Endangered Species Act and Legal Issues Regarding Columbia Basin Salmon and Steelhead

Endangered Species Act and Legal Issues Regarding Columbia Basin Salmon and Steelhead

Order Code RL34453
Endangered Species Act and Legal Issues
Regarding Columbia Basin Salmon and Steelhead
Updated November 26, 2008
Nic Lane
Analyst in Natural Resources Policy
Resources, Science, and Industry Division
Kristina Alexander
Legislative Attorney
American Law Division
Eugene H. Buck
Specialist in Natural Resources Policy
Resources, Science, and Industry Division

Endangered Species Act and Legal Issues
Regarding Columbia Basin Salmon and Steelhead
Summary
The construction and operation of the Federal Columbia River Power System
(FCRPS) have reduced salmon and steelhead populations in the Columbia Basin. In
1991 the Snake River sockeye became the first Pacific salmon stock listed under the
Endangered Species Act. Since then, operations of the FCRPS have had to be
considered in the context of the ESA. This means that federal operators of the
FCRPS, the Bureau of Reclamation, the Bonneville Power Administration, and the
Army Corps of Engineers are required to consult with the National Marine Fisheries
Service (NMFS) on how federal actions may impact species. At the end of the
consultation, NMFS issues a biological opinion (BiOp) as to whether the action
would jeopardize the continued existence of a species. As part of the consultation
process, mitigation measures are recommended by NMFS to avoid harm to listed
species. Protective measures for fish often come at a cost in terms of energy
generation or irrigation supply, and this conflict between natural resources and energy
production and irrigation is at the heart of Columbia Basin conflict.
Beginning in 1992, a series of BiOps were issued by NMFS. Courts have found
almost all of them inconsistent with the ESA. The 2005 BiOp was remanded to
NMFS, with the final, updated BiOp released in May 2008. That BiOp is now the
subject of a lawsuit. The court reviewing the 2008 BiOp had stated in 2007 that if
the final document did not meet ESA standards, the court might vacate the BiOp.
This step would mean that any harm to a listed species by FCRPS operations would
be an unauthorized “take” under the ESA.
The Bonneville Power Administration has offered nearly $1 billion to four
Indian tribes to resolve the litigation. However, states, environmental groups, and
fishing interests, who also have acted as plaintiffs, were not included in the
settlement.

Contents
BiOp Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Non-BiOp ESA Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
List of Figures
Figure 1. The Columbia River Basin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
List of Tables
Table 1. Chronology of Major ESA Actions and Litigation on
Columbia Basin Pacific Salmon and Steelhead Trout . . . . . . . . . . . . . . . . . 10

Endangered Species Act and Legal Issues
Regarding Columbia Basin
Salmon and Steelhead
Federal dams have had an effect on salmon and steelhead populations in the
Columbia Basin since the 1938 construction of Bonneville Dam, the first Federal
Columbia River Power System (FCRPS) dam. (See Figure 1.) The FCRPS now
includes 29 federal hydropower dams in the Columbia Basin1 that are operated by
either the Corps of Engineers (Corps) or the Bureau of Reclamation (Reclamation).2
The electric power from these projects is marketed by the Bonneville Power
Administration (BPA). These three agencies are known as the action agencies. The
action agencies stated that for the purposes of consultation under the Endangered
Species Act (ESA),3 they consider the FCRPS to consist of 14 federal dams in the
Columbia Basin that they have designated as primary “mainstem” facilities.4
The Department of Commerce’s National Marine Fisheries Service (NMFS) has
regulatory authority for salmon and steelhead under the ESA. Additionally, the
Department of the Interior’s Fish and Wildlife Service (FWS) has regulatory
authority under the ESA for resident fish in the Columbia Basin — resident fish are
those that do not migrate to the sea as do salmon and steelhead.5 The ESA requires
that federal actions, such as the operation of the FCRPS, must be reviewed to
determine whether they are likely to jeopardize the continued existence of threatened
1 Some sources state that the FCRPS includes 31 dams. Two federal dams, Lost Creek and
Green Springs, are part of the FCRPS but they are located outside the Columbia Basin in
southern Oregon on the Rogue River.
2 See [http://www.bpa.gov/power/pgf/hydrPNW.shtml].
3 P.L. 93-205; 16 U.S.C. §§ 1531 et seq.
4 BPA, Corps, and Reclamation, Biological Assessment for Effects of Federal Columbia
River Power System and Mainstem Effects of Other Tributary Actions on Anadromous
Salmonid Species Listed Under the Endangered Species Act, August 2007, p. 1-1.
Hereinafter referred to as Biological Assessment. See [http://www.salmonrecovery.gov/
Biological_Opinions/FCRPS/BA-CA/FCRPS/BA_MAIN_TEXT_FINAL_08-20-07_Up
dated_08-27.pdf].
5 It is important to note that resident fish, such as bull trout and Kootenai River white
sturgeon, which are listed as threatened and endangered respectively under the ESA are
affected by the FCRPS. These species are the subject of a December 2000 FWS biological
opinion on FCRPS operations, available at [http://www.fws.gov/pacific/finalbiop/BiOp.pdf].
While resident fish are important, the greatest controversy in the Columbia Basin focuses
on anadromous fish — those that migrate between fresh and salt water — namely salmon
and steelhead. Thus, this report focuses on ESA actions and litigation related to these
species.

