Calling a new Columbia River basin salmon protection plan a worsening of the status quo "reflects a stubborn and dogmatic refusal to look honestly at the effect of past mitigation, current data, and recent fish counts," according documents filed by federal attorneys late last week in U.S. District Court.

"The fact is that while these dissenting parties dress up their complaints as claims about analytical methods and scientific judgments, at bottom their challenges are really driven by philosophical views about how the FCRPS should be run and, certainly for NWF and the Nez Perce Tribe, about whether the Snake River dams should even exist," the Oct. 25 federal memorandum says.

The documents and those filed by three states, six basin tribes and utility interests ask the court to validate NOAA Fisheries May 5 Federal Columbia River Power System biological opinion and reject claims that it is illegal under the Endangered Species Act and other federal laws. The National Wildlife Federation and the state of Oregon have both asked the court to declare the 2008 BiOp illegal.

The states of Idaho, Montana and Washington on Oct. 24 filed a joint motion in support of the federal BiOp. The states have had differing stances in the past on hydro system strategies.

Likewise the Umatilla, Warm Springs and Yakama tribes filed a joint motion in defense of the FCRPS opinion. The three treaty tribes have criticized previous BiOps.

The Colville Tribes, Kootenai Tribe of Idaho and Confederated Salish and Kootenai Tribes also weighed in last Friday, asking Redden to reject the NWF and Oregon challenges, as did Northwest RiverPartners and the Northwest Power and Conservation Council.

The Council, made up of representatives of the governors of the four Columbia basin states, helps guide funding for fish and wildlife projects intended to mitigate for hydro system impacts. It is also charged with assuring the region has a reliable and affordable power supply. Much of the fish and wildlife work is funded by the Bonneville Power Administration from revenue produced through sales of hydro generation. RiverPartners represents a host of utility groups and businesses.

The Oct. 24 federal filing says that NOAA Fisheries has delivered exactly what the reigning judge in the long-running lawsuit demanded. That judge, James A. Redden, has twice in the past struck down FCRPS BiOps. ESA-required BiOps determine whether federal actions jeopardize the survival of listed species.

"Federal Defendants have heeded this Court's admonitions and submit that the FCRPS BiOp does just what this Court directed: After an extensive and fully transparent collaboration with the regional State and Tribal sovereigns, Federal Defendants have produced a comprehensive BiOp that is grounded firmly in sound science, that significantly improves the status quo, and that fully complies with the ESA and this Court's and the Ninth Circuit's orders," the federal memo says.

The May 5 FCRPS BiOp says the federal dams' existence and planned operation do not pose jeopardy to 13 listed Columbia River basin salmon and steelhead stocks.

The document's "reasonable and prudent alternative" outlines research and project operational and structural measures that NOAA says will improve fish survival up and down the system. It also lists off-site work, such as habitat improvements and changes in hatchery operations, that are expected to improve survival of protected wild stocks.

Oregon and a coalition of fishing and conservation groups led by the NWF filed complaints challenging the BiOp this summer. Summary judgment motions filed in September ask that the strategy be declared illegal, as were its predecessors in 2002 and 2004.

NWF and Oregon say NOAA's BiOp violates the Clean Water Act, as well as the Endangered Species Act and Administrative Procedures Act. The Nez Perce Tribe filed a brief in support of the two motions for summary judgment.

The NWF says NOAA's BiOp employs "another novel approach to a jeopardy analysis, one developed specifically for this case and one that departs markedly from the requirements of the Endangered Species Act ('ESA'), its implementing regulations, agency guidance, and past agency practice that actually followed the law.

"In addition, the analysis that implements this new framework is riddled with errors, consistently optimistic assumptions, and a disregard for relevant information…,'" according to the fishing and conservation groups.

"The 2008 biological opinion provides no reasonable assurance against jeopardy and extinction. Instead, the biological opinion erodes the applicable standards and then entertains every optimistic assumption to authorize the preferred dam operations. It once again falls to this court to safeguard the protection of Columbia and Snake River salmon and steelhead," Oregon says in a memorandum in support of its request for summary judgment.

In their brief, Idaho, Montana and Washington defend NOAA's analytical methods.

"The 2008 biological opinion is legally valid and biologically sound," the states say.

NOAA "has produced a comprehensive approach to developing and analyzing FCRPS operations, working though the unprecedented remand collaboration effort with the Columbia Basin's states and tribes.

