The federal government on Sept. 30 filed what it calls a “protective” notice of appeal with the U.S. Court of Appeals for the Ninth Circuit regarding U.S. District Court Judge James A Redden’s Aug. 2 ruling declaring illegal the 2010 biological opinion for the Federal Columbia River Power System.
The NOAA Fisheries BiOp, issued in May 2008 and supplemented in 2010, says that, when planned mitigation actions are factored in, federal Columbia-Snake hydro projects do not jeopardize the survival of salmon and steelhead stocks that are protected under the Endangered Species Act. Redding’s ruling came in lawsuit filed by the state of Oregon and a coalition of conservation and fishing groups that challenged the BiOp’s legality.
According to a joint statement issued by four federal agencies late last week, “The government has not yet decided whether to appeal the ruling. The protective notice simply preserves the government’s option to pursue an appeal at a later date.”
Those agencies include NOAA Fisheries, which is responsible under the ESA for protecting listed species and planning for their recovery, and the Bonneville Power Administration, the U.S. Army Corps of Engineers and the Bureau of Reclamation. BPA markets power generated in the federal hydro system and the Corps and Bureau own and operate the dams.
Court rules require that a notice of appeal be filed within 60 days of the lower court ruling or the right to appeal is forfeited.
That federal notice of appeal says that “Notice is hereby given that Federal Defendants, the National Marine Fisheries Service (also known as NOAA Fisheries), the United States Army Corps of Engineers, and the United States Bureau of Reclamation hereby appeal to the United States Court of Appeals for the Ninth Circuit from the District Court’s Opinion and Order entered on August 2, 2011 (Docket No. 1855) in the above-captioned case.”
A second Sept. 30 filing says that “Notice is hereby given that Northwest RiverPartners, Defendant-Intervenor in the above captioned case, hereby appeals to the United States Court of Appeals for the Ninth Circuit from the District Court’s Opinion and Order entered in this action on August 2, 2011 (Dkt. 1855).”
RiverPartners “is an alliance of farmers, utilities, ports and businesses that promote the economic and environmental benefits of the Columbia and Snake Rivers and salmon recovery policies based on sound science,” according to its web site.
The filings prompted the Ninth Circuit to set a schedule in the event the federal government and RiverParners continue down that legal path. The Justice Department and RiverPartners are to complete and return mediation questionnaires by Friday (today) that briefly describe “the dispute that gave rise to this lawsuit,” “the result” of the lawsuit and “the main issues on appeal.” The court often explores mediation as a possible means of finding resolution for legal disputes.
In a “time schedule order,” the Ninth Circuit ordered that the federal government and RiverParters file opening briefs by Jan. 9. Appellees American Rivers, Inc., Columbia Riverkeeper, Federation of Fly Fishers, Idaho Rivers United, Idaho Steelhead and Salmon United, Idaho Wildlife Federation, Institute For Fisheries Resources, NW Energy Coalition, National Wildlife Federation, Northwest Sport Fishing Industry Association, Pacific Coast Federation of Fishermen's Associations, Salmon For All, Sierra Club, State of Oregon, Trout Unlimited, Washington Wildlife Federation are scheduled to file answering briefs by Feb. 8.
If the government or RiverPartners decide not to appeal they would ask that their notices be dismissed.
Redden in August found wanting a federal plan to mitigate for hydro system impacts to Columbia-Snake river salmon and steelhead, but he gave the agency in charge 2 ½ years to find an approach is legally and/or biologically valid.
“NOAA Fisheries concludes that through 2018, FCRPSD operations are not likely to jeopardize the continued existence of any listed species, based on measures to be implemented by Federal defendants to mitigate for the significant salmon mortality caused by the existence and operation of the hydroelectric power system,” Redden wrote in his Aug. 2 opinion and order regarding the validity of the FCRPS BiOp.
“Federal Defendants have failed, however, to identify specific mitigation plans to be implemented beyond 2013,” the judge said. “Because the 2008/2010 BiOp’s no jeopardy conclusion is based on unidentified habitat mitigation measures, NOAA Fisheries’ opinion that the FCRPS operations after 2013 will not jeopardize listed species is arbitrary and capricious.”