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and endangered species. This review, conducted by NMFS in the case of salmon and
steelhead, results in a biological opinion (BiOp) with either a jeopardy or no-jeopardy
finding. New ESA listings or new or changed federal actions may all be cause for
ESA consultation and the drafting of a BiOp. To develop a BiOp, NMFS reviews a
Biological Assessment submitted by the relevant action agencies describing the
proposed action that is the subject of ESA consultation. If NMFS finds that specific
actions will likely jeopardize listed species, it is required to propose reasonable and
prudent alternatives (RPAs) to the proposed action in the Biological Assessment to
avoid jeopardy. (See “BiOp Litigation Discussion,” below.)
Figure 1. The Columbia River Basin
Source: [http://yosemite.epa.gov/r10/water.nsf/ac5dc0447a281f4e882569ed0073521f/5896e9e63772fad288256a3100
5570b8/$FILE/ATTP0GJG/MapColBsn9-99.jpg].

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Columbia Basin salmon populations have declined due to a number of human
actions other than those of the FCRPS, including fishing, water pollution, and water
withdrawals for irrigation.6 However, the construction and operation of the FCRPS
has been a visible cause of salmon and steelhead mortality and population decline for
decades. Currently 13 evolutionarily significant units (ESUs)7 of salmon and
steelhead 8 in the Columbia Basin are listed as threatened or endangered under the
ESA.9 Actions intended to aid the recovery of these stocks generally fall into one of
four categories: habitat, harvest, hatchery, and hydrosystem.10 Collectively, these four
categories are referred to as the All-H strategy.
Habitat actions focus on access to, and improvement of, habitat suitable for
rearing of juvenile salmon and spawning by returning adults. Habitat actions may
provide access to previously blocked areas, or create new areas suitable for rearing
or spawning. Harvest actions focus on limiting harvest or harm to listed species
through such approaches as the use of selective fishing gear and timing harvest
periods to focus fishing on hatchery stocks. Hatchery efforts are intended to increase
the number of fish through artificial propagation. Some assert that hatchery
production reduces predator and harvest pressures on wild fish, while others are
concerned that hatchery fish compete with wild salmon and steelhead for food and
habitat. Hatcheries also may alter the genetic diversity of specific stocks. Hatchery
efforts are controversial and are currently under review.11
Finally, hydrosystem actions are aimed at improving the survival of juvenile and
adult salmon and steelhead as they migrate past dams and through the reservoirs they
create. Hydrosystem actions include structural and operational changes at the dams,
such as the addition of juvenile bypass systems and surface-oriented passage routes;
the collection and transportation of juveniles in barges past the dams; the installation
6 Robert T.Lackey, Denise H. Lach, and Sally L. Duncan, “Policy Options to Reverse the
Decline of Wild Pacific Salmon,” Fisheries, vol. 31, no. 7, (2006), pp. 344-351. Available
at [http://www.epa.gov/naaujydh/pages/staff/lackey/pubs/SALMON-2100-PROJECT-
SUMMARY-ARTICLE-REPRINT-2006.pdf].
7 Federal Caucus, Conservation of Columbia Basin Fish, Final Basinwide Salmon Recovery
Strategy, Volume 1, (December 2000). Available at [http://www.salmonrecovery.gov/
Biological_Opinions/FCRPS/all_h_strategy/docs/2000_Final_Strategy_Vol_1.pdf].
Hereinafter referred to as 2000 Salmon Recovery Strategy.
8 Salmon stocks are described in terms of evolutionarily significant units, or ESUs. NMFS
defines an ESU as a population or group of populations that is considered distinct (and
hence a distinct population segment) for purposes of conservation under the Endangered
Species Act. To qualify as an ESU, a population must (1) be reproductively isolated from
other populations within the same species, and (2) represent an important component in the
evolutionary legacy of the species. See [http://www.nwr.noaa.gov/Salmon-Recovery-
Planning/Salmon-Recovery-Glossary.cfm].
9 See [http://www.nwr.noaa.gov/Salmon-Hydropower/Columbia-Snake-Basin/Index.cfm].
10 2000 Salmon Recovery Strategy.
11 Background information is available at [http://www.hatcheryreform.us] and [http://
www.fws.gov/pacific/Fisheries/Hatcheryreview/index.html].

