Judge rules federal salmon plan illegal–again

Idaho's coho salmon, pictured here as fry, were declared extinct in 1986. With a strong ruling from a federal judge on Aug. 2, there is still a distinct opportunity work to prevent extinction and facilitate recovery of wild stocks of upper Snake River basin chinook and sockeye salmon and steelhead. (Photo by Greg Stahl)

In a strongly worded opinion, U.S. District Court Judge James Redden ruled Tuesday, Aug. 2, that the federal government’s salmon recovery blueprint is illegal.

Specifically, Redden declared that the National Oceanic and Atmospheric Administration Fisheries Service has failed yet again to produce a legal and scientifically sound plan to protect endangered Columbia and Snake river salmon from the lethal impacts of federal dams on the Columbia and Snake rivers. This is the fourth NOAA salmon plan overturned in 20 years.

This is a landmark decision for salmon and a win for the people of the Pacific Northwest and the United States. More than 50 fishing and conservation groups including Idaho Rivers United, the state of Oregon and the Nez Perce Tribe challenged the plan in court.

“There’s no downside for Idaho in this,” said Tom Stuart, an IRU board member and avid Idaho fisherman. “I hope it will bring meaningful talks, where people can sit down and find a legal, scientifically sound plan that will actually restore Idaho’s wild salmon. The judge has said the federal government must follow the law. That is something Idahoans ought to cheer.”

In his decision, Redden called on NOAA to produce a new or supplemental plan that corrects the current one’s reliance on unidentified mitigation measures for populations that have been on the fence for decades.

“It is one thing to identify a list of actions, or combination of potential actions, to produce an expected survival improvement and then modify those actions through adaptive management to reflect changed circumstances,” Redden wrote on page 16 of the decision. “It is another to simply promise to figure it all out in the future. Federal Defendants need not articulate every detail of a habitat mitigation plan. They must do more than they have here.”

Earthjustice attorney Steve Mashuda, who represented fishing and conservation groups in the case, called today’s win a “victory for the nation and the Northwest.”

“We’re extremely pleased with the judge’s decision, but the work doesn’t stop here,” he said. “Now this region and this administration have an opportunity to change direction and to bring people together to solve this longstanding debate. We hope the President, his team and the region will grab hold of this once-in-a-lifetime opportunity and build a solution that can serve as a model for the rest of the nation.”

IRU Assistant Policy Director Greg Stahl said the decision is an opportunity to look forward rather than back and to embrace sound science and the law as stakeholders in the region sit down to work out lasting solutions.

“With this decision, it is time for the Obama administration and our senators and representatives in the Pacific Northwest to take action,” Stahl said. “It is time for our lawmakers to take ownership of this issue and craft a path for our future — one that has healthy salmon and rivers in it. This decision clears the way to consider removing the four obsolete dams on the lower Snake River, which are killing salmon and bleeding rural Idaho economies, as well as the state’s ecological and cultural heritage.”

In his decision, Redden stated that the NOAA plan does not pass a legal test, but it doesn’t pass a reality test either. Without major changes to the federal dam system on the Columbia and Snake rivers, the reality is that the American people will lose one of their most valuable natural and economic assets.

“Forty years ago places like Idaho’s Salmon River were salmon strongholds, with huge numbers returning every year,” Stuart said. “Now central Idaho has become a Noah’s Ark, one of the few places where wild salmon can still thrive, and where restoring them is still possible. Judge Redden’s decision represents strong support for Idaho values, traditions, ecology and heritage.”

This is something Idaho’s rural businesses know well. Many rural Idaho businesses depend on fishermen and the business they generate for economic vitality. They depend on retaining and restoring this vital part of Idaho’s heritage.

“These fish are unique on a global scale,” Stahl said. “Some of them swim more than 900 miles and climb nearly 7,000 feet to reach their spawning beds in the Sawtooth Valley. They’re an important economic asset to numerous rural Idaho towns, but the miracle of salmon — and the importance of Idaho to their recovery in the Columbia River basin — can’t be overlooked.”

In addition to remanding the decision to Jan. 1, 2014, Redden’s decision requires the federal government to continue spill water to help flush baby fish from their rearing habitat downstream to the ocean.

“As I have previously found, there is ample evidence in the record that indicates that the operation of the FCRPS (Federal Columbia River Power System) causes substantial harm to listed salmonids,” Redden wrote.

And as was consistent throughout his 24-page ruling, Redden expressed doubts about the government’s habitat improvement strategies.

“As noted, I continue to have serious reservations about NOAA Fisheries’ habitat mitigation plans for the remainder of this BiOp,” he wrote. “Everyone agrees that habitat improvement is vital to recovery and may lead to increased fish survival, but the lack of scientific support for NOAA Fisheries’ specific survival predictions is troubling.”

Stuart put it this way.

“Today is a victory for Idahoans,” he said. “We’re grateful, but we’re not surprised. The judge simply followed the law.”