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Fish Protection Debates Enter New Phase by Mark Engler, Staff Writer Capital Press - May 16, 2003

PORTLAND -- Environmental groups and natural resource based industry interests have their attention squarely focused on two court cases involving federal recovery efforts for endangered salmon and steelhead runs in the Pacific Northwest.

The proper role of hatcheries in bolstering depleted migratory fish runs, and what measures should be taken to rejuvenate Columbia river Basin salmon and steelhead, are two central issues with which the National Oceanic and Atmospheric Administration will be grappling over the course of the next several months.

How NOAA handles the issues will likely determine whether discussion about dam breaching along the Columbia River system is rekindled in an official capacity, and whether farmers, ranchers, loggers and other landowners can expect to face new waves of government regulations aimed at protecting riparian habitat.

Last week U.S. District Judge James A. Redden issued an opinion ruling that NOAA Fisheries Columbia Basin salmon recovery plan, published in December 2000 after several years in planning, is inadequate and must be revisited.

Redden wrote that habitat mitigation activities and efforts to be undertaken by states, tribes and other federal agencies, as described in the NOAA's 2000 "biological opinion," do not adequately show that Columbia and Snake River hydrosystem dams can be operated in the future without jeopardizing salmon and steelhead listed under the federal Endangered Species Act.

In December 2000, NOAA Fisheries, then called the National Marine Fisheries Service, formulated a biological opinion addressing the effects the Federal Columbia river Power System has on threatened or endangered salmon and steelhead. The agency concluded that continued dam operations would indeed jeopardize fish and critical habitat, but proposed a "reasonable and prudent alternative course of action" to prevent species extinction based on recovery approaches short of removing four lower Snake River dams.

NOAA's biological opinion, or 2000 BiOp, was challenged in May 2001 by a coalition of environmental groups and commercial fishing interests.

Redden's May 7 opinion, while not flatly rejecting NOAA's claims or calling for dam removal, criticized some of the agency's methods for reaching conclusions contained in the 2000 BiOp, and suggested that rooted in the basis of the 2000 BiOp's outlook were questionable assumptions about the effectiveness of future state, federal, tribal and private fish preservation and recovery actions.

Those assumptions did not rise to the level of certainty necessary to meet ESA legal requirements, the judge wrote.

Redden ordered NOAA to "consult with interested parties to ensure that only those range-wide off-site federal mitigation actions ... and range-wide off-site non-federal mitigation actions that are reasonably certain to occur, are considered in the determination whether any of the 12 salmon ESUs will be jeopardized by continued FCROS operations."

Attorneys from NOAA and all the parties involved in the case were scheduled to meet May 16 to determine an acceptable timeline for NOAA to revise the biological opinion and address the judge's concerns. Also under discussion will be what actions the agency must take or enforce to ensure that salmon and steelhead runs are not further harmed in the interim.

A spokesman for NOAA said the agency hasn't yet determined whether it will advise the U.S. Department of Justice to appeal the case.

Jan Hasselman, an attorney for the National Wildlife Federation, one of the environmental groups in the case, said Redden's ruling is "obviously very significant."

While stopping short of saying the next step should be a re-examination of proposals to remove dams, Hasselman suggested that "the status quo has failed and we need some new thinking."

"Dam breaching is the solution everyone knows would work, but if there are other options then let's get them on the table now," he said.

One of the options that may indeed come into play - and one that Hasselman and other environmental activists vehemently oppose - is using hatcheries as a primary tool for recovering endangered migratory fish populations.

NOAA fisheries is currently undertaking an administrative review in which the agency will reconsider protection listings of r27 species of Pacific Northwest migratory fish and what role hatcheries should play in restoring the runs.

"We're reviewing the biological status for all of those stocks of fish to determine if their listing status needs to change," said NOAA Fisheries spokesman Brian Gorman. "In some cases these listings are seven or eight years old an the data that they are based on is also that old, and it is time that we looked at them again."

The administrative review was initiated as a result of a 2001 U.S. District Court judge's opinion that held that when determining whether to list Oregon coastal coho salmon as endangered, federal officials must count hatchery-bred fish in addition to those that spawn naturally in the wild.

The 2001 case, Alsea Valley Alliance v. Evans, is under appeal by several environmental groups, including Oregon Natural Resources Council, Pacific Rivers Council, Pacific Coast Federation of Fishermen's Association, Institute for Fisheries Resources, Audubon Society of Portland, Coast Range Association, Siskiyou Regional Education Project and the Sierra Club.

Last week in Portland an attorney for the groups an attorney for the groups argued before a three-judge panel in the 9th Circuit Court of Appeals that they should be able to intervene in the case and seek to overturn the lower court's ruling.

An attorney for the federal government argued that because NOAA's process of administrative review to determine the status of the coastal coho and address hatchery issues is well under way, the environmental groups should be prevented from taking legal action until that review is completed.

The situation is setting the stage for huge legal battles ahead. NOAA's decisions with regard to hatcheries may very well have repercussions throughout the Columbia river basin as well as along the coast, said Pacific Legal Foundation attorney Russell Brooks, who argued on behalf of the Alsea Valley Alliance against NOAA in 2001, and also against the environmental groups in the appeal hearing last week.

"There's a connection between the cases, even though they deal with two different issues," said Brooks. "The Columbia Basin issue deals with dams and the NOAA Fisheries biological opinion and all that, and the Alsea case and that decision is upheld, and the government then has to more strongly consider hatchery salmon as the same as wild salmon, then certainly that would have an effect on these other cases (in the Columbia Basin)."

National Wildlife Federation lawyer Hasselman says propagating hatchery fish with the intent of using them to force delisting of salmon and steelhead runs is "not sensible public policy," and he worries that NOAA, under the Bush administration's lead, might take just that route.

"There are certainly folks who have advocated using hatchery fish to solve our salmon problems - and that we don't need to worry about habitat, and we don't need to worry about the hydroelectric system because because we can forever more just keep pumping hatchery fish out into the rivers," he said.

Officials with NOAA Fisheries say they plan to publish their administrative review by the end of the year. A decision in last week's appeal isn't expected for several months.