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of structures to guide fish toward safer passage routes; and water releases either to
speed travel through the river or provide safer passage past a dam.
Although some federal salmon and steelhead protection measures have been in
place for nearly 70 years — Bonneville Dam was constructed in 1938 with a fish
ladder to allow upstream passage of returning adult salmon12 — the Pacific
Northwest Electric Power Planning and Conservation Act of 1980 (Northwest Power
Act) codified a fish protection program to mitigate losses associated with the
FCRPS.13 The first ESA listing of a Pacific salmon stock as endangered was in 1991.
This listing ushered in the era of action agency salmon recovery planning, BiOps, and
litigation that continues to the present.
The configuration and operation of the FCRPS dams is a particularly
galvanizing issue between proponents of hydropower development, irrigation, and
river navigation and those supporting commercial, sport, and tribal fishing as well as
environmental conservation. Some actions to benefit salmon, such as spilling water
to help juveniles pass safely, come at a cost in terms of energy production. Such
actions may affect power rates in the region,14 creating an economic incentive for
some consumers and hydropower supporters to oppose an increase in fish protection
operations.
As an alternative to altering dam operations to make them more favorable to
salmon, some parties advocate partially or entirely removing four dams on the Lower
Snake River in Washington. They believe this is the only way to ensure survival of
the Snake River salmon and steelhead ESUs. Dam removal could also result in
economic benefits to various fishing and recreation interests. Proponents of dam
removal argue that the four Lower Snake River dams do not produce a significant
amount of power but do cause significant harm to listed species. They further
indicate that removal of the Snake River dams would reduce federal expenditures and
revitalize local economies.15 Opponents of dam removal note that dam removal
would only benefit 4 of the 13 listed salmon and steelhead ESUs in the Columbia
Basin, and the federal agencies must focus efforts on all of the basin’s ESUs. The
action agencies and NMFS have stated that they do not have the authority to remove
the Lower Snake River dams; that would require congressional action.16
In addition to FCRPS actions, Reclamation operates a number of smaller dams
in the Upper Snake River Basin whose primary purpose is to release water for
12 See [http://www.nwcouncil.org/history/FishPassage.asp].
13 P.L. 96-501, 16 U.S.C. §839.
14 The retail rates for electricity in the Pacific Northwest are among the lowest in the nation.
See [http://www.eia.doe.gov/fuelelectric.html].
15 Save Our Wild Salmon, et al., Revenue Stream, (November 2006), pp 1-2. Available at
[http://www.wildsalmon.org/library_files/revenuestream8.pdf].
16 Bonneville Power Administration and Corps, Fact Sheet: Why Lower Snake River Dam
removal is not in the Draft 2007 FCRPS BiOp, (October 2007). Available at [http://
www.bpa.gov/corporate/BPANews/Perspective/2007/Snake_River_Dams/BiOp_Fact_Sh
eet_dam_removal.pdf].

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irrigation and flood control (five of these generate power and are a part of the
FCRPS).17 None of the 13 listed Columbia Basin salmon and steelhead stocks are
found in the Upper Snake River Basin, because upstream fish passage is completely
blocked by Idaho Power Company’s Hell’s Canyon Project. However, Reclamation’s
operations in the Upper Snake River Basin do contribute to flow augmentation for
listed salmon and steelhead downstream. Dam operations and the water they provide
are the essence of the Upper Snake River disputes.
BiOp Litigation
BiOp decisions and actions have been contentious since the first salmon ESU
was listed in 1991. After a species is listed as threatened or endangered, FCRPS
operations that may affect it require consultation under § 7 of the ESA to determine
if the listed species would be put in jeopardy by those operations. (A history of major
ESA actions and litigation is presented in Table 1.) Less than a year after NMFS
issued its 1993 BiOp for the FCRPS, a federal district court invalidated it, finding it
arbitrary and capricious. The court decision of May 1994 was the first in an ongoing
series of court challenges; most NMFS BiOps for the Columbia and Snake Rivers
were nullified by the courts.
The heart of a biological opinion is the finding of jeopardy or no-jeopardy; that
is, whether an agency action will jeopardize the continued existence of a species. In
1994 the district court found NMFS had used misleading data when determining the
baseline numbers of fish.18 The number of fish harmed by the agency action could
then appear to be smaller, when compared to the low baseline numbers. NMFS had
calculated the future success of the species based on fish counts from 1984 to1990.
The years between 1986 and 1990 were drought years, leading to atypically low
numbers of fish that, according to the court, skewed the data on which NMFS relied.
By comparison, the 1992 BiOp had used the years 1975 to 1990.
Litigation based on the subsequent 1994 to 1998 BiOp, issued in March 1994,
claimed that the NMFS no-jeopardy conclusion was flawed. The environmental
plaintiffs argued that NMFS incorrectly relied on the program to transport juvenile
salmon downstream around the dams on the Columbia River, releasing them below
the Bonneville Dam, as the basis for the species not being in jeopardy. However,
instead of determining whether NMFS was justified in its actions, the court ruled that
the issuance of a 1995 BiOp rendered the action moot.19
The 1995 BiOp stands out for several reasons. First, it included a jeopardy
opinion. Second, the plaintiffs were customers of the hydroelectric dams, not
environmentalists. And third, the BiOp was upheld by the court. The plaintiffs
claimed that the RPAs found necessary by NMFS as part of the ESA consultation
process were based on inappropriate data and failed to balance salmon protection
17 See [http://www.salmonrecovery.gov/Biological_Opinions/Upper_Snake/].
18 Idaho Dept. of Fish and Game v. NMFS, 850 F.Supp. 2d 886 (D. Or. 1994).
19 American Rivers v. NMFS, 126 F.3d 1118 (9th Cir. 1997).

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with the production of hydroelectric power.20 The court noted that there was
scientific uncertainty regarding the salmon decline, but refused to hold that NMFS
had acted arbitrarily or capriciously.
The next BiOp, the 2000 BiOp, included a no-jeopardy opinion. To reach this
conclusion, NMFS had first found that eight salmon ESUs were likely to be
jeopardized by the hydroelectric plants along the Columbia River, and proposed
RPAs that would mitigate the harm. Thus, NMFS was able to issue a no-jeopardy
conclusion. Environmental plaintiffs took issue with the mitigation measures,
claiming that the BiOp was based on future federal actions that had not undergone
§ 7 consultations, and also on future nonfederal off-site actions that were not
reasonably certain to occur.21 The 2000 BiOp was invalidated by the court, but
allowed to remain in place while NMFS prepared a new one.
Similarly, the 2004 BiOp was remanded to NMFS, but also allowed to remain
in place while the agency prepared a new one. The litigation over the 2004 BiOp
began in 2005 and did not conclude until 2008. In May 2005 a district court granted
a preliminary injunction requiring certain dams to allow water to flow past spill gates
rather than through turbines during the summer.22 The decision also found that
NMFS used the wrong method for making the no-jeopardy determination. The Ninth
Circuit affirmed the lower court decision, but remanded the action to have the district
court see if the injunction could be more narrowly tailored.23 On remand, the district
court again held that NMFS had incorrectly performed its BiOp and directed the
agency to produce a new one within a year, keeping the 2004 BiOp in place until the
new one was developed.24 The last word regarding the 2004 BiOp appeared to have
been in April 2007, when the Ninth Circuit affirmed the district court’s decision that
the NMFS BiOp violated the ESA.25 The court criticized the agency for not
considering the aggregate effects on the species when making its jeopardy
determination:

