In what one salmon advocate describes as a welcome "slap upside the head," a federal judge in Oregon ruled that the agency responsible for recovering three endangered salmon species in the Columbia River Basin must go back to the drawing board.
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
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
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
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,
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
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
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.
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
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,
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
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
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
"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."
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
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
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 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.
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."
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.
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