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NW Fishletter #284, February 4, 2011
 BiOp Plaintiffs Fire Off Final Arguments
BiOp plaintiffs took their last shots at the region's 2008 salmon plan Jan. 21, hoping to convince U.S. District Court Judge James Redden that the additions tacked on by the Obama administration haven't improved it. They say the plan should still be thrown out because the supplemented BiOp doesn't deal with most of the faults in the 2008 BiOp outlined by the judge in a 2009 letter to all parties.
In their latest filing, the plaintiff coalition of environmental and fishing groups pointed to that letter, where Judge Redden had said he had "serious reservations" about the jeopardy standard used by the feds.
The coalition argued that NOAA Fisheries' "flawed" jeopardy standard from the 2008 BiOp has not been corrected by the Obama administration. They say it is the feds who have confused ESA recovery issues with the jeopardy standard, not the other way around, as the feds have argued.
As the plaintiffs point out, the judge's letter characterized many of the tributary and estuary habitat actions in the 2008 salmon plan as "speculative, uncertain, and unidentified," and "unsupported by the scientific literature."
In their filing, the coalition pointed out the judge was concerned that survival improvements predicted from tributary actions weren't backed by scientific data, that no performance standards were in place to determine whether habitat improvements actually did increase salmon numbers, and no contingency plan was offered in the event the other actions failed to boost salmon populations. The judge also said the feds had offered no rational explanation for curtailing spring and summer spill.
"Within a matter of days," said the NWF brief, "NOAA staff rejected or side-stepped the four flaws related to tributary and habitat actions the Court had identified." The coalition argued that implementation of the habitat measures was "far behind schedule" and the agencies had no plan to catch up, and the best scientific information showed the specific survival increases were speculative, "and their results will not be known for decades, if ever."
In the feds' previous brief filed Dec. 23, they had vigorously defended the salmon plan. "The common theme that pervades is uncertainty," said the feds' brief. "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 [plaintiffs'] 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."
In their latest filing, plaintiffs also echoed their earlier arguments that the plan didn't reflect the best available climate science, and the feds should not be let off the hook on this count simply because the BiOp's supporters argued the plan's time frame ends in 2018. The feds had argued that the benefits from tributary habitat restoration would ameliorate the expected impacts of climate change.
Evidently, the state of Oregon has not mellowed since federal agencies announced last fall they would spend $154 million on wildlife mitigation in the Willamette watershed. The state's latest filing in the BiOp litigation went after NMFS' last brief that had explained how general abundance was up 17 percent to 160 percent for most populations.
"Federal defendants attempt to paint a picture for the court filled with prospering species and successful actions, but that image is not real," said Oregon's brief. "Oregon does not argue that the BiOp must ensure recovery. Nor does it insist that NOAA must guarantee that its measures will succeed. But like the Court, Oregon believes that if NOAA is to rely on mitigation and operational changes to offset the lethal impacts of the dams, then it must also have a means of knowing whether those measures succeed, or whether instead, other more effective actions must be deployed."
Oregon argued that the feds' focus on recent fish abundance tries to "divert attention" from defects in the supplemental BiOp. They said it is "far from clear" that observed increases resulted from operational changes, rather than a period of favorable ocean conditions. And they argued that the feds are not correct to explain a downturn in productivity as density-dependent effects of the previous abundance of the early 2000s.
The Nez Perce Tribe weighed in as well, saying that NOAA does not deserve deference even though the matters are complicated, as argued in earlier briefs by Washington, Idaho and Montana. The Tribe said the states' argument stressed "complexity" and "collaboration," that "sounds attractive but in fact appears cynically employed to imply: 'don't worry, this is too complex to really understand: trust us, trust the regional collaboration we've obtained.'"
The Tribe also argued that the supplemental BiOp has not prepared a "plausible contingency" for dam breaching, even though the Corps of Engineers, in the supplemental BiOp, has developed a study plan for possible breaching if Snake salmon stocks drop low enough to trigger the study. The Tribe says the feds could commit to seeking the dam breaching authority "they believe they lack."
The defendants get the last word (they have until Feb. 11) in this latest round of litigation that began in 2003 when Judge Redden tossed the 2000 BiOp. His ruling started a long remand process that has included another failed BiOp and continued up to the present. The judge will likely call for a day of oral argument before he rules sometime this spring. Judging from his past performance, he may rule that same day. Undoubtedly, the losing side will appeal to the 9th Circuit. -B. R.
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