instead of assessing whether the listed fishes would be jeopardized by the
aggregate of the proposed agency action, the environmental baseline, cumulative
effects, and current status of the species, NMFS segregated its analysis, first
evaluating whether the proposed agency action — consisting of only the
proposed discretionary operation of the FCRPS — would have an appreciable net
effect on a species. It considered additional context only if it found such an
effect.26
20 Aluminum Co. of America v. Bonneville Power Admin., 175 F.3d 1156 (9th Cir. 1999),
cert. denied, 528 U.S. 1138 (2000).
21 National Wildlife Federation v. NMFS, 254 F. Supp. 2d 1196 (D. Or. 2003).
22 National Wildlife Federation v. NMFS, 2005 WL 1278878 (D. Or. May 26, 2005).
23 National Wildlife Federation v. NMFS, 422 F.3d. 782 (9th Cir. 2005).
24 National Wildlife Federation v. NMFS, 2005 WL 2488247 (D. Or. October 7, 2005).
25 NWF v. NMFS, 481 F.3d 1224 (9th Cir. 2007).
26 NWF v. NMFS, 481 F.3d 1224, 1232 (9th Cir. 2007).

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The NMFS approach for the 2004 FCRPS BiOp — to find jeopardy only if the
agency action’s effect on fish was appreciably worse compared to a recent baseline
— would allow the fish’s environment to become incrementally worse with each
agency action without finding jeopardy, according to the court, thwarting the purpose
of the ESA.27 Where the species’ environmental baseline already jeopardizes a
species, the Ninth Circuit held that an agency may not take action that deepens the
jeopardy by causing additional harm.28 The court also found fault with NMFS’s
failure to consider the recovery needs of the species within this BiOp, unlike earlier
BiOps. In April 2008 the Ninth Circuit amended its decision. It did not change its
holding, but clarified that a recent U.S. Supreme Court ruling did not alter its
conclusion.29
The 2005 Upper Snake River BiOp was criticized for using a comparative
analysis, rather than an aggregate analysis, just as was done in the 2004 FCRPS
BiOp.30 Like the 2004 BiOp, the 2005 Snake River BiOp was also remanded by the
courts, but allowed to remain in place while NMFS prepared a new one. As a result,
the BiOps that are currently in place for both the Upper Snake River and the FCRPS
were ruled invalid under the ESA. While the BiOps were being finalized, the district
court ordered that the Columbia River be operated pursuant to the 2008 Fish
Operations Plan.31 This plan specifies how the action agencies will manage the
FCRPS during the peak salmon migration times for juvenile and adult fish. New
FCRPS and Upper Snake River BiOps were finalized in May 2008.32
The 2008 FCRPS BiOp was challenged by environmental groups, anglers, an
energy conservation organization, and the State of Oregon as being arbitrary and
capricious. The plaintiffs argued that NMFS created a new method of making its
jeopardy analysis that is “scientifically and legally flawed.” NMFS said the BiOp
“improve[s] the prospects for [the salmon’s] recovery” and was based on “the best
available science.”33
27 NWF v. NMFS, 481 F.3d 1224, 1235 (9th Cir. 2007).
28 NWF v. NMFS, 481 F.3d 1224, 1236 (9th Cir. 2007).
29 NWF v. NMFS, 524 F.3d 917 (9th Cir. 2008) (holding that Nat’l Ass’n of Homebuilders
v. Defenders of Wildlife, 127 S. Ct. 2581 (2007) did not affect the FCRPS BiOp as
Congress imposed broad mandates, not specific actions, on the action agencies).
30 American Rivers v. NOAA-Fisheries, 2006 WL 1455629 (D. Or. May 23, 2006).
31 National Wildlife Federation v. NMFS, No. 01-640-RE (D. Or. February 25, 2008). The
2008 plan is available at [http://www.salmonrecovery.gov/Biological_Opinions/docs/
FOP_2008_final.pdf].
32 See [https://pcts.nmfs.noaa.gov/pls/pcts-pub/pcts_upload.summary_list_biop?p_id=
27149], and [https://pcts.nmfs.noaa.gov/pls/pcts-pub/pcts_upload.summary_list_biop?p_id=
103108].
33 NOAA Press Release (May 5, 2008); see [http://www.nwr.noaa.gov/Newsroom/Current/
upload/05-05-2008.pdf].

