May 05, 2016

Earthrise Victory as Court Throws out Salmon Biological Opinion, Again

Yesterday, Earthrise and salmon won a hard fought battle when Judge Michael Simon rules the Salmon Biological Opinion utilized to operate the hydropower system on the Columbia and Snake Rivers was illegal.

Large federal hydropower dams in the Columbia and Snake Rivers have been a driving force behind declines in the Columbia Basin’s salmon and steelhead populations. Dams inundate spawning habitat, killing both juvenile and adult migrants as they attempt to pass dams on their migration to and from the ocean, and degrade salmon habitat by slowing river velocity and heating rivers to sometimes lethal conditions. As a result, over a dozen salmon and steelhead populations in the Columbia Basin today face extinction, and protections under the Endangered Species Act provide their best hope of recovery.

Yesterday, U.S. District Court Judge Michael Simon invalidated yet another federal plan for operating the federal hydropower system in a manner consistent with salmon recovery. The court threw out the latest “biological opinion” written by the National Marine Fisheries Service to chart a path for operating the federal dams to help recover salmon. The court also found that the agencies that actually operate the dams – the U.S. Army Corps of Engineers, Bureau of Reclamation (BOR), and Bonneville Power Administration – violated the National Environmental Policy Act by failing to prepare and Environmental Impact Statement on dam management.

Judge Simon did not pull punches in his description of federal mangers shortcomings. “For more than 20 years, NOAA Fisheries, the Corps, and BOR have ignored the admonishments …to consider more aggressive changes to the FCRPS [Federal Columbia River Power System] to save the imperiled listed species,” he wrote in the court’s opinion. “The agencies instead continued to focus on essentially the same approach to saving the listed species—minimizing hydro mitigation efforts and maximizing habitat restoration. Despite billions of dollars spent on these efforts, the listed species continue to be in perilous state…” 

Judge Simon criticized the federal agencies’ current salmon plan for underestimating the effects of climate change on fish survival and rejected the government’s argument that structural improvements to the dams would adequately improve fish numbers. Lethally warm water killed thousands of adult salmon last summer on the Columbia and the Snake Rivers.

Judge Simon’s opinion follows on the heels of similar rulings by his predecessors. Judge Redden rejected NMFS’ 2004, 2008, and 2010 biological opinions, and ordered increasing spill over the dams to improve survival of juvenile salmon migrating downstream. In his last opinion, Judge Redden suggested that the federal defendants consider removing dams on the Snake River to recover some of the listed population. Judge Simon also highlighted this idea.

Earthrise attorney Dan Rohlf has worked on this case for over two decades, along with co-counsel Todd True and Steve Mashuda of Earthjustice’s Seattle office. They represent a broad coalition of environmental and fishing organizations and businesses. The State of Oregon and Nez Perce tribe also fought to improve protections for salmon as plaintiffs in the case. 

“This is another important milestone in the fight to recover wild salmon and steelhead in the Columbia Basin,” said Rohlf. “We’re pleased that Judge Simon recognized that federal dam managers are still dragging their feet, and we’re confident that the court will hold government officials to their obligations under the Endangered Species Act to protect and restore the Basin’s fish.”