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Court's salmon ruling strengthens enviros' hand on species recovery |
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An federal appeals court ruling yesterday that forces the Bush administration to rewrite the biological opinion for imperilled salmon and steelhead on the Snake and Columbia rivers figures to fuel environmentalists' arguments that the government must do more than merely avoid extinctions of plants and animals.
Attorneys on both sides of the case said today the 9th U.S. Circuit Court of Appeals' decision would strengthen Endangered Species Act requirements that the government work to help listed species recover.
"This ratchets up the requirements on the federal government and those within the regulatory purview of the act," said Paul Weiland, an attorney who filed an amicus brief for the National Homebuilders Association.
Judge Sidney Thomas' ruling orders the National Marine Fisheries Service to rewrite its 2004 biological opinion that approved a dozen dams in Idaho, Montana, Oregon and Washington.
The ruling also upheld the species law, declaring "ESA compliance is not optional" and agencies must satisfy its requirements as a "first priority." Thomas also emphasized that the law has a strong element of recovery -- a key to environmentalists' opposition to Bush administration policies.
"The court has sent a strong message to the administration that it cannot ignore the requirements of the Endangered Species Act and must stop manipulating the Columbia and Snake Rivers in ways that drive our region's salmon to extinction," said Steve Mashuda of Earthjustice, which represented groups that sued against the biological opinion three years ago.
The law requires agencies to prohibit activities that "jeopardize the continued existence" of listed species. Current regulations describe "jeopardy" as actions that could reduce the likelihood of survival and recovery of the species.
But how far that recovery element goes has been the focus of legal battles. The administration has argued that as long as survival is taken into account, it does not always have to consider the full scope of recovery.
But Thomas said the administration's biological opinion on the dams amounted to "little more than an analytical slight of hand" and that its jeopardy analysis should have taken into account the potential aggregate effects of all of the dams and other agency actions. He also bashed the opinion for neglecting to take into account "any clear consideration of the impact of proposed operations on listed species' chances of recovery."
The opinion was the first from an appellate court on the recovery issue and could weigh on how the federal government conducts species consultations in other contexts, according to Weiland.
The homebuilders group participated in the case because of its potential to affect ESA arguments in the future. The group's amicus brief argued that NMFS has appropriately focused on survival, not recovery, of steelhead and salmon.
The administration has been considering new regulations to change its definition of "jeopardy" and throw out the recovery element, according to internal Interior Department documents released last month. But Nicole Cordin with Save our Wild Salmon said the 9th Circuit ruling shows that such guidance would not hold up in court.
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