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NW Fishletter #283, January 13, 2011

[1] Feds Say New BiOp Comes With No Guarantee, But That's OK

Federal attorneys came out swinging in their Dec. 23 brief, presenting a spirited defense of the latest version of the region's salmon plan that has been subjected to lumbering litigation since the 2000 BiOp was successfully challenged by environmental and fishing groups in 2003. It's been in court ever since.

The feds didn't mince words in their latest filing to support the supplemented BiOp, which is now beefed up with new elements added by Obama administration officials--an adaptive management implementation plan, new contingency measures that could be triggered by significant declines in fish abundance, and improved efforts to track and detect climate change and its effect on listed species.

They said plaintiff arguments in a late October brief that called the new elements just parts of the same old federal line are "confused," and "legally and factually incorrect."

Plaintiffs filed a motion last week, asking U.S. District Judge James Redden for one last chance to respond to the pointed criticism. They promised a 35-page limit to their response. This will likely be the plaintiffs' last hurrah before he rules on the latest federal plan, which now includes many extra elements he had suggested were necessary.

The feds said that the plaintiffs' most recent filings "recycle familiar themes: allegations involving jeopardy, habitat, climate change, adaptive management, cormorants, kelts, hatcheries, Pacific smelt, killer whales, critical habitat, and even a Clean Water Act claim.

"But to a large extent we have come full circle back to the 2000 BiOp challenge. The common theme that pervades is uncertainty. Whether couched as a challenge to the latest recovery metrics and statistical confidence intervals, or as a desire for a 10-year habitat project list (which in their estimation would guarantee survival benefits) at bottom the Plaintiffs seek an absolute--a guarantee that this BiOp will recover these species. As explained below, Plaintiffs' technical critiques are incorrect, but, more fundamentally, the legal standard they seek to impose on all facets of this analysis far exceeds the regulations, statute and case law."

The feds argued that the effort to improve the salmon plan over the past five years far exceeds the 2000 BiOp and brings a higher level of certainty, far greater than any other ESA Section 7 consultation.

"And now the NOAA Administrator, after a searching scientific review, developed multiple measures to increase the certainty of NOAA's predictions," the filing said. "Even with all of this, uncertainty admittedly remains. But the plaintiffs' quest for a level of precision that does not exist and an absolute guarantee that the species will recover, while unquestionably desirable, is not a sustainable legal argument."

And with that, the feds said their efforts over the last five years to best resolve those uncertainties, now endorsed by nine other sovereigns, is reasonable, legal and merits the court's deference.

The brief argued that though some individual salmon populations under ESA protection have declined in the past few years, 10-year average abundance for most all ESUs was up 17 percent to 160 percent from the 2008 BiOp. The sole exception was the Wenatchee steelhead population in the Upper Columbia region.

They expect populations to fluctuate up and down, since higher returns, such as in the early 2000s, can reduce productivity in future years from density-dependency factors.

Plaintiffs had argued the new data showed that the fish weren't surviving as NOAA had predicted.

But the feds said the plaintiffs were ignoring other metrics in the analysis and confusing base period estimates in the 2010 BiOp with prospective estimates from the 2008 BiOp.

"The apparent reason for NWF's [National Wildlife Federation, a key plaintiff] vigorous opposition is that the new abundance data paints an optimistic picture," the feds said. "Almost uniformly, each ESU and DPS [Distinct Population Segment] has experienced increased adult returns, some of which have shattered recent records, and the abundance trend for most ESUs is undeniably up. Indeed, as members of NWF's coalition can attest, fishing has rarely been better."

The feds also took on the state of Oregon's brief that argued they had turned a "blind eye" to unfavorable information. The feds said the state also was focused on the metric that showed decline, but didn't mention the other metrics that showed improvement.

"In fact," said the feds, "not once does Oregon wrestle with the undisputed fact that average abundance has increased dramatically in the past ten years." They said Oregon's analysis filed in a late October brief ignored the fact that by adding two to five years of new data from the 2003-2008 time frame "captures a trough of productivity following a peak of very high abundance."

The feds also said Oregon's beef with NOAA's technical analysis was "legally and factually incorrect."

The latest brief also included a long defense of the habitat restoration component of the BiOp and the extensive monitoring effort being implemented to see if it is increasing fish numbers, as well as the effort to deal with climate change.

"Here lies the crux of the dispute," said the feds' brief, which assumes warming over the long term. "NOAA in its expertise believes that there is a proven benefit to tributary habitat restoration and that these projects will ameliorate and address the adverse effects on survival from climate change, while NWF takes the position very little benefit will accrue, 'if at all,' from tributary habitat restoration."

The feds also supported their claim against criticism from the Nez Perce Tribe that a dam breaching contingency has been designed to trigger too late to do any good.

"The Administration's review ultimately determined that dam breaching was not necessary because of the improving status of the Snake River stocks and because the RPA [Reasonable Prudent Alternative] is sufficient to avoid jeopardy. This finding is perhaps confirmed best by Oregon's decision to open fishing for the SR fall chinook in Hells Canyon for the first time in recent history."

The federal brief was also supported by filings from the other lower Columbia tribes, a joint brief from Montana, Idaho and Washington, the Kootenai and Confederated Salish Kootenai Tribes, the Colville Tribes, customer group Northwest RiverPartners, and river users Inland Ports and Navigation Group.

On Jan. 5, Judge Redden granted plaintiffs' motion to reply to the federal brief and gave them until Feb. 11 to file. He also said the feds and their allied parties could file surreply briefs in response. -Bill Rudolph

The following links were mentioned in this story:

NW Fishletter #281, November 3, 2010

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