[2] BiOp Plaintiffs File Same Old Complaints
Plaintiffs in the ongoing BiOp litigation are not impressed with the Obama administration's support and strengthening of the 2008 salmon plan that is still simmering in federal court.
In a filing made Oct. 7, plaintiffs took issue with nearly every addition to the plan made by the new administration released Sept. 15.
NOAA head Jane Lubchenco said her agency judged the original plan's science was sound, but added to it to address uncertainties and satisfy U.S. District Judge James Redden, who has been presiding over the remand process since he overturned a Clinton-era hydro BiOp in 2003.
However, despite Lubchenco's claim, the plaintiffs said the 2008 BiOp and the plan tacked onto it (called the Adaptive Management Implementation Plan) still fail to comply with the ESA and follow the best available science.
"Federal defendants have shown themselves unable to admit that there is any problem with the 2008 BiOp. Indeed, it has now become apparent that there can be no resolution of this controversy until federal defendants understand that the status quo the 2008 BiOp seeks to continue must change," plaintiffs said in the filing.
The plaintiffs said they hoped the judge will reject the AMIP added by Obama officials and grant their own motion for summary judgment, "in the sincere hope that a ruling from the Court will provide what has been sorely missing for at least the past six months--significant momentum for substantive change and the start of a new day."
They said that the feds' rephrasing of the original "trending towards recovery" jeopardy standard is nothing more than "semantic sleight-of-hand." The feds had borrowed a phrase from a recent decision handed down from the 9th U.S. Circuit Court of Appeals, and called the jeopardy standard legal because it provided an "adequate potential for recovery" of the ESA-listed stocks.
The plaintiffs also said the added plan sets biological triggers that are too low (declines in fish populations) before potential contingency actions kick in.
The state of Oregon, in its own filing, said that long-term contingencies like drawing down John Day Pool or breaching lower Snake dams should be ready for action before fish population levels sink to 10 percent of their four-year geometric mean, as the AMIP calls for.
The AMIP's lengthy decision process could take four or five years before concluding whether or not breaching one or more lower Snake dams would help some listed fish.
The Nez Perce Tribe's response also focused on the breaching contingency, which the feds say is a measure of "last resort." The tribe said the years of study plans and last-minute authorization of Congressional authority for breaching "is a disingenuous effort to ensure that dam breaching remains a paralyzed political question, rather than a feasible biological option that should be prepared now to actually be available to be implemented."
They said Congressional authority should be obtained sooner, rather than later, which would only ensure that dam breaching will never be viewed as a biological matter, "in which, under the ESA, the needs of a listed species are to 'come first,' and the only ultimate exception is through the 'God Squad,' but will remain instead a political question in which the needs of the fish can be outvoted by other social or economic factors no matter what the biological reality or urgency."
The tribe's filing mentioned the AMIP's conclusion that "the best available science does not support moving ahead with breaching lower Snake dams at this time." But the tribe said the AMIP doesn't mention the conclusion in the 2008 BiOp that "breaching the four lower Snake dams would provide more certainty of long-term survival and recovery than would other measures," or to prior PATH [Plan for Analyzing and Testing Hypotheses] and Weight of Evidence reports that some states and tribes have long used as their mainstay in support of breaching those dams.
"Instead," said the tribe, "the AMIP reports that the administration's review "noted uncertainty about the short-term negative biological benefits of lower Snake dam breaching."
The tribe said the feds have stacked the deck against breaching's "contingency of last resort," since NOAA Fisheries and the Action Agencies will evaluate the potential action, not an independent panel.
The Nez Perce said the dam breaching issue in the feds' Sept. 15 submission is a matter of "public relations," designed to tell the world they had "heard" the court on this matter.
Back in May, Judge Redden had recommended that the feds add contingency plans to their BiOp if fish numbers don't respond as expected, including the study of breaching Snake dams.
The plaintiffs' renewed call for dam breaching to remain front and center has long been their core position, at the center of their efforts ever since the regional PATH process concluded in the late 1990s that breaching the dams was the best hope of recovering the Snake stocks, which were in much worse condition than they are now.
But the BPA-funded PATH's 1998 murky, non-consensus analysis of fish recovery options that pointed to decided benefits from breaching was contested by some of PATH's own participants and two of PATH's four peer reviewers, who said they didn't trust the optimistic results from dam breaching and had questions about some of the foundations of the data analysis.
PATH came in for more criticism from NOAA Fisheries as the 2000 BiOp was being developed. In a report called the A-fish Appendix that ended up as part of the Corps of Engineers' giant feasibility study on lower Snake dams, the agency said the PATH analysis didn't stress major uncertainties and relied on older data that might not reflect current conditions in the hydro system and the higher juvenile fish survivals observed from PIT tag research.
PATH is still providing fodder for academic journals. Just this month, in an article in the peer-reviewed Transactions of the American Fisheries Society, it was reported that survival estimates developed by PATH are extremely sensitive to small changes in the model used by its participants and can result in huge discrepancies in estimates of dam survival and latent mortality (Hinrichsen and Fisher, 2009). It reported such changes could lead to estimates of dam system survival for Snake spring chinook stocks that ranged from only 9 percent to 56 percent (close to current PIT tag results) and latent mortality half of all passage mortality or close to zero.
The authors said such differences showed that the model was a poor statistical tool for trying to compare survival of upstream and downstream stocks, the basis for PATH's determination that taking out the lower Snake dams would be extremely beneficial for fish populations in the Snake Basin.
Just last week, Barry Thom, acting regional administrator for NOAA Fisheries, told members of the Northwest Power and Conservation Council that breaching the dams just might not be the best thing to do for the fish, anyway.
"It is a contingency of last resort," said Thom, "because of the uncertainty that's out there, in terms of both the biological effects that came out of the scientific review we've completed, as well as the significant impacts to the local communities and the environment. It's not a cut-and-dried deal that if you took out Snake River dams you would actually have the benefits that some people would purport out there."
On Oct. 2, the Oregon Chapter of the American Fisheries Society sent a letter to Redden complaining that NOAA Fisheries has not addressed dam breaching as a key element in salmon restoration. They told the judge that they have reaffirmed their 2000 resolution calling for the demise of those four dams and sent him a copy along with their missive.
The 2000 resolution cited the PATH analysis and said that breaching "should happen soon" to restore the stocks to sustainable, fishable levels.
Federal attorneys sent their own missive to the judge saying the Oregon AFS was not a party to the litigation and their letter should be stricken from the record.
Besides, they said, it contained critical legal inaccuracies like confusing a biological opinion with a recovery plan.
The feds said the letter suggested that dam breaching is a necessary precondition for a valid biological opinion. But the feds said breaching, in addition to being not necessarily based on the best, available science, isn't "reasonably certain to occur;" thus, breaching is considered a contingency of last resort, as it was in the AMIP.
The feds also said the letter should be thrown out because the judge's science adviser may be a member of the AFS Oregon chapter, and by allowing them to advocate while the judge considers the cross-motions for summary judgment could create an appearance of impropriety and partiality.
A response to the court by Earthjustice attorneys said the letter should be disregarded as should any non-party communication to the court. But they took issue with the feds' insinuation that the plaintiffs may have had something to do with its production.
Federal parties get to respond by Oct. 23. -B. R.
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