Legal issues shaping salmon's future.

• Author: Rohlf, Daniel
• Position: Colloquium: Who Runs the River?

I want to begin by briefly explaining how I came to be here. From the moment I found an obscure publication called The Anadromous Fish Law Memo in my law school library, it seems my destiny was to end up here at Lewis & Clark with someone named Mike Blumm. For those of us trying to realize the Northwest Power Act's(1) goal of protecting, mitigating, and enhancing the Columbia Basin's once great fish and wildlife resources--and that includes the Power Planning Council, a lot of fish advocates, and I hope some utilities and direct industrial customers--Mike Blumm has been the pioneer, pointing the way toward how the Northwest can realize the goal of the Northwest Power Act. I cannot think of anyone more appropriate to write some dicta for the Ninth Circuit.

That having been said, I would like first to discuss ongoing legal actions, beyond the two cases that we have been talking about for most of the afternoon, that will, in my opinion, centrally influence future hydrosystem operations. I want to stress the word influence because 1, too, think the court should not make public policy. I do not think courts have been making public policy with respect to how we run the Columbia River. Rather, the courts have prevented agencies from acting illegally in making decisions involving hydrosystem operations. The courts have ably fulfilled this critical role in the Northwest's salmon debates. Second, I want to look at where things should be going, and I also want to explore the kind of thinking that we need to adopt to balance salmon recovery with alleged power costs.

Ongoing and future legal actions will play a big role in running the Columbia River system. We have talked at length today about two statutes, the Endangered Species Act (ESA)(2) and the Northwest Power Act. These statutes will drive reform of the hydroelectric system. Since I have spent much of my career looking at the statute, let me start with the ESA. Its section 7 requirements are particularly important. One thing I do not think that this region can afford to overlook--as we have to some extent today in our discussions--is the role of the Northwest Indian tribes. Under section 7, there is ultimately some level of activity which jeopardizes the continued existence of the listed species. The ESA prevents us from reaching that point. But there is some amount of tolerable impact on a listed species which is available for 'allocation" to proposed activities. The Fish and Wildlife Service...