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NW Fishletter #292, August 5, 2011

[1] Judge Sends Mixed Message In Ruling On Salmon Plan

Federal judge James Redden ruled on Tuesday that the federal salmon plan for the Columbia Basin is good enough to stay in force through for the next two years, but after that it's too vague to ensure it helps fish.

Since federal agencies have no specific mitigation actions after 2013, Redden said agencies can't assume that future dam operations will not jeopardize ESA-listed fish runs, though he noted the Fish Accords with regional tribes and states have committed the Action Agencies to spend more than $900 million on salmon mitigation over the 10-year life of the BiOp.

By granting another remand, he served notice that his court will not be leaving the salmon recovery scene any time soon. He gave the feds until January 2014 to produce a list of new, specific, and funded habitat restoration projects to complete over the last four years of the hydro BiOp before he may approve it again.

In his ruling, Judge Redden needed only 24 pages to explain what the feds need to do fix it. Habitat mitigation is a huge part of the 10-year plan to make up for salmon losses at the dams, but the judge didn't even mention the tens of millions of dollars spent on things like spillway weirs at federal hydro projects to speed juvenile passage and improve survival.

Redden did maintain the court-ordered spill regime, that boosted spill from BiOp levels. The feds had previously argued their PIT-tag survival studies continue to show definite benefits for Snake spring chinook and especially steelhead from barging. The BiOp calls for cutting spill at collector dam for two weeks in May to maximize the strategy for collecting juvenile fish in barges.

The judge cited recommendations from the region's independent science panel that backed up his call. The Independent Scientific Advisory Board's 2008 report recommended that feds continue to spread the risk between barging and inriver migrants, even though the government's data showed benefits from barging.

The ISAB had acknowledged the proven benefits of transportation, but cited potential risks to juvenile sockeye from barging (little data was available one way or the other) and straying of adult hatchery steelhead on their return migration into watersheds where they didn't belong.

Redden also sidestepped any ruling on the feds' jeopardy analysis that plaintiffs in the salmon litigation had been arguing for years was faulty, and most recently, last May during debate over the supplemental 2010 BiOp. The judge said the lack of specific projects in the future was enough to declare the hydro BiOp "arbitrary and capricious insofar as it extends beyond 2013"

In a footnote, Redden acknowledged he must abide by a recent decision to defer to agency expertise [Lands Council v. McNair, 2010]. But he said he was troubled by the lack of scientific support for the feds' estimates of specific survival benefits from habitat improvements, and noted that NOAA Fisheries acknowledged benefits might not accrue for many years, "if ever." He said the court was not required to defer to uncertain survival predictions that were based on unidentified mitigation plans.

The feds said they are doing the best they can. They argue that, other than general studies that found when habitat was improved, more smolts were produced, there is little real science to guide them in their effort to quantify benefits.

Idaho's Lemhi River before and after.
Courtesy CBWTP

After federal attorneys huddled with regional NMFS administrator Will Stelle on Tuesday afternoon, it was reported they were uniformly glum about the ruling, but Stelle was not. He reminded them than by the time 2014 rolls around, the 2008 salmon plan will have been in place for 6 years already.

The official statement from NMFS and the Action Agencies was similarly upbeat. "We're encouraged by the Court's basic conclusion that the biological opinion should remain in place through the end of 2013," it began, "that it is providing 'adequate protection for listed species' and that we should tighten up on the habitat program beginning in 2014. We are of course disappointed that the Court has not agreed with all of our arguments in this long-standing litigation, but the Court specifically recognizes that the unprecedented level of regional collaboration over the past few years has provided beneficial measures that help protection for listed species. We'll continue our efforts to provide protection for salmon and steelhead in the basin and work toward their recovery. The federal agencies will evaluate their options on whether to appeal at a later date."

After strong hints from the judge, the Obama administration added language to the 2008 BiOp that called for studies of breaching the four lower Snake dams as a long-term contingency if the fish runs dipped below a certain level. The Corps has already completed a study plan for breaching issues.

Plaintiffs had wanted studies to begin now, to be ready if runs tanked in the future. They had argued the biological triggers set by the feds were too low, and Judge Redden seemed to agree, though he was unclear. He said the next BiOp should consider whether "more aggressive action," like dam removal, and/or more flow augmentation and reservoir modifications would be needed to avoid jeopardy.

"As a practical matter, it may be difficult for federal defendants to develop a long-term biological opinion that relies only on mitigation measures that are reasonably certain to occur," his ruling said.

Plaintiff groups were giddy, and went straight to the breaching issue in their comments, though Redden's opinion devoted only a single line to the notion. "Today is a victory for the nation," said Trip Van Noppen, President of Earthjustice, in a press release. "But the work has only just begun. In the wake of the worst recession the nation has experienced since the Great Depression, there's a simple path forward that would create thousands of jobs for a small investment. Taking out the four dams that strangle the lower Snake River would bring millions of dollars from restored salmon runs to communities from coastal California to Alaska and inland to Idaho. Let's reject the path that continues wasting money on failed salmon technical fixes and embrace a solution that could set an example for the rest of the nation."

BiOp supporters had a different take on Redden's decision. "Judge Redden has continued the status quo in his recent ruling on the salmon plan. Characterizing it as anything else is false and misleading" said Terry Flores, executive Director of Northwest RiverPartners in an Aug. 3 statement. "Nevertheless, the judge's ruling is very disappointing in that it continues to keep us engaged in seemingly never-ending litigation, instead of focusing the region's time and energies fully on work that actually helps protected salmon."

"While anti-dam groups try to twist the Judge's remand ruling into some sort of call for removal of the Snake River dams, that is less likely than it has ever been," said Flores. She said a poll conducted last spring found that 74 percent of the public was opposed to removing those dams. "In fact, Northwest citizen opposition to Snake dam removal has only grown, based on over five years of public opinion data," she added.

Redden has been presiding over the Columbia Basin salmon plans since litigation began over the 2000 BiOp [NWF v. NMFS]. In 2003, he ruled against the 2000 BiOp mainly because it didn't contain habitat restoration actions that "were reasonably certain to occur."

He gave the feds a chance to fix it, then, but the agencies took a different tack with the 2004 BiOp. They declared dams as part of the baseline analysis and concluded the projects didn't jeopardize the listed runs. Redden tossed it out, but gave them yet another chance. And he has been suspicious ever since.

But he delayed ruling on the 2008 BiOp until the Obama administration supplemented it to satisfy some of the Judge's strongly-voiced concerns.

During this process, Redden said he wasn't likely to grant another remand, but that is exactly what he has done. One long-time participant in the litigation said maybe it shows one thing--that BiOps should only be five years long, noting even the judge admitted the feds would have a tough time coming up with 10 years of mitigation actions all at once. -Bill Rudolph

The following links were mentioned in this story:

Judge Redden Ruling Debate over the supplemental 2010 BiOp

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