“The ESA prohibits NOAA Fisheries from relying on the effects of uncertain and speculative actions that are not ‘reasonably certain to occur,’” Redden wrote.
The strategy in the BiOP’s “reasonable and prudent alternative” outlines actions within the hydro system and off-site, such as habitat restoration, that are aimed at improving the survival of 13 listed Columbia basin salmon and steelhead stocks. The BiOp covers the 2008-2018 period.
The judge ordered a court-monitored remand with Jan. 1, 2014 due date for delivery of “a new biological opinion that reevaluates the efficacy of the RPAs in avoiding jeopardy, identifies reasonably specific mitigation plans for the life of the biological opinion, and considers whether more aggressive action, such as dam removal and/or additional flow augmentation and reservoir modifications are necessary to avoid jeopardy.”
Redden said that not only is post-2013 mitigation largely unidentified in the existing BiOop, but the benefits from current and future actions are also unknown.
“In other words, Federal Defendants do not know what exactly will be needed to avoid jeopardy beyond 2013, or whether those unknown actions are feasible and effective, but they promise to identify and implement something,” Redden wrote. “This is neither a reasonable, nor a prudent, course of action.”
“As practical matter, it may be difficult for Federal Defendants to develop a long-term biological opinion that relies only on mitigation measures that are reasonably certain to occur.”
“As noted, I continue to have serious reservations about NOAA Fisheries’ habitat mitigation plans for the remainder of this BiOp,” Redden wrote. “Everyone agrees that habitat improvement is vital to recovery and may lead to increased fish survival, but the lack of scientific support for NOAA Fisheries’ specific survival predictions is troubling.
“Although the BiOp concludes that these specific survival improvements are necessary to avoid jeopardy, NOAA Fisheries’ own scientists, the independent scientists who reviewed the 2008 BiOp, and the Independent Scientific Advisory Board (“ISAB”) have expressed skepticism about whether those benefits will be realized,” Redden said.
Redden said that during the remand NOAA Fisheries must continue to collaborate with the states and tribes that are parties to the lawsuit for the “purpose of developing mitigation actions to be included in the proposed action and developing scientific and technical data to support any proposed mitigation.” The ESA prescribes that BiOps be developed by NOAA Fisheries in official consultation with the “action” agencies, which are in this case BPA, the Corps and the Bureau.
Still pending is a petition filed by the coalition that asks the Ninth Circuit to review Bonneville's Aug. 12 record of decision to comply with the terms of the FCRPS BiOp.
The petition says BPA's decision violates the ESA, the Clean Water Act and the Administrative Procedure Act. It asks the court to vacate the ROD.
NOAA BiOps provide legal ESA coverage for the incidental "take" or mortality caused by the dams. Fishing and conservation have since the basin's first ESA listing in 1991 accused federal agencies of not taking the necessary steps to protect beleaguered salmon runs.
A 2000 FCRPS BiOp was declared illegal and replaced in 2004 by a plan that was a year later struck down in U.S. District Court. The Ninth Circuit later affirmed the latter decision. NOAA, after a 2 ½ year ESA consultation with BPA, the Bureau and the Corps and in collaboration with states and tribes, issued a new BiOp in May 2008. It was immediately challenged by the coalition of fishing and conservation groups led by the National Wildlife Foundation.
Bonneville plays a key role in planning and implementing hydro operations and in funding fish and wildlife projects as mitigation for the impacts caused by the dams' construction and operation. And, though active that arena as well, BPA has not, and cannot, be tabbed as a defendant in federal district court.
The Northwest Power Act of 1980 gave the U.S. court of appeals exclusive jurisdiction in challenges to BPA actions.
The appeal petition was steered into the court mediation process and in June the Ninth Circuit ordered a stay of proceedings pending a decision in the district court litigation. On Sept. 9 the appellate court ordered counsel in the lawsuit to contact the court-appointed mediator by Oct. 12 to report on the status of the case.
For more information and documents related to BiOp litigation go to www.salmonrecovery.gov