The Ninth U.S. Circuit Court of Appeals has upheld the decision of a federal judge to strike down the 2004 biological opinion for operating the federal Columbia River Basin hydropower system.
The appeals court issued its decision April 9 in an appeal of U.S. District Judge James Redden’s 2005 ruling that NOAA Fisheries’ plan for operating the system was legally flawed in finding “no jeopardy” to salmon and steelhead listed for protection under the Endangered Species Act. Redden’s ruling stemmed from a challenge by environmentalists, fish�ing groups, and Indian tribes of the administration’s $6 billion, ten-year plan to improve dams for fish passage. (HNN 7/20/06)
The appeals court said the district court correctly held the 2004 �biop’s� analysis was structurally flawed. It said the lower court properly concluded the biop impermissibly failed to incorporate degraded baseline conditions into a jeopardy analysis. Additionally, it said, the district court correctly held the 2004 biop was legally deficient because its jeopardy analysis did not adequately consider the proposed action’s effects on listed species’ chances of recovery.
�At its core, the 2004 biop amounted to little more than an analytical sleight of hand, manipulating the variables to achieve a �no jeopardy’ finding,� the appeals court said in an opinion written by Judge Sidney Thomas. �Statistically speaking, using the 2004 biop’s analytical framework, the dead fish were really alive. The ESA requires a more realistic, common sense examination. For these reasons, the district court’s rejection of the 2004 biop’s jeopardy analysis was entirely correct.�
Federal agencies analyze appeals court decision
Federal agencies issued a statement saying they would analyze the appeals court ruling to determine its full effect. NOAA Fisheries, the Bureau of Reclamation, Corps of Engineers, and Bonneville Power Administration said they remain committed to producing a comprehensive biological opinion for federal Columbia River power system operations that will protect listed salmon.
�We look forward to continuing the collaboration process with the states and tribes,� the agencies said. �We remain hopeful that collaboration will increase the likelihood that the final biological opinion will not only protect salmon but will have broad regional support as well.�
Environmentalists renew call for Snake River dam removals
Environmentalist groups issued a statement hailing the ruling and reviving their call for removal of four Corps of Engineers hydroelectric projects on the lower Snake River.
�This decision should compel the federal agencies to finally produce an analysis that looks at all recovery options, including removing the four lower Snake River dams, and develop a solution that works for people and fish,� lawyer Steve Mashuda of Earthjustice said.
In September 2005, Redden ruled NOAA Fisheries must produce a new biop for operating the power system for recovery of salmon and steelhead. He left in place the 2004 biop he previously rejected, to provide continuity while the plan is rewritten.
In March, the district court adopted a proposed schedule for the next steps in litigation surrounding the 2004 biop. The new schedule calls for the federal agencies to submit an updated proposed action or reasonable and prudent alternative by May 21. Parties may submit comments to the district court by June 11. A status conference is planned June 20 to discuss proposed action.