and conservation groups this week announced intentions to seek a legal
declaration that the federal government’s plan to protect threatened and
endangered Columbia and Snake river salmon and steelhead fails to achieve
dictates of the Endangered Species Act.
Tuesday announcement of the filing of a proposed “seventh” amended complaint
against three federal agencies would stir up a legal battle waged off and on,
but mostly on, since 2001.
challenge is the fourth filed over the past 13 years in U.S. District Court for
the District of Oregon asking that Federal Columbia River Power System
biological opinions prepared by NOAA Fisheries be overturned. Three previous
plans have been remanded to NOAA Fisheries so flaws noted by the court could be
read the complaint or for other information go to:
13 conservation and fishing groups say that the “supplemental” BiOp issued in
January merely rolls over inadequate and illegal strategies incased in BiOps
issued in 2008 and 2010. Judge James A. Redden in 2011 remanded the 2008 BiOp
and its 2010 supplement.
latest blueprint is virtually indistinguishable from the plan rejected by the
district court in 2011, not to mention the several illegal plans before
that," said James Bogaard, Save Our Wild Salmon executive director.
than looking for ways to do what’s needed to safeguard imperiled salmon and
bring people together, the federal agencies have opted to stick with a failed
framework while trying an end-run around good science.”
groups have no choice but to hold the government accountable and ensure at-risk
salmon and steelhead populations receive protections under the Endangered
Species Act,” Bogaard said.
proposed complaint also faults the U.S. Army Corps of Engineers and Bureau of
Reclamation for issuing 2014 records of decision that adopt the terms of the
new BiOps. The plaintiffs say the BiOp and the RODs violate the ESA, the
National Environmental Policy Act and the Administrative Procedure Act.
Corps and Bureau operate the dams in the FCRPS and they, along with the
Bonneville Power Administration, are required by the ESA to consult with NOAA
Fisheries during the development of BiOps related to dam operations. BiOps
judge impacts of federal actions, such as the existence and operation of the
hydro projects, on ESA listed species.
most recent FCRPS BiOps have for the most part decided that the FCRPS’ system
of dams does jeopardize the survival of listed Columbia basin salmon and
steelhead stocks, but have outlined mitigation actions to both improve survival
within the system and off-site. The 2008 BiOp and 2010 and 2014 supplements
have focused on improving tributary and estuary habitat, and as a result
survival and productivity.
proposed seventh amended complaint says “there is no credible or reliable
scientific basis for predicting the numerically precise survival improvements
from specific tributary habitat actions that NOAA developed and relies on to
conclude the RPA will avoid jeopardy.” The “reasonable and prudent alternative”
describes actions the agency feels would eliminate the jeopardy posed to 13
listed salmon and steelhead stocks.
even using NOAA’s flawed and unreliable approach, the planned tributary habitat
actions are inadequate to produce the predicted survival increases for many
populations of salmon and steelhead. Third, even if the habitat projects have
some beneficial survival effects for some populations, many of these effects
will not accrue for years or even decades and NOAA will not be able to detect
them even then.”
estuary habitat plan is similarly flawed, the proposed complaint says.
2014 BiOp, like its predecessors, also fails to disclose that implementation of
the estuary habitat actions in the RPA have fallen far behind, that NOAA’s
methodology and model for estimating survival improvements from estuary actions
cannot properly be used to predict specific survival benefits from particular
actions in any event, and that the survival benefits NOAA is now predicting -- even
with improper use of its model -- exceed the total possible benefits identified
in that model,” the complaint says.
conservation groups also fault the new BiOp for what they say is a planned
reduction in spill at dams for fish passage. The spill regimes implemented
under court order since 2005 have brought marked survival improvements, the groups
BiOp also fails, the conservation groups say, to properly consider the
potential effects of global warming on the Columbia’s 13 listed salmon and
steelhead stocks, and wrongly assumes that the salmon’s diminished status is
not affecting the status of endangered southern resident killer whales.
Chinook, in particular, are a staple of the whales’ diet.
supposedly ‘new’ plan once again fails to help salmon or boost salmon jobs,
fails to meet the basic requirements of law and science, and fails to lay the
foundation for a broadly supported stakeholder process that could work toward
shared solutions,” said Glen Spain, Northwest regional director of the Pacific
Coast Federation of Fishermen’s Associations, the West Coast’s largest trade association
of commercial fishing families. “In some respects, such as cutting back spill,
this version is actually a step backward from what's already been thrown out of
court as ‘illegal, arbitrary and capricious.’”
the proven benefits of spill, expanding it to help recover fish has been
largely opposed by Bonneville Power Administration and other federal agencies
for nearly 20 years,” said Liz Hamilton, executive director of the Northwest
Sportfishing Industry Association, the region’s largest trade association of
groups also want the court to declare that “the Corps and BOR have violated
NEPA by failing to prepare an environmental impact statement that addresses the
environmental impacts of, and reasonable alternatives to, the decisions in
their 2014 RODs….”
