May 11, 2016
By Marty Trillhaase
Back in the early 1990s, U.S. District Judge Malcolm F. Marsh struck down the federal government's Northwest salmon recovery plan with these words:
"(The National Marine Fisheries Service) has clearly made an effort to create a rational, reasoned process for determining how the action agencies are doing in their efforts to save the listed salmon species. But the process is seriously, 'significantly,' flawed because it is too heavily geared toward a status quo that has allowed all forms of river activity to proceed in a deficit situation - that is, relatively small steps, minor improvements and adjustments - when the situation literally cries out for a major overhaul. Instead of looking for what can be done to protect the species from jeopardy, NMFS and the action agencies have narrowly focused their attention on what the establishment is capable of handling with minimal disruption."Items
Fast forward a generation, two or three more recovery plans - known as biological opinions or BiOps - and a new U.S. District Court judge - James A. Redden. Here's what Redden wrote in 2011:
"Instead of following this court's instructions, (National Oceanic and Atmospheric Administration) Fisheries abandoned the 2000 BiOp and altered its analytical framework to avoid the need for any (reasonable and prudent alternatives). As the parties were well aware, the resulting BiOp was a cynical and transparent attempt to avoid responsibility for the decline of listed Columbia and Snake River salmon and steelhead. ..."
Last week brought a third judge to the case, U.S. District Judge Michael Simon, who inherited the case from Reddon when he retired - and dispatched the fifth recovery plan:
"For more than 20 years, however, the federal agencies have ignored these admonishments and have continued to focus essentially on the same approach to saving the listed species - hydro-mitigation efforts that minimize the effect on hydropower generation with a predominant focus on habitat restoration. These efforts have already cost billions of dollars, yet they are failing. Many populations of the listed species continue to be in a perilous state.
"The 2014 BiOp continues down the same well-worn and legally insufficient path taken during the last 20 years. ... "
What's been accomplished here - other than keeping a small army of lawyers, biologists and engineers working both for the Army Corps of Engineers and NOAA Fisheries on the side of the dams as well as those representing river advocates, Indian tribes and some states occupied?
More than $13 billion has been spent either on fish recovery efforts or fighting about fish recovery efforts - while the fish are said to be close to collapse - especially if ocean conditions become hostile to fish survival.
Dams on the lower Snake River - and the port operations they support - continue to operate under a legal, if not moral, cloud.
We've even run out of metaphors.
Three years ago, fish advocates brought up the 1993 movie "Groundhog Day," about a character reliving the same day over and over again when Redden ordered the latest BiOp revisions three years ago.
It worked so well the last time, why not recycle the "Groundhog Day" narrative to describe the call for yet a sixth BiOp due in two years?
You can argue there's a potentially major difference this time. Not only is there a new judge, but he has activated the National Environmental Policy Act. With that comes an Environmental Impact Statement that requires dam operators to run through a list of fish recovery options - up to and including breaching one or more of the dams.
Members of the public will get the opportunity to be heard as the EIS winds its way from draft to final form.
And it could achieve something fish advocates have long sought - a study into whether the dams, the navigation system and the hydroelectric power produced pay their way or another government boondoggle.
But let's be honest: Come the sixth BiOp in 2018, does anyone expect the Pacific Northwest to wind up anywhere other than where it started - with another protracted legal fight leading nowhere?
If you want this solved, you can't count on NOAA Fisheries, Idaho Rivers United or a federal judge. This is a mission for U.S. Sens. Patty Murray, D-Wash., and Mike Crapo, R-Idaho.
Where have they been?
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