Today attorneys from EarthJustice, on behalf of National Wildlife Federation and other parties, filed an amended complaint before Judge James Redden of the District of Oregon challenging the latest biological opinion governing the operation of federal hydroelectric power facilities in the Columbia River Basin. The new biological opinion, issued last month by the National Marine Fisheries Service and pursuant to ESA Section 7, 16 U.S.C. § 1536, determined that the proposed action—the continued operation of federal hydroelectric power projects—would not jeopardize the continued existence, or adversely modify the critical habitat, of a number of salmon populations protected under the ESA (these populations are referred to commonly as evolutionarily significant units, or ESUs).
NWF and its co-plaintiffs had successfully challenged the previous biological opinion before Judge Redden. The Ninth Circuit, after rehearing, affirmed the lower court’s invalidation of the old biological opinion in National Wildlife Federation v. National Marine Fisheries Service. The lower court held, and the Ninth Circuit affirmed, that the previous biological opinion was faulty because, among other things, NMFS (1) had improperly labeled parts of the proposed action as "nondiscretionary" and therefore exempt from Section 7 analysis, (2) had, by using a "reference operation," improperly assessed the proposed action’s environmental baseline (with reference to which the proposed action’s effects are to be adjudged), and (3) had failed to assess whether the proposed action would appreciably reduce the affected ESUs’ chances of survival and recovery. (PLF filed an amicus brief arguing that NMFS has no obligation to assess a proposed action’s effects on a listed species’s chances for recovery (as opposed to the recovery value of that species’s critical habitat)).
The newly filed complaint appears to make the same arguments against the latest biological opinion, contending that NMFS has merely changed the relevant metrics and standards, but that the substance of the proposed action, and its negative effects on salmon, remain the same.
(As an interesting aside, the State of Idaho moved last week for a second rehearing in National Wildlife Federation, arguing that the new biological opinion has mooted the appeal and requesting that the panel vacate its prior opinion, as well as the lower court’s judgment).