The Spokane Tribe of Indians filed a 60-day notice of intent to sue the Bonneville Power Administration over alleged violations of the Endangered Species Act, challenging BPA's record of decision to implement the Preferred Alternative in the Columbia River System Operations EIS.
The Oct. 23 filing says BPA is liable for relying on a flawed biological opinion, developed in consultation with the U.S. Fish and Wildlife Service and NOAA Fisheries. That BiOp ignores important recovery measures, such as reintroducing salmon and steelhead above Chief Joseph Dam, and failing to control northern pike, it added.
In an email to NW Fishletter about the notice, BPA wrote, "Bonneville does not believe continued court actions are productive to continuing collaborative dialogue about the future of salmon recovery, affordable and reliable clean electricity, and economic and cultural vitality for the tribes and other communities who depend on the Columbia River System."
The notice says the agency's "reliance on an inadequate, incomplete, or flawed biological opinion to satisfy its duty to avoid jeopardy is arbitrary and capricious."
Issued with the EIS, the BiOp found that the 14 federal hydroelectric projects analyzed in the EIS would not likely jeopardize any listed salmon or steelhead, or destroy or adversely modify their critical habitat.
The tribe claims that because the BiOp is legally flawed, the incidental take statement does not shield the federal action agencies from liability for actions that kill or injure listed species.
The notice cited numerous legal flaws and errors in the BiOp, including ignoring the take that will result from continued failure to control northern pike; ignoring habitat opportunities that would come with anadromous fish passage at Chief Joseph and Grand Coulee dams; and ignoring the impacts of climate change limiting habitat below Chief Joseph Dam over the next 15 years.
It also stated that if Bonneville does not address the violations within 60 days, the tribe intends to file a lawsuit.
The tribe's notice was filed one day after 11 fishing and conservation groups also filed their intent to sue BPA, the U.S. Army Corps of Engineers and the Bureau of Reclamation over the EIS's ROD and BiOp. A footnote in the filing said a second notice was being sent to BuRec and the Corps.