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NW Fishletter #342, February 5, 2015

[7] Hydro BiOp Update: Judge Allows Extra-Record Materials

BiOp judge Michael Simon granted requests by plaintiff National Wildlife Federation and intervenor-plaintiff state of Oregon to add extra-record materials in the current litigation over hydro operations for ESA-listed Columbia River Basin salmonids.

The extra-record materials were declarations by several scientists that supported plaintiff arguments, including a document from a Canadian biologist that took issue with NMFS' own analysis that found some increasing ESA-listed runs are showing lower-than-expected productivity because of density dependence--when limited freshwater habitat conditions can affect spawner-recruit numbers. Biologist Brendan Connors said the lower productivity from increasingly abundant returns might be caused by the failure of returning fish to utilize all available spawning and rearing habitat.

In Connors' hypothetical analysis, he also declared that utilizing more habitat may still not be enough to recover listed stocks, and additional actions like adding more spill at dams for juvenile migrators could improve survival.

Defendants and their intervenors had argued that recent decisions by the 9th Circuit Court of Appeals clearly disallowed such evidence. "Regardless of how Plaintiffs characterize the proffered opinions or their use in this case, it is abundantly clear that the declarations are platforms, if not outright attacks, contesting the scientific validity of NMFS's conclusions in the biological opinion," said the feds' Jan. 13 filing. With the complete administrative records and a technical advisor, they argued that the court was "well equipped" to review the BiOp "without resorting to the exceptional practice of considering extra-record materials."

But Judge Simon ruled that the recent Ninth Circuit decisions did not apply in this situation, where only 200 or so pages of declarations are at question, rather than the thousands of pages of extra-record materials involved in the Niners' decisions.

"The record in this case is more than 700,000 pages," said Simon, in his ruling, "and the Court finds it reasonable to permit a small number of additional experts to assist in explaining technical or complex information and identify relevant factors that may or may not have been properly considered by NOAA Fisheries so the Court will have a sufficient background against which to evaluate the integrity of the agency's analysis."

Terry Flores, executive director of intervenor-defendant Northwest RiverPartners said the good news is that their side will be able to file extra-record materials as well. The region's independent science panel is expected to produce its own report on the question of density dependence by the end of February. Depending on its conclusions, it may be used by defendants to educate the judge as well. -B. R.

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