David J. Cummings, OSB #92269 - dic@nez~erce.org Office of Legal Counsel P. 0. Box 305 Lapwai, ID 83540 Telephone (208) 843.73 5 5 Facsimile 208) 843.7377 Geoffrey Whiting, OSB #95454 gwhitin~@,oregonvos.net Office of Legal Counsel P. 0. Box 591 Joseph, OR 97846 Telephone (541) 432.2015 Attorneys for Amicus UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON AMERICAN RIVERS, et al., v. Plaintiffs, NOAA FISHERIES and U.S. BUREAU OF RECLAMATION, Civil No. CV04-00061 -RE Amicus 's Response to Plaintiffs' Motion for Partial Reconsideration Defendants, STATE OF IDAHO, et al., Defendant-Intervenors The is participating in this case based on the Tribe's treaty- reserved fishing rights, the Tribe's longstanding involvement in litigation concerning the Amicus 's Response to Plaintiffs' Motion for Partial Reconsideration: 1
impacts on salmon of the federal dams on the mainstem Columbia and Snake Rivers, and the Tribe's commitment to the Snake River Basin Adjudication (SRBA Agreement). The Tribe appreciates this Court's acknowledgement of the significance of the SRBA Agreement and Congress' authorization of that Agreement in its summary judgment opinion and order. Docket #263 at 18,22. As this Court acknowledged, the Tribe believes the existence of the SRBA Agreement must be taken into account in this proceeding. Id. at 8. After this Court's ruling, the Tribe and the other parties to the SRBA Agreement remain committed to the Agreement. See, e.g., Idaho congressional delegation press release: htt~://crai~.senate.~ov/releases.pr0523o6a.pdf. The Tribe has carefully reviewed the Plaintiffs' expedited motion for partial reconsideration of the Court's ruling on the "segmentation" claim. Docket #265, 266. In briefing the "segmentation" issue before this Court, the Plaintiffs asserted that the effects of "improper segmentation" would be that impacts to the salmon would be overlooked if two, rather than one, biological opinions were developed. See, e.g., Plaintiffs' ReplyResponse Memo, Docket # 237, at 13 n. 10 ("Moreover, structured the way they are, the two-action approach allows the federal defendants to avoid any real assessment of the full effects of federal and other operations in the Upper Snake Basin.") The Tribe, in reply, noted: The Tribe's point is that the Endangered Species Act and its regulations (requiring, as this Court has held, the aggregation of the environmental baseline, the effects of the action, and cumulative effects) ensure that impacts on listed species are not somehow overlooked when actions are subject to separate consultations and separate biological opinions. In other words, if there are problems with the adequacy of a BiOp (as this Court has held there are for the 2004 FCRPS BiOp) then those problems can and should be addressed in the context of that particular BiOp. Properly conducting the analysis required by the ESA and its implementing regulations in separate BiOps will ensure that impacts to listed fish are not overlooked Amicus 's Response to Plaintiffs' Motion for Partial Reconsideration: 2
Tribe's Reply Memo to Plaintiffs' Motion for Summary Judgment, Docket #245 at 3. As this Court correctly recognized in the questions it posed prior to oral argument, it is the failure to have a comprehensive jeopardy analysis (rather than segmentation of the Upper Snake from the FCRPS) that could result in impacts being overlooked. Docket #257 ("The court's primary concern is: Have federal defendants failed to meet ESA obligations to provide a comprehensive jeopardy analysis of the efsects of the federal actions on the listed species in the action area?") In ruling against the Plaintiffs on the segmentation issue, this Court nevertheless provided the Plaintiffs with significant relief concerning the relationship of the ongoing FCRPS BiOp remand process and the anticipated remand of the Upper Snake BiOp. This Court held: [Olnly if NOAA examines the effects of a federal action on the listed species and any cumulative effects and the environmental baseline in the aggregate, can the agency insure that a proposed action will not jeopardize the continued existence of the listed species. Regardless of whether the effects of the FCRPS BiOp and the upper Snake water projects are analyzed in one or two biological opinions, the result must comply with Justice Burger's admonition; the Action Agencies first priority must be to "halt and reverse the trend toward species extinction, whatever the cost." TVA v. Hill, 437 U.S. at 184-85. Docket #263 at 24 (emphasis in original). This Court went on to state that: Id. at 25. I look forward to a consultation that employs a valid, comprehensive analytical framework. Rebuilding salmon to healthy, harvestable levels will come in large part from addressing the impacts of the down-river dam operations that do the most harm to salmon. Even so, the water of the upper Snake water projects and its uses must be an integral part of the analysis. There must be a comprehensive evaluation of the effects of water use in the upper Snake River and the down-river dam operations. Amicus 's Response to Plaintiffs' Motion for Partial Reconsideration: 3
From the neglected perspective of salmon navigating the Columbia and lower Snake Rivers, this Court's rulings on the comprehensiveness of the jeopardy analysis required by the ESA already have ensured that no impacts to these fish will be overlooked. It will, no doubt, require a significant commitment from the United States to ensure that such a comprehensive analysis is properly conducted in a timely fashion. In the meantime, the Plaintiffs' motion for reconsideration of the "segmentation" issue, unlike the federal government's appeal of the underlying jeopardy standard in the FCRPS case during which the remand is occurring, has halted glj efforts to move forward with the remand in this case. From the perspective of the salmon, moving on now with the task at hand (using a comprehensive analysis that does not overlook any impacts) is surely the most important use of resources. The Tribe looks forward to the details of the remand (timeline, structure, etc.) and ensuring that the remand commences as quickly as possible. The Tribe suggests that if the issue of "segmentation" is one that the Plaintiffs wish to pursue at all costs, they may do so on appeal rather than halting all progress on the remand in this case. The motion for partial reconsideration of this Court's Opinion and Order should be denied. //I / / 1 //I Amicus 's Response to Plaintiffs' Motion for Partial Reconsideration: 4
DATED: 26 June 2006 Respectfully submitted, IS/ David J. Curnminns David J. Cummings Oregon State Bar # 92269 Geoffrey Whiting Oregon State Bar #95454 Attorneys for Amicus Amicus 's Response to Plaintiffs' Motion for Partial Reconsideration: 5
CERTIFICATE OF SERVICE Pursuant to Local Rule Civil 100.13(c), and F.R. Civ. P. 5(d), I certify that on June 26,2006, the foregoing document will be electronically filed with the Court's electronic court filing system, which will generate automatic service upon all parties enrolled to receive such notice. The following will be manually served by first class U. S. Mail: Dr. Howard F. Horton, Ph.D. U. S. Court Technical Advisor Professor Emeritus of Fisheries Department of Fisheries & Wildlife 104 Nash Hall Corvallis, OR 9733 1-3803 Seth M. Barsky U. S. Department of Justice Wildlife & Marine Resources Section Environmental & Natural Resources Division Ben Franklin Station P. 0.7369 Washington, DC 20044-7369 IS/ Marlene Trurnbo Marlene Trurnbo Amicus 's Response to Plaintiffs' Motion for Partial Reconsideration: 6