At least in the short term, these decisions could change the balance of
power on the rivers. The rulings could give fish and fishing interests
new leverage in the perennial competition among the hydropower
industry, farming and ranching interests, Indian tribes and commercial
fishermen, all of which want a share of drought-depleted water
resources in Idaho, Washington and Oregon.
Bonneville Power Administration officials warned that if the
environmental and fishing groups prevailed in reallocating river water
operating costs would skyrocket.
==================================================================
May 27, 2005
Government Shirked Its Duty to Wild Fish, a Judge Rules
By FELICITY BARRINGER
Correction Appended
WASHINGTON, May 26 - A federal judge in Oregon ruled Thursday that the
Bush administration had arbitrarily limited and skewed its analysis of
the harm that 14 federal dams cause to endangered Columbia and Snake
River salmon and steelhead.
As a result, Judge James A. Redden of Federal District Court ruled, the
administration had shirked its duty to ensure that government actions
were not likely to jeopardize the survival of the species.
The ruling came in a challenge by environmentalists, fishing groups and
Indian tribes to the administration's determination that the harm the
hydropower dams were posing to the young salmon and steelhead could be
remedied over the next 10 years by $6 billion in improvements to the
dams, including spillways designed to get the fish through safely.
The ruling sends the issue back to the National Marine Fisheries
Service for the third time. It also paves the way for the judge to rule
on other pending requests by the same groups that the fish have a
greater claim than they have had on limited water resources, especially
when the Army Corps of Engineers manages the rate of flow this summer
during the annual out-migration of year-old fish.
At least in the short term, these decisions could change the balance of
power on the rivers. The rulings could give fish and fishing interests
new leverage in the perennial competition among the hydropower
industry, farming and ranching interests, Indian tribes and commercial
fishermen, all of which want a share of drought-depleted water
resources in Idaho, Washington and Oregon.
In his ruling, Judge Redden pointed out four fundamental flaws in the
November 2004 "biological opinion" presented by the National Marine
Fisheries Service, a branch of the National Oceanographic and
Atmospheric Administration, which estimated the threats to the fish and
made conservation recommendations. Chief among the flaws cited was the
distinction that the agency drew, for the first time, between harm to
the fish resulting from the dams' existence and the harm resulting from
the operation of the dams.
The oceanographic agency argued in the November document that the dams
were an immutable part of the landscape and that the agency's
obligations to the fish under the Endangered Species Act extended only
to accounting for and ameliorating those actions that it could control.
The judge ruled that the administration was trying to carve out a
loophole that would restrict its obligations under the Endangered
Species Act. "Under N.O.A.A.'s interpretation," he wrote, the agency
"would be able to exempt itself from accountability by characterizing
some, even lethal, elements of any proposed action as
'nondiscretionary.' "
Judge Redden added that the consequences would be an analysis "that
ignores the reality of past, present and future effects of federal
actions on listed species."
The November 2004 biological opinion was just such an analysis, the
judge wrote, adding, that "N.O.A.A.'s interpretation conflicts with the
structure, purpose and policy behind" the Endangered Species Act. He
also said the analysis "has the effect of substantially lowering the
threshold required for the mitigation."
The ruling comes at a moment when unexpectedly low returns of spring
Chinook salmon to their spawning grounds to produce the next generation
have caused great concern among fishing interests.
Environmental and fishing groups say that this generation, the
offspring of a bumper crop of salmon, was decimated by low river flows
that made the seaward passage unusually difficult. Officials of
N.O.A.A.'s regional office and the Bonneville Power Administration
argue that changes in ocean temperatures or disruptions of the
saltwater food chain that supports these fish are responsible for the
low returns.
The ruling also comes as a group of largely western Republican
governors and members of Congress, along with ranching, mining and
timber interests are re-examining provisions of the Endangered Species
Act, with an eye to making its requirements for protecting species from
extinction more flexible.
The judge's decision was a step in a long-running struggle between
environmentalists and the federal government over the harm done to
salmon by the dams.
It was the third time that federal courts in Portland have rejected the
fisheries services analysis of how federal actions might affect the
fish and what could be done. The first two were in the Clinton
administration. The second, completed shortly before George W. Bush was
inaugurated, included the possibility of dam removal, as a last resort,
to protect the fish.
The Bush administration's biological opinion last fall treated the dams
as an immutable part of the landscape. The environmental and tribal
groups that had objected to that opinion embraced the ruling.
John Kober, wildlife program manager for the National Wildlife
Federation, said in a telephone interview: "We applaud this decision.
What the Bush administration was trying to do was essentially rewrite
the Endangered Species Act by ignoring the most egregious impact to
species, such as salmon in this case, on a technicality, discretion."
Charles Hudson, a spokesman for the Columbia River Inter-Tribal Fish
Commission, which represents the four tribes with treaty rights to fish
in the rivers, said in an interview, ", "He takes on, head-on, the Bush
administration's attempt to rewrite recovery, federal recovery policy
on the Columbia River."
The agencies on the losing end of the ruling - including the fisheries
service, the Bureau of Reclamation and the Army Corps of Engineers
-expressed disappointment in a news release and said agency officials
would consult lawyers about their options.
The Northwest regional director of the fisheries services, Bob Lohn,
said in the statement: "Our efforts to protect salmon are yielding
measurable improvements, and we are hard at work on recovery plans.
Together, Northwest stakeholders have helped to restore over 3,000
miles of salmon habitat and are producing locally driven recovery plans
for the entire Northwest."
Bonneville Power Administration officials warned that if the
environmental and fishing groups prevailed in reallocating river water
operating costs would skyrocket.
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