Imposing judicial restraints on the "art of deception": the courts cast a skeptical eye on Columbia Basin salmon restoration efforts.

• Author: Blumm, Michael C.

1. INTRODUCTION II. NWF : NMFS: REJECTING THE DECEPTION OF THE 2004 BIOP III. RESISTING BPA's ATTEMPT TO SHOOT THE MESSENGER A. Rejecting BPA 's Attempt to Dismantle the FPC 1. Unlawfully Relying on Legislative History 2. Unreasonably Departing from Past Practices B. The Continued Existence of the Messenger IV. MAKING BPA FUND ALL FISH AND WILDLIFE RESTORATION COSTS V. REQUIRING NOAA TO IMPLEMENT THE ESA's PREFERENCE FOR WILD SALMON A. Challenging NOAA's Hatchery Policies B. Revising NOAA's Hatchery Policies C. Trout Unlimited I: Recognizing the ESA's Goal of Protecting Wild Salmon D. Alsea II: Deferring to NOAA's Hatchery Policy E. Implications of the District Court Hatchery Salmon Decisions VI. CONCLUSION "At its core, the 2004 [biological opinion] amounted to little more than an analytical sleight of hand, manipulating variables to achieve a no jeopardy finding. Statistically speaking using [the agency's] analytical framework, the dead fish were really alive. The ESA requires a more realistic, common sense examination."

   --Judge Sidney Runyan Thomas of the Ninth Circuit Coupe of Appeals (1)

1. INTRODUCTION

   The Columbia Basin salmon saga, the subject of a lengthy analysis in this journal two years ago, (2) has, as predicted in that article, come under "active and skeptical judicial review." (3) In this update, we explain several recent decisions of significance which, while they certainly do not guarantee that the agencies entrusted with Columbia Basin salmon recovery will finally begin to take meaningful steps to turn around the salmon's long-term decline, (4) will make more difficult the continuation of the practice of the art of deceiving the public into thinking something significant is happening when in fact the status quo predominates in Columbia Basin dam operations. (5)

   These decisions, three from the Ninth Circuit and two from district courts, have 1) upheld a lower court's rejection of the National Oceanic and Atmospheric Administration's (NOAA) attempt to comply with the Endangered Species Act (ESA) in its 2004 biological opinion (BiOp); (6) 2) reversed the Bonneville Power Administration's (BPA) effort to dismantle the Fish Passage Center, an entity established by the Northwest Power and Conservation Council to collect data and study salmon migration in the Columbia; (7) 3) rejected BPA's underfunding of salmon restoration in its latest rate case; (8) and 4) determined that NOAA's downlisting of Upper Columbia steelhead due to abundant hatchery fish was inconsistent with the ESA's preference for wild salmon, thus apparently disagreeing with the District Court of Oregon on this issue. (9) This analysis examines each of these cases and explains their significance.

2. NWF v. NMFS: REJECTING THE DECEPTION OF THE 2004 BIOP

   The long-running litigation over Columbia Basin hydrosystem BiOps, ushered in by the ESA listings of Columbia Basin salmon in the early 1990s, (10) continued as the Ninth Circuit resoundingly affirmed Judge James Redden's rejection of NOAA's 2004 BiOp. (11) That BiOp was produced under court order, after NOAA's 2000 BiOp also failed to survive judicial scrutiny because it relied on both federal mitigation measures that had not undergone ESA scrutiny and nonfederal measures that were not reasonably certain to occur. (12) But the 2004 BiOp did not attempt to address the district court's call for more scrutiny and more specifics about the measures that NOAA claimed would avoid jeopardy and thus comply with the ESA. (13) Instead, the new BiOp materially changed its approach to ascertaining whether annual Columbia Basin hydrosystem operation produced jeopardy to listed salmon. (14) The result was that unlike earlier BiOps in 1995 and 2000, (15) this time NOAA was able to claim that proposed hydrosystem operations from 2004 until 2014 would not jeopardize listed salmon. (16)

   The means to this "no jeopardy" end were hardly straightforward, however. There were no new studies showing that listed salmon populations were rebounding or that previous appraisals of the hydrosystem's toll on those populations were overestimates. Instead, NOAA made what the Ninth Circuit referred to as "several structural changes to its jeopardy analysis." (17) The result was that NOAA claimed that it achieved ESA compliance not through any changes in environmental conditions, or through improved health of the listed salmon, but through legal re-definition. It was as if the Bush Administration lawyers had overrun NOAA's scientists.

