Ninth Circuit Court of Appeals

The Ninth Circuit Court of Appeals, in a decision written by Judge Thomas, affirmed the district court's decision finding that a 2004 Biological Opinion jeopardy analysis (whether the proposed actions would reduce the survival and recovery of the species) was structurally flawed and incompatible with the Endangered Species Act. This decision was favorable to treaty tribes seeking to preserve their treaty fishing rights.

Get the decision: http://www.ca9.uscourts.gov/ca9/newopinions.nsf/F3A817DDA98587C8882572B80054FFF4/$file/0635011.pdf?openelement

Indianz.Com. In Print.http://www.indianz.com/News/2007/002326.asp

Court rejects Bush salmon plan on Columbia RiverTuesday, April 10, 2007Filed Under: Environment Law

A federal appeals court rebuked the Bush administration on Monday for failing to consult tribes with treaty rights in the Pacific Northwest. The Nez Perce Tribe of Idaho, the Umatilla Tribes of Oregon, the Warm Springs Tribes of Oregon and Yakama Nation of Washington signed treaties in 1855 to preserve their fishing rights on the Columbia and Snake rivers. But they say four hydroelectric dams have harmed the salmon that is so important to their way of live. In hopes of preserving the fish and their cultures, the tribes have sought removal of the dams. Their campaign was dealt a blow in December 2004, when the Bush administration issues a biological opinion that rejected breaching as a means of protecting endangered and threatened salmon runs.

In May 2005, a federal judge threw out the biological opinion, saying it was based on flawed science, and ordered the administration to consult with the treaty tribes. Government attorneys appealed the decision and said the consultation directive was out of bounds. The 9th Circuit Court of Appeals, however, rejected those arguments. In a unanimous decision, the court said the biological opinion "amounted to little more than an analytical slight of hand" and violated the Endangered Species Act.

The court further agreed that the consultation requirement was reasonable, given the history of the case. At one point, near the end of the Clinton administration, the federal agencies in charge of the dams said breaching was an option. But when President Bush took over in January 2001, the landscape changed and dam removal was taken off the table. "We hold that on this record, requiring consultation with states and tribes constitutes a permissible procedural restriction rather than an impermissible substantive restraint,' Judge Sidney R. Thomas wrote for the majority.

The decision doesn't mean the government must remove the dams but advocates said there is no other choice in order to save the salmon. "Our region needs a scientifically sound, economically viable solution, and that solution includes removing the four dams on the lower Snake River," said Steve Mashuda, an attorney with Earthjustice, one of the many groups involved in the case. The four Columbia River treaty tribes participated in the case through friend of the court brief. In February of this year, the tribes reached an agreement with the government to cover operations for 2007.

A fifth tribe, the Kootenai of Idaho, intervened in the case as a defendant on the side of the government but has supported efforts to protect salmon and has called on federal agencies to include tribes in their efforts in the Pacific Northwest. The court's decision also requires the federal agencies to consult the Spokane Tribe of Washington and the Colville Tribes of Washington. Separately, the Yakama Nation won a court decision to require the government to keep operating the Fish Passage Center, which counts salmon on the Columbia River. Sen. Larry Craig (R-Idaho) inserted a rider into an appropriations bill aimed at killing funding for the center in direct response to the case.