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Federal Agencies Seek Stay
on Upper Snake Project Lawsuit

by Barry Espenson
Columbia Basin Bulletin - June 18, 2004

Defendants in a lawsuit challenging the Endangered Species Act clearance given federal dam operations on Idaho's upper Snake River this week asked the federal court to withhold judgment in the case until after they have produced a new biological assessment and opinion on operational effects.

"The agencies expect their consultation to be completed, and a new, superseding biological opinion to be in place, by April 2005," according to the U.S. Justice Department's request for a stay of the litigation until after that date.

The existence of new biological opinion -- replacing a 2001 BiOp on Bureau of Reclamation operation and maintenance of projects in the Snake River basin above Brownlee Dam and a 2002 supplemental BiOp issued by NOAA Fisheries -- will make the plaintiff's claim's "prudentially moot," according to document filed Monday by federal attorneys.

The lawsuit was filed in U.S. District Court of Oregon in Portland on behalf of Idaho Rivers United, American Rivers, National Wildlife Federation, and the Pacific Coast Federation of Fishermen's Associations and Institute for Fisheries Resources (PCFFA/IFR) by Earthjustice attorneys.

The lawsuit was originally brought against NOAA Fisheries in January. The Bureau of Reclamation was added as a defendant in March.

The state of Idaho and its governor, Dirk Kempthorne, and a number of water user groups in early March sought, and were granted, status as intervenors in the case of the side of NOAA Fisheries. Those groups include the Idaho Water Users Coalition, Inc., Gem Irrigation District, et al. and the Pioneer, Settlers, Nampa and Meridian Irrigation districts.

The complaint asks the court to order the fisheries agency to correct what the groups say are numerous errors in the analysis of the effects of these projects have on threatened and endangered salmon and steelhead and develop a comprehensive plan to restore the fish populations. The groups also want to have the new analysis of Upper Snake operations integrated into an on-going rewrite the Federal Columbia River Power System biological opinion.

The FCRPS rewrite, ordered by U.S. District Court Judge James A. Redden in May 2003 is due to be completed by the end of November.

The groups original complaint accuses NOAA Fisheries of violating the ESA and Administrative Procedures Act by not having " any rational basis concluding in the 2001 Upper Snake BiOp and the 2002 Supplement that the operation of the Upper Snake projects are not likely to jeopardize any listed species or destroy or adversely modify their critical habitat…." The BiOps are produced by NOAA following consultation with the Bureau.

The January complaint says the BiOp is arbitrary and capricious because:

-- NOAA "improperly segmented a single federal action (namely operation of the entire system of inter-related federal dams and projects on the Columbia and Snake rivers) with effects on listed species that must be considered and addressed in one single consultation and biological opinion."

-- NOAA's no-jeopardy conclusion relies on "measures for survival and recovery specific to other life stages for this ESU as per the 2000 FCRPS Biological Opinion." Since the federal judge declared the FCRPS illegal because it relied on certain of those measures that were not "reasonably certain to occur," the Upper Snake BiOp conclusion is illegal.

-- NOAA failed to conduct an adequate jeopardy analysis and "ignores the best available science."

-- NOAA relied on "an assumed outcome in the SRBA settlement proceedings, a prospective and uncertain action which has not come to pass."

-- NOAA decision to extend the 2001 BiOp for an additional three years in the 2002 Supplement "with no additional analysis whatsoever, ignored changed circumstances since issuance of the 2001 Upper Snake BiOp, including but not limited to the continuing absence of any SRBA settlement agreement, and failed to articulate a rational basis for concluding that the bureau's actions would not jeopardize listed species in the period 2002 through March 2005…."

The long-running Snake River Basin Adjudication appears to be on the brink of resolution with settlement pending.

The federal defendants' request for a stay says that arguing the upper Snake case now would have the potential to disrupt both the remand and the adjudication settlement during the stretch runs of what have been intense and contentious proceedings.

The intervenors in the case were scheduled to file briefs in support of the stay request by week's end. The plaintiff's response is due by July 2. After that, the judge could decide the issue, or call the parties together for oral arguments.

Justice Department attorney Fred Disheroon said a central disagreement remains whether the impacts of the upper Snake project operations on ESA listed salmon and steelhead should be lumped together with those of the lower Snake and Columbia's Federal Columbia River Power System. The federal government maintains that the two operations are distinct -- the upper Snake system for irrigation and the FCRPS for power generation, principally.

"The only correlation between them is how much water they (the Bureau) can get out of Idaho" for flow augmentation called for in the FCRPS BiOp, Disheroon said. The plaintiffs say the operations' impact on listed fish must be judged together.

"We want to get a ruling on that in time for NMFS to incorporate it into the FCRPS" remand process, said Steve Mashuda, Earthjustice attorney. To delay consideration of the upper Snake issues would deny the plaintiffs the opportunity to argue for the relief they seek, he said.

The fishing and environmental groups on May 19 filed a motion for summary judgment asking the court to review both the 2001 upper Snake BiOp and the supplemental BiOp and declare them arbitrary and contrary to the law.

"NOAA Fisheries improperly relies on future federal actions, uncertain state and private actions, and action agency measures that are beyond their authority, unfunded, and vague to reach a no-jeopardy conclusion for the operation of the BOR's Upper Snake projects,” according to the plaintiffs' motion. "NOAA Fisheries compounds these errors by segmenting the coordinated operation of the entire Columbia and Snake River hydrosystem into two separate actions for evaluation under the ESA.

"In addition, contrary to basic requirements of administrative law and the ESA, NOAA Fisheries also fails to explain how it considered, weighed, and combined the available evidence and analyses, both favorable and unfavorable, relying instead on the analysis from another biological opinion to conclude that operation of the Upper Snake projects through 2005 will avoid jeopardy," the May 19 motion says.

The motion was filed with the hope of quickening the pace of the litigation.

"Instead of waiting for the government to produce an administrative record, we decided to move and get the case moving," Mashuda said. The parties to the case have agreed to let the motion for a stay issue play out. If the stay is allowed, briefing on the summary judgment motion would not be immediately necessary. If it is denied, briefing on the summary would take place shortly thereafter.

Barry Espenson
Federal Agencies Seek Stay on Upper Snake Project Lawsuit
Columbia Basin Bulletin, June 18, 2004

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