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New Complaints Against 2010 Salmon BiOp Say Jeopardy Standard Remains Defective
Posted on Friday, September 10, 2010 (PST)

U.S. District Court James A. Redden on Tuesday granted permission for the state of Oregon and a coalition of fishing and conservation groups to file amended complaints in a long-running lawsuit that has brought legal challenges to a series of federal strategies for protecting salmon that swim up and down the Columbia-Snake river hydro system.


On Wednesday, the state delivered its third supplemental complaint and the coalition, represented by Earthjustice, filed its sixth supplemental complaint. The lawsuit began with a challenge to the 2000 Federal Columbia River Power System "biological opinion." Redden declared the 2000 BiOp and its successor, the 2004 BiOp, unlawful.


Both updated complaints target a supplemental FCRPS BiOP issued May 20 by NOAA Fisheries Service and adopted, via official records of decision, by the U.S. Army Corps of Engineers and Bureau of Reclamation. The 2010 BiOp updates a NOAA Fisheries strategy released in May 2008 that the federal agency said avoided jeopardizing the survival of 13 salmon and steelhead stocks that are listed under the Endangered Species Act.


The 2008 BiOp was also challenged in district court, but Redden has yet to rule on the legal merit of that salmon protection strategy. Meanwhile, the federal agencies developed an Adaptive Management Implementation Plan to bolster the 2008 BiOp, but Redden decided that the AMIP could not be considered in judging the legality of the 2008 BiOp.


The judge earlier this year ordered a remand so that the science underpinning the 2008 BiOp could be updated and the AMIP be made an official part of the legal record being considered in the lawsuit. The product of the remand is the 2010 supplemental FCRPS BiOp, which includes the entire 2008 BiOp and makes the AMIP as part of its "reasonable and prudent alternative." The RPA outlines hydro system operation and capital improvements that would be implemented to improve fish survivals and includes off-site measures, such as habitat improvements.


The supplemental complaint filed by Earthjustice this week seeks review of the 2010 BiOp, the 2008 BiOp as incorporated into the 2010 BiOp, and the "acts and omissions" of the Corps and BOR, including their supplemental records of decision, in response to the 2010 BiOp and their records of decision adopting and relying upon the 2008 BiOp, for violations of the ESA, the Clean Water Act and the Administrative Procedure Act.


Both complaints filed this week ask that the judge declare the 2010 BiOp illegal and order NOAA Fisheries to reinitiate ESA consultation with the Corps and Bureau, which operate the dams in the FCRPS. The complaint filed by Earthjustice said renewed consultation is needed "in order to prepare a biological opinion for the FCRPS, its operations, and any related actions that complies with the requirements of the ESA" and other statutes.


The complaints take to task the jeopardy analysis -- the biological methodology used to evaluate whether the survival of listed stocks is jeopardized by the FCRPS hydro projects – relied upon in the 2008 and 2010 BiOps.


"The 2010 BiOp does not address or alter in any way the legally-flawed jeopardy standard developed exclusively for the 2008 BiOp," according to the complaint filed Wednesday for the National Wildlife Federation and other members of the coalition. "NWF has described the defects of this jeopardy standard in some detail" in past filings.


"The 2010 BiOp, for its part, does not even discuss the jeopardy standard it employs in reaching its updated no-jeopardy finding. Instead, as noted above, it generally reports updated results for the three 'trending towards recovery' metrics and extinction risk analysis that were part of the jeopardy standard in the 2008 BiOp.


"But it does not further illuminate or justify the jeopardy standard in the 2008 BiOp," the NWF complaint says.


"The 2010 BiOp also does not correct or address the gaps, omissions, and arbitrary conclusions on which NOAA relied to reach a no-jeopardy finding for the RPA in the 2008 BiOp."


The federal agencies on Aug. 27 filed with the court the administrative record – documents and other information used in developing the supplemental BiOp – for the lawsuit. Plaintiffs in the lawsuit, Oregon and the coalition, have 45 days from the filing of that administrative record to file supplemental summary judgment motions. Then the federal defendants and allied parties have 45 days to submit motions for summary judgment and opposition memoranda.


The judge in a June 8 scheduling order said that no further briefing will be allowed following defense filings without permission of the court, and that the court would set a hearing date for oral argument at its convenience.


The supplemental BiOp and related documents are posted online at Hydropower/Columbia-Snake-Basin/final-BOs.cfm


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