agencies need to “invite the public to be a part of that process,” said
Earthjustice’s Todd True, lead attorney for the plaintiffs in the litigation.
and entities on the defendants’ side in the long-running litigation say that
continued court battles waste resources and energy. They say the salmon
recovery battle is being won.
are hardly being dragged into court,” said Terry Flores, executive director of
Northwest RiverPartners. “They are the ones bringing the litigation, despite
unprecedented support for this latest salmon plan from federal and state
agencies and more than a dozen Northwest tribes.”
is an alliance of farmers, utilities, ports, businesses and other river users that
is a party to the litigation. Most members rely on power produced at the dams,
and are billed for the costs of fish and wildlife recovery measures. Much of
those costs are paid by BPA, a federal agency that markets power generated in
the FCRPS. In recent years BPA has spent about $250 million annually alone for
fish and wildlife mitigation expense projects channeled through the Northwest
Power and Conservation Council. Much of that expense is ESA related.
these perennial critics, it is déjà vu all over again as they repeat claims
they’ve made for years, despite documented progress that includes the most
abundant salmon returns we’ve seen in decades,” said Flores.
to the plaintiffs’ claims, the truth is that the plan approved by NOAA Fisheries
accomplishes exactly what the law demands -- and more,” Flores said.
law demands that federal hydropower dams do not jeopardize fish survival. The
salmon plan that’s now under fire already meets this standard through the use
of new fish-passage technologies and safe levels of spill, according to the
statement released by RiverPartners.
proof of the plan’s success, look to the healthy fish returns over the last
decade, including the historic return of more than one million fall chinook to
the Columbia River last fall,” Flores said. ”This year, spring chinook returns
already are well over that of the 10-year average, and 1.6 million fall chinook
and 1.2 million coho are forecasted to return.”
out of four Northwest residents agree that it’s critical for dams and salmon to
co-exist, according to results of a March 2014 poll conducted for Northwest
RiverPartners by DHM Research of Portland. By refusing to acknowledge that the
existing salmon plan not only fulfills -- but goes beyond -- the demands of
federal law, the plaintiffs show they are out of touch with public sentiment,
hydropower system is doing its part to prevent harm and speed salmon
restoration, despite the fact that most salmon mortality occurs in the
ocean—making ocean conditions a much larger factor affecting their survival,”
legal challenge was filed by Earthjustice on behalf of the following
conservation groups, sport and commercial fishing organizations, and clean
energy advocates: National Wildlife Federation, Washington Wildlife Federation,
Idaho Wildlife Federation, Sierra Club, Pacific Coast Federation of Fishermen's
Associations, Institute for Fisheries Resources, Idaho Rivers United, Northwest
Sportfishing Industry Association, American Rivers, International Federation of
Fly Fishers, Salmon for All, NW Energy Coalition, and Columbia Riverkeeper.
state of Oregon, and the Nez Perce Tribe have in the past been aligned with the
are NOAA Fisheries, the Corps and the Bureau. A BPA ROD adopting the BiOp
prescriptions has been challenged in the U.S. Court of Appeals for the Ninth
in the lawsuit have included Northwest Irrigation Utilities, Public Power
Council, Washington State Farm Bureau Federation, Franklin County Farm Bureau
Federation, Grant County Farm Bureau Federation, State of Idaho, Inland Ports
and Navigation Group, Kootenai Tribe of Idaho, and State of Washington.
of Idaho and Montana, the Nez Perce Tribe, Confederated Tribes and Bands of the
Yakama Nation, Confederated Tribes of the Umatilla Indian Reservation,
Confederated Tribes of the Warm Springs Reservation of Oregon, Confederated
Salish and Kootenai Tribes and Northwest Power and Conservation Council are
among others that have been involved in the litigation.
more background information see:
CBB, May 30, 2014, “Groups Challenge In Ninth Circuit BPA’s Record Of Decision
Accepting Feds’ New Hydro/Salmon Plan” http://www.cbbulletin.com/430946.aspx
CBB, April 4, 2014, “Fishing/Conservation Groups File Sue Notice On Challenging
Salmon BiOp In Ninth Circuit” http://www.cbbulletin.com/430255.aspx
CBB, Jan. 17, 2014, “NOAA Fisheries Issues New Salmon/Steelhead Biological
Opinion For Columbia/Snake River Power System” http://www.cbbulletin.com/429522.aspx
CBB, Sept. 13, 2013, “NOAA Fisheries Releases Draft 2013 Salmon/Steelhead BiOp,
Says 2008 Biological Analysis ‘Still Valid” http://www.cbbulletin.com/428331.aspx
CBB, Aug. 5, 2011, “Redden Orders New Salmon BiOp By 2014; Says Post-2013
Mitigation, Benefits Unidentified” http://www.cbbulletin.com/411336.aspx
CBB, Aug. 23, 2013, “Federal Agencies Release Draft Plan Detailing 2014-2018
Actions To Meet BiOP Salmon Survival Targets” http://www.cbbulletin.com/428028.aspx