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Non-BiOp ESA Litigation
Other litigation affected the way the ESA has been applied to Columbia River
anadromous fish. When the Tenth Circuit Court of Appeals (Denver, CO) ruled that
the FWS’s method of determining critical habitat (CH) under the ESA was flawed,
NMFS agreed to settle a suit that challenged its CH determination for the Columbia
River.34 This is because NMFS said it had used similar methodology to FWS in
determining how economic factors were used in its determination of CH.
Other lawsuits challenged which salmon and steelhead would be listed under the
ESA. A lawsuit claiming that four ESUs of West Coast Chinook should not be listed
as threatened or endangered species was able to delay the listing of those species
while NMFS prepared its hatchery listing policy (HLP).35 Once the HLP was
prepared, a lawsuit by different plaintiffs led to the decision that the HLP violated the
ESA.36 That court also found that NMFS’s downlisting of the Upper Columbia River
steelhead from endangered to threatened by using the HLP violated the ESA by not
considering the best available scientific data.
Conclusion
The most recent NMFS FCRPS BiOp was finalized on May 5, 2008, and a legal
challenge was filed in June 2008.37 NMFS and the action agencies contend that the
2008 BiOp is scientifically based and reflects substantial changes over past BiOps.
The federal agencies contend that many changes have been made in system
configuration, river operations, and research efforts to guide and assess fish survival
improvements. Referring to a quote from Judge Malcolm Marsh in 1994 that FCRPS
operation for salmon and steelhead protection “literally cries out for a major
overhaul,”38 the action agencies say they have made significant changes and will
continue this trend through 2017 with the new BiOp.39
The action agencies suggested an RPA to NMFS, which they say was developed
in collaboration with state and tribal entities with a stake in the outcome of the BiOp.
The agencies cite a regulation40 requiring NMFS to draw on the expertise of the
federal agency when developing an RPA.41
34 National Association of Home Builders, Inc. v. Evans, 2002 WL 1205743 (D.D.C. April
30, 2002).
35 Common Sense Salmon Recovery v. Evans, 329 F. Supp. 2d 96 (D.D.C. 2004).
36 Trout Unlimited v. Lohn, 2007 WL 1795036 (W.D. Wash. June 13, 2007).
37 National Wildlife Federation v. NMFS, No. 01-640-RE (D. Or. June 17, 2008).
38 Idaho Dept. of Fish and Game v. NMFS, 850 F. Supp. 886, 900 (D. Ore. 1994).
39 Biological Assessment, p. 1-8.
40 50 C.F.R. §402.14(g)(5).
41 Biological Assessment, pp. 1-6, 1-7.

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Critics of the new BiOp indicate that it does little to enhance dwindling salmon
populations and offers no significant changes. A lawsuit claims the BiOp ignores the
data gathered by the Interior Columbia Basin Technical Recovery Team, a multi-
displinary science team assembled by NMFS. An environmental group released the
following statement about the 2008 BiOp:42
Based on what we’re seeing today, the agencies didn’t get the message — or
chose to ignore it. Once you get past the bells and whistles, it’s clear this plan is
about little more than protecting the status quo, regardless of the harm the dams
do to salmon and the communities that depend upon them.
When BiOps are compared to each other chronologically, the level of protective
measures (such as spill for juvenile passage) increases over time, and this holds true
for the 2008 BiOp.43 It is unclear how much of this increase is due to the series of
court orders requiring additional protective measures versus increased understanding
of the best management practices for salmon and steelhead recovery.
BPA has negotiated two memoranda of agreement (MOA) with four regional
tribes to garner their support for the new BiOp in exchange for the BPA’s funding
habitat and hatchery projects to benefit salmon, steelhead, and other fish over the
next ten years.44 The New York Times reports that $900 million was offered, with $50
million to be paid by the Army Corps of Engineers.45 There is no indication that the
states, environmental groups, or fishing interests who have acted as plaintiffs were
part of the settlement.
Judge Redden stated in a December 2007 letter to BiOp litigants that if the final
BiOp is legally flawed he is unlikely to remand the document again, but rather would
vacate it.46 This could leave operators of the FCRPS in violation of ESA for
unauthorized “take” of listed species. Further, the court also indicated that an
unsatisfactory BiOp may result in a permanent injunctive order directing the federal
defendants to provide more spill and flow augmentation measures, and obtain
additional water from the Upper Snake and Columbia Rivers, including possible
drawdown of reservoirs to aid fish passage.
42 Available at [http://www.wildsalmon.org/pressroom/press-detail.cfm?docid=766].
43 Telephone conversation on February 13, 2008, with Mr. Scott Bettin, Fish and Wildlife
Administrator, BPA.
44 See [http://www.salmonrecovery.gov/Biological_Opinions/FCRPS/2008_biop/Columbia
BasinFishAccords.cfm].
45 W. Yardley, “Deal Gives Money to Tribes to Drop Role in Fish Lawsuits,” New York
Times, April 8, 2008.
46 Letter from Judge James Redden to parties to the litigation dated December 7, 2007.
Available at [http://www.salmonrecovery.gov/biological_Opinions/FCRPS/
biop_remand_2004/docs.cfm].

