Judge orders feds to resume salmon protections

By Nicole Montesano

Smoke Signals staff writer

A judge has ordered federal agencies to restore salmon protections on the Columbia and Snake rivers.

Last summer, the Trump administration withdrew from an agreement reached in mediation in 2023.

That agreement, Federal District Court Judge Michael Simon wrote in his Feb. 25 ruling, “showed great promise for resolving the myriad challenges facing the ecological and economic future of the Columbia River Basin.”

The withdrawal led to resuming a decades-long lawsuit by environmental and fishing organizations against NOAA Fisheries, the U.S. Army Corps of Engineers, U.S. Bureau of Reclamation and U.S. Fish and Wildlife Service.

The state of Oregon, the Spokane Tribe of Indians and the Coeur d’Alene Tribe joined the plaintiffs.

The Confederated Salish and Kootenai Tribes, Kootenai Tribe of Idaho, state of Montana and various farm and irrigation associations joined the defendants.

The plaintiffs asked Simon to order the feds to continue salmon protections.

Simon granted some of their requests, specifying seasonal spill levels and reservoir levels at 2025 operating levels, noting that “The federal defendants have, for years, maintained a safe and reliable power system and dam operations with the nearly the same spill levels as ordered here and with the­ same reservoir levels from 2025.”

Tribal Council member Kathleen George, who is also an advocate for salmon recovery, praised the ruling.

 “We congratulate the plaintiffs, including our fellow Tribal Nations, on this important decision upholding critical improvements for salmon and regional energy sustainability,” she said. “This win for Columbia Basin salmon marks an important step toward long-term recovery benefiting all who value a future where salmon and steelhead can thrive.”

Simon declined requests to order the defendants to complete repair and maintenance projects or conservation projects, saying it was unnecessary. However, he ordered them to submit quarterly progress reports.

“One of the foundational symbols of the West, a critical recreational, cultural and economic driver for Western states, and the beating heart and guaranteed resource protected by treaties with several Native American Tribes, is disappearing from the landscape,” Smith wrote. “And yet the litigation continues in much the same way as it has for 30 years.”  

The lawsuit concerns the biological opinions, often referred to as BiOps, put out by NOAA Fisheries. The BiOps dictate how the Army Corps of Engineers and the Bureau of Reclamation operate the Federal Columbia River Power System. Simon noted the courts have repeatedly ruled they failed to safeguard salmon and steelhead even though NOAA acknowledges that the existence and operation of the dams accounts for most of the mortality of juvenile fish migrating through the system.  

He wrote that, “The case stems from the declining abundance of salmon and steelhead species in the Columbia and Snake rivers. Every year, these fish must travel up the rivers to spawn and their offspring must return down river to the Pacific Ocean. In the course of this journey, both adult and juvenile salmonids must navigate the dams, powerhouses and reservoirs of the FCRPS. Since the beginning of this case, this court and the ninth circuit, as well as the federal government, have all found that this difficult and sometimes lethal odyssey is a major contributor to the dwindling numbers of salmonids returning to the Columbia and Snake rivers each year. … There are now 13 populations of salmon and steelhead and one smelt population listed under the (Endangered Species Act) and affected by the FCRPS.”

Simon noted that NOAA Fisheries relied on the agencies’ promises of goals for habitat improvement, with no details provided.

“This is precisely what the ESA does not permit. … Additionally, given the history in this case of habitat restoration projects falling significantly behind in expected completion, NMFS had even more reason to be cautious in relying on the action agencies' assurances that all projects will be completed and all benefits be achieved within the BiOp time frame,” Simon wrote. “The 2020 BiOp itself acknowledges that the FCRPS operations contemplated … will kill a substantial amount of the listed fish.”

Simon wrote that, “Further harm to the listed species would be catastrophic to the Tribes of the Columbia River Basin. The salmon and steelhead of the Columbia River are integral to the cultural, religious, social and economic life of many of these Tribes.”

Treaties specifying Tribes’ access to salmon and steelhead are “the supreme law of the land,” whose importance has repeatedly been upheld by the courts, he wrote.

The defendants raised concerns about power system reliability, flood risk, transportation, irrigation and availability of water supplies and clean drinking water, but Simon said that the regional power system was deemed to be reliable by the Northwest Power and Conservation Council, the organization responsible for assessing regional power demand and reliability

“Moreover, the routine variances and adjustments that have helped to support that reliability will continue to be available to federal defendants under the injunction,” he wrote. “So too would the emergency protocols previously used to prevent and mitigate flooding remain available to federal defendants.”

Oregon Gov. Tina Kotek issued a press release applauding Simon’s ruling.

“This decision lets us move forward focused on what really matters – restoring fish populations, meeting energy demand and building a clean energy future for the Pacific Northwest,” she said. “Recent preliminary analysis by the Northwest Power and Conservation Council indicates this will have modest impacts on power generation, our ability to meet peak demand and our region’s overall ability to maintain a reliable, affordable power system."