A May 2010 Columbia-Snake river “biological opinion” is illegal in its own right, and does nothing to cure the ills of a 2008 federal strategy for assuring the hydro system avoids jeopardizing the survival of salmon and steelhead protected under the Endangered Species Act.
That’s the contention of the Nez Perce and Spokane tribes, the state of Oregon and a coalition of fishing and conservation groups.
In legal briefs filed Oct. 29 they ask U.S. District Court Judge James A. Redden to declare the 2008 BiOp and the 2010 supplemental BiOp illegal and require federal agencies to go back to the drawing board.
The filings come in what is, at least as now scheduled, the final round of briefing in the latest challenge to a NOAA Fisheries Service prescription for protecting listed salmon and steelhead stocks that swim through the Federal Columbia River Power System’s mainstem dams, and lifting the fish toward recovery.
The federal defendants and allied parties will now have until Dec. 23 to file cross-motions for summary judgment and briefs in opposition to the plaintiffs' motions for summary judgment filed last Friday. The judge would then schedule oral arguments, after which he would gauge the legality of the supplemental BiOp.
The 2008 BiOp was challenged in district court that summer by a coalition led by the National Wildlife Federation and the state of Oregon. They say the strategy’s biological jeopardy analysis – the calculation of the risked faced by the species and how BiOp actions would mitigate that risk -- is flawed. They allege that the BiOp depends on habitat actions that are not certain to be implemented and that the level salmon survival benefits to be gained from habitat improvements is also uncertain.
ESA BiOps evaluate whether a planned action – such as the existence of the dams and their operation by the U.S. Army Corps of Engineers and Bureau of Reclamation – jeopardizes listed stocks. The 2008 BiOp says that the dams pose the risk of jeopardy but that risk would be erased through a series of mitigation actions.
The 2008 BiOp, which replaced a 2004 version declared illegal by Redden, was produced after nearly three years in ESA consultation with the dam operators and the Bonneville Power Administration and in collaboration with Columbia basin states and tribes. BPA markets power generated in the FCRPS.
The numerous parties involved debated the merits of the 2008 BiOp and Redden heard oral arguments in March 2009. But, after hearing the judge's doubts about the legality of the plan, Obama Administration officials asked that they be allowed to review the product completed under the previous administration.
In September of last year, the federal government declared the 2008 BiOp legally and biologically sound, but also produced an Adaptive Management Implementation Plan that was intended to shore up the salmon strategy.
But the judge said he did not believe the AMIP was legally admissible in the litigation and ordered the involved agencies to address that issue during a 90-day remand. He ordered the 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.
Over this past winter the federal agencies renewed ESA consultation and released the 2010 supplemental FCRPS BiOp, which encased the 2008 BiOp and its no-jeopardy conclusion and added the AMIP as part of the BiOp’s "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.
"Following that review, NOAA (with the agreement of the Action Agencies) amended the AMIP in order to assure maximum responsiveness to the new science by adding the following further actions: (i) studies of thermal refugia, (ii) enhancement of adult fish population monitoring, (iii) water temperature monitoring, and (iv) a study of the density-dependent impact of hatchery fish on listed salmonids. NOAA then integrated the amended AMIP into the 2008 BiOp and its RPA as new RPA Action 1A," according to the federal notice announcing the completion of the remand and the supplemental BiOp.
The plaintiffs say the AMIP and remand processes were all for naught.
“A legally adequate RPA for dam operations that are jeopardizing the continued existence of ESA-listed salmon and steelhead today -- the conclusion NOAA reached for the action agencies’ proposed action -- must contain ‘alternative actions’ that can be implemented to avoid jeopardy, (defining an RPA), not just data collection and research for possible future action,” according to the summary judgment memorandum filed Oct. 29 by Earthjustice for the coalition of fishing and conservation groups.
“If the 2008 BiOp and RPA were arbitrary and contrary to law as written, and they were, then neither the 2010 BiOp nor the AMIP corrects these flaws. Instead, the 2010 BiOp and accompanying administrative records confirm that both BiOps are risky, uncertain, fail to address important and relevant issues, and are arbitrary, capricious, and contrary to law.”
According to the federal agencies, the AMIP includes expanded research, monitoring and evaluation to quickly detect unexpected changes in fish populations and specific biological "triggers" that, if exceeded, will activate a range of near and long-term responses to address significant fish declines.
The AMIP also calls for the Corps to prepare a plan for developing the scope, budget and schedule for studies needed regarding potential breaching of the lower Snake River dams.
The federal agencies insist that the remand helped evaluate new science and reaffirm the 2008 BiOp’s conclusions.
"We considered new research and literature and will provide a full record of this information. Our review identified modest changes in the science since the BiOp was completed, and we have made appropriate adjustments," according to a joint statement issued by the federal agencies along with the supplemental BiOp. "We have strengthened monitoring of climate change indicators, such as river temperatures, so we can identify and address them. While fish populations and environmental conditions will always vary over the short term, the BiOp delivers benefits for the long term."
The Oct. 29 briefs say that the new analysis essentially ignores newer data such as that regarding the possible negative future impacts of climate change and declining population trends since 2008. In both instances the trends are said to be within the range of data analyzed for the 2008 BiOp.
“The 2010 BiOp adds nothing of legal significance to address the defects of the 2008 BiOp, and through its own analysis, further obscures the issues at the core of NOAA's jeopardy analysis,” Oregon’s motion says. “Rather than address the Court's question of how federal defendants will know the specific survival improvements of the 2008 BiOp are reasonably certain to occur, NOAA now signals that, in its view, it really no longer matters.
“The 2010 BiOp leans more than ever on the AMIP and its triggers. So while the 2010 BiOp considers new information that calls into question NOAA's predictions, NOAA pays it little attention, assured that any significant errors will be detected by the AMIP before it is truly too late.
“The 2010 BiOp's unwarranted reliance on the AMIP, and adaptive management generally, together with its summary dismissal of information unfavorable to its earlier conclusions, render it arbitrary, capricious, and not in accordance with law in its own right,” the Oregon motion says. “Furthermore, it can only be viewed as yet another failed attempt to cure the defects of the 2008 BiOp.”
The memorandum filed by Earthjustice can be found online at:
The Spokane and Nez Perce tribe filed briefs in support of Oregon’s and the National Wildlife Federation’s motions for summary judgment.
For more documents and information about BiOp litigation go to www.salmonrecovery.gov