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NW Fishletter #330, April 3, 2014

[10] Fishing Groups Intend To Sue BPA Over BiOp In 9th Circuit

Some of the fishing and conservation groups involved in years of litigation over salmon and hydropower in the Columbia Basin are taking their fight to a different federal court for their latest challenge.

Instead of going after NOAA Fisheries, the agency responsible for writing the expensive plan that allows dam operations while dealing with ESA-listed salmon and steelhead, the groups are aiming at BPA, and its Records of Decision on the BiOps, the latest of which was posted on Feb. 27. The Northwest Power Act calls for all actions against BPA RODs to be heard in the 9th Circuit Court.

In their March 24 letter to federal agencies that announced their intention to sue, the groups say BPA is violating several sections of the ESA, including "take" provisions, using an illegal jeopardy standard, and faulty estimates of extinction risk to make decisions regarding the effects of dam operations on ESA-listed fish. These are many of the same arguments used in prior BiOp challenges in the federal district court in Oregon.

The letter says the 2008/2010 BiOps "are rooted in a jeopardy standard that violates the ESA, the agencies' inability to identify and implement mitigation measures, and their inability to reliably predict and verify any salmon survival improvements that may accrue even if these measures are identified and implemented."

The 2014 BiOp is also faulty, they said, reciting a litany of alleged errors in the latest salmon plan that ranged from the failure to ignore recent declines in productivity for many of the basin's stocks, discounting new information regarding the benefits of increasing spill, and failing to consider dam removal.

The letter was signed by Earthjustice attorneys Todd True and Steve Mashuda, who are representing the Federation of Fly Fishers, Sierra Club, Pacific Coast Federation of Fishermen's Associations, Idaho Rivers United, and the Northwest Sportfishing Industry Association.

One long-time salmon litigator said it looked like the groups had given up on the Oregon court and were "judge-shopping" by going straight to the 9th Circuit. (The original version of this story incorrectly identified the state of Oregon, the Nez Perce Tribe, and the Save Our Wild Salmon coalition as long-time BiOp plaintiffs in Oregon District Court. Oregon and the Nez Perce Tribe were amici parties to plaintiffs. However, SOWS was not, but many of its member groups were plaintiffs.) -B. R.

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