Salmon and Hydro: An Account of Litigation over Federal Columbia River Power System Biological Opinions for Salmon and Steelhead, 1991-2009
Twelve years ago, on March 31, 1997, a line of attorneys filed into federal Judge Malcolm Marsh’s Portland courtroom to argue over whether the federal government was abrogating its duty to protect endangered Snake River wild salmon from extinction.
The lawyers that morning offered a striking portrait of the polarization that plagued salmon recovery since the first listings of Columbia River Basin salmon under the federal Endangered Species Act – Snake River wild sockeye (endangered) in November 1991, and Snake River spring/summer and fall chinook (threatened) in April 1992.
The litigants had come to wage battle over American Rivers vs. National Marine Fisheries Service, a lawsuit challenging NMFS’ 1995-1998 Federal Columbia River Power System (FCRPS) Biological Opinion for Snake River wild salmon.
Though it would be the fifth time in five years a biological opinion for Columbia Basin salmon was to be scrutinized in court, all observers understood that the 1997 litigation would have far more consequences for salmon and the region’s economy than past challenges and rulings.
Indeed, the 1995 BiOp was the most comprehensive declaration to-date of what the federal government intended to do to protect Columbia Basin wild salmon in the near term.
As important, the document detailed the decisions – based on ongoing scientific research – to be made in 1999 that would reconfigure the hydrosystem in a manner that would ensure long-term salmon recovery.
Therefore, the period 1995-1998 was known in salmon recovery circles as the “interim.”
This interim was intended to be the “sound science years” during which fisheries scientists, economists, and sundry bureaucrats – with millions of public dollars in hand – would compile the information necessary for Congress and other policymakers to make wise decisions in 1999 that would sustain and eventually recover Snake River wild salmon.
Since 1992, previous attempts by federal agencies to please federal judges had not gone well. Judges had not been shy about giving agencies some direction in finding the right path through legal obstacles.
In many respects, the ambitious 1995 BiOp was a result of lessons learned from past failures.
All parties involved in Columbia Basin hydropower/salmon issues - states, tribes, local governments, advocacy groups, power and business interests - understood the significance of this new federal salmon recovery plan and its ability to pass legal muster. . . .
For More Excerpts Click These Links:
I. 1991-1995: Three ESA Listings, Four Biological Opinions, Five Court Challenges
II. 1995-1998: Reasonable And Prudent Alternatives, Spread The Risk, Long-Term Configuration, Adaptive Management; River Governance; Regional Parties Stake Their Positions; A BiOp Finally Passes Legal Muster
III. 1998-1999: More ESA Listings; A Supplemental Steelhead BiOp Guiding River Operations; Independent Science Advisory Board Weighs In On Smolt Transportation; Appeals Court Upholds 1995 BiOp; Supplemental BiOps On New Listings, Snake Water
IV. 1999-2004: Not Just Hydro, But All The ‘Hs’; Recovery In 48 years?; Mitigation Must Be Certain To Occur; Another BiOp Bites The Dust; A Remand; Corps Rules On Snake River Dam Removal
V. 2004-2008: A New BiOp Says No Jeopardy From Hydro Operations; A New ‘Environmental Baseline’; Redden Says No Again; Discretionary Actions vs. Non-Discretionary (Dams’ Existence); Court Runs The River; Upper Snake River Gets Own BiOp
VI. 2008-2009: A ‘Collaborative’ BiOp; New Fish Funding Agreements, New BiOp Support; Montana Finally Likes The Reservoir Plan; Earthjustice Says New Approach Inadequate; Oregon Left As Only State Opposed To BiOp; Should Independent Scientists Evaluate BiOp?; Parties To Litigation Grows; Clean Water Act Now An Issue; A New Round Of Briefings
VII. Conclusion: Rushing To Redden’s Finish Line