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BiOp Judge Approves Extension For Feds In Delivering A Plan For Responding To Court Directives
Posted on Friday, May 20, 2016 (PST)

In rejecting much of NOAA Fisheries’ 2014 biological opinion for salmon and steelhead impacted by the Federal Columbia River Power System, U.S. District Court Judge Michael H. Simon gave the agency two years – to March 1, 2018 – to return with a new recovery plan and National Environmental Policy Act documents.

 

He also gave federal agencies just 14 days from his decision May 4 to come back to him with a plan for the timing and scope of the NEPA process.

 

The federal defendants in the case last week asked the court to extend that deadline, which initially was May 18, by just over two weeks to June 3. The other parties agreed to the extensions and on May 9, Simon granted the request.

 

The defendants are NOAA Fisheries, the Army Corps of Engineers and Bureau of Reclamation.

 

The extension, according to the court brief, would give the federal agencies the time they need to adequately develop and prepare the proposal and brief in response to the Court’s directive. The defendants said that they had notified the other parties in the case and found no opposition to the time extension.

 

“Federal Defendants are evaluating the Court’s direction and in response, are discussing proposals to comply with the Court’s order,” the brief says. “These discussions, and the meaningful analysis necessary to develop an informed NEPA proposal, take time. Federal Defendants estimate that it will take until June 3 to complete their brief because forecasting the date for completion of an EIS will require the assessment of various factors, such as the numerous regulatory timelines and milestones the agencies must observe and the availability of staff and other resources.”

 

They said it will take “substantial effort” to determine the plan and identify the resources and time needed to finish the plan. They will need to coordinate among the various agencies “to ensure that they present the Court with a consistent and accurate position.”

 

In addition, some of the decision-makers and staff will not be available due to travel and meetings that were planned prior to the BiOp decision, they said.

 

“Federal Defendants want to ensure that they are able to provide the Court with a fully informed and sufficiently-vetted proposal that adequately provides the Court with Federal Defendants’ position,” the brief said. “The requested extension will allow them to do so, and will not prejudice any other party.”

 

Simon ruled on the extension the same day it was filed, May 9.

 

In his May 4 opinion, Simon said the rejected BiOp “continues down the same well-worn and legally insufficient path” followed by previous recovery plans over the past 20 years.

 

He 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 RPAs, including one that federal agencies seem to be avoiding, breeching lower Snake River dams.

 

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.

 

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 legal proceedings, the agencies maintained that momentum and collaboration has built for effective salmon and steelhead restoration, and the court should not impede that progress.

 

For background, see:

 

--CBB, May 6, 2016, “Federal Court Again Rejects Columbia Basin Salmon/Steelhead Recovery Plan; Orders New BiOp By 2018,” http://www.cbbulletin.com/436667.aspx

 

-- 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

 

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