[6] Niners Deny Idaho Appeal Of 2004 Hydro BiOp

The 9th U.S. Circuit Court of Appeals has denied an appeal by the state of Idaho that challenged the U.S. District Court decision that threw out the 2004 hydro BiOp.

In its April 25 ruling, a three-judge appeals panel reiterated many of the same points used last year when it turned down an appeal by the federal government over the same BiOp.

The 2004 BiOp was a drastic change from the previous one, which relied on habitat improvements to help boost ESA-listed salmon runs and give dam operations a no-jeopardy ruling.

The 2004 BiOp put the dams' existence in its baseline analysis and hypothesized a "reference" operation that maxed-out dam operations for fish survival compared to proposed operations.

But the results found little difference in fish survivals, so NOAA Fisheries gave the hydro system a no-jeopardy seal of approval. However, that was quickly taken away by District Judge James Redden, who found the analysis "flawed," after environmental and fishing groups challenged the BiOp.

The Niners said the 2004 BiOp "amounted to little more than an analytical sleight of hand, manipulating the variables to achieve a "no jeopardy" finding."

The Idaho appeal tried to gain support from a U.S. Supreme Court decision that came out after the Niner's ruling against NOAA Fisheries, one that concluded the ESA didn't trump other statutes.

But the panel didn't accept that argument, saying its earlier conclusion in the feds' appeal--that the jeopardy analysis was flawed--wasn't changed by the Supreme Court decision [Nat'l Assoc. of Homebuilders v. Defenders of Wildlife].

In that case, the high court found that the ESA section-7 consultation applied "to all actions in which there is discretionary Federal involvement or control."

The Niners' panel said the Supreme Court found that Section 7 of the ESA "does not attach to actions ... that an agency is required by statute to undertake once certain specified triggering events have occurred."

The panel said the Supremes found the regulation a reasonable resolution to a problem if an agency was unable to "simultaneously obey" both Section 7 and another federal statute that required it to take a conflicting action.

The Niners said they did not face this problem in this appeal, "because in the present case, Congress has imposed broad mandates, rather than directing the agency to take specific actions, and the agencies are perfectly capable of simultaneously obeying Section 7 and the mandates."

The issue of discretionary authority was one of three questions posed by Redden before oral arguments began in litigation over the 2004 BiOp. He wanted all parties' views on whether ESA concerns could be parsed out that way, as the government contended, or whether non-discretionary actions should be included in the analysis to determine whether the total action jeopardizes listed fish runs.

The July 18, 2007 petition from Idaho says the 2004 BiOp reconciled obligations of the Corps of Engineers and the Bureau of Reclamation over operation of the federal dam system in the Columbia and Snake basins--and went even further when it compared fish survival from proposed dam operations to a "reference" operation that included "non-discretionary" obligations to operate the dams for other purposes as well.

However, by adding these obligations to the reference operation, Idaho said the analysis overestimated the beneficial effects that could actually be achieved for fish, and hence, overestimated the gaps between current fish survivals and those that could be theoretically achieved.

The state argued that the Supreme Court's ruling wasn't limited to the Clean Water Act, the federal statute involved in that particular case, but also salient to "many additional otherwise categorical statutory commands."

Idaho claimed that NMFS properly included the impacts from non-discretionary actions regarding dam operations in the environmental baseline of their analysis, rather than as effects of the action.

Idaho's petition went so far as to say that the Corps and Bureau had a mandatory duty to operate the dams for various purposes, which could not be prevented by any ESA requirements, because operating the hydro system "is itself non-discretionary."

The state argued that "it is hardly clear" that ESA consultation was even necessary under Homebuilders' analysis. In any case, said the state, the NMFS reference operation and gap analysis fell well within the Supreme Court's interpretation of Section 7(a)(2) of the ESA.

The Niners' decision means that litigation over the 2004 BiOp will likely draw to a close, as a new BiOp was released May 5 and the state of Idaho has already promised to support it. -B. R.

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