   Judge Redden would have none of this, and neither would a unanimous Ninth Circuit panel. The appeals court affirmed Judge Redden on all particulars. (18) The court affirmed the district court's rejection of NOAA's jeopardy analysis on three grounds. First, the court rejected NOAA's claim that the agency possessed much less discretion than it had claimed in the past to affect Columbia Basin dam operations. The court concluded that NOAA impermissibly interpreted the ESA jeopardy rule restricting the application of federal consultation procedures to "any portions of admittedly-discretionary actions that the agency deems non-discretionary," since such an interpretation conflicted with the ESA's "basic mandate" of saving listed species. (19) NOAA's claim that there existed competing non-discretionary directives for flood control, irrigation, and power production was unpersuasive, as the court noted that NOAA acknowledged that Congress had never quantified any of these allegedly immutable obligations, leaving considerable agency discretion as to how to fulfill them. (20) Thus, the court forbade NOAA from excluding so-called non-discretionary actions from ESA scrutiny under the jeopardy analysis, noting that "ESA compliance is not optional," and "[t]he very fact that the agencies are unable to define the limits of their discretion here reveals that all [Columbia Basin dam] operations are intertwined and subject to discretionary control." (21)

   The second flaw in NOAA's jeopardy analysis concerned the agency's failure to include degraded baseline conditions. (22) NOAA's jeopardy analysis of the effects of proposed dam operations in the 2004 BiOp was unlike that in its earlier BiOps because the agency employed a new, so-called "comparative approach," under which environmental baseline conditions in the Columbia River and tributaries were essentially discounted: instead of considering the effect of proposed operations in combination with environmental baseline conditions and cumulative effects (the so-called "aggregation approach" that NOAA previously employed), NOAA now would find jeopardy only if the proposal would produce "appreciably worse" effects than baseline conditions. (23) According to the Ninth Circuit, this redefinition of jeopardy would allow NOAA's analysis to take place "in a vacuum," allowing species to be "gradually destroyed, so long as each step on the path to destruction is sufficiently modest." (24) The court thought "[t]his type of slow slide into oblivion" was impermissible under the ESA, and was in fact "one of the very ills the ESA seeks to prevent." (25) Because the ESA demanded a contextual analysis of the effects of the agency proposal in light of the current environmental conditions affecting listed species, the court rejected NOAA's artificial, unconnected redefinition of jeopardy, (26)

   A third shortcoming in the BiOp's jeopardy analysis was its failure to consider recovery. (27) The court gave no deference to NOAA's interpretation of the jeopardy regulation that an agency need only consider the effects on species survival, not its recovery, when determining if a proposal violated the statutory standard of "likely to jeopardize the continued existence of' a listed species. (28) The court thought that reading "recovery" out of the text in this fashion was inconsistent with the plain language of the regulation, (29) with NOAA's prior interpretation and application, (30) and with the regulatory background of the regulation. (31) As in an earlier decision ruling that the ESA required the listing agency to consider recovery as well as survival of the species in evaluating adverse modification of critical habitat, (32) the Ninth Circuit concluded that the jeopardy regulation also required ascertaining both survival and recovery effects.: (33) Given the "highly precarious" status of Columbia Basin salmon, the court determined that there was a "substantial possibility" that requiring NOAA to evaluate recovery prospects could change the jeopardy analysis. (34)

   Thus, the exclusion of allegedly non-discretionary actions, baseline conditions, and recovery prospects from NOAA's jeopardy analysis constituted independent grounds for striking down the 2004 BiOp. The court concluded that the BiOp "[a]t its core amounted to ... little more than an analytical slight of hand, manipulating the variables to achieve a 'no jeopardy' finding." (35) Somewhat astonished, the court continued, "[s]tatistically speaking, using the 2004 BiOp's analytic framework, the dead fish were really alive." (36) But this "Alice in Wonderland" world the BiOp attempted to create would not stand, for, as the court concluded, "[t]he ESA requires a more realistic, common sense examination." (37)

   The flawed jeopardy analysis was not the only grounds for striking down the 2004 BiOp. The Ninth Circuit agreed with Judge Redden that NOAA's failure to ensure that proposed hydrosystem operations would avoid adversely modifying designated critical habitat for several listed Snake River salmon species was arbitrary and capricious. (38) NOAA's response to the Ninth Circuit's earlier decision requiring consideration of both species survival and recovery in deciding whether a proposed action would adversely affect critical habitat (39) was, according to the court, inadequate. (40) NOAA acknowledged that proposed hydrosystem operations would produce negative effects on "the essential habitat feature of safe passage...