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©2007 Cascadia Times

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A mugging on the way to the courthouse

Congress created the Bonneville Power Administration in 1937 to sell power from federal dams on the river — just before the completion of Bonneville Dam in 1938. Today, the power agency has emerged as Lord of the River, selling three billion dollars worth of electricity each year, a revenue stream it claims is threatened by proposed measures to protect salmon. Despite this obvious conflict of interest, Bonneville until 2005 was allowed to make daily life-and-death decisions on behalf of migrating juvenile fish, when a federal judge stepped in.

Dams blocked salmon from reaching 55 percent of its historic range in the basin and buried almost all fishing sites in the mainstem under at least 100 feet of water. In 1910, Swan Falls Dam blocked salmon from reaching the Upper Snake. Owyhee Dam on Oregon’s Owyhee River blocked access to southeast Oregon, southern Idaho and northern Nevada in 1932. Grand Coulee in 1941 blocked access to the Upper Columbia in Canada.

If they chose to, Bonneville and the other federal agencies can reduce salmon losses by increasing flows and unleashing water over spillways, but those methods cost a great deal of money. Instead, Bonneville tries to minimize its costs by collecting salmon upstream and barging them around the dams. But barging causes deadly trauma to most of the fish, according to biologists with the U.S. Fish and Wildlife Service and other agencies who have studied the phenomenon.

Fishing and environmental groups have sued the government numerous times since 1993 over its failures to reduce salmon mortality in compliance with the Endangered Species Act. Three times, federal courts held that the government was operating the Columbia's hydropower system in violation of the Act.

Bonneville claims its operations are entirely legal, and disputes many of the court’s findings.
Under the Endangered Species Act, NOAA Fisheries must determine whether Bonneville’s actions comply with the law, or whether they would pose a “jeopardy” to listed species. It does so through a “biological opinion.” NOAA has issued four biological opinions since 1993, each finding that Bonneville’s operation plans are legal so long as the agency adopted additional measures to help the fish. Courts have struck down three of the four biological opinions.

As professor Michael Blumm of Northwestern School of Law in Portland sees it, Bonneville has persuaded the public into thinking it has been “making a meaningful attempt to restore salmon spawning populations, when in fact it was doing no such thing.”

In an article last year in Environmental Law, Blumm says the Bush Administration’s entire approach to Columbia Basin salmon has been “dominated by deception.” For example, when a federal judge rejected a biological opinion (BiOp) in 2003 because its provisions were not reasonably certain to be implemented, the Bush Administration seized the opportunity to completely revise the standards BiOps must satisfy under the ESA. The result produced a new BiOp in late 2004, in which the Administration attempted to reverse an earlier conclusion that Columbia Basin hydrosystem operations jeopardized listed salmon runs — “a brazen attempt to ratify the operational status quo for at least five additional years.”

Federal Judge James Redden, who threw out the last two “BiOps,” as they are called, has grown increasingly skeptical. Both Bonneville and NOAA are too willing “to risk large numbers of listed salmon, while professing to fulfill their ESA duty to avoid jeopardy” for the salmon, he says.

He says that the federal agencies “have repeatedly and collectively failed to demonstrate a willingness to do what is necessary to halt and reverse the trend towards species extinction in both the Columbia and Snake River Basin whatever the cost.”

The federal agencies, he said, “appear to be narrowly focusing their attention on what the establishment is capable of handling with minimal disruption,” instead of on the salmon’s needs.
Bonneville and NOAA argued in 2004 that the damage done by dams can be overlooked because dams are part of the natural landscape, for purposes of the Endangered Species Act. Redden found this ludicrous and ordered them to rewrite their hydro operations plans. The next version is scheduled to be out in July 2007.

He declared that without a change in direction, the hydrosystem was headed for a “train wreck.” He vowed the court would “run the river” itself if NOAA Fisheries or Bonneville didn't correct its failures, and soon. “Such a dysfunction of government is not a rational option,” Redden ruled. “There must be cooperation between the parties and all of the three branches of government to avoid such an embarrassment.”

Bonneville, eager to avoid losing its authority to run the river, has pushed back hard in an effort to shield itself from Redden's threat. Last December, it coerced tribal governments into helping reach a temporary settlement of ESA litigation, in an effort to circumvent Redden's mandate that it fix its salmon problem, at least for 2007.

Bonneville offered the tribes $5 million in 2007 for tribal habitat and hatchery projects that employ 60 tribal staff — but only if tribal leaders accepted Bonneville's terms. First, the tribes could not seek a court injunction requiring more salmon-friendly hydropower operations in 2007, no matter how deadly to salmon the operations might be; and second, they could not provide technical assistance to salmon groups who in Redden's courtroom are fighting Bonneville over its hydro operations. Reluctantly, the tribes agreed to both of these conditions.

Bonneville also asked the tribes to participate in press events intended to portray the agency's operations as friendly to salmon, said Charles Hudson, a spokesman for CRITFC. Bonneville also asked the tribes for help in “getting the plaintiffs to settle” the ESA case, Hudson said the tribes flatly rejected both of these demands.

Bonneville CEO Steve Wright “was speaking publicly about the agreement before some of the tribes had signed it, leaving a bad taste in the mouth of tribal leaders,” Hudson added.
Todd True, a lawyer for the plaintiffs, led by the National Wildlife Federation, said Bonneville “appears to have concluded that they cannot win in court by following the law. Some of the parties (in the case) are being mugged on the way to the courthouse.”

“Bonneville was playing dirty,” says Nicole Cordan, legal director for Save Our Wild Salmon. “Bonneville doesn’t seem to like the fact that the Endangered Species Act applies to them, so they are looking for a way around the law. I don't think that is how a federal agency should behave.”

Greg Delwiche, a Bonneville vice president for environment, fish and wildlife, said in an interview with Cascadia Times that Bonneville prefers to settle the ESA litigation with a long-term agreement lasting through 2017. Without a settlement, he said, the tribal jobs will be eliminated next year.

Rob Lothrop, an attorney for CRITFC, said there is “no chance” the tribes will agree to a long-term deal under the same terms that Bonneville demanded in December 2006.

Next: A secret draft of Bonneville’s new proposal is leaked

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