Ken DukeWritten by

Oregon Trial: Judge Rules Game Over for NOAA Fisheries

Conservation, Highlights, Industry News| Views: 119

PORTLAND, Ore. — The United States District Court for the District of Oregon sits ironically between Salmon and Main streets. For more than two decades it’s been the epicenter of salmon and steelhead protection efforts in the Pacific Northwest. On May 4, District Judge Michael H. Simon struck another blow for the fish and against government efforts to maintain the Federal Columbia River Power System by sending the government back to the drawing board to create a new biological opinion statement regarding the Federal Columbia River Power System and the fish that swim there.

For now, a $3 billion industry supporting thousands of persons in the Pacific Northwest gets a break.

The Parties

Plaintiffs in the case include the National Wildlife Federation, Idaho Wildlife Federation, Washington Wildlife Federation, Sierra Club, Pacific Coast Federation of Fishermen’s Association, Institute for Fisheries Resources, Idaho Rivers United, Northwest Sport Fishing Industry Association, Salmon for All, Columbia Riverkeeper, NW Energy Coalition, Federation of Fly Fishers, and American Rivers. The State of Oregon is an Intervenor-Plaintiff. The Nez Perce Tribe is an amicus curiae (friend of the court).

The defendant — National Marine Fisheries Service — is an agency within the National Oceanic and Atmospheric Administration (NOAA). The court refers to them as “NOAA Fisheries.”

The History

Every year, salmon and steelhead (collectively, “salmonids”) travel up and down the Columbia and Snake rivers, hatch in fresh water, migrate downstream to the Pacific on their way to adulthood, and later return upstream to spawn and die. They also must attempt to survive the Federal Columbia River Power System (FCRPS), which consists of hydroelectric dams, powerhouses and associated reservoirs.

In 1991 the Snake River sockeye were listed as “endangered” under the Endangered Species Act, and in 1992 the Snake River fall chinook joined the list as “threatened.” Today, there are 13 species or populations of Columbia or Snake river salmonids that are endangered or threatened.

In 1993 NOAA Fisheries issued a biological opinion (BiOp) concluding that the operations of the FCRPS would not jeopardize these species. The Idaho Department of Fish and Game challenged that opinion in a lawsuit. The court ruled in favor of IDFG and held that the 1993 BiOp was arbitrary and capricious.

NOAA Fisheries issued a new BiOp in 2000, 2004 and 2010. The court rejected them all. In its 2011 ruling, the court found “ample evidence in the record that indicates that the operation of the FCRPS causes substantial harm” to salmonids. NOAA Fisheries even acknowledged that the existence and operation of the dams accounts for most of the mortality of juveniles migrating through the FCRPS. The court ordered NOAA Fisheries to produce a new BiOp that reevaluates the efficacy of the RPAs (reasonable and prudent alternatives), including consideration of whether more aggressive action (such as dam removal, flow augmentation and reservoir modifications) is necessary.

NOAA Fisheries completed its 2014 BiOp and Plaintiffs challenged it under the Endangered Species Act and for failure to comply with the National Environmental Policy Act. Plaintiffs contended that government agencies must prepare a comprehensive environmental impact statement encompassing all or most of the reasonable and prudent alternatives described in the 2014 BiOp. An environmental impact statement provides the public with an opportunity to comment and also requires the agencies to consider all reasonable alternatives.

fish ladders at the John Day Dam

Fish ladders at the John Day Dam

The Ruling

District Judge Michael H. Simon of the U.S. District Court granted Plaintiffs’ motions for summary judgment (a judgment on the merits) with respect to their claims that NOAA Fisheries violated the Endangered Species Act because the 2014 BiOp maintained that reasonable and prudent alternatives would not jeopardize the salmonids and that the Corps and BOR violated the National Environmental Policy Act.

In particular, the court found that “NOAA Fisheries’ analysis does not apply the best available science, overlooks important aspects of the problem, and fails properly to analyze the effects of climate change.”

NOAA Fisheries has until March 1, 2018 to file its new BiOp. Meanwhile, the U.S. District Court retains jurisdiction over the matter to ensure that NOAA Fisheries and other federal agencies: (1) develop appropriate mitigation measures; (2) produce and file a biological opinion that complies with the Endangered Species Act and the Administrative Procedure Act; and (3) prepare an Environmental Impact Study that complies with National Environmental Policy Act.

It is the court’s stated hope that a comprehensive environmental impact statement that evaluates a broad range of alternatives “may finally break the decades-long cycle of court-invalidated biological opinions that identify essentially the same narrow approach to the critical task of saving these dangerously imperiled species.”

But …

Many are rejoicing at comments by Judge Simon regarding NOAA Fisheries’ need to consider options such as removing dams from the rivers as a means of ameliorating the damage to salmonid populations, but the previous judge in this thread of cases, James A. Redden, said the same thing in his 2011 ruling. Hopefully the comments will be taken more seriously this time.

What’s certain is that no dams on the Columbia or Snake rivers are coming down as a direct result of this decision. The court did not order that. At best, NOAA Fisheries and other federal agencies will have to take a more thoughtful look at such options. The battle will continue in 2018 … and likely beyond.

The Reaction

Buzz Ramsey

Buzz Ramsey

Naturally, salmon and steelhead anglers in the Pacific Northwest are pleased with the court’s decision, though many are blithely unaware of what has been at stake. Fortunately, others have kept a close eye on the situation.

Buzz Ramsey is viewed by many as the face of salmon and steelhead angling in the region. He is a native Oregonian and has worked in the fishing industry for nearly 40 years. Ramsey is optimistic after the ruling:

“The federal court win on behalf of salmon and steelhead populations opens the door for much-needed improvement in regard to the operation of the federal dams on the Columbia and Snake rivers. We’ve seen an increase of fall chinook numbers as a result of the court-ordered spill that began in 2006. The win of the most recent lawsuit creates the opportunity to provide those same benefits to spring chinook, summer chinook and steelhead. A few things our industry will be asking the court to consider is to begin system-wide spill tests in the spring, the pumping of cold water through the fish ladders when river temperatures are high and to draw down the John Day pool. Just these measures, the data shows, could more than double the spring return and provide relief and a more secure future to not only salmon and steelhead populations but the many businesses that depend on them.”

Joseph Bogaard, Executive Director of Save Our Wild Salmon, shares that enthusiasm. He was quoted by Earthjustice as saying, “This ruling is a big win for the people of the Northwest and the nation, and for salmon, for rivers and our Northwest fishing economy and culture.”

The next round begins in 2018.

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