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BiOp Litigation: Briefs Filed Contending Agencies’ Salmon Plan Legally, Scientifically Valid
Posted on Thursday, December 23, 2010 (PST)

The federal government and a host of other parties filed court documents today (Dec. 23) in support of a retooled “biological opinion” that they say puts the Columbia River basin on the proper legal and biological paths toward boosting imperiled wild steelhead and salmon stocks.


The legal briefs filed this week respond to requests for summary judgment filed Oct. 29 by the state of Oregon and a coalition of conservation and fishing groups that say the BiOp’s biological jeopardy analysis – the calculation of the risked faced by the species and how BiOp actions would mitigate that risk -- is flawed.


They say the federal strategy does not do enough to help protected fish. They allege the BiOp depends on habitat actions that are not certain to be implemented and that the salmon survival benefits stemming from habitat improvements are also uncertain. The challengers asked that the May 2010 supplemental BiOp and a 2008 version of the Endangered Species Act strategy be declared illegal. (For more information on plaintiffs’ position see CBB, Nov. 5, 2010, “BiOp Challengers: 2010 Supplemental Salmon BiOp ‘Adds Nothing Of Legal Significance’


A Justice Department brief filed this week says the criticisms themselves are technically and legally flawed. The cross motion for summary judgment filed this week asks U.S. District Court Judge James A. Redden to reject the challenge to the Federal Columbia River Power System BiOps produced by NOAA Fisheries Service in consultation with the U.S. Army Corps of Engineers, Bureau of Reclamation and Bonneville Power Administration and in collaboration with Columbia basin states and tribes. The Corps and Bureau operate FCRPS hydro projects; BPA markets power generated in the system.


See to view filing materials.


The BiOp “reasonable and prudent alternative” describes actions aimed at improving fish survival that, if implemented, would mitigate for harm caused by the dams and avoid FCRPS jeopardy to listed fish, according to NOAA Fisheries. BiOPs are required under the ESA to judge the impact of federal actions on listed species.


“Whether couched as a challenge to the latest recovery metrics and statistical confidence intervals, or as a desire for a 10-year habitat project list (which in their estimation would guarantee survival benefits), at bottom the Plaintiffs seek an absolute – a guarantee that this BiOp will recover these species,” the federal motion says. “As explained below, the Plaintiffs’ technical critiques are incorrect but, more fundamentally, the legal standard they seek to impose on all facets of this analysis far exceeds the regulations, statute, and case law.


“Section 7(a)(2) of the ESA speaks in terms of likelihoods and it is an assessment of probabilities. 16 U.S.C. § 1536(a)(2) (“not likely to jeopardize”),” the federal brief says “The determinations are not absolutes or guarantees, and there will always be a question of uncertainty; that is the very essence of a probability.


“This Court knows, perhaps better than anyone, that NOAA and the Action Agencies’ efforts over the last five years far exceed the 2000 BiOp and bring a level of mitigation and certainty unsurpassed in any Section 7 consultation.”


The federal brief says the plaintiffs’ arguments have come full circle since Redden declared the 2000 version of the FCRPS BiOp illegal, in large part because a number of the mitigation measures described in its RPA were not reasonably certain to occur. The judge also declared the 2004 BiOp, which replaced the 2000 strategy, illegal based on what he judged was a flawed jeopardy standard.


The latter court rejection prompted a three-year remand-federal consultation that concluded with the release of the 2008 strategy, which immediately drew challenges from the coalition, led by the National Wildlife Federation and represented by Earthjustice, and the state of Oregon.


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.


During the winter of 2009-2010 the federal agencies renewed ESA consultation and in May released the 2010 supplemental FCRPS BiOp, which absorbed the 2008 BiOp and its no-jeopardy conclusion and added the AMIP as part of the BiOp’s RPA. The RPA outlines hydro system operations and capital improvements that would be implemented to improve fish survivals and includes off-site measures, such as habitat improvements.


The result, the federal brief says is a considerable closing of the certainty gap. That certainty includes federal funding pledges – “accords” -- signed with states and tribes.


“During the many years it has taken to develop the FCRPS BiOp, NOAA, the Corps, BOR, BPA, Tribes, States, and countless eminently qualified experts have painstakingly collaborated, evaluated, and reviewed all of the relevant science and the best methods for ensuring that these exceptional salmonid species are not only protected, but are provided with the conditions and habitats that will significantly contribute to the recovery of these species,” a federal memorandum in support of its motion says.


“This collaboration worked: the Federal agencies, States and Tribes have reached historic agreements to identify and, importantly, implement hydrosystem, habitat, hatchery, and harvest actions specifically targeted to protect and enhance the condition of Columbia and Snake River salmon and steelhead. While litigation is necessarily focused on paper, this BiOp is predicated on

providing fish what they need.


“Indeed, the Reasonable and Prudent Alternative (“RPA”) before the Court today is the product of one of the most intense and rigorous examinations of any biological opinion,” the federal brief said.


The federal brief points to what they believe are early signs of success through BiOp implementation. There have been strong and in some cases record adult salmon returns to the Columbia Basin in recent years, the agencies said.


And the past decade has brought substantial improvement to management of the river and to the dams themselves, along with habitat restoration and better control of salmon predators. These have helped ensure that many more young fish make it to the Pacific to take advantage of recent good ocean conditions, according to the agencies.


A brief filed jointly today (Thursday) by the Umatilla, Warm Springs and Yakama tribes asks the judge to let those in the region continue to implement the good work prescribed in the BiOp.


“We spend little time in the ‘lawyering’ taking place around legal theory and hypothetical,” the tribes said of their Dec. 23 filing. “Rather, we write here and now to help the Court understand what is real on the salmon recovery front -- what really is going on in the streams and on the lands, how the collaboration is really working, and to share again, what the real boots on the ground experts have to say about what is ‘best science.’


“In short the plan is working and working well. We have been watching very carefully and will continue to do so. We respectfully believe that the Court will see past the machinations and feints of the minority and determine that this historic collaborative effort should continue,” the tribal brief says.


The Kootenai Tribe of Idaho and the Confederated Salish and Kootenai Tribes of western Montana in a joint brief filed today said the court-ordered collaboration had finally put the region on the proper course with Columbia River management that is holistic and integrated in a “manner that does not elevate efforts to preserve anadromous fish species above the preservation needs of endangered and threatened upper-basin species.


“There should be no turning back from the reform initiated by this Court and now reflected in the BiOp. Gone are the days of viewing upper-Basin reservoirs as water-filled bathtubs devoid of life and waiting to be drained of their contents. The KTOI and CSKI thus look towards the future with the hope and expectation that the parties can exit the courtroom to focus their collective energies on meeting the ecological needs of Columbia River Basin species and the Basin ecosystem as a whole,” the KTOI-CSKI brief says.


The states of Idaho, Montana and Idaho also intended to file by day’s end a brief in support of the federal motion. Also anticipated are briefs other tribes such as the Colvilles and from river user groups.


In a June 8 scheduling order Redden said that, following today’s filings, there would be no further briefing without permission of the court, and the court would set a hearing date for oral argument at its convenience.


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