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Salmon Soldiers March Back into Court Over BIOP by Bill Rudolph NW Fishletter, October 1, 2002

Earthjustice lawyers went back to court last week with a motion to throw out the hydro BiOp, the latest sign of life in a lawsuit that was filed in May 2001 by the National Wildlife Federation against NMFS. The lawsuit has been in a state of suspended animation while a months-long effort to mediate the dispute has thus far proved fruitless. While no one involved has claimed any progress, all stakeholders have promised the federal judge overseeing the situation to keep their mouths shut.

Environmental and fishing groups who originally backed the lawsuit were not shy about their intentions. When the lawsuit was first filed, Earthjustice characterized it in a headline on its Web site: "Suit Seeks Breaching of Snake River Dams."

Earthjustice attorney Steve Mashuda told NW Fishletter that the latest filing doesn't necessarily mean that mediation efforts are over, but it seems unlikely that stakeholders will continue their efforts to make the huge NMFS document--which spells out nearly 200 different actions to help recover ESA-listed stocks affected by the federal dams--palatable to everyone. Government attorneys had requested mediation last January in hopes of creating a BiOp that satisfied everybody, said US attorney Fred Disheroon at the time. Even then, environmental groups were lukewarm about the talks. The last scheduled mediation meeting was held Sept. 19 in Portland. A statement on the progress of the talks was expected more than a week ago, but no word has yet been released.

In their latest motion for summary judgment, the groups want the NMFS jeopardy analysis judged illegal because it relies on benefits of future actions "that are not reasonably certain to occur," and is vague and uncertain, according to court documents. According to the motion, NMFS never explained how it weighed risks and uncertainties, and did not adequately discuss comments from scientists that indicated the NMFS alternative was unlikely to prevent jeopardy of the stocks.

The latest motion said that by relying on offsite mitigation efforts to boost fish numbers, while keeping dams off the hook for a jeopardy declaration, NMFS developed a qualitative approach to judging the value of future actions.

The groups also said the feds erred by not considering "incidental take" of the listed stocks by hydro operations or the combined effects of all authorized "take" and that it's wrong to rely on barging juvenile fish around critical habitat "in order the avoid the conclusion" that the BiOp alternative "adversely modifies this critical habitat and jeopardizes these species.

"In the end, the NMFS [Reasonable, Prudent Alternative] for FCRPS operations puts the fate of imperiled Northwest salmon and steelhead, species admittedly on the brink of extinction, at the mercy of vague, uncertain, unfunded, unenforceable and ineffective actions by federal, state, and private parties," the brief concludes. "NMFS does little more than venture a hopeful guess that everything will work out, leaving these species, like Blanche DuBois in Tennessee Williams' play A Streetcar Named Desire, to 'depend on the kindness of strangers' for their very survival. The ESA does not permit NMFS to impose this extraordinary risk on these species."

The brief does not mention the huge turnaround in fish runs since the BiOp was issued in 2000, due mainly to a sharp increase in ocean productivity. Nor does it mention the stock status update now underway that has the potential of de-listing some runs.

Preliminary 2001 redd count data released by the Idaho Department of Fish and Game showed that wild fish runs were improving rapidly. With 764 redds counted in tributaries of the Middle Fork of the Salmon River, the number is the highest since 1973. About 224 redds were counted there in 2000 and only 53 redds in 1999. It's much the same story in the South Fork of the Salmon, where overall counts were the highest since 1967.

But the motion quotes from an inter-agency NMFS e-mail to make a case for agency bumbling. One citation, in particular, between a government attorney and the NMFS deputy administrator shows how cautious the agency was about admitting its own lack of knowledge.

Uncertain Benefits
The attorney said the BiOp needed an explanation of actions needed at the watershed level to get necessary population improvements. The deputy administrator's response was candid, though unsettling. "Even if we did know where and how much, we'd be hard pressed to quantify the benefits in terms of fish survival. We might be able to cobble together some guesses (pretty wild ones), but not in the time available...The danger is that such a display might just highlight how uncertain we are about the benefits we can expect from off-site mitigation."

The NWF motion hammered home the lack of quantifiable benefits from actions outlined in the current BiOp, especially in the context of "check-in" points in 2005 and 2008 to determine if these actions are improving fish runs. Though BPA and other agencies are now struggling to develop extensive monitoring and evaluation strategies, some of those involved say little progress has been made. Others feel it may take years longer than the 10-year span of the BiOp before any accurate trends in fish populations could be detected from improvements to habitat.

A July memo by Washington state's independent science panel said an extensive search of the literature found no evidence that habitat restoration programs produced significant gains in juvenile fish numbers. The memo outlined a review of habitat programs by Oregon State University ecologist Peter Bayley, who said the programs suffered from design deficiencies that made it impossible to determine whether restoration efforts actually increased juvenile fish numbers or returning adults, or if some other factor, such as improving ocean conditions was an important element. "Without long-term monitoring," said the panel, "it is difficult to detect trends in populations and the link between juvenile and adult abundances."

Plaintiffs in the suit include the National Wildlife Federation, Idaho Wildlife Federation, Washington Wildlife Federation, Sierra Club, Trout Unlimited, Pacific Coast Federation of Fishermen's Associations, the Institute for Fisheries Resources, Idaho Rivers United, Idaho Steelhead and Salmon United, the Northwest Sport Fishing Industry Association, Friends of the Earth, Salmon for All, Columbia Riverkeeper, the Northwest Energy Coalition, the Federation of Fly Fishers and American Rivers.

Intervenor defendants include Northwest Irrigation Utilities, the Public Power Council, the Franklin and Grant County Farm Bureau Federations, the Washington Farm Bureau Federation, and the Inland Ports and Navigation Group.

Friends [amicas] include the Umatilla and Warm Springs Tribes, the Yakama and Nez Perce Tribes, the Northwest states and the NW Power Planning Council.