A number of familiar adversaries, including
the state of Oregon, have told Oregon’s U.S. District Court that they will join
the recently resumed fight over the legality of the federal government’s
strategy for assuring Federal Columbia River Power System operations avoid
jeopardizing protected salmon and steelhead.
The state of Oregon on Monday asked the court
for permission to file a “Complaint-in-Intervention” to “supplement and modify”
its previous claims alleging that NOAA Fisheries Service FCRPS biological
opinions do not comply with Section 7 of the Endangered Species Act and the
Administrative Procedure Act and to add claims that the Corps and Bureau of
Reclamation records of decision accepting the terms of NOAA Fisheries’ 2014
BiOp does not comply with the National Environmental Policy Act and the APA.
The court on Wednesday granted the motion.
The court decision adds a new chapter in a
long-running battle over the legality of NOAA Fisheries BiOps, which are ESA
instruments aimed at determining whether federal actions, such as the
construction and operation of the Columbia-Snake hydro system, present jeopardy
to ESA listed species. In all, 13 salmon and steelhead stocks that swim up and
down through the FCRPS are protected under the ESA.
A coalition of fishing and conservation groups
headed by the National Wildlife Federation in July challenged NOAA’s 2014 BiOp,
which replaced a 2008 BiOp and a 2010 supplemental BiOp.
NWF in its “seventh supplemental complaint”
asked that the 2014 BiOp released by NOAA in January be overturned.
“… this supplemental complaint seeks review of
the 2014 BiOp, as supplemented by the earlier 2010 and 2008 BiOps, and the acts
and omissions of the Corps and BOR, including their 2014 RODs in response to
the 2014 BiOp and their earlier records of decision adopting and relying on the
reasonable and prudent alternative (“RPA”) from the 2008 and 2010 BiOps, for
violations of the Endangered Species Act” and the National Environmental Policy
Act and the Administrative Procedure Act,” according to the complaint filed
July 9 by the plaintiffs.
NWF successfully sought review and the legal
rejection of the 2000 and 2004 BiOps for operation of the Federal Columbia
River Power System. The 2008 and 2010 BiOps too earned legal disfavor. Those
documents late in 2011 were declared illegal by the federal District Court.
“… the Court remanded a BiOp to NOAA and the
action agencies to prepare an opinion that would comply with the ESA,”
according to the NWF seventh supplemental complaint. “The Court’s Opinion and
Order of Remand set a deadline of January 1, 2014, for completing a new
biological opinion ‘that reevaluates the efficacy of the RPAs [reasonable and
prudent alternatives] 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.’”
The court subsequently extended the deadline
to Jan. 24, 2014.
“Despite the Court’s decision rejecting the
2008/2010 BiOps and its direction to NOAA on remand, on January 17, 2014, NOAA
issued the 2014 BiOp and RPA with little or no change from the prior BiOps. The
structure and analysis of the 2014 BiOp closely tracks the approach in the 2010
BiOp and continues to rely on the jeopardy standard and analysis from the 2008
BiOp. Changes to the RPA actually reduce spring and summer spill the Court had
enjoined the Corps and BOR to provide in order to limit the risk of harm to listed
salmon and steelhead,” the July complaint says.
“RPA changes also eliminate an action in the
estuary that was supposed to improve estuary survival (the “pile dike removal
program”), and the revised RPA promises, once again, to develop a plan to
reduce predation by double-crested cormorants, predation that has increased
dramatically and that was not addressed in the 2008 BiOp. See 2014 BiOp at
37-40 (summary of changes to RPA).
“In short, the new BiOp disappointingly
compounds the flaws of the prior BiOps,” the NWS complaint says.
The states of Idaho, Washington and Montana,
the Nez Perce Tribe, Kootenai Tribe of Idaho, Confederated Salish and Kootenai
Tribes, Confederated Tribes of the Umatilla Indian Reservation, Confederated
Tribes and Bands of the Yakama Nation, Confederated Tribes of the Warm Springs
Reservation of Oregon, Confederated Tribes of the Colville Reservation, Inland
Ports and Navigation Group, Northwest River Partners, and the Northwest Power
and Conservation Council during the past two weeks have all filed with the
court notice of the intent of “continuing participation” in the lawsuit.
The Nez Perce Tribe is alone among those
litigants to side with plaintiffs and plaintiff-intervenor Oregon.
The Nez Perce Tribe “has repeatedly voiced its
concerns with the National Marine Fisheries Service’s administration of the
Endangered Species Act with respect to salmon and steelhead stocks, especially
with respect to the Federal Columbia River Power System dams,” tribe’s Sept 26
“These federal dams on the lower Snake River
and mainstem Columbia have had an enormous impact on salmon and steelhead, and,
in turn, on the Nez Perce Tribe and its people. The Tribe’s Reservation, and
many of the Tribe’s usual and accustomed fishing places, in addition to those
on the mainstem Columbia, are above the eight dams on the lower Snake and
“The tribe appreciates the discretion the
District Court has exercised throughout the course of this litigation to ensure
that the Tribe’s views are heard and considered,” the Nez Perce notice says.
-- CBB, June 20, 2014, “Groups File Challenge
Against New Federal Columbia Basin Salmon/Steelhead Recovery Plan” http://www.cbbulletin.com/431171.aspx
-- 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
-- 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