On 4 May, U.S. Federal District Court Judge Michael Simon ruled for the Plaintiffs on every major issue, in a long-standing landmark lawsuit (National Wildlife Federation, et al. vs. National Marine Fisheries Service, et al., U.S. Dist. Ct. of Oregon, No. 3:01-cv-00640-SI) challenging the most recent version of the federal Columbia-Snake River Salmon Recovery Plan and Biological Opinion (the “Columbia Salmon BiOp”). Such formal Biological Opinions are required under the federal Endangered Species Act (ESA) pursuant to Sec. 7 consultation requirements, in order for the U.S. Army Corps of Engineers and Federal Bureau of Reclamation to continue to run the Federal Columbia River Power System (FCRPS), which consists of four major hydropower dams straddling the Columbia River, and four additional hydropower dams on the lower part of the Snake River, the major tributary of the Columbia.
All these dams (and their warmed-up, predator-filled slack-water reservoirs) present multiple migration hazards for both incoming adult and outgoing juvenile salmon and steelhead living in the Columbia River Basin. Before the construction of multiple hydropower dams from the 1930’s through 1960’s, the Columbia River was once the home of the largest salmon runs in the world, with more than half of that production generated within its Snake River tributary.
This ruling makes this the fifth consecutive supposedly comprehensive Columbia Salmon BiOp to have been declared “arbitrary and capricious” as well as contrary to the best available science, since litigation first began over how ESA-listed salmon and steelhead are treated in the Columbia Basin FCRPS system back in 1992.
Judge Simon noted in language highly critical of the federal agencies that after a series of failed Columbia Salmon BiOps ever since 1992, and multiple warnings by prior Federal Court Judges in the case that much more had to be done, populations of ESA-listed salmon and steelhead in the Columbia-Snake River Basin have not substantially improved, but rather continue to deteriorate on a long-term trend. Since 1991, when Snake River sockeye salmon were first ESA-listed as “endangered,” and 1992 when the Snake River fall Chinook were first listed as “threatened” under the ESA, today there are 13 separate populations of Columbia or Snake River salmon and steelhead that are classified as either endangered or threatened under the ESA.
The original native runs of Columbia and Snake River salmonids (a term which includes both salmon and steelhead) have been estimated to be between 10 and 16 million adult fish, but since the construction of multiple dams across these rivers, the remaining populations of wild salmonids in the rivers have been reduced to less than 10 percent of their historic numbers – in some runs, to less than 1 percent. Many populations of salmonids once present in abundance in that basin had already gone extinct by the time the first ESA listings occurred.
This most recently failed Columbia Salmon BiOp was issued in 2014, but it was largely a hold-over rewrite from a previous Bush Administration BiOp (the “fourth BiOp”) that was also ruled to be illegal back in 2008 and its Supplemental BiOp also tossed out as illegal in 2010. Among other legal flaws, the Court invalidated the 2014 BiOp because: (1) the standard for determining non-jeopardy NMFS used was a completely novel “trending toward recovery” standard, under which if even one additional fish were saved by a mitigation measure, that measure was deemed “a success” and jeopardy would be said to be avoided. The legal requirement under the ESA of “recovery” is far more robust, and must also include a precautionary margin erring on the side of recovery of the species when impacts are in doubt; (2) NMFS relied on stringing together the incremental benefits of multiple hypothetical and highly speculative “habitat improvement projects” whose benefits were in fact uncertain, and in many cases were never funded nor carried through, all while populations continued to decline; (3) the accelerating and increasingly obvious impacts of climate change were more or less ignored or deliberately discounted in the analysis, and; (4) the environmental impact analysis required under the National Environmental Policy Act (NEPA) was illegally inadequate, incomplete and based on data too obsolete or outdated to be useful in a rapidly changing environment. And of course, the agencies characteristically refused to even consider the potential impacts of dam removals in their analysis, not on the basis of any scientific analysis but apparently on the theory that such actions were simply politically unlikely.
On this last issue of considering dam removals, Judge Simon particularly noted that under a legally adequate NEPA analysis: “For example, the option of breaching, bypassing, or even removing a dam may be considered more financially prudent and environmentally effective than spending hundreds of millions of dollars more on uncertain habitat restoration and other alternative actions….. More than 20 years ago, Judge Marsh admonished that the Federal Columbia River Power System ‘cries out for a major overhaul.’ Judge Redden, both formally in opinions and informally in letters to the parties, urged the relevant consulting and action agencies to consider breaching one or more of the four dams on the Lower Snake River.
For more than 20 years, however, the federal agencies have ignored these admonishments and have continued to focus essentially on the same approach to saving the listed species — hydro-mitigation efforts that minimize the effect on hydropower generation operations with a predominant focus on habitat restoration. These efforts have already cost billions of dollars, yet they are failing. Many populations of the listed species continue to be in a perilous state. The 2014 BiOp continues down the same well-worn and legally insufficient path taken during the last 20 years.” (Opinion, pp. 18-19)
Judge Simon later continued: “Although the Court is not predetermining any specific aspect of what a compliant NEPA analysis would look like in this case, it may well require consideration of the reasonable alternative of breaching, bypassing, or removing one or more of the four Lower Snake River Dams. This is an action that NOAA Fisheries and the Action Agencies have done their utmost to avoid considering for decades. Judge Redden repeatedly and strenuously encouraged the government to at least study the costs, benefits, and feasibility of such action, to no avail. Because action alternatives in a NEPA analysis need not be under the jurisdiction or control of the lead agency, a comprehensive NEPA analysis would likely need to include such a reasonable alternative….. It is doubtful the Action Agencies could demonstrate that breaching, bypassing, or removing one or more of the Snake River dams is not ‘reasonable’ under NEPA.” (Opinion, pp. 136-137).
Judge Simon ordered the agencies back to the drawing board to develop a new Biological Opinion and full NEPA analysis that complies with the law no later than March 1, 2018.
The Plaintiffs in the case are National Wildlife Federation, Idaho Wildlife Federation, Washington Wildlife Federation, Sierra Club, Pacific Coast Federation of Fishermen’s Associations (PCFFA), Institute for Fisheries Resources, Idaho Rivers United, Northwest Sport Fishing Industry Association, Salmon for All, Columbia Riverkeeper, NW Energy Coalition, Federation of Fly Fishers, and American Rivers. The State of Oregon is an Intervenor-Plaintiff. The Nez Perce Tribe is an Amicus Curiae.