[1] Feds File Strong Defense In Latest BiOp Case
Federal agencies have filed a vigorous defense of their latest salmon plan, with backing from three lower Columbia Indian tribes that switched sides earlier this year.
The tribal document, unveiled Oct. 24 along with other intervenor and agency filings in federal court in Oregon, explained why the tribes have supported this BiOp and not the previous three.
Up until now, they said, federal actions "were not adequate to promote the protection and restoration of Treaty protected fisheries." But now, the comprehensive plan has satisfied their main concern because it aims at restoring salmon and steelhead populations to all their traditional fishing areas with a "gravel-to-gravel" All-H plan that gives voice to the tribes and their scientists.
They say the new plan respects the tribes' co-management role in the fish restoration effort and uses the "best science" now, an attitude they say replaces "the maddening excuse for delay--a quest for 'perfect science' or 'consensual science.'"
The tribes' memo pointed to the recent MOA accord with federal agencies as a major factor in their support of the new BiOp, an agreement that calls for solid funding of new habitat projects. One of the main reasons that federal district Judge James Redden threw out the 2000 BiOp was because most of the habitat spending wasn't "reasonably certain to occur."
The new MOA with the Yakama, Warm Springs and Umatilla tribes commits to spending $52 million a year over the next 10 years for implementation of tribal habitat projects, with another $52 million (over 10 years) for land acquisitions and fish passage improvements. Another $80 million or more has been earmarked for construction and expansion of tribal hatcheries, with an added $14 million to pay for their future operations.
The tribes countered assertions by plaintiff environmental and fishing groups that some of this funding could be blocked in the future. They noted that BPA is committed to funding these projects, or a variant thereof, even if they don't pass scientific muster through the Northwest Power and Conservation Council's process.
The three tribes say the new accord also commits the feds to work with tribes "adaptively," on issues that range from the BiOp's spill/transport operations for fish, the study of effects of a John Day drawdown, and possible breaching of lower Snake dams if a 2015 review finds drastic action to improve listed ESUs is still needed.
The Nez Perce Tribe did not support the MOA accord, in part because federal agencies failed to evaluate breaching in its latest salmon plan, according to its own memo filed in September.
The tribe also took a shot at the feds' jeopardy analysis in the new BiOp, which it said concluded that such action wasn't necessary to avoid jeopardizing the four ESA-listed ESUs in Idaho.
But the feds responded with a few shots of their own in an Oct. 24 memo arguing that the plaintiffs' challenge to the 2008 BiOp should be summarily dismissed.
Justice Department attorneys argued that the state of Oregon and the Nez Perce Tribe's positions in the current litigation were "surprising."
"While running through a litany of grievances against the analysis in the FCRPS BiOp, Oregon neglects to inform the court that it actually supports the same analysis, albeit in Judge King's courtroom for the harvest BiOp in United States v. Oregon. Oregon provides no explanation as to how it affirmatively can support the management agreement United States v. Oregon, and yet disparage the same exact analysis in a different courtroom. It seems Oregon is satisfied with NOAA's analysis when it comes to fishing, but not when it comes to hydropower."
But the feds didn't stop there.
"The Nez Perce Tribe is equally forgetful. It also fully supports the 2008 Harvest BiOp and the harvest management agreement in United States v. Oregon. In addition, it also fully supports the operational regime for the Upper Snake for ESA purposes. It seems the Nez Perce Tribe supports the SCA's [Supplemental Comprehensive Analysis] in two of three forums, but just not here."
The federal memo went on to say these "glaring inconsistencies and Oregon and the Nez Perce's inexplicable silence on this issue stand in stark contrast to the strident tone they take criticizing this BiOp."
The feds also included several hard-hitting declarations by scientists who found significant errors in extra-record declarations submitted by plaintiffs, including ODFW fish division head Ed Bowles.
The BiOp got a further endorsement from the Colville Tribes, which said in their filing they decided to support the plan after funding and the certainty of their own agreement with action agencies was completed, and for its special focus on Upper Columbia chinook and restoring Okanogan spring chinook and steelhead.
They also boosted the feds' "trending towards recovery" jeopardy analysis. They said they saw no other practical interpretation of the jeopardy standard "that both ensures short-term survival and provides an adequate potential for recovery." And since this pragmatic standard was being applied to consultations involving Upper Columbia listed stocks throughout the basin, including lower river harvest, the Colvilles believed that ultimate recovery of the stocks could be achieved.
Plaintiff attorneys had disparaged the feds' analysis in their September memo.
"If the 2008 BiOp were a movie, its title would be 'Honey, I Shrunk the Jeopardy Standard,'" they said in their conclusion.
Washington, Oregon and Montana joined in spirited support of the federal effort as well, noting especially that the feds' expert analysis deserves due deference, as recently upheld in cases like the 9th U.S. Circuit Court of Appeals' decision earlier this year in Lands Council v. McNair.
The Inland Ports and Navigation Group's memo focused on plaintiffs' new argument that the incidental take statement issued for dam operations by the new BiOp is invalid because none of the states issued water quality certifications for this statement under section 401 of the Clean Water Act.
However, Inland Ports argued that a take statement is not a permit, and no case to date has argued so. It said the plaintiffs' argument was contrary to CWA, EPA guidance documents, the Northwest Power Act and principles of federalism.
Plaintiffs are scheduled to reply by Nov. 14 and the feds to respond by Dec. 8.
Plaintiffs had planned to file a motion for injunctive relief by Nov. 10, with the federal reply due Dec. 8, but that schedule seemed to be up in the air. They are expected to ask for more flow and spill than the new BiOp calls for.
The feds' current plan calls for curtailing spill in May to barge more steelhead, but that strategy is under discussion since the independent science panel recently recommended that operations should keep spreading the risk between barged and inriver migrating fish to reduce potential harm to sockeye and lamprey. -Bill Rudolph
The following links were mentioned in this story:
2008 FCRPS Biop Court Documents
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