A federal court this week rejected much of the federal
government’s recovery plan for Columbia River salmon and steelhead -- the 2014
NOAA Fisheries biological opinion for the Federal Columbia River Power System
-- and gave federal agencies almost two years to come back with a new and improved
version that complies with federal environmental laws.
The court said the rejected BiOp “continues down the same
well-worn and legally insufficient path” followed by previous recovery plans
over the past 20 years.
U.S. District Court Judge Michael H. Simon, based in
Portland, released the long-anticipated decision Wednesday in a challenge to
the 2014 BiOp that began in June last year. Simon remanded the BiOp, but left
it in place, while ordering NOAA Fisheries and federal action agencies to file
with the court by March 1, 2018 a new recovery plan and National Environmental
Policy Act documents.
The court will retain jurisdiction over the process to
ensure that “appropriate mitigation measures” are developed, that the new BiOp
will comply with the federal Endangered Species Act and the Administrative
Procedures Act, and that environmental impact statements are prepared that
comply with NEPA.
“The US government is disappointed that the court has not
agreed with our approach in this long-standing litigation,” said Michael
Milstein, public affairs officer with NOAA Fisheries. “Judge Simon’s ruling is
more than 145 pages, and is complex, as are the issues in the case. The
decision will require time and effort to analyze and fully understand.
“We sincerely appreciate the region’s unprecedented
collaboration and commitment on behalf of salmon, and the important progress
that it has produced,” he continued. “We’ll continue our efforts with our
partners to protect salmon and steelhead in the Basin and work toward their
Judge Simon said that the current BiOp’s standard of
“trending toward recovery” is insufficient to ensure recovery, that habitat
improvement benefits are uncertain, that NOAA Fisheries’ assessment of climate
change impacts on recovery do not use the best available science, and that the
U.S. Army Corps of Engineers and the Bureau of Reclamation must comply with
NEPA and assess all RPA’s, including one that federal agencies seem to be
avoiding, breeching lower Snake River dams.
“Hundreds of thousands of adult salmon died last summer
because of warm water in the Columbia and Snake reservoirs,” said Todd True of
Earthjustice, one of the attorneys representing the fishing and conservation
plaintiffs. “The Court’s sharp rejection of yet another illegal federal plan
for operating the dams on these rivers amplifies the clear warning that
management of these dams must change dramatically -- and very quickly -- if
wild salmon are to inhabit these rivers in the future. It’s time to finally get
“We need to seriously consider a plan that retires and
removes the four lower Snake River dams. Only action on this scale has the
potential to allow wild salmon to survive and recover in light of the vivid
threat they face from a warming climate.”
This is the fifth rejection of an FCRPS BiOp for a system
that impacts thirteen species of salmon and steelhead listed as endangered or
threatened under the federal Endangered Species Act. Previous challenged BiOps
were in 2000, 2004, 2008 and a supplemental BiOp in 2010.
Simon said in his decision that 2014 Supplemental BiOp,
completed in January 2014, used analyses from the 2008 and 2010 BiOps, all of
which were rejected.
NOAA Fisheries, he said, “did not disturb its earlier
finding that operation of the FCRPS would jeopardize the listed species and
adversely modify their critical habitat, and concluded that under the RPA
(Reasonable and Prudent Alternative) jeopardy and adverse modification would be
avoided. Plaintiffs challenged the assumption that the underlying analysis of
the 2008 BiOp could be used in the 2014 BiOp.”
He said that the plaintiffs raised two primary questions:
1-Did NOAA Fisheries act arbitrarily and capriciously in its
2014 BiOp when it concluded that the operations of the FCRPS did not violate
the ESA, based on the 73 RPAs of the BiOp?
2-Did the U.S. Army Corps of Engineers and the Bureau of
Reclamation violate NEPA by failing to prepare environmental impact statements
for each of the 73 RPAs?
The answer to both questions, Simon said, is yes.
He calls on the Corps and BOR to prepare “a comprehensive
environmental impact statement that evaluates a broad range of alternatives
that may finally break the decades-long cycle of court-invalidated biological
opinions that identify essentially the same narrow approach to the critical
task of saving these dangerously imperiled species.”
Among the issues Simon called out in his decision are:
1-The BiOps’ “trending toward recovery” standard (also in
the 2008 BiOp) is insufficient on its own to lead to recovery of the listed
species. A population of species is considered trending towards recovery if
growth rates are 1.0 or greater, but a population with a growth rate of 1.0 is
simply replacing itself and is not necessarily on a trajectory to recovery.
