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BiOp Litigants Respond To Judge’s Questions, Now Await Ruling On Summary Judgement Motions
Posted on Friday, August 28, 2015 (PST)

Litigants in a long-running legal battle over a strategy for protecting and enhancing conditions for salmon and steelhead fisheries in the Columbia and Snake river basins have formally responded to questions from U.S. District Judge Michael Simon, who is expected to rule on requests for summary judgement in the near future.


Simon is presiding over a lawsuit challenging the adequacy of a 2014 Biological Opinion that governs plans for recovering salmon and steelhead populations. The lawsuit largely contends that the BiOp and its “Reasonable and Prudent Action” programs do not provide enough certainty that the federal action agencies’ approaches to recovery will be successful in the future.


Todd True, the lead plaintiff attorney in the case, said Thursday that there are no more pending court deadlines, but he would not speculate on when Judge Simon may issue a ruling following a June 23 hearing in Portland where 13 attorneys presented oral arguments for both sides.


“We argued the case. It’s submitted. There’s no schedule in when he will issue a decision and there is no value in speculating,” said True, a Seattle-based attorney with Earthjustice, which represents plaintiffs in the case. “We don’t have any pending motions in the case at this point. We are waiting to hear from the court on the summary judgment motions. That could change. But at this point, that’s where things stand.”


The most recent briefs filed largely focus on technical matters, such as disputing spawner return calculations and challenging measurable threats to the species of salmon and steelhead that are protected under the Endangered Species Act.


But the parties involved also took the opportunity to reassert their overall claims.


The main gist of the plaintiffs’ arguments is that fisheries management agencies have failed to provide enough certainty that their methods for fishery protection will succeed, and the defendant agencies contend that is an unreachable standard and they will be subject to perpetual litigation.


They maintain that momentum and collaboration has built for effective salmon and steelhead restoration, and the court should not impede that progress.


“Oregon continues to advance an analysis predicated on the assumption that nothing is being done to improve survival in the main stem migration corridor or estuary,” the federal defendants state in their responding brief. “While Oregon may disagree with the degree of benefits expected from the numerous RPA actions being implemented to improve conditions in the main stem and estuary habitats, it cannot deny those actions are occurring, and it cannot justify the complete failure to address those concerns in its analysis.”


The brief goes on to say that Oregon’s arguments are built on “unjustifiable assumptions” that do not undermine the 2008 and 2014 BiOps.


The plaintiffs, including Oregon, the Nez Perce Tribe, and wildlife and conservation groups, contend that the BiOp is inadequate in its consideration of the impacts of climate change and other matters such as the impediment to successful fish migration caused by dams on the Snake and Columbia rivers.


The defendants are NOAA Fisheries, the Army Corps of Engineers and Bureau of Reclamation. A Bonneville Power Administration Record of Decision adopting the BiOp prescriptions has been challenged in the U.S. Court of Appeals for the Ninth Circuit.


Defendants cite precedent that “the fact that the (agency’s) explanation for its choices does not fully address every possible issue that flows from that choice does not render the (agency’s) determination unreasonable or unsupported. We do not require agencies to analyze every potential consequence of every choice they make; to do so would put an impossible burden on the agencies,” the defendants wrote, citing a Ninth Circuit Court of Appeals ruling that found that courts are not to act as “a panel of scientists” that chooses scientific studies, and order agencies to “explain every possible scientific uncertainty.”


One of the main arguments presented by the defendant agencies is that the plaintiffs will never be satisfied with protection measures that are taken on behalf of endangered fisheries.


“That may be their opinion,” said True, the lead attorney for plaintiffs. “But we are certainly, absolutely committed to bringing wild salmon and steelhead back to the Columbia and Snake.”


In their responding brief, the defendants state “the agencies invited the most searching level of scientific scrutiny on all aspects of the 2008 and 2014 BiOps, and they did so specifically to ensure that the resultant analysis considered the relevant factors and was biologically sound.”


During the June 23 hearing where arguments were presented for summary judgement, True said on behalf of the plaintiffs that the 2014 BiOp should not be entirely discarded.


“It’s not chuck it all. It’s deal with the uncertainty. You just can’t take the numbers and put them in the bank,” he said.


Thirteen species of salmon and steelhead that migrate through the federal Columbia and Snake River basin hydropower systems are listed as threatened or endangered under the Endangered Species Act. Biological Opinion and their Reasonable and Prudent Actions are supposed to ensure naturally spawning fish to avoid extinction and recover sustainable populations.


The National Wildlife Federation, the lead plaintiff, has successfully obtained legal rejection of BiOps for the same issues in 2000, 2008 and 2010.


The states of Idaho, Washington and Montana, the Nez Perce Tribe, the Kootenai Tribe of Idaho, Confederated Salish and Kootenai Tribes of Montana, the Umatilla Indian Reservation, the Confederated Bands of the Yakama Nation, the Confederated Tribes of the Warms Springs Reservation of Oregon, the Confederated Tribes of the Colville Reservation, Inland Ports and Navigation Group, Northwest River Partners, and the Northwest Power and Conservation Council are participating in this lawsuit.


The Nez Perce are the only tribe to side with the plaintiffs in the latest round of litigation.


For background, see:


-- CBB, June 26, 2015, “Attorneys Present Pros/Cons Of Columbia/Snake Salmon BiOp At Federal Court Oral Argument Hearing”


-- CBB, October 3, 2015, “State Of Oregon Again Joins Plaintiffs In Challenging Feds’ Columbia Basin Salmon/Steelhead Plan,”


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


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

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