The salmon win one: Judge tells agencies to obey the law
On March 29, Judge Malcolm Marsh told the National Marine Fisheries Service that it had been "arbitrary and capricious' when it determined in 1993 that federal dam operations on the Columbia and Snake rivers posed "no jeopardy" to the Snake River sockeye and two Snake River chinook salmon species. The judge initially told the agency it had 60 days to consult again with state and tribal biologists and produce a plan that could pass scientific muster.
The ruling, according to fish advocates and power proponents, is a landmark. Environmentalists hope it will eventually force the Bonneville Power Administration to dramatically alter the way it operates the dams. That, in turn, could force BPA to raise its electricity rates, a scenario which the aluminum, barging and agricultural industries say could devastate them.
The decision may also signal the beginning of a court-dominated era in which lawsuits become the driving force behind salmon recovery throughout the Pacific Northwest, much as they have in the region's spotted owl forests.
Earlier this year, it looked as if the federal government's current management policy would go unchallenged. That policy relies on releasing water stored in Idaho to push the newly hatched salmon through reservoirs to collection sites. There they are pumped onto barges or trucks by the U.S. Army Corps of Engineers and transported around the dams to a point below Bonneville Dam, just east of Portland, Ore. (HCN, 5/31/93).
As it did in its last two annual reviews of the federal hydropower system, a requirement under the Endangered Species Act, the agency determined in February that the hydropower dams pose "no jeopardy" to the salmon. It reached the conclusion even while acknowledging that the dams' turbines could still chop up nearly three-quarters of the juvenile salmon heading to the ocean.
And, as expected, environmentalists and Idaho Gov. Cecil Andrus, D, immediately criticized the Fisheries Service for going after water stored upstream in Idaho while ignoring the lethal dams.
"It's just unbelievable that a group of scientists will ignore all science and make a political decision," Andrus told the Idaho Falls Post Register.
A month later, Judge Marsh turned Andrus' words into prophecy.
He ruled on a lawsuit brought by Idaho, Oregon, Alaska and the Yakima, Umatilla, Nez Perce and Warm Springs Reservation tribes against the federal agency's 1993 biological opinion. In his 38-page opinion, Marsh attacked both the agency's science and politics.
He said the Fisheries Service was wrong to use the drought years of 1986 to 1990 as a basis for determining jeopardy. Salmon numbers were too low during that period, he said. "It is clear that a longer base period which includes higher abundance levels ... would have resulted in a higher goal."
In a stinging conclusion, Marsh said the federal agency's decision-making "is too heavily geared toward a status quo that has allowed all forms of river activity to proceed in a deficit situation - that is, relatively small steps, minor improvements and adjustments - when the situation literally cries out for a major overhaul.
"Instead of looking for what can be done to protect the species from jeopardy, National Marine Fisheries Service and the action agencies have narrowly focused their attention on what the establishment is capable of handling with minimal disruption."
Although the judge didn't say what actions were needed to ensure salmon survival, he didn't rule out modifying the dams. Environmentalists and Andrus support major changes so that the reservoirs behind the four federal dams on the Snake River can be drawn down to speed young salmon to sea.
"The idea that dams are immutable and uncontrollable like the weather ignores decades of fish protection improvements (such as bypass facilities and fish ladders) and other structural and operational enhancements," Marsh said. "... Thus, operational changes as well as systemic or facility changes to the dams' existence may well be available."
At a follow-up meeting April 8, Marsh approved a settlement plan that calls for face-to-face negotiations between high-level federal officials and state and tribal representatives, says Eric Bloch, an assistant attorney general for the state of Oregon. Under the settlement, which extends the deadline given in Marsh's original decision from 60 to 90 days, Bloch says the parties will revise the 1994-98 biological opinion, rather than the 1993 opinion Marsh ruled on, because the current plan is similarly flawed. Bloch says Marsh also told federal lawyers he wanted regular updates on negotiations and explanations of why ideas for protecting fish presented by the state and tribes are rejected.