"This collaborative approach has brought a fresh perspective on the means for undertaking an FCRPS biological opinion. Prior biological opinions looked at the status of the fish and the impact of the FCRPS on them from a system-wide perspective.

"In contrast, and most fundamentally, the 2008 biological opinion reviews and evaluates the status and needs of fish from the perspective of each population. This information is then rolled up to the evolutionarily significant unit ('ESU') or distinct population segment ('DPS') level (collectively, 'ESU'), thereby directly tying development of the proposed FCRPS actions to the specific needs of a particular ESU.

"The States believe this ESU-specific approach more accurately reflects the evaluation requirements imposed by the Endangered Species Act (ESA) because it recognizes that the needs of each ESU are different, and that the solutions to address those needs must also be different. The resulting suite of proposed actions, therefore, provides a stronger overall response to the needs of each ESU."

The Umatilla, Warm Springs and Yakama tribes say the BiOp, and salmon recovery atmosphere as a whole, is far from the status quo. Unlike FCRPS strategies of the past that the tribes have contested, the new version is a "plan with action."

"The first cases prompted huge changes in hydrosystem operations and configuration, subsequent cases added habitat restoration, predator control, and the use of supplementation to the restoration arsenal.

"Most recently, victories brought accountability, collaboration, and massive commitments of additional funding to the effort," the brief filed by the three tribes says. "For the tribes, the legal fight was always about securing meaningful actions to improve salmon."

"These tribes hope that we can go to work. The MOA-Accord, in combination with the 2008 BiOp and U.S. v. Oregon agreement, uses tribal science, best available science and information, and addresses salmon restoration challenges wherever they occur."

The Colville Tribe also said it's time to end litigation and get to work.

"… none of plaintiffs' claims are weighty enough to overturn the thousands of hours of collaborative work that have gone into the 2008 BiOp and the Columbia River Fish Accords."

BPA, the U.S. Army Corps of Engineers and the Bureau of Reclamation this past spring executed the "Columbia Basin Fish Accords" with the states of Idaho and Montana, as well as the Warm Springs, Umatilla, Yakama and Colville tribes and the Columbia River Inter-Tribal Fish Commission, that include a commitment to spend up to $933 million more over the next ten years, primarily on salmon mitigation and recovery, and an additional $50 million on lamprey.

That firm spending commitment ensures that BiOp mitigation actions are "reasonably certain occur" as the ESA requires, say BiOp supporters.

Redden derailed the 2000 BiOp in part because he said that some of the measures it prescribed were not reasonably certain occur.

NWF and Oregon say the 2008 BiOp in many cases fails to specifically identify actions for implementation that would be needed to achieve desired salmon survival improvements and that when such projects are identified, they would have to win NPCC approval. That means they are not certain to occur, according to the plaintiffs.

That is not true, according to an Oct. 24 NPCC filing with the court that focuses solely on that issue.

"These habitat improvement actions will emerge in final form shaped into scientifically sound projects through the Council's review process," the NPCC memo says. "There is no reason to believe that the result of this process will be a suite of implemented habitat actions that is less substantial than the magnitude of actions expected in the Biological Opinion and the Accords, however the Court might view the sufficiency of those actions in satisfying the requirements of the ESA."

NOAA Fisheries, which is charged with protecting listed salmon, also on May 5 released a Columbia River mainstem harvest BiOp based on a 10-year federal-state-tribal fisheries management plan.

Last week's federal memo says that Oregon and the Nez Perce Tribe are being disingenuous in saying that NOAA's biological analysis is defective. The FCRPS and harvest BiOps, as well as a BiOp for Bureau projects on the upper Snake River, share the same scientific underpinnings--– NOAA's Supplemental Comprehensive Analysis. Yet Oregon signed on to the harvest agreement and the Nez Perce support both the harvest agreement BiOp and the Upper Snake strategy.

"It seems Oregon is satisfied with NOAA's analysis when it comes to fishing, but not when it comes to hydropower," the federal memo says.

"The Nez Perce Tribe is equally forgetful."

RiverPartners says NWF is way off base in claiming that the BiOp is invalid because it contains an incidental take statement that requires state certification under CWA.

"By asserting a claim that no state or tribe has ever asserted nationally, let alone in this case, Plaintiffs seek to give the state and tribal sovereigns veto power over the FCRPS and its governing BiOp, and to transfer to them the ultimate authority to protect listed species, even though the ESA unmistakably vests that authority uniquely in the Services."

For information and documents related to BiOp litigation go to www.salmonrecovery.gov