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Salmon = Lawsuits by Glen W. Squires Wheat Life, July 2003

Judges are taking center stage in salmon issues. While agencies, landowners, communities and others work to implement on-the-ground actions for salmon, legal cases attacking virtually every conceivable avenue could have a significant effect on how salmon recovery proceeds. Lawsuits summarized in the 2002 State of Salmon report include:

LAWSUITS UNDERWAY
Treaty rights
Indian Tribes in western Washington, joined by the United States, filed suit in January 2001 claiming the state is violating the Tribes’ treaty “right of taking fish” because some culverts underlying state highways and roads block fish passage. The court was asked to say the treaties impose a duty to protect fish habitat, and the Tribes’ ability to earn a livelihood from fishing is the standard by which this duty must be gauged. They further argued the treaties impose a standard of habitat protection that is higher than the standard imposed under the Endangered Species Act (ESA). The litigation is on hold as a settlement is being negotiated, hopefully, by October 2003. The state is trying to develop a plan to identify and repair or replace fish-blocking culverts. (United States v. Washington, Civil No. 70-9213, Subprocedding 01-1 [W.D. Wash.] [Culverts/“Phase II”]).

Fish passage
A water diversion dam at the Tokul Creek hatchery, with potential fish passage problems, prompted litigation by Washington Trout and Public Employees for Environmental Responsibility against the Washington Department of Fish and Wildlife. Settlement discussions are on going. (Washington Trout and PEER v. WDFW, 02-CV-1221 [W.D. Wash.] [Tokul Creek Litigation]).

In-stream flow
The Cedar River Habitat Conservation Plan (HCP), an in-stream flow agreement between the City of Seattle, Washington State Department of Ecology, the U.S. Fish and Wildlife Service and NOAA Fisheries (formerly National Marine Fisheries Service), was challenged by the Muckleshoot Tribe. The HCP agreement was designed to ensure sufficient flows to protect listed salmon. The King County Superior Court and the Court of Appeals, Division 1, both dismissed the lawsuit, but the case is still pending before the Court of Appeals on motions for reconsideration (Muckleshoot Indian Tribe v. Ecology).

Water quality
Two lawsuits, Methow Valley Irrigation District v. Ecology, and the Okanogan Wilderness League v. Ecology, are based on Ecology’s authority to prevent violations of state water quality standards and to prevent the waste of water. Such actions have been alleged. The effect of withdrawals on salmon is an underlying issue in each case (Methow Valley Irrigation District v. Ecology; Okanogan Wilderness League v. Ecology).

LAWSUITS SETTLED
Hatcheries
Washington Trout and the Native Fish Society filed suit against the Washington Department of Fish and Wildlife, challenging the entire Puget Sound Chinook hatchery operation. The groups contend the hatcheries violate the ESA by directly placing what they consider inferior hatchery fish in direct contact with wild fish, as well as blocking some upstream passage of adult fish. The suit has accelerated the creation of Hatchery Genetic Management Plans designed to meet the standards of inclusion under the ESA’s 4(d) rule, which includes a “taking” limit for hatchery operations. Washington Trout and the Native Fish Society dropped their lawsuit in exchange for more opportunity for public input into how hatcheries are operated (Washington Trout and Native Fish Society v. WDFW).

Critical habitat
National Marine Fisheries Service agreed to withdraw critical habitat designation pending a new study and the National Association of Homebuilders agreed to drop their lawsuit that challenged NMFS for over-including lands in its critical habitat designation without determining if all areas designated were in fact occupied by the species. The agreement, approved by a U.S. District Court judge, requires NMFS to begin working on new critical habitat designations that includes more scientific studies and an analysis of the economic impacts of those designations, as required under the ESA (National Association of Homebuilders v. Mineta, 01-CV-02799 [D.C. Cir.]).

Pesticides
The court ruled that the EPA had not complied with the ESA and set a schedule for that agency to make effects determinations and undergo consultation for 55 pesticides by December 1, 2004. The Washington Toxics Coalition had sued the EPA, contending that the EPA had not had sufficient consultation on the effects of registered pesticides on salmon. The coalition argued that pesticides interfere with salmon’s ability to navigate back to their spawning grounds. The judge also did not feel that consultation was needed for an additional 898 active pesticide ingredients (Washington Toxics Coalition v. EPA, 01-CV-00132 [W.D. Wash.]).

