Armed with a June 25 case from the Supreme Court, the state of Idaho is asking a federal appeals court to reinstate a 2004 biological opinion that found operation of 14 Columbia and Snake river hydroelectric projects does not jeopardize salmon listed under the Endangered Species Act.
The state petitioned the 9th U.S. Circuit Court of Appeals July 18, seeking rehearing of a decision that affirmed a lower court's rejection of the National Marine Fisheries Service's (NOAA Fisheries) 2004 Columbia Basin biological opinion as a violation of the Endangered Species Act. (HNN 4/11/07)
Biop rejection spurred dam removal campaign
A panel of the 9th Circuit upheld U.S. District Judge James Redden's ruling that NOAA Fisheries' $6 billion, ten-year plan for operating Federal Columbia River Power System dams was flawed because it found �no jeopardy� to ESA-listed salmon and steelhead.
Based on a challenge from environmentalists, fish groups, and Indian tribes, Redden ordered the biological opinion to be rewritten -- the fifth such �biop� to be rejected by the courts since 1992 based on the ESA. Environmentalist groups used the ruling to revive their campaign for removal of four Corps of Engineers hydroelectric projects on the lower Snake River.
Supreme Court: ESA does not apply to mandatory agency actions
Idaho argued the lower court ruling conflicts with a June 25 decision of the Supreme Court, National Association of Homebuilders v. Defenders of Wildlife. (HNN 6/29/07) In that 5-4 decision, the Supreme Court overturned the 9th Circuit and declared the ESA's �no jeopardy� requirement applies only to discretionary agency actions, and does not govern actions an agency is required by statute to undertake.
�The Supreme Court's decision in Homebuilders has altered markedly the (9th Circuit) panel's legal assumptions concerning application of (ESA) Section 7(a)(2) to FCRPS operations,� the state argued. �The Corps and USBR have been directed to manage the 14 facilities at issue here for various purposes. They have no authority to disregard this congressional directive, and Homebuilders unequivocally holds that the ESA does not supply such authority...�
Idaho's petition to the 9th Circuit said the Corps of Engineers and Bureau of Reclamation have a mandate from Congress to operate Federal Columbia River Power System dams for purposes including flood control, navigation, irrigation, and power generation, and cannot be prohibited by the ESA from complying with that mandate.
�The core predicate for NMFS' jeopardy approach in the 2004 biological opinion is the principle that the Corps and USBR must operate the existing FCRPS facilities for several purposes and that any impacts from such operations are part of the environmental baseline, rather that �effects of the action' to the extent they derive from non-discretionary activities,� Idaho's petition said.
The federal government could have filed its own request for rehearing but did not. The appeals court has no specific schedule for responding to the state's petition.
NOAA Fisheries is working on a rewrite of the 2004 biop for operating the power system for recovery of salmon and steelhead.