Hastings Environmental Law Journal Volume 3 Article 3 Number 1 Fall 1995 1-1-1995 New Hope for Pacific almonS Henry B. Lacey Follow this and additional works at: https://repository.uchastings.edu/ hastings_environmental_law_journal Part of the Environmental Law Commons Recommended Citation Henry B. Lacey, New Hope for Pacific Salmon, 3 Hastings West Northwest J. of Envtl. L. & Pol'y 19 (1996) Available at: https://repository.uchastings.edu/hastings_environmental_law_journal/vol3/iss1/3 This Article is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Environmental Law Journal by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact [email protected]. 1. INTRODUCrION I. A SHORT HIsTORY OF1-E COLUwIBI RPER B.4m:, AND ITS SAWON Ill. THE COUNCIL'S FISH AND WILDuFE PROGRA, AND THE SAUON LISTINGS A. The Evolution of the Program: 1981-90 B. The Effects of the Salmon Listings IV. THE STRATEGY FOR SAL.ON A. The Salmon Summit: No Regional Consensus on Steps Needed to Save the Salmon New Hope B. The 1991-92 ProgramAmendments: The Councils Strategy for Salmon For Pacific Salmon? V. NORmvEST RESOURCE INFORM.TO, CENrTER v. NORm VsT POWER PLANNING COUNCL- Northwest Resource Information Center THE Ninm CiRCUT REIECrS THE ST ArEY FOP SA.oN v. Northwest Power Planning Council, A. The Arguments B. The Ninth Circuit's Decision Idaho Department of Fish & Game v. 1. The Northwest Power Acr's Fish and Wildlife Provisions National Marine Fisheries Service, 2. The Ninth Circuits Interpretationsof the Norlfweet PowerAct and the Aftermath of Judicial a. The Council Must Provide a Written Explanationof its Decision to Reject Program Recommendations Impatience b. Biological Objectives c. The Council Must Defer to the Expertise of Fish and Wildlife Agencies and Tribes by Henry B. Lacey d. Fish and Wildlife Program Criteria (i) The Acts Section 4(h)(6) Criteriaare Mandatory and 'Substantive" (ii) Interpretation of the Section 4(h)(6) Criteria e. Balancing the Biological Benefit of a Program Recommendation Against its Cost is Not Required C. Summary: How, Must the Council Change its Ways? VI. IDAHO DEPARTmu.T OF FISH & G,. E v. NATONAL MARINE FISHERIES SERViCE: THE ENo OF CO.MPROM.ISE? A. The Nature of NMFS Power: ESA Section 7 B. The 1993 Biological Opinion C. The Arguments D. The Marsh Decision E. Implications of the Marsh Decision VII. RESPONSES TO NORTH EST RESOURCE INFORMATION CENTER. AND IDAHO DEPARTMENT OF FiSH & Gm.E LnsE CAUSE FOR HOPE, NECESS.ARY STEPS TOWARDS RECOVERY NOT FORTHCOMING A. The Council's December 1994 Program Amendments and Their Aftermath Natural Resources Law institute Fellow. 1994-95. Northwestern School of Law of Lewis & Clark College. Portland. Oregon. JD. 1991. BS. 1933. Arizona State University. The author thanks Mike Blumm. Janice Wies. Brad Borman. lir Weber. Adam Berger. Dan Rohlf and Reed Benson for their helpful advice and comments. The author is also grateful to Northwestern School of Law of Lewis & Clark College for the fellovship that made research on this article possible. Iey Volune 3,Numbo 1 1. Written Explanation There was a time when meadow, grove, and 2. Biologilal Objectives stream, 3. Other Provisions The earth, and every common sight 4. Aftermath of the 1994 Program Amendments To me did seem B. The Revised 1994-98 Biological Opinion and the Apparell'd in celestial light, Proposed Recovery Plan The glory and the freshness of a dream. 1. Compliance with Idaho Department of Fish &Game It is not now as it has been of yore; - 2. Reasonable and PrudentAlternatives Turn wheresoe'er I may, 3. Flow Augmentation Measures By night or day, 4. Spills The things which I have seen I now can see no 5. Changes to Dam Structures to Assist Adult morel Passage 6. Transportation Whither is fled the visionary gleam? 7 Putting it All Together. Will the 1994-98 Where is it now the glory and the dream?2 Biological Opinion and Proposed Recovery Plan Restore Wild Salmon to the Pacific Northwest? I. INTRODUCTION VIII. CONCLUSION A defining characteristic of the Pacific IX. AFTERWORD Northwest is the Columbia River Basin's legendary wild salmon runs.2 Sadly, however, some commen- tators say the Columbia River Basin is now "the most endangered river system in the country,"' The backbone of an industry that supports 60,000 jobs in the Pacific Northwest 4 the region's salmon' pop- ulation has plummeted since the late nineteenth century. From stocks6 numbering in the many mil- lions 7 the wild runs have deteriorated to levels 1.W. Wordsworth. Ode on Intimations of Immortality, in they are born in fresh water, migrate to and live most of their lives RECOLLECTIONS OF EARLYCHILDHOOD. in ocean saltwater, and then return to freshwater to spawn. Wilkinson & Conner supra note 2, at 23-26. There are five species 2 New York Times reporter Timothy Egan has described the of anadromous salmon native to the Pacific coast. These are Pacific Northwest as "anywhere a salmon can get to.