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Table 1. Chronology of Major ESA Actions and Litigation on
Columbia Basin Pacific Salmon and Steelhead Trout
(litigation is identified by boldface type)
Date
Action or Court Decision
Citation or Link
November
NMFS published determination that Snake River
56 Fed. Reg. 58619
20, 1991
sockeye salmon were endangered.
January 3,
FWS published notice that Snake River sockeye
57 Fed. Reg. 212
1992
salmon had been listed as endangered.
April 10,
NMFS issued its first BiOp for operation of the
1992
FCRPS.
April 22,
NMFS published determinations that Snake River
57 Fed. Reg. 14653
1992
spring/summer-run chinook salmon and Snake River
fall-run chinook salmon were threatened.
June 3, 1992
NMFS published a correction of its determination
57 Fed. Reg. 23458
that Snake River spring/summer-run chinook salmon
and Snake River fall-run chinook salmon were
threatened. In its correction, NMFS clarified that the
ESU includes populations in the Clearwater River.
May 26,
NMFS issued its second BiOp for operation of the
1993
FCRPS.
December 2,
The Corps, Reclamation, and BPA forwarded a
1993
biological assessment to NMFS with a request for
consultation on the 1994-1998 operation of the
FCRPS.
December
NMFS published critical habitat (CH) designations
58 Fed. Reg. 68543
28, 1993
for Snake River sockeye salmon, Snake River
spring/summer-run chinook salmon, and Snake River
fall-run chinook salmon.
March 16,
NMFS issued “Section 7 Consultation, BiOp,
1994
Reinitiation of Consultation on 1994-1998 Operation
of the Federal Columbia River Power System and
Juvenile Transportation Program in 1995 and future
years.”
March 28,
The 1993 BiOp was held arbitrary and
Idaho Dept. of Fish
1994
capricious. The court found the BiOp used a
and Game v. NMFS,
baseline of 1984-1990 for data, even though 1986-
850 F. Supp. 2d 886
90 were drought years, rather than the 1975-90
(D. Or. 1994), vacated
baseline typically used. The court found the BiOp
as moot by 56 F.3d
did not include structural improvements to dams
1071 (9th Cir. 1995)
when it included dams in the baseline.
August 18,
NMFS published an emergency interim rule wherein
59 Fed. Reg. 42529
1994
NMFS determined that Snake River spring/summer-
run chinook salmon and Snake River fall-run
chinook salmon warranted reclassification from
threatened to endangered.

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Date
Action or Court Decision
Citation or Link
September
Challenged three 1992 BiOps — FCRPS, and two
Pacific Northwest
28, 1994
harvest BiOps. The challenge to the FCRPS
Generating
BiOp was declared moot due to 1993
Cooperative v.
consultation.
Brown, 38 F.3d 1058
(9th Cir. 1944),
amending and
superseding 25 F.3d
1443.
March 2,
NMFS issued a revised BiOp for the FCRPS.
1995
April 2,
Suit based on 1994-98 BiOp was declared moot
American Rivers v.
1997
because the 1995 BiOp had already replaced it.
NMFS, 109 F.3d 1484
(9th Cir. 1997);
amended 126 F.3d
1118 (9th Cir. Sept. 26,
1997)
August 18,
NMFS published determinations that Upper
62 Fed. Reg. 43937 and
1997
Columbia River steelhead trout were endangered and
43974
the Snake River Basin steelhead trout were
threatened. NMFS extended the deadline for a final
listing determination for Lower Columbia River
steelhead trout.
January 12,
NMFS, citing improvements in the status of the
63 Fed. Reg. 1807
1998
ESUs, withdrew its proposed rule to reclassify Snake
River spring/summer-run chinook salmon and Snake
River fall-run chinook salmon from threatened to
endangered.
January 21,
Action agencies (Corps, BPA, and Reclamation)
1998
transmitted their Biological Assessment for 1998 and
Future Operation of the Federal Columbia River
Power System, Upper Columbia and Lower Snake
River Steelhead to NMFS.
March 19,
NMFS published a determination that Lower
63 Fed. Reg. 13347
1998
Columbia River steelhead trout were threatened.
May 14,
NMFS issued its Supplemental BiOp to the March 2,
1998
1995 BiOp.
February 5,
NMFS proposed CH for endangered Upper
64 Fed Reg. 5740
1999
Columbia River steelhead trout as well as threatened
Snake River Basin, Lower Columbia River, Upper
Willamette River, and Middle Columbia River
steelhead trout.
March 24,
NMFS published determinations that Lower
64 Fed. Reg. 14308
1999
Columbia River and Upper Willamette River
chinook salmon were threatened, and that the Upper
Columbia River spring-run chinook salmon were
endangered.

CRS-12
Date
Action or Court Decision
Citation or Link
March 25,
NMFS published a determination that Columbia
64 Fed. Reg. 14508 and
1999
River chum salmon were threatened. NMFS
14517
published determinations that Middle Columbia
River and Upper Willamette River steelhead trout
were threatened.
May 10,
Industrial users of BPA energy challenged
Aluminum Co. of
1999
changes imposed by the NMFS BiOp for Snake
America v. Bonneville
River sockeye and spring/summer and fall
Power Admin., 175
chinook. The court found BPA was not arbitrary
F.3d 1156 (9th Cir.
in adopting the RPAs in NMFS jeopardy opinion.
1999), cert. denied,
528 U.S. 1138 (2000)
August 2,
FWS published a notice that Lower Columbia River
64 Fed. Reg. 41835
1999
and Upper Willamette spring-run chinook salmon,
the Columbia River chum salmon, and the Middle
Columbia River and Upper Willamette River
steelhead trout had been listed as threatened, and that
Upper Columbia River spring-run chinook salmon
had been listed as endangered.
February 16,
NMFS published CH designations for Lower
65 Fed. Reg. 7764
2000
Columbia River, Upper Willamette River, and Upper
Columbia River spring-run chinook salmon;
Columbia River chum salmon; and Upper Columbia
River, Snake River Basin, Lower Columbia River,
Upper Willamette River, and Middle Columbia
River steelhead trout.
April 2000
Action agencies submitted their biological
assessment on the effects of the Willamette River
Basin Flood Control Project on ESA-listed species.
July 10,
NMFS published §4(d) rule to regulate activities
65 Fed. Reg. 42422
2000
affecting threatened species for Snake River Basin,
Lower Columbia River, Middle Columbia River, and
Upper Willamette River steelhead trout (applicable
Sept. 8, 2000); and for Snake River spring/summer-
run, Snake River fall-run, Lower Columbia River
and Upper Willamette River chinook salmon, and
Columbia River chum salmon (applicable Jan. 8,
2001).
July 14,
NMFS issued a BiOp on the impacts from collection,
2000
rearing, and release of salmonids associated with
artificial propagation programs on the Upper
Willamette River spring-run chinook salmon and
winter-run steelhead trout.
December
NMFS issued a BiOp on operation of the FCRPS for
Available at
21, 2000
salmon and steelhead.
[https://pcts.nmfs.noaa.
gov/pls/pcts-pub/sxn7.p
cts_upload.summary_li
st_biop?p_id=12342].

