Columbia Basin salmon and the courts: reviving the parity promise.

• Author: Blumm, Michael C.
• Position: Colloquium: Who Runs the River?

1. INTRODUCTION

   This is the first conference of the Northwest Water Law and Policy Project, a three-year project dedicated to the preservation and wise use of the Northwest's most precious resource--its water. Over the next three years, we intend to examine water law from a Columbia Basin-wide perspective, unconfined by state boundaries or artificial distinctions like water quality and water quantity. Our goal is to further sustainable water use on a region-wide basis.(1) Today, we come together to examine two landmark judicial decisions of 1994 that may signal significant changes in the operation of the Federal Columbia River Power System, one of the largest interconnected hydroelectric systems in the world.(2)

   The first case is the March 28, 1994 decision of Judge Marsh in Idaho Department of Fish & Game v. National Marine Fisheries Service,(3) which struck down the National Marine Fisheries Service's (NMFS) 1993 biological opinion for being inconsistent with the Endangered Species Act (ESA).(4) The second is the September 9, 1994 decision of the Ninth Circuit in Northwest Resource Information Center v. Northwest Power Planning Council,(5) where the court found the Northwest Power Planning Council's "Strategy for Salmon"(6) to be inconsistent with the Northwest Power Act.(7) Both of these decisions are remarkable in that the agencies found to be violating the Northwest Power Act(8) and the Endangered Species Act(9) were, in fact, implementing program designed to expand efforts to protect and restore salmon runs. They were attempting to make the Columbia River hydroelectric system more salmon friendly, if you will. But the courts ruled that the agencies had not gone far enough or fast enough, and both decisions criticized the agencies' slow, incremental pace of change.(10)

2. BACKGROUND

   I want to start with a very brief historical perspective on where we are in late 1994. Thirty years ago, in 1964, we were about to elect Lyndon Baines Johnson; that now seems more a lifetime removed, but actually it was only seven-and-a-half chinook salmon generations ago. That year the Columbia River Treaty(11) and the Pacific Northwest Coordination Agreement were signed.(12) The year 1964 witnessed the maturation of the Columbia River system, although it took nine more years to complete the physical development of the Columbia River system--the last mainstem dam went on line in 1975.

   The year before, in 1974, modem salmon law may have been born when Judge Boldt issued his historic decision that Indian tribes are entitled to fifty percent of the harvest.(13) In 1978, three years after the last of the Snake River dams went on line and some four chinook generations ago, the National Marine Fisheries Service instituted Endangered Species Act proceedings.(14) Two years after that, in 1980, Congress enacted and President Carter signed the Northwest Power Act,(15) a statute that promised "parity" between hydroelectric operations and fish and wildlife protection.(16) Some six months later, the regional fish and wildlife agencies and Indian tribes submitted comprehensive recommendations for changing the hydroelectric system.(17) Today, fifteen years later, the fish and wildlife agencies and tribes recommend essentially the same kinds of changes.(18) But their original recommendations were not adopted by the Northwest Power Planning Council in its initial Fish and Wildlife Program in 1982,(19) nor were their recent recommendations adopted by the Council in its 1992 "Strategy for Salmon."(20) And interestingly enough, those recommendations have yet to be adopted in the ESA proceedings of the last few years.(21)

3. IDAHO DEPARTMENT OF FISH & GAME v. NATIONAL MARINE Fisheries Service

   We ought to turn first to the ESA because the initial decision under consideration today is an outgrowth of the listing of chinook and sockeye salmon as endangered species in 1991 and 1992,(22) which some people think was the result of the Council's failure to adopt the recommendations of fish and wildlife agencies and tribes some ten years earlier. In Idaho Department of Fish & Game v. National Marine Fisheries Service (IDFG v. NMFS), both Idaho and Oregon sued NMFS, claiming that its biological opinion on the 1993 plan of operations for the Columbia Basin hyclroeleetric dams(23) failed to satisfy the ESA.(24) Numerous other interested entities in the region also joined in the Suit.(25)

   The NMFS biological opinion adopted a two-step process for determining whether the 1993 system operations plan would produce jeopardy. NMFS first asked whether the 1993 operations would achieve an interim goal of reducing mortalities in relation to a selected base year period.(26) The base year period NMFS chose was 1986 to 1990. Second, NMFS asked whether all proposed activities--including not just hydroelectric operations but also harvest management, hatchery releases, and habitat modifications, taken together--would be likely to stabilize salmon populations over the long run--defined as four salmon generations, or by 2008.(27) In other words, NMFS asked whether salmon populations would rebound to 1990 levels by 2008.

   The NMFS biological opinion concluded that there was no jeopardy to Snake River salmon because it answered both of those questions in the affirmative. According to NMFS, 1993 operations would reduce mortalities by three to eleven percent.(28) And the goal of stabilizing salmon populations at 1990 levels by 2008 would be possible, NMFS concluded, with a sixty to seventy percent likelihood.(29)

   This biological opinion was challenged in IDFG v. NMFS. In the first reported court case to reverse an ESA biological opinion, Judge Marsh held NMFS's biological opinion to be arbitrary and capricious.(30) First, Judge Marsh ruled that NMFS's decision to pick the baseline at 1986-1990-years of drought and low salmon returns--was arbitrary because NMFS failed to articulate a rational connection between the factors that led to the decline of populations and its choice of a baseline.(31) He concluded that the chosen baseline seemed to be focused more on system capabilities, on maintaining the status quo, than on the needs of salmon.(32) Although he did not ten NMFS what to do on remand, he did suggest that the agency ought to consider alternative baselines.(33) He also specifically refused to draw a line between construction-related losses that the dams caused and operational-related losses.(34)

   Second, Judge Marsh faulted NMFS for its use of models. Life-cycle models were the basis for the agency's prediction of what would happen in 2008.(35) Judge Marsh criticized NMFS for rejecting pessimistic assumptions in certain models.(36) Most of those pessimistic assumptions came from models used by the fishery agencies and tribes. Marsh noted that all the models contained considerable uncertainty, calling them "educated guesses premised upon `crude assumptions.'"(37) He determined that discounting pessimistic assumptions was unwarranted and arbitrary because it failed to account for factors such as the risks of inbreeding and what is called the 'extinction vortex," where population numbers become so small as to create a risk that environmental catastrophes may extirpate the species.(38)

   Judge Marsh concluded, in words that have been widely reported in the press, that the biological opinion process in this case--although he could have been speaking to the entire process of managing the Columbia Basin hydroelectric system--"is seriously, `significantly,' flawed because it is too heavily geared towards a status quo that has allowed all forms of river activity to proceed in a deficit situation."(39) He said that the result has produced 'relatively small steps, minor improvements and adjustments--when the situation literally cries out for a major overhaul."(40) On remand he suggested that NMFS consider alternative baselines,(41) and he made clear that NMFS could not satisfy the ESA by making scientific decisions in a vacuum. Judge Marsh interpreted NMFS's principal marching order--which is to base its decisions on best available scientific knowledge(42)--to impose a substantive obligation on NMFS to consider "significant information and data from well-qualified scientists such as the fisheries biologists from the states and tribes."(43) This sentiment is remarkably similar to that expressed by the Ninth Circuit in the second case we consider today, NRIC v. NPPC.

4. NORTHWEST RESOURCE INFORMATION CENTER v. NORTHWEST POWER PLANNING COUNCIL

   In Northwest Resource Information Center v. Northwest Power Planning Council (NRIC v. NPPC), the Ninth Circuit, in an opinion by Judge Tang, struck down the Northwest Power...