For environmentalists, Marsh's ruling represents their first major legal victory in the battle to save salmon from extinction.
"This is the crack in the dike of political corruption," says Ed Chaney, who has been fighting to save salmon for 30 years. "I intend to crowbar this baby until the whole thing comes tumbling down."
Chaney says since 1980, when the Northwest Power Council was created to give fish and wildlife equal footing with power production in the Columbia basin, he has watched one effort after the next fail to address the fundamental problem posed by the dams. "We've blown our chances," he says. "That's why we're all in federal court."
Chaney says his Northwest Resource Information Center plans to file new lawsuits in the coming year in hopes that Judge Marsh will take over the operation of the river system, much as federal Judge William Dwyer has taken over management of the region's forests west of the Cascades.
Andy Kerr, conservation director for the Oregon Natural Resources Council, also sees parallels with the spotted owl debate. Judge Marsh's decision is like the initial spotted owl ruling, which found that the Forest Service was breaking the law, he says. "It took a while for spotted owl litigation to work," he says, but eventually it strengthened the resolve of the public and the agencies to protect the owl and the forests. The same phenomenon may now be happening with the salmon, he says.
Bruce Lovelin, executive director of the Columbia River Alliance, a trade group representing aluminum companies, irrigators and the river transportation industry, agrees Marsh's decision signals a growing role for the federal courts. "We're clearly on the spotted owl track," he says. "It's really unfortunate."
Lovelin says his alliance is particularly concerned about language in Marsh's conclusion that describes steps taken so far to protect salmon as minor adjustments. The National Marine Fisheries Service's current 1994-1998 biological opinion calls for an increase of water flows for fish from 10.4 million acre-feet per year to 11.5 million acre-feet per year, he says. "If that's minor tinkering, what's it going to take?"
Lovelin, however, sees signs of a political backlash. He points to a meeting in February where Gov. Marc Racicot, R-Mont., and 250 supporters tongue-lashed federal officials over plans to take water from two Montana reservoirs to aid salmon recovery downstream. Racicot got a promise from the Bonneville Power Administration and the National Marine Fisheries Service that Montana's water wouldn't be touched this year.
The Montana situation, says Lovelin, shows that people are beginning to feel that all the money BPA is spending on augmenting flows - $140 million by his estimation - is going down the drain because salmon populations continue to plummet.
"The solution to recovering the salmon is not reservoir drawdown," Lovelin says. "The Corps of Engineers says it would take 14 to 17 years to do that." What remains, he says, is providing more water for the fish, and that means Idaho water. "I'm afraid Andrus may be shooting himself in the foot."
Environmentalists say the Corps' 14-17 year drawdown estimation is an exaggeration. "We could begin drawdowns now," says Andy Kerr. "Once the body politic shows that it wants to save the salmon, we're going to find that drawdowns aren't as tough as we thought."
Will Whelan, a deputy attorney general for Idaho, agrees that Idaho water will have to be part of the salmon solution. "This decision may not mean less burden on Idaho irrigators, but we want a real solution."
Whelan says he hopes Marsh's decision will force the Fisheries Service to reconsider its current policy of relying heavily on Idaho water to create a current through the downstream reservoirs. "You've got to wonder about a policy where the upstream tail wags the downstream dog," he says.
Marsh's decision comes at a dark moment for salmon regionwide. Salmon counts along the coast from California to Canada are so low that the Pacific Fisheries Management Council decided early this month it had no choice but to close almost the entire ocean salmon season. The ban sent shock waves through coastal communities.
"We've gone from anger to denial to resignation," says Thane Tienson, a lawyer for Salmon For All, a group representing the Columbia River salmon fishing industry. Tienson says many coastal fishermen are calling it quits because "even if major efforts were begun today to restore the salmon runs, it would be a long time coming."
