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Judge Voids Salmon Plan; Dams at Stake Again by Joseph B. Frazier, Associated Press Spokesman Review, May 7, 2003

PORTLAND, Ore. -- A federal judge ruled Wednesday that government programs to protect threatened and endangered salmon runs in the Columbia River Basin do not meet the requirements of the Endangered Species Act.

In a 26-page opinion, U.S. District Judge James A. Redden struck down the so-called biological opinion as violating federal law. Redden returned the matter to the National Marine Fisheries Service and told the service to develop a plan that complies with the law.

Drafted in December 2000, the salmon recovery strategy focused on improving habitat and hatchery operations and limiting harvest without breaching the four dams on the lower Snake River as some environmentalists demanded.

A coalition of environmental and fishermen's groups sued in May 2001, claiming the biological opinion "capriciously and without any rational basis" concluded that the plan would not put the fish stocks in jeopardy of extinction.

"We have a real opportunity here and we want to be sure we get a plan adequate to protect the fish," said Todd True, an attorney for Earthjustice, one of the plaintiffs.

Bill Sedivy of Idaho Rivers United, a member of the coalition, said the ruling can finally redirect the debate over salmon recovery to the real problem -- the four eastern Washington dams.

"We thought all along that the strategy behind the plan was a bit like trying to treat cancer with aspirin," Sedivy said. "Fortunately, the judge saw it that way, too."

Nez Perce Tribal Chairman Tony Johnson said the ruling means the option of breaching the dams is back on the table.

"We believe that today's decision gives the Columbia Basin's sovereigns a tremendous opportunity to ensure that salmon are recovered by actions, not words," Johnson said.

True argued that the government has a duty to ensure its actions will not put endangered stocks in jeopardy as opposed to providing the likelihood that they will not.

"It cannot be based on chance, on the hope that good things will happen in the future," he said.

The Endangered Species Act, he said, is "an institutional caution. We don't take chances with species listed as endangered by extinction."

Samuel Rauch III, arguing for U.S. Justice Department, said the government is not required to ensure that the stocks will not go extinct, only to "not ... diminish the likelihood of recovery" from a threatened species listing.

The question he said, "is will the measures (for survival) be in place when the species needs them?" and noted that salmon runs in recent years have been in relatively good shape.

He said it is not a matter of whether the government is doing all it possibly can do. "The test is whether it diminishes the opportunity for recovery," he said, contending that the dam system as currently managed does not.

Plaintiffs argued that the biological opinion underestimates the risk of extinction and that conservation measures that do not affect the dams directly are speculative and voluntary.

"The biological opinion found a lot of things that might happen, that it hoped would happen, such as improved stream flows or restoration of habitat in estuaries," True said. "They feel that if all those things happen, they might be able to protect the fish."