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Salmon Judge Gets Earful at BiOp Hearing by Bill Rudolph NW Fishletter, May 12, 2011

All parties in the years-long litigation over the Columbia River hydro BiOp [NWF v. NMFS] got another face-to-face last week in court, where they re-hashed old arguments about whether the salmon plan's jeopardy analysis was adequate. The subject had been dredged up by Judge James Redden, one of six questions he wanted to focus on at the May 9 hearing, likely the last one before he rules on the BiOp.

The judge wanted to know if the federal defendants thought if a species showed any positive growth in abundance or productivity (measured by the spawner/recruit ratio) at all, was that enough to say its survival and recovery was not likely to be "jeopardized," regardless of the already vulnerable status of the species. At stake is the updated 2008 BiOp full of dam modifications, increased predator control and a large habitat restoration program to make up for adverse affects from proposed operations at federal dams.

Department of Justice attorney Coby Howell argued that this was "not our position," but the plaintiffs' characterization of it. "NOAA's analysis is much more sophisticated," he said, describing the seven different metrics used to analyze the status of the populations in each listed ESU--including extinction risk and "lambda," which measures changes in population levels.

Howell said the federal analysis also included differing assumptions about climate change and looked out 24 years to assess extinction risk. When other factors like diversity and spatial density were figured in, he said federal scientists "put the puzzle together to make a decision at the ESU level." He said both biological criteria and listing factors were weighed to determine the jeopardy of the stocks.

Howell pointed to the recent rise in returns of Snake River fall chinook, from around 100 fish a year to more than 10,000 last year. "Those numbers are astounding, but not enough to issue no-jeopardy." And he said the administrative record that was filed to show how NOAA developed its standards, "would fill a room, and that was why it had to be filed electronically, and not on paper."

He said the jeopardy analysis discussed by plaintiffs was a straw man they kept putting up and the feds kept knocking it down.

Plaintiff attorney Todd True, representing the National Wildlife Association, argued that the answer to the judge's question was a simple "yes," because the feds "don't know what enough is," whether nineteen out of twenty populations need to be classified as not likely to be jeopardized, or fifteen out of twenty, or even five out of twenty.

True pointed to the recovery plans developed for some populations in the basin, where real numerical targets have been developed as recovery goals. He argued that the feds' 24-year extinction risk window was too short, and too disconnected from recovery. He argued that the feds should have stuck with the 100-year extinction risk analysis used in the 2000 BiOp, which showed that risks were much higher for many populations than the feds had estimated in their newer salmon analysis.

Attorney Roger DeHoog, representing the state of Oregon, argued that risk factors were still too great under the feds' plan, with many stocks being allowed to limp along in a vulnerable state while the feds' reliance on conservation actually had the potential to threaten the long-term viability of natural populations.

He cited one of NMFS' own studies that said increases in abundance of Snake River sockeye were due to factors beyond its control, mainly ocean conditions. (But DeHoog neglected to mention that sockeye smolt releases from the region's captive broodstock program had skyrocketed in the past few years as well.)

Nez Perce tribal attorney David Cummings also criticized the feds' jeopardy analysis as "free-floating metrics." He said the tribe was glad that fall chinook numbers in the Snake had improved, but said nowhere in the listing decision for that stock was there any mention that 85 percent of the run's habitat had been affected by "these dams."

Onlookers weren't sure just which group of dams he was referring to, the Hells Canyon project owned by Idaho Power that blocked 80 percent of the original Snake fall chinook spawning grounds, or the lower Snake dams that are all situated below the ESU's current spawning habitat. Cummings said there was "not really" an adequate potential for recovery of the run.

Defendants fired back when Mark Stermitz, representing the state of Montana, noted that the judge had asked the same question about incremental increases in 2007 and 2009, and now again, and he wondered whether they had adequately explained themselves or not.

Stermitz argued the plaintiffs were using the same argument they had been making for years, when the reality is that the legal standard they were trying to impose was "inadequate and illegal." He said the states and tribes that support the salmon plan have every interest in getting the BiOp to work, and are not trying "to alleviate some more pain."