- Michael C. Oncorhyncus (0.) isawyischa. or chinook (king) salmon; 0. nerka, or Blumm. Saving Idaho's Salmon: A History of Failure and a Dubious sockeye (red) salmon; 0. kisutch, or coho (silver) salmon; 0 keta, Future, 28 IDAHO L. REV. 667. 668 (1991-92) (hereinafter Blumm, or chum (dog) salmon; and 0. gorbuscha, or pink (humpback) Saving Idaho's Salmon] (citing Pat Ford, And Now-The Last Salmon salmon. A sixth species of anadromous fish found in the Ceremony?, HIGH COUNTRY NEWs. Apr. 22, 1991, at 8). Captain Menwether Lewis knew that his two-year-long expedition to the Columbia River Basin is Salmo gairdner, or steelhead trout. The steelhead is a sea-run rainbow trout. Wilkinson & Conner, supra Pacific Ocean had neared an end when he ate roasted salmon 2, CHILDERHOSE & M TizIM, THE PACIFIC "with a very good relish- as a guest of Shoshoni Indians on the note at 18 n.2 (citing R. SALMON 25-26 (1979)). banks of the Lemhi River, in what is now Idaho, on August 13, 1805. Charles F Wilkinson & Daniel K. Conner, The Law of tihe Pacific 6. The term "stock7 is often used interchangeably with the Salmon Fishery: Conservation and Allocation of a TransboundaryCommon words "run- or "population," A stock is "an isolated reproductive Property Resource, 32 KAN. L. REv. 17. 22 (1983) (citing THE JOURNALS unit that shares both a common environment and a common OF LEWIS AND CLARK 194 (B. DeVoto ed. 1953)). gene pool and is identified with a specific season and watershed 3. Brad Knickerbocker, Salmon Issue Poses a Stiffer Challenge or stream." Wilkinson & Conner, supra note 2, at 24 n 33 This arti- cle discusses spring, summer, and fall runs of Snake River chi- Than The Spotted Owl, CHRISTiAN SCIENCE MONITOR. Oct. 20, 1993, at 7. nook and Snake River sockeye runs. 4. OREGON RIVERS COUNCIL, THE ECONOMIC IMPERATIVE OF 7. During the mid-nineteenth century, the estimated salmon PROTECTING RIERINE HABITAT IN THE PACIFIC NORTHWEST 10 (1992). See population of the Columbia River Basin was 10 to 16 million fish. also THE WILDERNESS SOCIETY, I THE LMNG LANDSCAPE: WILD SALMON CHARLES F. WILKINSON, CROSSING THE NECT MERIDIAN LAND. WATER, AS NATURALCAPITAL V (1993) Ihereinafter SALMON As CArrAL (esti- AND THE FUTURE OF THE WEST 201 (1992); U.S. GENERAL ACCOUNTING mating that fishing industry provides 20,000 lobs in region). Salmon may have a current economic impact on the region of as OFFICE. ENDANGERED SPECIES: PAST ACTIONS TAKEN TO ASSIST COLUMBIA RIVER SALMON 8 (July 1992) [hereinafter GAO ENDANGERED SPECIES much as SI billion. SAVE OUR WILD SALMON COALITION. WILD SALMON REPORT]; SALMON AS CAPITAL, supra note 4, at 5. FOREVER: A CITIZEN'S STRATEGYTO RESTORE NORTHWEST SALMON AND WATERSHEDS 3 (1994) [hereinafter CmzENs' STRATEGY!. 5. The term "salmon," as used in this article, refers to all of the species of salmon native to the Columbia River basin, as well as to steelhead. Salmon are anadromous fish, which means that F 1995 fo11:H HuekeFrPcf ftr Rec s6rca?cn~n Focl1995 approaching extinctions The salmon's decline is the Power Planning and Conservation Act (Northwest result of ecological harm caused by a variety of Power Act or the Act).'" The Northwest Power Act human activities. 9 The most significant contributors directs that fish and wildlife in the basin be placed to salmon mortality, however, are the numerous on an equal footing with hydroelectric power gener- dams that transformed the once-wild Columbia and ation." Snake Rivers into a series of flow-controlled reser- Unfortunately, the Northwest Power Planning voirs.'0 Not surprisingly, from the dawn of the dam Council" (Council) has not generally implemented building era, Congress has often expressed its con- the Northwest Power Act in a manner likely to cem over the fate of the Pacific Northwest's once- achieve the Act's promise of restored and har- magnificent salmon runs," Finally, in 1980. vestable runs. During the first decade of its exis- Congress passed the Pacific Northwest Electric tence, the Columbia River Basin Fish and Wildlife 8. Recent estimates indicate that the Columbia River 10, Blumm. Parity V supra note 8. at 663-64 (referring to Basin's salmon population has declined to approximately 2.5 mil- LOSSES SwUo'e. supra note 9; US. GEtsNEA'L AcCOUNrinG COsCE. lion fish. SALMON AS CIrrAL., supra note 4, at 5: Michael C. Blumm ! P'.r'XNSAND LF C~AMo: OSTHE Non-4ST PoER BtLL 20. app. IVat & Andy Simnn. The Unraveling of the Parity Promise. Hylro er 1(1979) thereinafter GAO STu dl). Clay Hathom.