Judge Rejects Federal Salmon Planby Bill Bakke, Guest column
Blue Oregon, June 1, 2005
Judge Jim Redden rejected the NOAA Fisheries Salmon Plan for the second time. The plan is called the Biological Opinion for the Columbia River hydro-dams, a series of eight dams that stand between the ocean and the spawning grounds in Idaho and NE Oregon. Redden rejected the 2000 BiOp and remanded it to NOAA Fisheries to fix, but what he got back was worse, so now he has rejected the 2004 BiOp because it fails to protect salmon and steelhead. NOAA Fisheries, the federal agency charged with the responsibility to recover ESA-listed salmon and steelhead has morphed into a dam protection agency, saying that the dams are a natural feature of the salmon ecosystem and therefore protected from the ravages of the salmon advocates like Governor Kulongoski of Oregon.
The 2000 BiOp considered the effects of the hydro dams on 12 listed species, but because NOAA Fisheries relied on mitigation measures that were not reasonably certain to occur, Judge Redden gave the agency time to correct the problem. But what he got in return was the 2004 BiOp that concludes the dams will not jeopardize salmon and steelhead or modify or destroy their critical habitat. This novel interpretation by NOAA Fisheries of the ESA doesn't pass the red face test let alone a federal judge. He said, "It is apparent that the listed species are in serious decline and not evidencing signs of recovery."
There is much in the Redden opinion that is encouraging and I recommend a close reading of it, but one aspect stands out and could have a major effect on salmon and steelhead recovery. The ESA requires each federal agency to ensure that its actions are not likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of critical habitat.
In the 1995 and 2000 BiOps, NOAA Fisheries includes a jeopardy analysis that evaluates whether an action reduces the likelihood of species' recovery, not just its survival, but the 2004 BiOp excludes it. The ESA requires NOAA Fisheries to evaluate whether an action will reduce both survival and recovery of a listed species. Judge Redden said, "NOAA's jeopardy analysis is contrary to law, because it does not address the prospects for recovery of the listed species."
Why is this important?
NOAA Fisheries and its partners have tried to slip by federal law by basing their assessment of jeopardy only on whether a species' chances of survival were appreciably reduced by the action of a federal agency. In framing their evaluation in this way, they are actively trying to circumvent the ESA which requires them to also evaluate whether the action may impede recovery. An action may impede recovery but not jeopardize survival. For example, this year NOAA Fisheries agreed with the states of Oregon and Washington that increasing the kill of ESA-listed winter steelhead from 2% to 6% in the lower Columbia River commercial fishery would not jeopardize the survival of the listed steelhead. But would it impede the recovery of the listed steelhead? It is reasonable to conclude that since none of the wild steelhead populations are deemed viable by NOAA Fisheries and these populations had experienced more than a decade of poor survival, that any preventable action that would reduce the number of spawners should be avoided because the action would impede recovery. NOAA Fisheries and the states argued that recent increases in steelhead populations due to improved ocean conditions was reason enough to allow more kill of listed steelhead. They elected to use the survival standard and ignore the recovery standard in the ESA to justify their harvest wishes. By choosing the standard that favors their aspirations, the agencies tried to convince their commissions and the public that more steelhead should be killed. They not only cherry picked the ESA standards to justify their fishery they tried to hide data that showed the runs were not viable.
Judge Redden's decision applies the recovery standard to the jeopardy analysis in a biological opinion as well as to critical habitat determinations. He says, "Recovery must be considered separately." So from now on, all federal actions must be evaluated for their affect on recovery and survival of the listed species. It will be more difficult for NOAA Fisheries to agree with the states the next time there is a proposal to increase the risk to a listed species in harvest decisions because if it impedes recovery of the species it cannot be allowed. But wait, I predict that they will try and they may be successful since by the time they are taken to court, the fishery will be over and the damage will have been done.
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