiffs Agree To Last Year's Hydro Operations

In a Jan. 11 letter to Judge James Redden, Earthjustice attorney Todd True said his clients will not pursue injunctive relief to change dam operations in 2008 if 2007 operations are continued this coming year. But his decision to accept a federal offer may spark further litigation from the state of Montana and others who want the fresh BiOp actions to proceed.

At the Dec. 12 status conference on the next hydro BiOp in Redden's courtroom, Justice Department attorney Robert Gulley offered plaintiffs a deal--to repeat the '07 operations if plaintiffs promised not to file a motion for operational changes to this year's operations. Gulley said he couldn't spare the staff time to pursue the added litigation and keep his other tasks on track. After Judge Redden said the offer sounded pretty good, True still turned it down.

Now, after reviewing the issue with his clients, the state of Oregon and federal attorneys, True said "we will work with the parties to reach an agreement for 2008 operations that would essentially continue--subject to discussion of limited changes necessary to accommodate new structures and perform essential research--the court-ordered operations from 2007."

The 2006 and 2007 operations added more spill to previous BiOp actions, and reduced fish barging from lower Snake dams that federal scientists said would reduce steelhead survival. In 2008, the feds had originally planned to follow their new draft BiOp and end spring spill by May 15 at lower Snake collector dams to barge full-tilt, hoping to boost survival of wild steelhead, including the so-called B-run that returns to Idaho streams in late summer. It's an ESA-listed stock in pretty poor shape.

Harvest managers estimate that in 2006, tribal fishers caught about 1,300 B run wild steelhead, an estimated 16 percent impact. A new harvest regime negotiated through the US v. Oregon process is expected to boost that impact to 20 percent when the upriver bright fall chinook run is plentiful. The projected boost in barging was supposed to help make up for that harvest increase.

The new deal with BiOp plaintiffs and the feds has the state of Montana plenty irritated. Besides the rollover's continuation of a plan that kills more steelhead, they say it also keeps them from implementing the new BiOp's call to change the operations at two of the state's largest reservoirs that would provide more biological benefits to resident fish. The independent science board which reviewed the proposal said the Power Council was "likely justified" to include it in their F&W program because any survival benefits to mainstem fall chinook from added summer flows from Montana would be too small to be measured.

In its BiOp comments filed Jan. 4, Montana said a rollover of 2007 operations "...would continue the blatant disregard for the best scientific information available made for tactical reasons related to the never-ending FCRPS litigation. Undertaking hydropower operations because of the threat of opposition by some parties, without scientific basis, does not equate with compliance with the ESA."

Montana said the rollover would foster a greater risk of more litigation and more delay "in implementing what is needed for the fish." -Bill Rudolph

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Publisher: Cyrus Noë, Editor: Bill Rudolph
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