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Latest News from BiOp Battle Fronts;
Idaho, Irrigators Join Fray

by Bill Rudolph
NW Fishletter, March 15, 2004

Both the state of Idaho and a coalition of the state's water users have requested to intervene in a lawsuit brought by environmentalists [American Rivers v. NMFS] who want more water from the upper Snake storage reservoirs used for helping ESA-listed fish downstream. They argue that the extra water is needed to help reach flow targets outlined in the 2000 hydro BiOp written by NOAA Fisheries.

But the lawsuit's target is another BiOp that governs operations of the upper Snake reservoirs, which are run by the Bureau of Reclamation for purposes of irrigation.

Coalition spokesman Norm Semanko says the flow augmentation strategy to aid fish has been repeatedly discredited. "The environmental community knows that flow augmentation is a failure and they know it would cripple our economy, said Semanko. "It is crystal clear that their strategy now is to use the court threat to Idaho water as a misguided attempt to leverage Idaho into supporting efforts to breach the four federal dams on the lower Snake River."

"We must never yield in the fight over the sovereignty of Idaho water," Governor Dirk Kempthorne said in a Mar. 4 press release. "This suit challenges the adequacy of our state water law to afford voluntary contributions by willing buyers and willing sellers for salmon flow augmentation. Our interests in this regard must be vigorously defended."

Meanwhile, downriver irrigation interests were still struggling over a relatively new lawsuit [Columbia Snake Irrigators v. Evans] filed against federal agencies over the 2000 hydro BiOp.

Oregon District Court Chief Judge Ancer Haggerty denied a motion Mar. 4 by Columbia-Snake irrigators to disqualify Judge James Redden from hearing their suit. Redden is leading the remand process he ordered in the original lawsuit by environmental and fish groups over the hydro BiOp [NWF v. NMFS] and on Mar. 2 denied consolidating the irrigators' action into the current remand. Irrigators had claimed that federal agencies used "junk science" when they ruled that the hydro system jeopardized many of the ESA-listed stocks in the Columbia Basin.

On Mar. 10, Columbia-Snake attorney James Buchal filed a motion for partial summary judgment in his case, claiming that the defendants have misused the Endangered Species Act to provide protection for units of salmon "much, much smaller than the ESU [Evolutionarily Significant Unit] they defined," which disregards the intent of Congress to limit the government's ability "to make listing decisions below that of a subspecies or a DPS [distinct population segment] of a species."

Buchal cited a Feb. 24 decision [Alsea Valley Alliance v. Evans] upheld by the Ninth Circuit Court, also arguing that the government's jeopardy analysis must exclude effects of future actions like increased harvests not yet authorized under the ESA's Section 7, nor can the government "find that dam operations jeopardize listed species on the basis of future State, Tribal and private actions with adverse effects on salmon yet to be considered under appropriate ESA procedures."

Buchal said he expects the government to file for a stay, so it can "continue to evade its obligation to respond to the motion and seek to continue on its present course of wasting the time and money of the region. On March 12, the feds filed to stay the irrigators' lawsuit.

Since a new BiOp is expected from the remand process sometime this summer, the Columbia-Snake suit that challenges the old one will likely be moot, forcing the irrigators to sue over the new BiOp if they want to continue the litigation.

Bill Rudolph
Latest News from BiOp Battle Fronts; Idaho, Irrigators Join Fray
NW Fishletter, March 15, 2004

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