Snake River Currents

Volume 1, Issue 17

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                       Nez Perce Tribe Joins Lawsuit Against BPA

The Nez Perce Tribe is seeking to join a lawsuit filed by a coalition of electrical cooperatives charging that the Bonneville Power Administration (BPA) has overextended itself.

The 25 electrical utilities in the coalition filed a lawsuit in the 9th Circuit Court of Appeals claiming that public bodies and cooperatives have first rights to power generated from the federal hydropower system. They assert that BPA promised too much when it told aluminum smelters and other industries in the Northwest it could supply them with below-cost power.

The Tribe agrees and claims that the agency’s promises have adversely affected fish that use the Snake and Columbia rivers. They have intervened in the case so that salmon and steelhead do not bear the brunt of over-consumption of energy and BPA's financial decisions.

BPA raised its rates last summer after it bought electricity on the expensive open market due to a power shortage. The agency did not produce enough power to meet its contracts and obligations, which are about 11,500 megawatts of power. Since the agency produces only 8,500 megawatts itself, it had to purchase the additional power.

The agency passed the expense on to nonprofit cooperatives, such as Clearwater Power of Lewiston which supplies much of the Nez Perce Reservation with power. In turn, the cooperative raised its rates by 25 percent in May to meet the higher costs. They think, though, that Bonneville should have canceled the industrial contracts or provided the direct-service industries with power at market prices instead.

The Tribe, along with the Confederated Tribes of the Umatilla Indian Reservation, Confederated Tribes of the Warm Springs Reservation and the Yakama Nation, assert that the contracts with direct-service industries are causing Bonneville to sacrifice fish for power. Bonneville's decisions allow for few if any measures for salmon like flow or spill.

Bonneville declared a power emergency that lasted much of last summer, and so did not spill the usual amount of water over the eight dams on the Columbia and Snake Rivers to help juvenile salmon and steelhead make it past the dams to the ocean. Instead, the water that is normally spilled over the dams was held back for power generation.

When BPA finally did spill some water, much of the migration had already occurred, and many of the juvenile fish had already died. (See Snake River Currents, October 9, 2001)

BPA asserts that it has the discretion to enter into contracts with direct-service industries, and believes it acted in accordance with the law. The agency denies that the hydropower system has been run for the industries at the expense of fish. It has an obligation to supply 1,500 megawatts of power to the industries, but has paid them to shut down for up to two years due to the energy crisis.

Tribal members may be indirectly affected by the lawsuit. Many have accounts with Clearwater Power, and so the suit could affect the price they pay for electricity.

Which Fish Are Endangered?

U.S. District Court Judge Michael Hogan recently issued a court order in Oregon that could have repercussions for Endangered Species Act (ESA) listed salmon up and down the West Coast.

The judge ruled that the National Marine Fisheries Service (NMFS) erred in listing wild coastal coho as threatened under the ESA, while not protecting hatchery bred coho despite their belonging to the same geographically distinct subspecies.

In NMFS’ terminology, a subspecies is called an “evolutionary significant unit.” Although it included hatchery and wild coho in the same population, the hatchery fish were not listed. Under the Endangered Species Act, a distinct population segment of a subspecies, which is essentially the same as an evolutionary significant unit, can be listed but no further division of a species is permitted. Hogan ruled that the separation of wild salmon from hatchery salmon divided the subspecies too far.

Although the ruling legally pertains to only one coastal-coho population segment in Oregon, it could affect listings of salmon and steelhead all over the coast, including Puget Sound.

The ruling has provided a field day for those opposed to the ESA. Late last month Portland attorney James Buchal filed a petition to delist all species of salmon and steelhead in the Snake River Basin protected by the Endangered Species Act. The petition also included spring chinook and steelhead in the Columbia River.

Buchal submitted the petition on behalf of the irrigators, the Kitsap Alliance of Property Owners and the Skagit County Cattlemen's Association. As of the end of October, the National Marine Fisheries Service had received five separate administrative "de-listing" petitions.

In response, several salmon advocacy groups have sent a letter to the Northwest administrator of NMFS criticizing the petition. The letter from Trout Unlimited, Save Our Wild Salmon, American Rivers and several other groups asserts that the petition is lacking scientific and commercial information required for a petition to be considered valid.

A spokesperson for NMFS confirmed that petitions to list or delist a species need to provide the latest scientific and commercial information available. Petitioners must provide evidence that a species’ numbers are so low that they need to be listed or they have recovered sufficiently that they should be delisted.

NMFS has several options for how it will respond to Judge Hogan’s ruling and the petition. It could appeal the ruling, and go back to court. This is the approach supported by fish advocates.

Another possibility is that it will list all Oregon coastal coho for protection, including hatchery fish originally excluded from federal protection. This approach, however, would have to be agreed to by the judge. If Judge Hogan does agree, a similar policy could be adopted West Coast-wide.

Such a policy shift would be bad news for Puget Sound fishermen, who currently catch 36 stocks of Puget Sound hatchery chinook not currently covered by the listing. If those fish are listed, the result could be fishing closures and restrictions. And that ultimately could undermine the hatcheries themselves, which produce fish specifically for anglers to catch.

NMFS may simply redefine the distinct population groups affected by the ruling to include only the wild fish that they wanted to protect in the first place. The agency believes that the number of hatchery fish returning is not a measure of fish health. Their goal is streams that can support fish, and fish that can support themselves.

That policy, however, can be contradictory. For example, in Puget Sound, five populations of hatchery chinook are protected because they are about the only chinook left in their respective rivers. But if those fish spawn naturally, their offspring are genetically identical, and so are protected. None of the remaining 36 populations of hatchery chinook are protected.

Another SRBA Consultant

Dennis Colson is a Professor of Law at the College of Law, University of Idaho. He has done research for the SRBA on the history of the Nez Perce Treaties, and is publishing a book on the subject.

Mr. Colson received his law degree from the University of Denver College of Law in Denver, Colorado. His specialties are Indian Law and Idaho Constitutional Law. He has worked in several law firms in Colorado and California, and taught at the University of Toledo and the University of San Diego in addition to his work at the University of Idaho.

Mr. Colson has also published several books and given numerous presentations on his work. He is the recipient of awards for both his teaching and his achievement in the humanities.

                                                              - U.S. National Water Commission:

                                                               “Water Policies for the Future”

A Few More Idaho Water Facts

Irrigated area of state—about 4 million acres of which about 3.5 million acres are being irrigated at any given time

Highest dam—Dworshak, North Fork Clearwater, 717 feet

Active reservoir storage capacity—12,384,000 acre-feet

Largest active storage reservoir—Dworshak, 2,016,000 acre-feet

Snake River Plain Aquifer storage—top 100 feet of about 100 million acre-feet

                                                                              -- from IDWR web site