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
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
“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
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
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” http://www.cbbulletin.com/434343.aspx
-- CBB, October 3, 2015, “State Of Oregon Again Joins
Plaintiffs In Challenging Feds’ Columbia Basin Salmon/Steelhead Plan,” http://www.cbbulletin.com/432296.aspx
-- 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 Valid” http://www.cbbulletin.com/428331.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
-- CBB, Aug. 5, 2011, “Redden Orders New Salmon BiOp By
2014; Says Post-2013 Mitigation, Benefits Unidentified” http://www.cbbulletin.com/411336.aspx