4(d) Rule–Sec. 7
The court ruled that NMFS could indeed craft a 4(d) rule that allowed for limited take, despite the Washington Environmental Council’s (WEC) efforts to stop the procedure. At the same time, the judge dismissed WEC’s claims that NMFS failed to comply with NEPA and ESA Section 7 consultations. WEC can still file claim against specific programs under the 4(d) rule. The judge also dismissed all challenges to the substance of the Forests and Fish limit as well as the Municipal, Residential, Commercial, and Industrial Redevelopment limit (Washington Environmental Council v. NMFS, 00-CV-1547 [W.D. Wash.]).

TMDLs
The court dismissed a lawsuit by the Washington Environmental Council in its attempt to challenge the EPA for agreeing to let the state defer for ten years, Total Maximum Daily Load (TMDL) determinations for streams covered under the new Forests and Fish forest practice regulations. The EPA assumes that the new regulations will sufficiently reduce pollutants to streams caused by forest practices. The suit was dismissed as premature (Washington Environmental Council v. EPA, 00-CV-1548 [W.D. Wash.]).solve the salmon issue, others suggest the lawsuit gives agencies the opportunity to revise the plan and address the specific concerns raised by the judge.

Dredging
Faced with court-restricted dredging, the U.S. Army Corps of Engineers appears to be taking two approaches:

• The Corps’ 20-year dredging plan, placed on hold by a judge, is expected to be addressed with a supplemental environmental impact statement (EIS) followed by consultations with NOAA Fisheries providing more details for the plan. The result would be a draft report by the first of next year (2004) with a Record of Decision late in the spring of 2004. If all goes well, and without further court issues, dredging would be possible during the dredging window between December 15, 2004 and March 1, 2005.

• The Corps is also working to address immediate first-year dredging activity from the 20-year plan. Supplemental documentation needed for first-year dredging would be provided. If NMFS is able to give a biological opinion in a short time frame and with necessary water quality reports prepared, the Corps could put together a package for a 30-day review with a Record of Decision possible by summer-end. This would allow adequate time for comment and to resolve any court issues. The Corps would be ready to dredge by December 15, 2003 if the court agrees, but again, a major question is how the court would respond.

Hydro operations:the dam lawsuit?
The 2001 Biological Opinion (BiOp) issued by NOAA Fisheries addresses effects of operating the Federal Columbia River Power System (FCRPS) on 12 salmonid evolutionarily significant units (ESUs) listed as either threatened or endangered under the Endangered Species Act (ESA). As part of the 20-year plan for maintenance dredging by the Corps of Engineers, NOAA Fisheries had prescribed hydro actions and off-site mitigation actions for eight of the ESUs the agency had determined would be jeopardized by actions in operating the federal power system. If implemented, the actions would not be deemed to jeopardize the species’ continued existence, according to NOAA.

Environmental and fishing groups filed suit, arguing the BiOp violates the ESA by understating the risk of extinction, by relying on voluntary actions of private, state and other federal agencies that the groups feel are not reasonably certain to occur and by granting emergency exemptions that they say make many key measures in the NOAA plan, optional.

A judge issued an unusual early draft opinion in the matter. He wrote that the alternatives “adopted by NOAA to avoid jeopardy to salmon species, both for the short-term and long-term, fails to identify off-site mitigation measures that are reasonably certain to occur.” Following the draft opinion, NOAA still felt confident the biological opinion was valid and the judge would eventually side with NOAA. The plaintiffs seemed equally confident the judge would continue his thinking in line with their position that the biological opinion was flawed.

The judge subsequently ruled that the NOAA Fisheries plan did not meet the requirements of the ESA and gave federal agencies a year to present another plan. While dam breaching proponents are quick to reason and suggest breaching is the number one option needed to

Plaintiffs include: National Wildlife Federation, Idaho Wildlife Federation, Washington Wildlife Federation, Sierra Club, Trout Unlimited, Pacific Coast Federation of Fishermen’s Associations, Institute for Fisheries Resources, Idaho Rivers Association, Friends of the Earth, Salmon for All, Columbia Riverkeeper, American Rivers, Federation of Fly Fishers and Northwest Energy Coalition.

Joining NOAA Fisheries as intervener defendants are the state of Idaho, Northwest Irrigation Utilities, Public Power Council, Washington State Farm Bureau Federation, Franklin County Farm Bureau Federation, Grant County Farm Bureau Federation and the Inland Ports and Navigation Group.