CRS-13
Date
Action or Court Decision
Citation or Link
April 30,
Court accepted the consent order that vacated
National Association
2002
the CH designations for salmon and steelhead,
of Home Builders,
pursuant to 10th Circuit decision finding FWS did
Inc. v. Evans, 2002
not use economic factors correctly. [New Mexico
WL 1205743 (D.D.C.
Cattlegrowers’ Association v. U.S. Fish and
April 30, 2002)
Wildlife Service, 248 F.3d 1277 (10th Cir.
2001).]NMFS had used a similar method for the
Columbia River.
May 7,
The court invalidated the 2000 BiOp and
National Wildlife
2003
remanded it to NMFS. The December 21, 2000
Federation v. NMFS,
BiOp’s no jeopardy determination was held
254 F. Supp. 2d 1196
arbitrary and capricious because NMFS limited
(D. Or. 2003)
the scope to mainstems of Columbia and Snake,
and relied on non federal mitigation.
September
In response to the April 30, 2002 court order cited
68 Fed. Reg. 55900
29, 2003
above, NMFS removed CH previously designated
for Lower Columbia River, Upper Willamette River,
and Upper Columbia River spring-run chinook
salmon; Columbia River chum salmon; and Upper
Columbia River, Snake River Basin, Lower
Columbia River, Upper Willamette River, and
Middle Columbia River steelhead trout.
June 14,
NMFS proposed relisting Upper Willamette River,
69 Fed. Reg. 33102
2004
Lower Columbia River, Middle Columbia River,
Snake River Basin, and Upper Columbia steelhead
trout; Upper Willamette River, Lower Columbia
River, Snake River fall-run, and Snake River
spring/summer-run chinook salmon; and Columbia
River chum salmon as threatened as well as Snake
River sockeye salmon and Upper Columbia River
spring-run chinook salmon as endangered (to reflect
how the inclusion of certain hatchery stocks might
influence listing determinations). In addition, Lower
Columbia River coho salmon were proposed to be
listed as threatened.
August 10,
Plaintiffs challenged the March 1999 listing of
Common Sense
2004
four Chinook salmon. The court stayed the listing
Salmon Recovery v.
of Upper Chinook spring-run salmon, Puget
Evans, 329 F. Supp.
Sound, Lower Columbia River, and Upper
2d 96 (D.D.C. 2004)
Willamette spring-run salmon, pending final
hatchery policy (due June 14, 2005).
November
Reclamation submitted a biological assessment to
Available at [http://
2004
FWS and NMFS for operations and maintenance
www.usbr.gov/pn/progr
actions at 12 federal projects in the Upper Snake
ams/UpperSnake/2004b
River basin.
a/index.html].
November
NMFS reissued a revised BiOp on operation of the
Available at
30, 2004
FCRPS for salmon and steelhead.
[https://pcts.nmfs.noaa.
gov/pls/pcts-pub/sxn7.p
cts_upload.summary_li
st_biop?p_id=14756].

CRS-14
Date
Action or Court Decision
Citation or Link
March 2005
FWS issued a BiOp on operations and maintenance
Available at
of the Reclamation Upper Snake River Basin
[http://www.fws.gov/id
Projects above Brownlee Reservoir.
aho/publications/BOs/F
inal.pdf].
March 31,
NMFS issued a BiOp on operations and maintenance
Available at
2005
of the Bureau of Reclamation Upper Snake River
[https://pcts.nmfs.noaa.
Basin Projects above Brownlee Reservoir.
gov/pls/pcts-pub/sxn7.p
cts_upload.summary_li
st_biop?p_id=22363].
May 26,
The court issued a preliminary injunction
National Wildlife
2005
blocking implementation of the 2004 BiOp, and
Federation v. NMFS,
ordering summer water through spillgates rather
2005 WL 1278878 (D.
than through turbines at certain dams.
Or. May 26, 2005).
June 28,
NMFS relisted Upper Columbia River spring-run
70 Fed Reg. 37160
2005
chinook salmon and Snake River sockeye salmon as
endangered as well as Lower Columbia
River/Southwest Washington coho salmon, Snake
River fall-run chinook salmon, Snake River
spring/summer-run chinook salmon, Lower
Columbia River chinook salmon, Upper Willamette
River chinook salmon, and Columbia River chum
salmon as threatened.
September
The appellate court affirmed the district court
National Wildlife
1, 2005
opinion of May 26, 2005, that the 2004 BiOp for
Federation v. NMFS,
FCRPS was flawed. The Ninth Circuit found no
422 F.3d. 782 (9th Cir.
abuse of discretion in district court injunction,
2005)
and remanded the issue of whether the district
court’s preliminary injunction was narrowly
tailored. [District court decision = 2005 WL
1278878 (D. Or. May 26, 2005).]
October 7,
The court remanded the 2004 BiOp to NMFS,
National Wildlife
2005
directing NMFS and action agencies to comply
Federation v. NMFS,
with ESA, and to complete new BiOp within one
2005 WL 2488247 (D.
year. The decision kept the 2004 BiOp in place
Or. Oct. 7, 2005)
while new one was being drafted.
January 5,
NMFS relisted Snake River basin steelhead trout,
71 Fed. Reg. 834
2006
Lower Columbia River steelhead trout, Upper
Willamette River steelhead trout, and Middle
Columbia River steelhead trout as threatened.
May 23,
The court rejected the 2005 Upper Snake BiOp
American Rivers v.
2006
for using a comparative approach to determine
NOAA-Fisheries,
jeopardy, saying the NMFS should have
2006 WL 1455629 (D.
aggregated the effects. The court found NMFS
Or. May 23, 2006)
failed to consider combined effects from proposed
action and existing baseline. The court clarified
that NMFS did not abuse its discretion in
separating Upper Snake from rest of Columbia,
but that a more cohesive strategy would occur if
BiOp considered them both.