“Such a standard, however, does not take into account
whether a population is already at a precariously low level of abundance,” Simon
He notes that even NOAA says that the longer a species
remains at a low level of abundance, the greater the probability of extinction.
Simon goes on to write that there is no requirement that a
single goal is applicable to all populations, that a goal with
“infinitesimally” small growth risks “tipping species to a point where recovery
is no longer feasible and that without tying recovery to abundance levels NOAA
Fisheries cannot “rationally conclude” that its set of RPAs “will be sufficient
to avoid appreciably reducing a species’ chance of recovery.”
2- Contained within the BiOp are very specific numerical
benefits for habitat improvements, but they are too uncertain and do not allow
for a margin of error, the decision says.
Furthermore, NOAA acknowledges that the benefits of habitat
projects may take years to achieve, but calculates the benefits as accruing
instantaneously as soon as the project is completed. That tension, the decision
says, fails to give the benefit of the doubt to the listed species.
3- Climate change will certainly have a negative effect on
listed species in the future and NOAA Fisheries’ analyses of climate change is
not “complete, reasoned, or adequately explained,” the decision says.
“NOAA Fisheries’ analyses does not apply the best available
science, overlooks important aspects of the problem, and fails properly to
analyze the effects of climate change, including: its additive harm, how it may
reduce the effectiveness of reasonable and prudent alternative actions,
particularly habitat actions that are not expected to achieve full benefits for
decades, and how it increases the chances of an event that would be
catastrophic for the survival of the listed endangered or threatened species.”
4- NOAA Fisheries acknowledges in the 2014 BiOp that
designated critical habitat (the migration corridors for the most part) are
already “degraded, are not functional and do not serve their conservation
role,” the decision says. RPAs need not restore habitat to a “fully functioning
level, but they must at least include improvements sufficient to avoid adverse
modification,” Simon wrote.
5- The plaintiffs argued that the Corps and BOR did not
comply with NEPA by preparing adequate EISs, something the court agrees with.
Although they had prepared those statements in 1992, 1993 and 1997, the
information is outdated, “unreasonably stale” and more species have been
listed. Congress enacted NEPA to ensure that all RPAs are given a “hard look.”
The FCRPS is a system that “cries out” for a new approach,
the opinion says.
“In addition, a central purpose of an environmental impact
statement is ‘to force the consideration of environmental impacts in the
decision-making process.’ For example, the option of breeching, bypassing, or
even removing a dam may be considered more financially prudent and
environmentally effective than spending hundreds of millions of dollars more on
uncertain habitat restoration and other alternative actions,” the decision
says, adding that the federal agencies have ignored previous urgings by federal
courts to consider breeching Lower Snake River dams.
“For more than 20 years…the federal agencies have ignored
these admonishments and have continued to focus essentially on the same
approach to saving the listed species – hydro mitigation efforts that minimize
the effect on hydropower generation operations with a predominant focus on
habitat restoration,” the decision says. “These efforts have already cost
billions of dollars, yet they are failing. Many populations of the listed
species continue to be in a perilous state.”
Saying that the court intends to set a reasonable deadline
for NEPA compliance, Simon gave the federal agencies fourteen days to come back
with a plan for the timing and scope of this NEPA process.
In a statement, Northwest RiverPartners, said they are
disappointed with Simon’s decision and that the “ruling creates years of more
analysis of little value to the listed species” and calls into question whether
environmental laws in the U.S. are even workable.
“Sadly, this court has failed to give deference to the
agencies with expertise on the science as called for under the law,” Northwest
RiverPartners said. “This BiOp, with its unprecedented collaboration, measures,
investment and sound science, was considered a model; if it is not sufficient,
that raises a fundamental question of whether the Endangered Species Act is at
The National Wildlife Federation, the lead plaintiff, had
successfully obtained legal rejection of BiOps for the same issues in 2000,
2008 and 2010.
The states of Idaho, Washington and Montana, 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 participated in this lawsuit.
The Nez Perce was the only tribe to side with the plaintiffs
and Oregon was the only state.
The main gist of the plaintiffs’ arguments in their
challenge of the 2014 BiOp was that fisheries management agencies had failed to
provide enough certainty that their methods for fishery protection will
succeed, but the defendant agencies contended that is an unreachable standard
and they will be subject to perpetual litigation.
Throughout the trial, the agencies maintained that momentum
and collaboration has built for effective salmon and steelhead restoration, and
the court should not impede that progress.
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.
For background, see:
-- CBB, August 28, 2015, “BiOp Litigants Respond To Judge’s
Questions, Now Await Ruling On Summary Judgement Motions,” http://www.cbbulletin.com/434825.aspx
-- 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