Earlier this month, a consortium of environmental and fishing groups filed action in a Portland Federal Court, claiming the National Marine Fisheries Service (NMFS) plan for restoring Columbia River salmon violates the Endangered Species Act (ESA).
Todd True, an attorney from Earthjustice, leads the litigation team. He also led successful spotted owl litigation filed by environmentalists a decade ago. True says NMFS failed to adopt mandatory measures that were credibly linked to salmon recovery. Instead, the agency relied on speculative events and voluntary actions.
"We can produce electricity, raise crops and move goods in many ways, but the salmon only have one river," says True.
Six species of salmon inhabit the Pacific Coast of North America, from Alaska to California. Five of them are found in the Columbia River (Chinook, Coho, Chum, Sockeye and Steelhead).
As the agency responsible for applying ESA to marine fish, NMFS divided Columbia River salmon into 16 Evolutionarily Significant Units (ESUs), based on time and location of spawning and other characteristics. NMFS then listed 12 of those ESUs as threatened or endangered.
Last December's NMFS Final Biological Opinion (BIOP) set out the government's plan for restoring the listed runs. The plan follows a formula commonly known as the 4Hs: hydropower system modification, habitat improvement, harvest reduction and hatchery system modification.
The lawsuit comes during a period of increasing Columbia River salmon returns. Last year, 1.5 million salmon returned to the Columbia, with larger returns expected this year. Both years are vast improvements over the recent past.
Wild fish accounted for 25 percent of last year's return, or about 375,000 fish. Fish counters and fishermen can distinguish wild from hatchery fish, because the latter have one fin removed when released.
Managers currently allow a 17 percent in-river harvest, with sports fishers taking 10-15 percent of the in-river harvest, and tribal fishers the rest. Ocean fishers take an additional -- but unknown -- number of Columbia River-bound salmon.
Sports fishers are able to release wild fish, but since they are often using gillnets, tribal fishermen cannot.
Salmon biologists of all persuasions agree that improved ocean conditions contributed to increased salmon returns. Government biologists also credit the ongoing 4Hs recovery program.
However, Jim Martin sees a less favorable future. Martin is a retired fisheries biologist who's on the board of the National Wildlife Federation -- the lead plaintiff in the new lawsuit.
Martin says there have been recoveries like this in the past, but the hydro system ground up the benefits in later years. Martin says this will happen again.
He is particularly concerned about this year's outgoing migrants. They are below average in number because their parents also endured a drought. This year's drought will inflict unusually high mortality on that small starting number.
Litigation team leader True emphasized the lawsuit is directed at long-term salmon recovery, not at recent political events.
However, he expressed concern about the Bonneville Power Administration's (BPA) approach to the current drought and electricity crisis, and about the Bush administration's failure to increase salmon recovery funding.
BPA exercised waiver provisions in the NMFS recovery plan to redirect water reserved for salmon to electricity production. Objections from salmon advocates led to only a partial reversal of that decision. The compensating measure, increased barge transportation of juvenile fish, is a procedure in which environmentalists lack confidence.
The Clinton administration developed a recovery plan that recommended increasing salmon recovery funding to about $750 million annually. But the Bush administration rejected that recommendation and continued the current annual funding level of about $250 million.
True expects a decision on the case in about a year.
If the government prevails, the current salmon recovery process will presumably continue. If the court finds the government plan deficient, True hopes for more aggressive action: more money for habitat restoration, more water spilled over dams and a more serious consideration of Snake River dam breaching.
Those are not the government's only options. The Bush administration could convene what is popularly known as the "God Squad" -- a high level committee authorized by the Endangered Species Act to overturn what it deems excessively burdensome recovery measures. If convened today, the God Squad would be chaired by Secretary of Interior Gale Norton, and would include several other high level Bush appointees.
Norton, in particular, is not considered a friend of environmental causes.
Congressional action could also change ESA requirements. True says environmentalists would win the public opinion battle associated with either of those actions.
Whoever wins, and whatever happens after the case is decided, last week's litigation increased the stakes and accelerated the timing of events in the salmon recovery and Snake River dam breaching debate. As always, stay tuned.