Oregon Public Broadcasting

For more than a decade, there's been a legal wrestling match over how to save the Northwest’s threatened salmon.

For a long time, the battle pitted tribes and enviros against the government. Now those alliances have changed, as a powerful Portland judge prepares to rule on the case. Rob Manning reports.

Last April, the Columbia River’s hydro manager, the Bonneville Power Administration, committed more than $900 million to improve salmon habitat. The so-called “fish accords” also meant that the eastern Oregon and Washington tribes receiving money, would stop suing the federal government.

Charles Hudson is a spokesman for the Columbia River Inter-Tribal Fish Commission.

Charles Hudson: “The accords re-define, after some 15 years of tense litigation between three of our tribes and the federal government. They represent, as well, a re-framing of the relationship.”

Jim Martin: “Certainly a strategic move on the part of the federal government, essentially to buy plaintiffs into defendants.”

That’s Jim Martin, former chief of fisheries for the state of Oregon and an ally of environmental groups. They aren’t happy about the re-alignment.

And because the state of Oregon, environmental groups, and the Nez Perce tribe haven’t signed the accords, litigation continues.

In a recent closed door meeting with attorneys on all sides, the judge in the case - Jim Redden - continued to press the feds. Ron Suppah is the chief of the Warm Springs’ tribe. His tribe signed the deal, and he characterized that meeting this way.

Ron Suppah: “The biggest problem was in improvement of estuary management, mainly in the lower river, and the other topic was that they wanted to start convening a study of the possibility of breaching the four Snake River dams.”

Both sides found something in Judge Redden’s questions to react to. Environmental groups are encouraged that dams are in play.

On this spring day, Jim Martin, the environmentalist, is trying to catch a spring Chinook in the Columbia. 

Jim Martin: “Well, we’ve fished all morning hard, and haven’t had a bite,  but we also understand, that the average for the whole fishery is eight days of fishing, for every single fish you get.”

Martin says restoring depleted stocks, like the spring Chinook he’s after, means breaking with the historic approach of  improving habitat, but leaving the dams in place.

Jim Martin: “The strategy is fundamentally flawed for the wilderness stocks of the Snake River and the big tributaries that are the furthest up the dam gauntlet.”

By simply asking about breaching the Snake dams, Judge Redden sent shockwaves through federal agencies.

But Redden’s other questions - about the estuary - helped seal a new accord between the Bonneville Power Administration and the state of Washington. BPA’s top wildlife policy official is Lorri Bodi.

Lorri Bodi: “When the judge indicated his interest in the estuary, we accelerated those discussions when it came to the estuary, and tried to make sure that we were anticipating and answering his questions.”

Amy Ammer: “This is US 101, and we are right at the mouth of the Columbia, you can see the Pacific Ocean.”

Amy Ammer is with a nonprofit group called the Columbia River Estuary Study Taskforce, or CREST. Her group hopes to get a share of the new estuary accord money. Right now, 101 cuts off fish rearing grounds.

Amy Ammer: “Yes, as far as the fish are concerned, it’s unusable and a death trap.”

CREST proposes  building a 24-foot wide tunnel to create a big, brackish wetland fish could find easily. Ammer says estuary spending is worth it, because all 13 types of threatened Columbia salmon swim through here.

Scientists consider the estuary particularly important for juveniles because they fill their bellies and gather strength here, before heading out to sea.

Tracy Yerxa: “The research has been telling us that the estuary is very important.”

Tracy Yerxa evaluates estuary projects for BPA. 

Tracy Yerxa: “It’s a piece of the life cycle that we can’t miss out on. And we’ve almost tripled our funding.”

The plan that’s currently in Judge Redden’s court relies on estuary projects for at least a six percent population improvement for threatened fish. Yerxa and other federal officials say there’s some anecdotal evidence already that estuary projects are bringing benefits.

On the Oregon side of the Columbia River, officials are impressed with habitat improvements made since just last year, near Fort Clatsop.

Scientists are especially excited to see chum salmon, which they’d thought were long gone. Policy makers are inclined to take anecdotes like that and run with them. Scientists want to study more. 

That being said, Former Oregon fisheries’ chief Jim Martin, says he doubts the estuary is a critical piece for the hardest hit fish.

Jim Martin: “The fish that use the estuary the least - like the migrating spring Chinook, and steelhead, and sockeye - that all the studies indicate move down on the spring runoff and move through the estuary relatively quickly, they’re doing the worst. And the reason they’re doing the worst, is they’re above the most dams.”

Martin contends that BPA spending on habitat improvements - especially through the agreement with the tribes for upriver habitat - was done more as a legal strategy to bring the tribes on board, more than anything else.

Tribal fish commission spokesman, Charles Hudson says tribes weren’t bought. And he counters that environmentalists have their own financial agenda.

Charles Hudson: “The plaintiffs are a campaign, and they’re funded by a couple of sources, with a defined objective - you know, Snake River dam breaching.”

In the end, environmental ally, Jim Martin, says the funding and the politics don’t matter as much as the specific legal questions Judge Redden is asking - like, how likely is it that all these fish habitat projects will get funded?

Jim Martin: “And how likely is it that they will actually produce the benefits in terms of survival of the fish that will bring them back from the brink of extinction? And if those likelihoods don’t pan out, do we have a Plan B that will for sure keep them from going extinct?”

The Plan B that Martin, and even Judge Redden, have talked about, includes possible breaching of the Snake River dams. It’s a step federal agencies are hesitant to even look at. But Lorri Bodi, with BPA, says if the judge wants that on the table, as a backup, in five years or more - OK.

Lorri Bodi: “Could it be dam breaching at that moment in time, if it looks like our plan isn’t working? I guess it could be. But it could be something else as well. It could be additional habitat actions in the estuary.”

It’s not at all clear when Judge Redden will rule on the salmon plan. Some observers think he might be taking his time for two reasons: the new Obama Administration may signal a new direction. And second, he seems to appreciate the collaborative effort involving tribes, state leaders, and the feds - and perhaps he think there’s more they can still do, together.