Stermitz said the recent decision in the 9th Circuit Court [Home Builders v. USFWS] "directly contradicts what the plaintiffs want to do." He said they want specific timeframes for these trends or recovery, when the Niners' decision says they are not entitled to it, according to the Endangered Species Act and Administrative Procedures Act. He said these arguments had already been covered in briefs, and "what they [plaintiffs] are arguing has already been disproved."

DOJ attorney Howell pointed out that NWF attorney True was now going back to the 2000 BiOp and its 100-year extinction risk analysis for support when he used to criticize it. Also, he said plaintiffs incorrectly used recovery levels developed for specific populations by the Interior Columbia Technical Recovery Team because the TRT did not develop an ESU-level recovery level. "What they are talking about does not exist."

Howell urged the judge to look at the recent returns instead. (On the day of the hearing, more than 9,000 spring chinook passed Bonneville Dam. In 1995, fewer than 13,000 fish were counted all spring.)

The judge also wanted to know if the defendants' most recent data showed increasing survival and recovery gaps for most of the listed populations, and if that was true, what were the consequences.

DOJ attorney Howell said it depended on what metric and which population was examined. Some gaps were getting smaller and some were getting bigger than the base-to current levels used in the 2008 BiOp. The 2010 Supplemental BiOp, which included some new long-term contingencies, like studying the removal of lower Snake dams if population levels declined to certain levels, expanded the base-to current time frame from 1980- 2005 to 1980-2008.

Howell said abundance of all the populations has improved, but two have "flipped" from an extinction risk of less than 5 percent to greater than 5 percent. Another three have seen a decline in recruit/spawner ratios, and two have seen declines in "lambda," the median annual rate of population change.

Howell said plaintiffs were wrong when they said fish are not surviving as well as feds had anticipated. Of the 28 populations in the Snake spring chinook ESU, he said NMFS found that two had one metric that had flipped, with all others doing well, and the populations that had slipped were being prioritized for more habitat improvements.

NWF attorney True argued that Howell's commentary did admit the new data showed large gaps, even though NMFS has tried to hype it, and claimed that "density dependence" was responsible for declining metrics of some populations.

Howell countered by noting that the new data through 2008 captured a "trough" in ocean conditions, but they have improved since then. However, if fish returns do get off track, he said states and tribes will know about it, especially after a 2013 scheduled check-in. Judge Redden had asked the feds if they would consider reporting to the court if 2013 and 2016 evaluations did not reflect anticipated improvements.

The judge was also concerned about predicted survival benefits from habitat improvement, and whether they were backed by "independent, reliable and verifiable information."

John Ogan, representing the Confederated Tribes of Warm Springs, explained to the judge about the lengthy process F&W proposals undergo, including scrutiny by an independent science panel before funding is approved.

True, who had argued successfully to overturn the 2000 BiOp, partly by focusing on potential habitat actions because they were not reasonably certain to occur, now claimed that it would take decades to detect any benefits from them, citing an analysis by BPA consultant Rich Hinrichsen.

True said a major failing in the plan is the lack of a pass/fail performance standard for the 2013 and 2016 check-ins. "We are already behind where we thought we would be," he said.

Howell wrapped up by noting that the salmon plan has already undergone an independent review of sorts. He cited a recent National Academy of Sciences report by an independent panel charged with judging a draft water plan for the Sacramento Delta that called the 2008 and 2010 FCRPS BiOp a "suitable example of an attempt to incorporate uncertainty," and was a "comprehensive" analysis "where changes in smolt system survival associated with different operation-alternatives are then linked to a broader life-cycle analysis to assess the potential for population-level responses to selected management actions."

Judge Redden said he had enough information, and abruptly ended the session around noon, leaving onlookers to speculate what that really meant since some of his original questions had not been discussed.

Some salmon plan supporters were buoyed, saying his dour comments at the beginning of the session seem to have been countered successfully by government attorneys. They hoped it meant that he would soon approve the BiOp, but the judge did not hint when to expect his ruling.

Other questions that remained unanswered by the early adjournment included whether defendants had exhausted "all technologically and economically feasible hydro mitigation actions that would likely improve survival of the listed species." The judge also had a query about ESA-listed Upper Columbia fish populations. He wanted to know their prospects for survival and recovery, "in light of the severely degraded habitat."