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Court rejects Bush salmon plan on Columbia River
Tuesday, April 10, 2007
Filed 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.

9th Circuit Decision:
National Wildlife Foundation v. National Marine Fisheries Service (April 9, 2007)

Bush Adminstration Salmon Plan Documents:
Biological Opinion | Proposed Action | Court Documents

Relevant Links:
Columbia Inter-Tribal Fish Commission - http://www.critfc.org

Related Stories:
Tribes mark 50 years after loss of Celilo Falls (03/12)
9th Circuit saves salmon center from Republican rider (01/30)
Editorial: Refreshing deal with Yakama Nation (08/18)
Yakama Nation signs salmon protection agreement (08/15)
Yakama Nation seeks compensation for salmon (07/04)
Judge orders new plan for salmon on Snake River (05/24)
Idaho senator kills salmon counting center (11/30)
Idaho senator inserts rider to kill salmon counting (06/24)
Judge orders Bush to reconsider salmon plan (05/27)
Columbia River tribes forced to shut down fishery (05/11)
Mark Trahant: Few salmon left for tribal ceremonies (04/25)
Tribe seeks higher standard on Columbia River (04/21)
Yakama Nation agrees to dam conservation plans (03/31)
Report backs tribe in Columbia River pollution claim (03/08)
Bush administration to reduce protections for salmon (12/01)
Warm Springs Tribes criticize shift on dam breaching (09/10)
Federal agencies change minds on removal of dams (09/01)
Nez Perce Tribe calls for protection of salmon (08/13)
Judge sides with tribes on proposed water spill (07/29)

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