CRS-15
Date
Action or Court Decision
Citation or Link
September
The court remanded the 2005 Upper Snake BiOp
American Rivers, Inc.
26, 2006
but left it in place while NMFS prepared new one.
v. NOAA-Fisheries,
2006 WL 2792675 (D.
Or. Sept. 26, 2006)
April 9,
The Ninth Circuit affirmed the district court
NWF v. NMFS, 481
2007
decision of Oct. 7, 2005, rejecting the 2004
F.3d 1224 (9th Cir.
FCRPS BiOp for for failing to consider
2007)
nondiscretionary projects’ impacts, failing to
incorporate degraded baseline, and inadequately
evaluating impacts of dams. The court criticized
the use of comparative approach rather than
aggregate. [District court decision = 2005
WL2488247 (D. Or. Oct. 7, 2005).]
May 31,
Action agencies provided a supplemental biological
Available at
2007
assessment to NMFS and FWS evaluating the effects
[https://www.nwp.usace
on ESA-listed fish in operating the Willamette River
.army.mil/pm/e/reports/
Basin dams for flood damage reduction and power
environmental/ba/Final
generation.
_Will_Supp’l_BA.pdf].
June 13,
The court found that NMFS’s downlisting of
Trout Unlimited v.
2007
Columbia River steelhead due to hatchery listing
Lohn, 2007 WL
policy (HLP) violated the ESA. It set aside the
1795036 (W.D. Wash.
HLP for violating the ESA.
June 13, 2007)
August 21,
Action agencies issued a biological assessment for
Available at [http://
2007
effects of the FCRPS.
www.salmonrecovery.g
ov/Biological_Opinions
/FCRPS/BA-CA/FCRP
S/BA_MAIN_TEXT_F
INAL_08-20-07_Updat
ed_08-27.pdf]
Reclamation issued a biological assessment on
Available at
operations and maintenance of Upper Snake River
[http://www.usbr.gov/p
Basin Projects above Brownlee Reservoir.
n/programs/UpperSnak
e/index.html].
A Comprehensive Analysis of the FCRPS and
Available at [http://
Mainstem Effects of Upper Snake and Other
www.salmonrecovery.g
Tributary Actions was provided.
ov/Biological_Opinions
/FCRPS/BA-CA/CA/C
A-Final.pdf].
October 31,
NMFS released a draft revised BiOp on operation of
Superseded by the final
2007
the FCRPS and Upper Snake projects for salmon
BiOp on operation of
and steelhead.
the FCRPS, Upper
Snake projects, and
harvest of salmon and
steelhead, issued May,
5, 2008
February
The court ordered that the FCRPS would be
National Wildlife
25, 2008
operated pursuant to the 2008 Fish Operations
Federation v. NMFS,
Plan until the 2008 BiOp was finished in August,
No. 01-640-RE (D.
2008.
Ore. Feb. 25, 2008).

CRS-16
Date
Action or Court Decision
Citation or Link
April 24,
The court amended its April 2007 decision to
National Wildlife
2008
clarify that the Supreme Court decision in Nat’l
Federation v. NMFS,
Ass’n of Homebuilders v. Defenders of Wildlife,
524 F.3d 917 (9th
127 S. Ct. 2581 (2007) did not alter its ruling.
Cir. 2008).
May 5,
NMFS released the final BiOp on operation of the
Available at
2008
FCRPS, Upper Snake projects, and harvest of
[http://www.nwr.noaa.g
salmon and steelhead.
ov/Salmon-Hydropowe
r/Columbia-Snake-Basi
n/final-BOs.cfm].
June 17,
Suit filed challenging the May 2008 FCRPS
National Wildlife
2008
BiOp.
Federation v. NMFS,
No. 01-640-RE (D.
Ore. Jun. 17, 2008).
July 11,
NMFS released the final BiOp on operation of the
Available at
2008
Willamette Basin Project.
[http://www.nwr.noaa.g
ov/Salmon-Hydropowe
r/Willamette-Basin/Wil
lamette-BO.cfm]