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Fishletter 3/7/05

With the region on the verge of BiOp fatigue, a new legal twist may make this spring's legal proceedings a whole lot more interesting. Irrigator groups in Eastern Washington and Oregon are taking on the federal plan for operating the hydro system. They say the government is totally haywire trying to make up for the small changes in fish survival expected from proposed changes in dam operations while putting its stamp of approval on in-river fisheries that kill ten times as many fish.

While environmental groups and the federal government were trading memos in preparation for an April showdown over the new BiOp in front of Oregon District Court Judge James Redden, the irrigator groups filed a brief on Feb. 11 supporting a motion to have the 2004 BiOp tossed out. On March 1, Redden ordered that the new challenge be consolidated with the environmentalists' lawsuit.

The irrigator groups agree with the new BiOp's framework analysis that separates the dams' existence from their operation, still a major sticking point for enviros and fishing groups, who call the new analysis "a keystone legal flaw," with the feds' new baseline coming from a "hypertechnical and unprecedented parsing" of the ESA's definition of jeopardy.

But, in fact, James Buchal, attorney for the irrigator groups, argued for such an analysis 10 years ago when he represented Direct Service Industries, made up of the aluminum companies that used much of BPA's power in those days. The DSI group intervened in a lawsuit over the 1993 BiOp (IDFG v. NMFS) heard before Oregon District Court Judge Malcolm Marsh. Buchal argued that NMFS could only consult over dam operations that lay within the discretionary authority of the agencies responsible for running them.

Federal Flip-Flop

The federal government did not make such a distinction between existence and operations then, but it does in the latest BiOp, where feds even support Buchal's old point about the limits of discretionary authority. The new BiOp's analysis puts the existence of the dams and associated mortality in the analysis baseline. The analysis models the differences in fish mortality between a "reference" hydro operation theoretically maxed-out for fish benefits, and the operations proposed in the new BiOp, which are pretty much identical to how the mainstem projects have been run since 2000.

However, irrigators say hydro operations outlined in the new BiOp are still wrong because dam operators must offset all other sources of dam mortality to achieve the jeopardy standard. And they promise a future motion that will take issue with the feds' use of survival data that "arbitrarily overstates the effects" of the hydro system.

Buchal argues that the government's jeopardy standard is flawed because it adds the "expected future adverse effects" of unrelated actions like salmon harvest while assessing jeopardy. Buchal says this is unlawful because it's inconsistent with the law that says agency action is permitted unless its effects jeopardize the continued existence of the species.

The feds have erred, he says, because they added future "federally-regulated" harvests into the environmental baseline, hence, into the effects, even though future harvests had not been subject to consultation. Congress' intention was that each agency action should "stand on its own merits," and that agencies were not supposed to use one action (such as hydro operations) to "arbitrarily offset" the effects of others.

"We can be reasonably confident that is what is happening here," says Buchal's memo, based on the actions of NOAA Fisheries, which issued a "no-jeopardy" opinion for the harvest of several types of listed fish at take rates "an order of magnitude" (ten times) higher than from dam operations. In contrast, a short time earlier it had issued a preliminary draft biological opinion threatening to find that the Action Agencies' proposal jeopardized the continued existence of the same listed fish types.

Buchal's memo argues that the feds have erred by trying to embrace recovery planning in the context of a single agency action, when Section 4 of the ESA provides for a formal process for planning species recovery.

He says the adverse impacts to fish from dam operations are generally much smaller than harvest. Remembering that the feds are now estimating survival differences to fish between a "reference" dam operation that's maxed out for fish compared to those proposed in the BiOp, the 2 to 3 percent reduction in survival to Snake River fall chinook is paltry compared to the 31 percent harvest rate currently allowed in the river by a combination of non-Indian and tribal harvesters.

Buchal says future inriver harvest rates for spring chinook of 5 to 15 percent far outweighs impacts from the proposed operation, since adverse effects to the juvenile springers are estimated to be even less than to fall chinook.

The feds "must prepare a biological opinion on dam operations that does not put an enormous thumb on the jeopardy scales by requiring the Action Agencies to offset 31.29 percent harvest forever," Buchal writes in the memo.

With lower Columbia tribes accounting for two-thirds of that in-river harvest of fall chinook, it's possible that the irrigators' challenge may bring tribal fishing rights in direct conflict with ESA issues. This is a situation the Clinton administration studiously avoided, but privately acknowledged would be won by the ESA if it faced off against tribal treaty rights in court.

Buchal has already brought that up in a supplemental affidavit calling for his lawsuit to be assigned to another judge. He claims that Judge Redden's scientific advisor, retired Oregon State University fisheries professor Dr. Howard Horton, has given the judge access to pre-decisional processes that are not part of the administrative record.

By attending collaborative efforts between states, tribes and federal agencies before the latest round of filings, and by also advising another judge in the ongoing US v. Oregon process that is developing future harvest regimes for tribal fishermen, Buchal argues that Horton has given Redden "untold hours to educate the decisionmaker" while his clients will have only "extremely limited oral and written presentations."

If discussions about tribal fishing rights become enmeshed in the BiOp litigation, Judge Redden may have to step down. Last July, he told parties to the BiOp litigation he would have to share the bench with Judge Garr King, who oversees the secretive US v. Oregon process, if tribes sued to protect tribal fishing rights during last year's fight over reducing summer spill that took place in Redden's court.

Redden said he was statutorily prohibited from participating in US v. Oregon because he once represented the state of Oregon. Redden served as the state's attorney general from 1977 to 1980. In that ongoing process, the federal government is a plaintiff along with the four lower Columbia tribes and the Shoshone-Bannock.

Oregon District Court Judge Ancer Haggerty denied the irrigators' motion on March 2 to disqualify Redden. Haggerty said Redden's comments and discussion among parties at steering committee meetings "did not, as the Irrigators contend, amount to his prejudgment of the legal validity of the 2004 BiOp."

Haggerty also denied the contention that Dr. Horton's ex parte conversations with Redden will keep the irrigators from getting a fair hearing in his court.

On Mar. 3, Judge Redden ordered NOAA Fisheries to add 500 indexed federal documents, and possibly 300 more, to the Administrative Record, because NOAA Fisheries' regional administrator Bob Lohn stated in his declaration that some had been deliberately left out. Lohn told the Court they had been excluded because they contained information or opinions that were in documents already included in the record or did not form the basis for determinations in the BiOp. The judge also ordered 15 categories of documents withheld by the feds based on attorney-client privilege to be reviewed in camera by Judge King to determine if they should be protected from disclosure. -B. R.

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