A letter to counsel sent by U.S. District Court Judge James A. Redden aims to focus discussions Monday on a list of six “issues” he identified regarding NOAA Fisheries Service’s 2010 Supplemental Federal Columbia River Power System biological opinion.
Following are the judge’s six issues.
“(1) Federal Defendants argue that if there is any positive growth in abundance or productivity (i. e. a greater than 1 to 1 ratio of adult returns per spawner), a species is "trending toward recovery" and thus not likely to be 'Jeopardized." Does this mean that an incremental survival improvement is sufficient to avoid jeopardy regardless of the already vulnerable status of the species?
(2) Does Federal Defendants' most recent data reflect increased survival and recovery gaps for most of the listed populations? If so, what are the consequences?
(3) Are Federal Defendants' predictions regarding the specific survival benefits of habitat improvement based upon independent, reliable, and scientifically verifiable information? Lands Council v. McNair, 629 F.3d 1070, 1078-79 (9th Cir. 2010).
(4) Have Federal Defendants exhausted all technologically and economically feasible hydro mitigation actions that would likely improve survival of the listed species?
(5) What are the prospects for the survival and eventual recovery of listed Upper Columbia River populations in light of the severely degraded habitat?
(6) Given the uncertainty as to the survival benefits resulting from habitat improvement, will Federal Defendants consider reporting to the comi in the event that the 2013 or 2016 Comprehensive Evaluations do not reflect the anticipated improvements?
Attorneys for the federal government and for the state of Oregon and a coalition of fishing and conservation groups have been debating the legal validity of the 2010 FCRPS BiOp since August. Numerous tribes, river user groups and others are also involved in the lawsuit on one side or another. All will gather Monday at the federal courthouse in Portland for oral arguments.
Redden has yet to issue a ruling on the 2008 BiOp or its successor, the 2010 BiOp. That would come at some point after next week’s oral arguments.
BiOps judge whether federal actions, such as dam operations, jeopardize the survival of species protected under the Endangered Species Act. In this case, the FCRPS BiOp says 13 listed Columbia-Snake river salmon and steelhead stocks are not jeopardized by the Columbia-lower Snake hydro system.
The oral arguments scheduled just might cap long-running litigation over the federal plan. The BiOp 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.
The state of Oregon and a coalition of fishing and conservation groups led by the National Wildlife Federation in 2008 challenged the 2008 BiOp, and its successor, the 2010 version. They claim the BiOp has a flawed strategy for assessing whether the hydro system poses jeopardy to the listed fish and does not include enough actions to adequately mitigate for hydro system impacts on fish.
They also say the strategy 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 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.” Oregon’s and NWF’s legal stances have been supported and supplemented by the Nez Perce Tribe.
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.
Allied with the federal defendants have been the states of Idaho, Montana and Washington, the Warm Springs, Umatilla and Yakama, Kootenai of Idaho and Salish-Kootenai tribes, the Inland Ports and Navigation Group, RiverPartners and others.
The federal agencies and allies have defended the BiOp’s technical underpinnings, its certainty of implementation and planned methods for evaluating the success 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 2010 BiOp, a Dec. 23 federal brief says, represents 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.
“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 letter from the judge sent Wednesday lays out a schedule for the federal attorneys and those for Oregon and the coalition to address each of the six issues and other parties to make additional points. He says his words do not prejudge.
“This letter does not contain any express or implied finding regarding the validity of the 2010 Supplemental Biological Opinion, and the parties should refrain from relying on statements in any of my correspondence to support an argument,” Redden wrote.
For more information see:
--- CBB, Feb. 25, 2011 “Latest Briefs By Feds, 3 States, 3 Tribes, Ports Defend Salmon BiOp; Oral Arguments Likely Next” http://www.cbbulletin.com/405832.aspx
--- CBB, Jan. 28, 2011 “BiOp: “Oregon, Nez Perce, Coalition Again Contend Fish Survival Benefits ‘Remain Speculative'’ http://www.cbbulletin.com/404690.aspx
-- CBB, Dec. 23, 2010 “BiOp Litigation: Briefs Filed Contending Agencies’ Salmon Plan Legally, Scientifically Valid” http://www.cbbulletin.com/403321.aspx
-- CBB, Nov. 5, 2010, “BiOp Challengers: 2010 Supplemental Salmon BiOp ‘Adds Nothing Of Legal Significance’ http://www.cbbulletin.com/401381.aspx
For documents and information related to BiOp litigation go to www.salmonrecovery.gov