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BiOp: Oregon, Nez Perce, Coalition Again Contend Fish Survival Benefits ‘Remain Speculative'
Posted on Friday, January 28, 2011 (PST)

A coalition of fishing and conservation groups, the state of Oregon and the Nez Perce Tribe last week continued to press their claims that the federal government’s plan to mitigate for Columbia-Snake river dams’ impacts on protected salmon is inadequate, and illegal.


Briefs filed Jan. 21 in Portland’s U.S. District Court again ask that NOAA Fisheries, in consultation with other federal agencies, be required to rework, and bolster, its 2008/2010 Federal Columbia River Power System biological opinion. The BiOp judges that the planned mitigation actions counter hydro system impacts and, as a result, avoid jeopardizing the survival of 13 Columbia River basin salmon and steelhead stocks that are listed under the Endangered Species Act.


The filings launched what is scheduled to be the last, extra round of briefing in a legal argument now well into a third year. The federal government has until Feb. 11 to respond to the briefs filed late last week. Presumably oral arguments and a decision from the court on the legality of the BiOp(s) would follow.


The latest arguments focus on the legality under the ESA and other statues of NOAA Fisheries’ May 2010 supplemental FCRPS BiOp, which outlines actions (dam passage improvements, habitat restoration, etc.) in its “reasonable and prudent alternative” that federal agencies say mitigate for negative impacts from dams on Columbia-Snake river salmon and steelhead.


Defendants in the lawsuit are NOAA Fisheries and the operators of the dams, the U.S. Army Corps of Engineers and the Bureau of Reclamation. The Bonneville Power Administration, which markets the power generated in the FCRPS, is also involved in the federal BiOp ESA consultations.


Lawsuits were filed by the coalition and Oregon and briefing began shortly after NOAA Fisheries released in May of 2008 its FCRPS BiOp, which was later absorbed with updates into the 2010 supplement. Both Earthjustice, which represents the coalition, and Oregon updated their complaints this past fall to address the supplemental BiOp. The Nez Perce Tribe is an intervenor in the lawsuit.


Redden ordered that briefing on the supplement focus on changes to the BiOp from 2008 to 2010 and the submitted administrative record, which includes documents and other materials considered in developing the new BiOp. BiOPs are required under the ESA to judge the impact of federal actions on listed species.


The plaintiffs say that the strategy’s biological jeopardy analysis – the estimation of the risked faced by the species and how BiOp actions would mitigate that risk -- is flawed. They allege the analysis is based on arbitrarily selected favorable data that leads to a preconceived conclusion.


The coalition, Oregon and Nez Perce Tribe allege that the BiOp depends on habitat actions that are not certain to be implemented and that the salmon survival benefits stemming from such habitat improvements are also uncertain. They also claim that planned estuary and tributary habitat actions are not occurring as planned and that assumed fish survival benefits from such projects “remain speculative and may never be confirmed.”


The federal agencies and allies such as the states of Idaho, Montana and Washington have defended the BiOp’s technical underpinnings, its certainty of implementation and planned methods for evaluating the success or failure of its strategies.


During the winter of 2009-2010 the federal agencies renewed ESA consultation under voluntary court remand in order to legally bind the 2008 BiOp and an addendum – the Adaptive Management Implementation Plan completed in 2009 – and update related “science.” The result is the 2010 supplemental FCRPS BiOp.


The new BiOp, a Dec. 23 federal brief says, is a considerable closing of the certainty gap. That certainty includes– “accords” -- signed with states and tribes that pledge funding for specific projects like fish habitat restoration.


“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,” the federal brief 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 plaintiffs, however, insist that the federal government is missing the point – the need to follow the purpose and letter of the law.


“The Court has emphasized throughout this litigation that it is the rule of law set forth in the ESA and its regulations, the APA, and the best available science, that form the basis for evaluating a Section 7 BiOp,” the Nez Perce’ Jan. 21 brief says. “Those legal obligations remain, they have not been met by NOAA in the 2010/2008 BiOps….”


“NOAA has failed to meet the ESA’s regulatory requirement to determine whether an action will ‘reduce appreciably the likelihood of both the survival and recovery of a listed species,’ which the Ninth Circuit has held requires a ‘full analysis’ of recovery impacts, with its incomplete consideration of only free-floating growth metrics, disconnected from any consideration of what a state of recovery would look like -- for analytical purposes -- for each listed species.


“The rule of law -- the APA, the ESA’s regulations, the controlling case law, and the law of this case -- does not allow NOAA (as it did in the 2008 BiOp and refused to alter in the 2010 BiOp) to rely enormously on prospective habitat improvements while simultaneously refusing to identify the projects and work it is relying upon to produce those benefits and to ensure that those projects and work are reasonably certain to occur,” the Nez Perce brief says.


“Federal defendants ask the Court to approve NOAA's biological opinion, but do so for all the wrong reasons,” according to Oregon’s Jan. 21 brief. “No one questions that they -- as well as the other sovereign parties -- have worked hard to find solutions for the plight of these deeply-troubled species.


“But hard work alone is not enough to satisfy the requirements of the Endangered Species Act. Nor is the Act satisfied by any entity's promise to find solutions, whether acting alone, or in collaboration with others. Yet, for all their efforts, that is what federal defendants offer: promises that adequate solutions will be found, and the commitment of the government and their sovereign collaborators to work together towards that end. But neither mutual collaboration -- nor mutual consensus – is a substitute for NOAA's duty to ensure that the listed species will not be jeopardized. Because the biological opinion NOAA has issued fails to provide that assurance, it cannot be allowed to stand.”


“Federal defendants and allied parties seek to counter NWF’s supplemental summary judgment motion by persuading the Court that the passage of time, contracted for collaboration, the expenditure of funds, and the accumulation of yet more plans and processes all combine to create an irresistible momentum in favor of the 2008 and 2010 BiOps,” according to the Jan. 21 brief filed for the coalition, which is led by the National Wildlife Federation. “These generalities are not the issues that resolve this case. Rather, the ‘fundamental task’ -- and the proper measure of the validity -- of the 2008 and 2010 BiOps is whether they “satisfy[] the survival and recovery requirements” of the ESA.


(For more information see CBB, Dec. 23, 2010 “BiOp Litigation: Briefs Filed Contending Agencies’ Salmon Plan Legally, Scientifically Valid”

and CBB, Nov. 5, 2010, “BiOp Challengers: 2010 Supplemental Salmon BiOp ‘Adds Nothing Of Legal Significance’

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