In his ruling, Judge Redden declared that the federal government's 2005 NOAA Fisheries Biological Opinion of the Bureau's Upper Snake projects violates the Endangered Species Act and relies heavily on the illegal 2004 Federal Columbia River Power System Plan (FCRPS), which governs federal dam operations on the Columbia and lower Snake rivers.
Last May, the same court ruled the 2004 FCRPS plan to be illegal, citing its failure to adequately address recovery of ESA-listed Snake River fish, while treating dams as an immutable part of the natural environment. It is currently being redrafted.
Noting that there must be "a comprehensive evaluation of the effects of water use in the upper Snake River and the down-river dam operations," and that a "combined consultation will be more likely to achieve the comprehensive analysis required by the ESA," Judge Redden ordered the remand of the 2005 Upper Snake BiOp to be joined with the remand of the 2004 BiOp.
As the court observed, "Rebuilding salmon to healthy, harvestable levels will come in large part from addressing the impacts of the down-river dam operations that do the most harm to salmon. Even so, the water of the upper Snake projects and its uses must be an integral part of the analysis."
In his ruling, the Judge left it to the discretion of the action agencies whether to produce this is as one biological opinion or two. He did, however, mandate that any comprehensive analysis must examine the cumulative effects of any federal actions on salmon in the upper and lower Snake and Columbia Rivers.
"Today's decision is a clear victory not just for salmon, but also for the people of Oregon, Washington, and Idaho. It sends a strong message to the federal government that it can no longer manipulate the Columbia and Snake Rivers in ways that drive the region's salmon to extinction," said Todd True of Earthjustice, attorney for the coalition of groups. "Neither the illegal downriver salmon plan, nor the current upriver water management plan, which shares many of the same flaws, will protect and restore salmon and steelhead. The decision today compels the federal agencies to do a complete, credible scientific analysis and evaluation of all restoration options, from dam removal to more water from Idaho to increased spill and improved river conditions. That's what the law requires and what the public deserves in order to understand the tradeoffs needed to protect and restore wild salmon."
The court again chastised NOAA Fisheries, BPA, and the other federal agencies for their failure to protect ESA-listed salmon and steelhead. "In the past, NOAA, BOR, the Corps, and BPA have failed to demonstrate a willingness to . . . commit the resources necessary to implement [salmon protection] measures. . . . Instead, their goal was to avoid a jeopardy conclusion, and the difficult policy choices and resource commitments that accompany such a conclusion." It concluded that "the agency's decision was not made to benefit endangered salmon, but rather to preserve and secure – for the next thirty years – the rights of various water users for irrigation water . . . . "
"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 Glen Spain, Northwest Regional Director of the Pacific Coast Federation of Fishermen's Associations (PCFFA), an organization of commercial fishing groups throughout California, Oregon, Washington, and Alaska, "With salmon returns continuing to decline and fishing seasons being cancelled, it is clearer than ever that we must change the way we manage water in this basin. Today's victory will enable our region to finally examine – honestly and completely – what is required to meet our responsibility to restore salmon and steelhead to the Snake River, 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 construction of the lower Snake River dams in the late 1960s, returns still topped 100,000 per year. Last year, only about 10,000 total fish returned past Lower Granite Dam on the lower Snake River. That number is even lower than when Snake River spring/summer chinook were first protected by the Endangered Species Act in 1992.
"Clearly, the recovery efforts of the federal government to date have been inadequate, inconsistent, incomplete, and even illegal," said Bill Sedivy, executive director of Idaho Rivers United, a statewide river conservation organization based in Boise, Idaho. "With the thorough analysis that this decision forces, it should become clear that removing those dams is the only recovery approach that works for Idaho, for the region, and for the salmon on which we all depend."
Scientific studies spanning more than a decade have shown clearly that the most effective strategy for restoring and recovering salmon and steelhead in the Columbia/Snake basin includes removing four dams on the lower Snake River, an option that has a higher likely success rate than augmenting downstream river flow with upper Snake water.
"We want a salmon and steelhead recovery plan that works for people and fish," said Rob Masonis, Senior Director, Northwest Region, for American Rivers, lead plaintiff in the case. "We believe there is a clear path to salmon recovery that does not require redirecting water from Idaho farmland, and it is removing the four destructive dams on the lower Snake River. But so far, our region and our leadership have resisted that option. With today's victory in court, they can no longer ignore it."
"Like it or not, this region must ask itself and its leadership what we value more, a reliable water supply for Idaho agriculture and industry, or four costly dams on the lower Snake River in eastern Washington that have outlived their usefulness," added IRU's Sedivy, "We believe salmon can be recovered and agricultural economies can thrive if we examine and invest in solutions across the entire Snake and Columbia river basin that put neither farmers nor fishermen at risk."
With a combined membership of over six million, Save Our Wild Salmon is a nationwide coalition of businesses, conservation organizations, commercial and sportfishing associations, river groups and taxpayer advocates working collectively to restore healthy and abundant wild salmon to the rivers and streams of the Pacific Northwest.