Despite a major legal defeat, environmentalists are not ready to drop their fight over federal salmon policy in the Columbia and Snake rivers.
And frustrated Indian tribes may be willing to risk their ultimate weapon, 140-year-old treaty rights, in a final challenge to recovery efforts they say fall far short of what is needed to save the fish.
“Personally, I have encouraged the tribes to pull out their weaponry and use it,” Ted Strong, a member of the Yakama tribe and executive director of the Columbia River Inter-Tribal Fish Commission, said Monday.
“What good is it to have a weapon that lies collecting dust and those for whom the weapon was designed to protect get destroyed because of that complacency?” he asked.
Last week’s ruling by U.S. District Judge Malcolm Marsh upholding the salmon recovery efforts of the National Marine Fisheries Service dealt a severe blow to environmentalists. The ruling emphasizes the limits placed on courts when they are asked to overrule federal agencies under the Endangered Species Act.
The lawsuit contended the fisheries service’s recovery plan for endangered Snake River salmon is inadequate and is not being followed anyway.
But Marsh said that while he shares some of the concerns about whether the plan will result in the fish’s survival, it is beyond his authority to overrule the fishery agency’s plan.
It was a major blow to environmentalists’ ability to use the court as a weapon.
“This is, to some extent, one of the final arrows in their quiver,” said Bruce Lovelin, executive director of the Columbia River Alliance, an organization of utilities, irrigators and other river users that has been an outspoken foe of the environmentalists and tribes.
Dan Rohlf, attorney for the Northwest Environmental Defense Fund, said the environmental groups likely would ask Marsh to rule on two other motions that remain unresolved.
One claim alleges that allowing up to 99 percent mortality for young Snake River spring-summer chinook runs cannot be legally considered an incidental loss, as the fisheries service contends. The other contends the fisheries service illegally ignored a section of the Endangered Species Act because it did not assess whether proposed dam operations would destroy critical habitat.
“Given the tenor of the ruling last week, I’m not sure that we’ll be overly optimistic,” Rohlf said. But he said it probably would be better to wrap up all outstanding claims at the district court level before appealing to the 9th U.S. Circuit Court of Appeals in San Francisco.
“I spoke with one of my clients just this morning who expressed an interest to take whatever legal action we can until the last fish is gone,” Rohlf said.
The National Marine Fisheries Service was relieved.
“It was scary,” said Brian Gorman, spokesman for the fisheries service in the Northwest. “Our worry when this lawsuit was brought was that the possibility for negotiations and frank discussions and give-and-take of that kind of approach would evaporate if we had a court, in effect, running the river.”
Last Friday, less than 24 hours after Marsh’s ruling, environmentalists lost another fight when the fisheries service decided that more than half of the endangered baby fish would be barged downriver this year, rather than spilled through the dams.
The Columbia River Alliance opposes spills, saying the high level of nitrogen gas in the water below the spillways actually harms the fish. Critics say the alliance’s real motive is economic because its members have the most to lose by spilling the water instead of using it to generate power or irrigate crops.
“It was a very encouraging week,” Lovelin said. Still, his group plans to go ahead with its own lawsuit contending the recovery plan goes too far.
The fisheries service rejected a request by Idaho to cut back on barging. Idaho is concerned too many steelhead will be barged when they are collected along with the salmon.
Pat Ford, Idaho field representative for the Save Our Wild Salmon coalition, expects the fisheries service to list Snake River steelhead as threatened this August.
“I tend to think it’s a foregone conclusion,” Ford said. “There are fewer wild steelhead now than there were salmon when salmon were listed.”
Snake River spring-summer and fall chinook already are listed as endangered, as are Snake River sockeye. Biologists predict the fewest number of wild Snake River salmon on record, about 90,000, will begin the migration to the sea this year. That compares with 200,000 last year and over 1 million in the early 1990s.
The debate over spills versus barging will continue as the fisheries service prepares for a final decision to include in its new biological opinion to take effect in 1999. That discussion also includes the idea of reservoir drawdowns, to increase the flow of the Columbia and Snake to make them more like natural rivers, a proposal favored by a national scientific panel last year.
The fisheries service will not ignore the tribes, environmentalists or state biologists as it refines its recovery plan, Gorman promised.
“I don’t think our feeling is we now have carte blanche to do whatever we want,” Gorman said. “My reading is the judge was saying, ‘Hey guys, you passed the judicial muster this time, but be very careful because I’m feeling uncomfortable about some of these things.”’