[2] Sides Line Up As New BiOp Heads For Court

With only a few days left to secure intervenor status in the latest round of BiOp litigation, several parties have filed motions requesting to take part, including the Columbia-Snake irrigators and the Salish-Kootenai tribes from Montana, who say they will support the BiOp.

So far, only the state of Oregon has sided with plaintiff environmental and fishing groups, but the Nez Perce Tribe may soon join them. The other states have thrown their lot in with federal defendants, along with the Colville Tribe and three of four lower Columbia tribes, who have signed agreements with the action agencies to support the new hydro BiOp in return for hundreds of millions in fish recovery projects (see NW Fishletter 245).

The Nez Perce Tribe has not come to terms over an agreement for BiOp support. Recently, however, they were back at the negotiating table.

But Greg Delwiche, BPA's vice president for environment, fish and wildlife, on Aug. 6 told NW Fishletter that the tribe had quit the talks on the grounds that signing an MOA in return for supporting the BiOp was not "in their best interest."

The tribe has already submitted a long list of potential projects to the Northwest Power and Conservation Council, as part of the council's process to amend its fish and wildlife program. That includes funding for the Northeast Oregon Hatchery, a project that was also included as a potential action in the new BiOp, with BPA ready to fund it, once NMFS had approved a tribal management policy for its operation.

The main sticking point between the tribe and the action agencies over the MOA was the Nez Perces' reluctance to give up their advocacy for breaching the four lower Snake dams for the next 10 years, according to sources familiar with the negotiations. The other tribes that signed MOAs agreed to do so.

The big question was whether the Nez Perce would stay on the sidelines during the upcoming litigation. Evidently not. Rebecca Miles, former chair and a member of the Nez Perce Tribes' executive committee, told NW Fishletter that the tribe has decided not to accept any proposed MOA and plans to proceed with the BiOp litigation.

With the Nez Perce staying in the lawsuit, the plaintiffs may have an easier time countering defendants' argument that the new BiOp represents a real collaboration of sovereigns (except for Oregon), as BiOp Judge James Redden had called for.

Specific language in the new MOAs calls for them to remain in place if the new harvest or hydro BiOps are found to be illegal. But Delwiche said any party could leave the agreement if "material" changes to the BiOps do occur.

Delwiche said if tribal harvest rates are significantly changed from those in the new harvest BiOp, a tribe could find reason enough to walk away from them.

So far, no one is expected to challenge the new harvest BiOp in court. But Terry Flores, executive director of Northwest RiverPartners, said if Judge Redden throws out the new hydro BiOp, they will likely challenge the harvest BiOp. The two BiOps are linked, with the new harvest rates used in some of the hydro BiOp analyses.

Meanwhile, the Columbia-Snake Irrigators Association filed a motion to intervene in the BiOp case last week. Two years ago, they were denied intervenor status, due to timeliness.

Back then, they were challenging NMFS' use of the "best available science." This time around they propose supporting the defendant agency, "and focus on refuting erroneous views concerning the relationship between river velocity and salmon survival to be proferred by the state of Oregon and plaintiffs."

Of special concern, they say, is Oregon's push for a drawdown of John Day reservoir, which would directly interrupt their irrigation operations.

The irrigators also propose looking at harvest rates. They say they have commissioned new scientific work "proving excessive harvest rates prevent recovery," and that the irrigators are probably the only party both willing and able to provide the court with accurate information concerning the full range of options for equitable relief."

But siding with the feds doesn't mean they support everything in the new BiOp. In their filing, the irrigators said the feds' new BiOp still shows that the government's decisions "continue to mangle the applicable law and misapply the pertinent scientific data"--since they believe NMFS has "grossly overstated flow-survival relationships."

The irrigators say the Niners' decision in the earlier case--to deny the right of irrigators to intervene because they were already adequately represented by the Farm Bureau--no longer holds because the Farm Bureau has no active role in this litigation, since the bureau itself is represented by the Northwest RiverPartners, "a group dominated by electric power interests."

River Partners also filed a motion to intervene as a substitute for the BPA Customer Group. Since it intervened in the 2004 BiOp, the group has been reformulated into a more diverse coalition of river users, representing agriculture, navigation interests and other commercial and municipal river interests. No parties objected, as in the irrigators' motion to intervene, which has been opposed by plaintiffs.

The Confederated Salish and Kootenai Tribes from Montana have also filed for defendant-intervenor status. Although they have monitored the litigation and have had discussions with the state of Montana, the tribes said they now must "engage directly with the Court and parties to ensure that its resources are adequately considered and protected."

They said it was particularly important now, when considering the tribes' interests in the upper Columbia watershed "that will be affected by interests and actions in the Lower Columbia River."

The issue of whether to use a panel such as former ISAB members to judge the scientific merit of the actions in the new hydro BiOp will be discussed by all parties Aug. 21 in Federal District Court Judge James Redden's courtroom.

Redden sent a letter to all parties asking for input on several questions, including whether it was legal to use a science panel to look at the new BiOp before he ruled on it. He said if he finds the new BiOp is legally flawed, he may not remand it to the agencies, but may vacate the opinion, and enter orders of preliminary and/or permanent injunction. He asked the parties whether the court does have the discretion to appoint an independent expert during injunction proceedings.

He also wanted their opinion on whether the court has the authority to appoint an independent science panel to help the court in potential settlement discussions if he does find the BiOp flawed.

He also wanted to know why the feds are willing to rely on the ISAB's review of some issues, but not others. "May the court or the parties submit additional questions to ISAB, or suggest the ISAB evaluate additional or different mitigation actions?" And he asked counsel for specific question to ask an independent panel.

Federal agencies say the ISAB has already weighed in on many of the important issues, and such a change would probably draw out the briefing schedule already agreed upon by all parties.

Plaintiffs are calling for the scientific review, but the feds say the new BiOp already uses the "best available science," and that depending on a panel would ignore the three-year collaborative process among tribes, states and agencies that produced the latest salmon plan. The feds also argued that a panel review would be counter to an en banc decision issued last month by the 9th U.S. Circuit Court of Appeals, Lands Council v. McNair, that found agency decisions deserve deference by courts. -B. R.

The following links were mentioned in this story:

NW Fishletter 245, April 11, 2008

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