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State Of Oregon Again Joins Plaintiffs In Challenging Feds’ Columbia Basin Salmon/Steelhead Plan
Posted on Friday, October 03, 2014 (PST)

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 notice says.


“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 Columbia tivers.


“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.


Also see:


-- CBB, June 20, 2014, “Groups File Challenge Against New Federal Columbia Basin Salmon/Steelhead Recovery Plan”


-- CBB, May 30, 2014, “Groups Challenge In Ninth Circuit BPA’s Record Of Decision Accepting Feds’ New Hydro/Salmon Plan”


-- CBB, April 4, 2014, “Fishing/Conservation Groups File Sue Notice On Challenging Salmon BiOp In Ninth Circuit”


-- CBB, Jan. 17, 2014, “NOAA Fisheries Issues New Salmon/Steelhead Biological Opinion For Columbia/Snake River Power System”


-- CBB, Sept. 13, 2013, “NOAA Fisheries Releases Draft 2013 Salmon/Steelhead BiOp, Says 2008 Biological Analysis ‘Still Valid”


-- CBB, Aug. 5, 2011, “Redden Orders New Salmon BiOp By 2014; Says Post-2013 Mitigation, Benefits Unidentified”


-- CBB, Aug. 23, 2013, “Federal Agencies Release Draft Plan Detailing 2014-2018 Actions To Meet BiOP Salmon Survival Targets”

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