The judge said their prior efforts to bring dam operations into compliance with Endangered Species Act protections for salmon stocks were a failure and that the court reluctantly might have to step in to "run the river" if further federal inaction forced it to do so. Today's court order follows a finding from the same court in May that the latest in a string of federal dam operation plans, called a biological opinion, failed to address Endangered Species Act requirements for salmon and could result in the loss of wild salmon in the Columbia and Snake Rivers of Oregon, Washington and Idaho.
The court order said:
"The many failures in the past have taught us that the preparation or revision of NOAA's biological opinion on remand must not be a secret process with a disastrous surprise ending. The parties must confer and collaborate if we are to reach the goal of a valid biological opinion. The government's inaction appears to some parties to be a strategy intended to avoid making hard choices and offending those who favor the status quo. Without real action from the Action Agencies, the result will be the loss of the wild salmon."
"The May 26, 2005, Opinion and Order demonstrated that the runs for all 12 listed species, and the one species proposed for listing, continue to dwindle. Four of the species are in danger of extinction, and the remaining nine threatened species are likely to become endangered in the near future."
The judge noted that failure of the federal agencies was partly due to interference by the White House and Congress. "If the Executive and Legislative Branches do not allow NOAA to follow the law of the land, NOAA and the Action Agencies will fail again to take the steps that are plainly necessary to do what the ESA requires and what the listed species require in order to survive and recover. We are all aware of the demands of other users of the resources of the Columbia River and Snake River but we need to be far more aware of the needs of the endangered and threatened species."
The judge warned the government what to expect if they refuse to bring dam operations into compliance with the law.
"A failure now will result in vacating the biological opinion. The Action Agencies and others will be exposed to liability for taking listed species under Section 9 of the ESA. This may sound benign to some, but the parties are aware of the severe consequences that would follow."
"In such an event, the courts would be required [to] "run the river." The Executive, Legislative, and especially the Judicial Branches abhor such action by the courts. Such a dysfunction of government is not a rational option. There must be cooperation between the parties and all of the three branches of government to avoid such an embarrassment."
The judge noted the unhelpful attitude the federal government had taken in working with other stakeholders to solve the problem.
"NOAA and the Action Agencies seem offended at the thought of doing more than merely listening to others, but more than that is needed to produce a biological opinion lodged without challenge.
The judge also resurrected a call for the government to consider breaching four lower Snake River dams that are the main salmon killers.
"This remand, like the remand of the 2000 BiOP requires NOAA and the Action Agencies to be aware of the possibility of breaching the four dams on the lower Snake River, if all else fails. "Speeching" on the dams will not avoid breaching the dams. Cooperation and assistance may.
"There are a lot of fishing families throughout the Pacific Northwest who feel like the federal government has been too willing to just write us off," said Bob Rees of the NW Guides and Anglers Association. "Hopefully the federal government will take the judge's words to heart and run these rivers so they again produce abundant salmon runs."