Idaho salmon have big day in court

IRU Board Member Tom Stuart.

By Tom Stuart, IRU Board Member

PORTLAND — For 40 years I’ve watched salmon and steelhead return to their ancestral spawning beds near my part-time home in Stanley, Idaho, and since the 1970s, I’ve witnessed the precipitous decline of these precious anadromous fish. That decline accompanied construction of four dams on the lower Snake River in eastern Washington. As the dams went up, fish populations went down.

My love of Idaho’s salmon and steelhead has translated into work with Idaho Rivers United, and a significant part of that effort has been to challenge failed federal salmon recovery plans in court.

Today was a milestone in this long-running litigation. U.S. District Court Judge James Redden clearly expressed that he wants to settle the longstanding legal battle that centers on recovering these precious endangered species. We agree with Redden that it is time to end the cycle of inadequate salmon recovery plans and lawsuits. We called for inclusive settlement talks to finally commence. Federal attorneys resisted.

Nevertheless, Judge Redden appeared ready to work toward conclusion of the federal judicial proceedings, proceedings that have now spanned 15 years, four failed federal recovery plans and four accompanying lawsuits. I have attended several of Redden’s hearings, and this one was different. This time he was very impatient. In letters prior to the hearing, he asked federal attorneys and our lawyers to be prepared to discuss how to resolve the legal and scientific disputes rather than treading old ground. Several times during the morning, when federal lawyers drifted into old arguments, Redden interrupted and redirected the discussion. The Judge is clearly eager to move the case toward resolution, and he didn’t allow distractions.

Salmon advocates want resolution, too, but we want to make sure the biological opinion that comes out of this is legal, and, from an Idaho perspective, recovers Idaho salmon. It’s got to have some significant enhancements, and the enhancements have to be in hydro. The enhancements have got to address the four lower Snake River dams.

In September, the Obama administration endorsed the 2008 salmon plan created by Bush administration officials, adding only a few new features. Dr. Jane Lubchenco, Obama’s new National Oceanic and Atmospheric Administration chief, attended the hearing, too, along with representatives of every relevant federal agency, Northwest states, tribes and our allies in the suit (the state of Oregon; Idaho’s Nez Perce Tribe; and our coalition of fishing, conservation, and taxpayer groups).

As the day progressed, Redden repeatedly showed how much he wants to end this lawsuit. He is looking at all legal methods to do it, and he often questioned parties directly about options, approaches and compromises that might be found. The federal government didn’t budge — at all — and, surprisingly, told the judge “no” on several measures he proposed that would improve conditions for salmon, or improve the atmosphere for negotiation. Our attorneys made multiple offers to sit down and try to resolve flaws in the 2008 Biological Opinion, but the federal attorneys continued to tell the judge that collaboration had already occurred and that they weren’t interested in discussing the issue further. By the end of the day, the judge appeared frustrated and remarked that he didn’t think a settlement was possible.

On the upside, Redden appeared poised to rule that the federal government has improperly included the Obama administration’s supplement to the 2008 Biological Opinion as an after-the-fact addition. This would be a win for us, highlighting a flawed federal procedure, and offering a window in which the federal government could work to strengthen the Biological Opinion. Separately, following several arguments from federal attorneys against enhanced flow and spill for salmon migrating through the eight dams and reservoirs on the lower Snake and Columbia rivers, the judge’s remarks and body language indicated that he favors these measures. As Idahoans know, court-ordered spill in recent years has helped all Idaho salmon runs, so we will press to expand spill in the Biological Opinion permanently, as a key element. The judge also asked federal officials repeatedly why “emergency response” actions proposed in their supplement could not be implemented now, rather than later. To this request, federal attorneys again said no, but we might have some leverage in pressing the point further.

The legal process will likely continue for a few more months. Redden has asked federal agencies to submit a proposal in early December about how the Obama administration’s supplement and the existing 2008 BiOp might be combined — and the BiOp strengthened — and we will respond shortly thereafter. We anticipate a follow-up hearing in January.

Idaho’s wild salmon are not yet safe. We don’t yet know how Redden will rule, but we ought to be prepared for a mixed bag. IRU will continue working on this case alongside our excellent allies, and we will continue to work to achieve real benefits for Idaho’s wild salmon and steelhead, toward a final salmon plan that’s strong enough to chart a course that’s good for salmon and good for Idaho’s people and communities.