[2] Oregon Files BiOp Complaint

The state of Oregon filed a supplemental complaint July 22 seeking judicial review of the latest hydro BiOp. The action was backed up by a press release from Oregon Gov. Ted Kulongoski, who said the feds' latest plan was still justifying status quo actions at federal dams on the Snake and Columbia rivers.

"The State of Oregon has a long legacy of protecting our wild fish for future generations so they remain a vital part of our heritage, and this is a legacy worth fighting for," Gov. Kulongoski said. "The federal government may be satisfied with the number of wild salmon and steelhead in our rivers. I am not."

In its filing, the state argued that implementation of the new BiOp means that inriver migrating juvenile salmonids will get short-changed in the future, because they will not get the benefits of the court-ordered spill, as in 2006 and 2007.

The new BiOp proposes to maximize fish barging in early May for several weeks to help ESA-listed steelhead runs, which just about everyone now agrees are better off being barged downstream. But Oregon's July 22 filing says the strategy, which ends spill for a few weeks at collector dams, would short-change survival of ESA-listed sockeye from Idaho because they don't seem to benefit from barging.

That very issue--the steelhead barging strategy--is under review by the panel of independent scientists (Independent Scientific Advisory Board) who weigh in on various issues of salmon recovery for NOAA Fisheries and the Northwest Power and Conservation Council. Their results should be out by Aug. 7.

In a veiled reference to a July 14 memo from the Fish Passage Center, Oregon's filing mentions how recent sockeye returns, seem to have "improved dramatically" with the court-ordered spill regime, an assertion that is under review right now, by both NOAA Fisheries and the ISAB (see story 1).

Retired members of the ISAB may be pressed into service to help BiOp Judge James Redden sort out the science issues this time around. Both plaintiff environmental and fishing groups and Oregon have called for it in their initial filings. They have asked the judge to schedule a status conference to discuss the issue. Federal attorneys have previously been opposed to using a panel.

Using a scientific panel to sort out the BiOp is not a new idea. Oregon assistant attorney general David Leith passed on a list of potential members to the judge from the ISAB back in 2005, during litigation over the 2004 hydro BiOp. They were all ex-ISAB members who were not only willing to serve, but also were willing to be cross-examined. The list included Charles Coutant, retired ecologist from Oak Ridge National Lab; Richard Whitney, consultant and a retired faculty member from the University of Washington; Daniel Goodman, an expert in ecological risk management from Montana State University; Lyman McDonald, a consulting statistician and former professor at the University of Wyoming; Brian Riddell from Canada's Department of Fisheries and Oceans; and Jim Lichatowich, a fisheries consultant and former ODFW assistant chief of fisheries.

The Oregon complaint also takes issues with the trend analysis used by the feds, who say most stocks are improving. The state says the analysis "unduly emphasizes" some recent years when relative abundance has been high, "causing an upward bias, and creating the misleading impression of movement towards recovery." The state says the trend lines, with low abundances in the 1990s, and higher later, "appear to be more related to environmental conditions such as ocean productivity and snowpack than to movement towards recovery. The relatively high abundances of the early 2000s have not been sustained in subsequent years."

But the state didn't mention that spring chinook jack counts at Lower Granite Dam this year are now pointing to a return next year that could top any of the abundant runs from the early years of this century. -B. R.

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