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Appeals Court Sides with Salmon

Victory: Biological Opinion violates ESA and fails to consider impact of Snake River dams
April 9, 2007
San Francisco, CA —

Salmon advocates today hailed a ruling from the U.S. Court of Appeals for the Ninth Circuit that rejected the Bush administration's salmon plan for the Columbia-Snake River Basin. The Ninth Circuit upheld a lower court decision that ruled illegal a federal plan for dam operations on the Columbia and lower Snake rivers for its failure to comply with the Endangered Species Act.

Writing that "ESA compliance is not optional," Judge Sidney R. Thomas noted that "agencies may not disregard their ESA duties. . . .Rather, they have an affirmative duty to satisfy the ESA's requirements, as a first priority."


Attorney Steve Mashuda of Earthjustice, representing a coalition of fishing business and conservation groups, applauded the court's ruling. "This decision should compel the federal agencies to look at all recovery options -- including removing the four lower Snake River dams, and develop a solution that works for people and fish."


In its opinion today, the appeals court called the invalidated 2004 plan "little more than an analytical slight of hand, manipulating the variables to achieve a 'no jeopardy' finding." Under this approach, the court added, "a listed species could be gradually destroyed, so long as each step on the path to destruction is sufficiently modest. This type of slow slide into oblivion is one of the very ills the ESA seeks to prevent."


"Two decades of federal failure and dishonesty must stop here. With today's decision, it should be clear that the law, the science, and the economics are in agreement," said Dan Ritzman, Northwest Regional Director for the Sierra Club. "It is time for this administration to follow the law and follow the science to develop a legal plan to restore Columbia and Snake River salmon. Our region needs a scientifically sound, economically viable solution, and that solution includes removing the four dams on the lower Snake River."


In May 2005, federal district court Judge James A. Redden threw out the 2004 Federal Columbia River Power System plan governing federal dam operations on the Columbia and lower Snake rivers, citing its failure to adequately address restoration of ESA-listed wild Snake River salmon and steelhead. He termed the Biological Opinion, which treated dams as an immutable part of the natural environment that could not be changed or altered, "arbitrary, capricious and contrary to law." As a result, the plan was remanded by the judge and is currently being redrafted.


In an effort to further evade compliance with the Endangered Species Act to restore and restore wild salmon and steelhead in the Columbia Basin, the federal agencies responsible for the illegal plan, including NOAA/National Marine Fisheries Service, United States Army Corps. Of Engineers, and United States Bureau of Reclamation, filed an appeal in Federal Court late last year.


"Today's ruling is a victory not just for salmon, but for the economy and the people of the Pacific Northwest, and our way of life, which includes stable jobs, good fishing, reliable energy, and abundant salmon," said James Schroeder, Senior Environmental Policy Specialist, National Wildlife Federation, the lead plaintiff in the case. "This decision from the court clears the way for development of real, honest solutions that will benefit the entire region, solutions that put neither fishing nor farming communities at risk. But to get there, we must have real leadership and resolve in the region to finally examine what it will take to meet our responsibility to restore salmon in the Columbia basin."


Confirming that the Endangered Species Act mandates a comprehensive analysis, not the limited analysis the Administration had conducted, the 9th Circuit, like the district Court earlier, ruled that NMFS may not "conduct the bulk of its jeopardy analysis in a vacuum."


"We have been forced to turn to the courts because the federal government has repeatedly failed to deliver an effective salmon plan, and our elected leaders have failed to step in to fill the void," said Zeke Grader, Executive Director of the Pacific Coast Federation of Fishermen's Associations, an organization of commercial fishing groups throughout California, Oregon, Washington, and Alaska, "With salmon returns continuing to decline and fishing seasons being curtailed again, it is clearer than ever that we must change the way we manage water in this basin. These court rulings set the table for our region to finally examine what is required to meet our responsibility to restore salmon in the Columbia Basin, and in the process, protect and restore the resources, economies, and way of life of the Pacific Salmon states."


Returns of wild Snake River spring/summer chinook once exceeded 1.5 million annually, accounting for more than half of the entire Columbia Basin's spring/summer chinook run. Prior to the completion of the lower Snake River dams in the 1960s and 70s, spring/summer chinook returns often topped 60,000 per year. Last year, only about 17,000 total fish returned past Lower Granite Dam on the lower Snake River, a number that represents little real improvement from 1992, when Snake River spring/summer chinook were first protected by the Endangered Species Act.


Plaintiffs in the case include National Wildlife Foundation, Idaho Wildlife Federation, Washington Wildlife Foundation, Sierra Club, Trout Unlimited, Pacific Coast Federation of Fishermen's Associations, Institute for Fisheries Resources, Idaho Rivers United, Idaho Steelhead and Salmon United, Northwest Sportfishing Industry Association, Friends of the Earth, Salmon for All, Columbia Riverkeepers, Northwest Energy Coalition, Federation of Fly Fishers, and American Rivers.

Contacts

Therese Wells, Save Our Wild Salmon, (206) 612.8373
Steve Mashuda, Earthjustice, (206) 343-7340, ext. 27

About Earthjustice

Earthjustice is the premier nonprofit environmental law organization. We wield the power of law and the strength of partnership to protect people’s health, to preserve magnificent places and wildlife, to advance clean energy, and to combat climate change. We are here because the earth needs a good lawyer.