Salmon law and policy in 1995: a brief overview.

• Author: Blumm, Michael C.
• Position: The Second Annual 'Who Runs the River?' Colloquium

Last year, when we gathered to discuss who runs the river, we did so in the wake of two significant federal court decisions, and the speakers addressed those decisions in some detail.(1) The first decision was Idaho Department of Fish & Game v. National Marine Fisheries Service,(2) where Judge Malcolm Marsh struck down the biological opinion of the National Marine Fisheries Service (NMFS) because it failed to explain a number of key assumptions in NMFS's conclusion that Columbia Basin hydroelectric operations for 1993 would not jeopardize listed Snake River salmon runs.(3) Judge Marsh was especially critical of NMFS's failure to consider significant information and data submitted by the regional fish and wildlife agencies and Indian tribes, which he considered to be part of NMFS's statutory obligation to base its decisions on "best available scientific knowledge."(4)

The second decision was that of the Ninth Circuit in Northwest Resource Information Center, Inc. v. Northwest Power Planning Council,(5) where the court struck down the 1992 amendments to the Northwest Power Planning Council's Fish and Wildlife Program. The court determined that the amendments violated the Northwest Power Act(6) by failing to set biological objectives and failing to explain how the amended program satisfied the Act's criteria, including giving due weight to the recommendations of the region's fish and wildlife agencies and Indian tribes.(7) Importantly, the court concluded that the Council had to give those recommendations a "high degree of deference."(8) Last year, I indicated that we would know in the short-run whether those provisions effected a significant change in the operation of the system.(9) We can now say this year that the court decisions were in. fact taken seriously by the implementing agencies. In December 1994, the Council approved an amended Columbia Basin Fish and Wildlife Program(10) that made significant changes, including setting flow targets,(11) establisbing a phased schedule for reservoir drawdowns,(12) including an aggressive water leasing program,(13) and limiting artificial transportation of juvenile salmon by barge and truck to extremely adverse conditions," as determined by the region's agencies and tribes.(14)

Then, three months later, in March 1995, in response to Judge Marsh's decision, NMFS released its 1994-98 biological opinion,(15) which set flow targets similar to those of the Council(16) but did not promise a phased drawdown approach, at least not immediately.(17) Instead, NMFS relied on flow augmentation(18) and established a much more modest leasing program.(19) Under the biological opinion, barging and trucking of juvenile salmon was to continue, unless a technical management team, established by the biological opinion, directed otherwise.(20) This technical management team is comprised of representatives of federal water managers and NMFS but contains no representatives of state fish and wildlife agencies or Indian tribes.(21)

As predicted by a number of speakers at last years conference, the answer to the question of "Who runs the river?" would be the NMFS biological opinion, not the Council's Fish and Wildlife Program.(22) But...