Scientists have known for some time that the Pacific Northwest's ocean-going fish stocks were in trouble. In 1990, the American Fisheries Society identified 106 already extinct populations of 214 endangered stocks of salmon and steelhead. But a confluence of factors, both natural and manmade, seems to be accelerating the decline faster than anyone expected. Scientists point to everything from the El Niûo current and overfishing in the ocean to drought, dams, overgrazing and clearcutting inland.
"I'm afraid we've pushed the system a little too far this time," says Katherine Ransel, a Seattle-based attorney with American Rivers.
The dismal condition of anadromous salmon and steelhead runs has prompted environmentalists to petition the federal government to list new salmon stocks under the Endangered Species Act.
The National Marine Fisheries Service must already, decide within the next few months whether to list every coastal coho salmon run in the region and three chinook salmon runs on the mid-Columbia River as endangered species (HCN, 11/15/93). Now, under a petition recently filed by the the Oregon Natural Resources Council, the Fisheries Service must consider listing more than 100 steelhead (sea-going trout) stocks. Acting on their own, nine biologists from the Washington Fish and Wildlife Department asked the agency in March to add nine Puget Sound salmon stocks to the list.
The ocean ban and the rash of petitions heighten the drama taking place in the Columbia Basin, where just six male and two female Snake River sockeye made it back to Idaho's Redfish Lake last year.
The key player in the debate, the Bonneville Power Administration, continues to soft pedal the dams' contribution to salmon decline and to tout the resources it is pouring into salmon recovery. BPA has increased its spending on salmon from $150 million in 1991, to $350 million in 1994, says spokesperson Dulcy Mahar, while flows for salmon have increased from 3 million acre-feet per year in the early 1980s to 11.5 million acre-feet per year in 1994.
"There have been huge changes," Mahar says. "But we have seen no increase in survival, and in some cases the runs have declined."
Environmentalists say BPA's salmon protection efforts look good on paper, but not in the water. Lorraine Bodi, co-director of American Rivers' Seattle, Wash., office, says out of the $350 million BPA says it spends on salmon, only $80-90 million is really out-of-pocket money. "The rest is their calculation of foregone power revenues," she says. In addition, Bodi says, the agency has a bloated staff of 50 which spends an inordinate amount of money on reports and little on the priorities identified by the state agencies and tribes.
One of those priorities is modifying the dams so fish can survive in the river, without having to be sucked into barges. But BPA's Mahar says focusing too much on the dams would be a mistake. "It would be unfortunate to just look at the dams just because that's where the deep pockets are," she says. What's needed, she says, is a comprehensive plan that looks at all the causes of the Snake River salmon decline, including ocean fishing, predation by other fish species, the role of hatcheries and the destruction of spawning habitat.
Andy Kerr says reservoir drawdown is the only rational choice. "Call me a radical," says Kerr. "I think fish belong in the river, not in iron coffins (barges)."
Besides, says Kerr, saving the salmon will help the Northwest's economy. "What's killing the salmon are economic activities that are being done inefficiently," he says. "Saving the salmon should force us to stop our wasteful use of water, electricity, trees, grass and minerals."
Kerr's group has targeted the aluminum industry as the most wasteful of those dependent on cheap hydropower. "We ought to destroy the aluminum industry," he says. "It uses 20 percent of the region's electricity and provides one-quarter of one percent of the jobs." Kerr says Pacific Northwest ratepayers subsidize the industry to the tune of $325 million a year, approximately the amount of money BPA says it is spending on salmon recovery.
Dethroning the Columbia Basin power system's vested interests will be anything but easy. The aluminum industry, farmers and commercial barging interests constitute a powerful coalition with powerful allies in Congress - none more so than House Speaker Tom Foley, Democrat of Washington state.
But, environmentalists, with one legal victory under their belts, say they now see a glimmer of hope for saving one of the Pacific Northwest's most enduring natural legacies. n
Paul Larmer is assistant editor of High Country News.