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NW Fishletter #259, March 24, 2009

[1] Pretty Good BiOp, Says The Judge

After getting answers to a list of increasingly pointed questions during oral arguments, BiOp Judge James Redden seemed to give qualified approval March 6 to the federal government's latest salmon plan. But he said the feds need to add more habitat actions, particularly in the estuary.

And if all that habitat improvement doesn't add enough to salmon numbers, the judge said the new BiOp needs an escape clause to begin a process that could lead to breaching lower Snake River dams, even though such drastic action might help only four of the 13 listed salmon and steelhead stocks in the Columbia Basin.

The judge's position did not surprise federal parties. Last August, Redden had suggested there would probably be "holes" in the BiOp, but they might not be enough of a problem to throw the whole plan out.

Redden seemed swayed by plaintiff environmental groups' afternoon arguments that the BiOp was too optimistic about projected benefits from tributary and estuary habitat actions. The feds' BiOp analysis has determined that such actions would boost the listed populations enough to ensure that future dam operations would not jeopardize salmon and steelhead stocks.

But the judge said the BiOp's biggest flaw was the habitat section.

"I don't know how you get there from here," he said, though he softened his ending remarks with the comment, "It's really a pretty good BiOp."

Federal officials seemed fairly pleased as they left the courtroom Friday afternoon for a debriefing. Most seemed confident they could satisfy the judge's concerns, though it's not clear, legally, just how that will happen. They said they don't plan on opening a re-consultation on hydro actions.

Before he adjourned, Redden suggested the BiOp writers include language similar to that in the 2000 BiOp, so if the habitat improvements do not work, the region would study breaching one or more dams on the lower Snake.

"I don't know if breaching of the dams is the solution," he said, but he thought that in five or seven years, the region should take a look and see how the runs are progressing.

Plaintiffs' lead attorney Todd True argued that the feds' habitat analysis was not based on the "best, available science," and too optimistic about potential benefits.

But the feds argued back that though the data was skimpy, there were some studies that showed improved smolt numbers were usually seen in places where habitat actions had occurred (Paulsen and Fisher, 2005).

At one point, Justice Department attorney Cobey Howell pointed to one of the plaintiffs' own memos to argue his case. He said the state of Oregon's preliminary injunction memo that argued the court should order more flow and spill at dams, also called on the judge to force BPA to fund habitat projects sponsored by the state and the Nez Perce Tribe, fellow plaintiffs along with True's environmental and fishing groups.

The projects would have been funded if the state and tribe had earlier agreed to support the new BiOp and not push for dam breaching over the 10-year life of the plan.

Howell argued that Oregon and the tribe must have recognized some value to fish from the potential actions if they were included in the memo.

Clearly, plaintiffs were off their game, compared to the their two previous BiOp challenges, a time when all four lower Columbia tribes were fighting the feds, instead of having three out of four supporting them, as is the situation now.

By voicing support for the Accords process that led to the nearly billion dollars' worth of funding for future habitat and hatchery improvements, Yakama tribal attorney Tim Weaver said he was making one of the most important arguments in 40 years of legal practice.

With other tribal attorneys adding their own support for the BiOp's habitat component, plaintiff attorney True clearly had a harder time supporting his argument that NOAA Fisheries had no reason to expect "certain quantitative benefits" for listed fish populations because the agency did not have enough information.

The litigants argued little over hydro operations, since the feds had already agreed to roll over 2008 operations this year. However, attorney Howell told the judge the feds clearly felt it was a compromise, since their survival model shows more benefits to steelhead and spring chinook from curtailing spill at lower Snake dams and transporting most fish for a two-week period in May.

True didn't seem to get too far in the morning session with his semantic arguments attacking the feds' "trending towards recovery" jeopardy metric and jeopardy analysis. The Justice Department was backed up by attorneys from the state of Washington, the Colville Tribes and Northwest RiverPartners, a large coalition of river users and BPA customers. By the end of the day, the judge didn't even mention the jeopardy analysis in his final remarks.

RiverPartners' executive director Terry Flores said she was cautiously optimistic about the proceedings.

"The judge was very positive about the BiOp and the collaboration he brought about," she told NW Fishletter.

Flores wasn't too concerned about the breaching language the judge wants included, she said, because he acknowledged that breaching the dams was not reasonably certain to occur, either.

"He's clearly looking for a viable solution," she added.

But others were more pessimistic. Portland attorney James Buchal, representing the Columbia-Snake Irrigators Association, said, "It appears the judge wants to force the parties to, one, spend more on so-called salmon habitat improvement and, two, rewrite the BiOp to facilitate dam removal when the habitat improvement doesn't work."

No one seemed ready to venture a guess as to how much more spending might satisfy the judge. The BiOp calls for funding $55 million in estuary habitat improvements over the 10-year life of the BiOp, while a recovery 'module' for the Columbia estuary developed by the feds estimated that it would take $500 million over the next 25 years to get it into shape.

There was virtually no discussion in the courtroom of another one of the four H's in the BiOp--hatcheries--and how they should be operated to improve the lot of listed salmonids. A huge review of basin-wide hatchery operations and recommendations for running them to help wild fish populations will be released later this month.

Harvest issues related to BiOp stocks was another topic that stayed submerged. Because of his early involvement with the U.S. v. Oregon process, Redden said he would not discuss harvest, and if it became an issue, he would have to turn it over to another judge.

Several parties have said if the hydro BiOp were overturned, the new harvest BiOp would have to be thrown out as well, since both documents used the same "trending towards recovery" jeopardy analysis.

At the end of the day-long hearing, Redden said he and his law clerk would pour over the transcript for the rest of the month, and federal agencies may get questions from him "on this or that," before he makes his ruling.

After the hearing federal defendants sent a letter to the judge offering to meet with him to discuss ways to add more estuary habitat actions to the salmon plan. But they noted that they would not open the 2008 BiOp to reconsultation. Plaintiffs' attorney Todd True sent his own letter, requesting the judge consider other issues as well, and the state of Oregon and the Nez Perce Tribe also sent missives to the judge that said the discussion should not be restricted to habitat issues.

Judge Redden said he would meet with the parties April 2, but the public would not be allowed to attend. -Bill Rudolph

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