Legal Battle Reopens Over Salmon, Dams

Published September 1, 2003

On May 7, the U.S. District Court for the District of Oregon invalidated the National Marine Fisheries Service’s biological opinion that a variety of mitigation efforts would ensure the protection of endangered salmon.

The decision in National Wildlife Federation v. National Marine Fisheries Service has reopened the prospect of removing Snake River dams.

Politics Unsettled

According to Jan Hasselman, National Wildlife Federation attorney, “Northwest political leaders oppose dam removal because they think they can have salmon and dams. If they realize they must choose, they will choose salmon and Congress will follow their lead.”

But dam removal proposals get a mixed reception among politicians. Democratic President Bill Clinton and 2000 Presidental candidate Al Gore avoided the issue. Republican George W. Bush condemned dam removal as a candidate and later as President. Only Green Party candidate Ralph Nader endorsed the idea.

The pro-dam removal Salmon Planning Act (HR 1097), introduced in the House of Representatives in March, has more than 90 co-sponsors, mostly Democrats. Virtually all represent Eastern, Midwestern, and California constituencies. The bill’s only Northwest supporter is its sponsor, Seattle Democrat Jim McDermott. Regional governors (two Democrats, two Republicans) recently called dam removal “divisive and polarizing.”

Salmon Recovery

Worse for the dam busters, the salmon are returning–nearly two million in 2001, a record since counting began in 1938. Though most are hatchery fish, gains are spread widely, including wild fish and ESA-listed populations. While ocean conditions always cause cycles in the salmon population, consistent improvement since 1997 suggests long-term progress.

Improved dam designs and improved operations have substantially reduced salmon mortality. In most cases, barging juvenile salmon around the dams further increases total (river plus ocean) survival. Fisheries scientists are using new style “conservation hatcheries” to supplement wild (in-stream spawning) salmon. That means more wild fish, and the ability to restore locally extinct populations, using genetically comparable broodstock from nearby streams. Recent accomplishments by the Northwest Power Planning Council (NWPPC) along these lines can be found on the group’s Web site at

Environmentalists condemn such “technological fixes,” claiming salmon can survive only in free-flowing rivers like those in which they evolved.

However, salmon are adaptive, particularly with man’s help. Although they aren’t native to the Southern Hemisphere, introduced salmon now navigate the South Pacific and spawn in Chile and New Zealand. Columbia River fall chinook salmon were introduced into North Idaho’s Coeur d’Alene basin, where they spawn in the rivers and grow in Lake Coeur d’Alene instead of the ocean. Spring chinook were successfully restored to the Clearwater River, where they maintain in-stream spawning populations upstream from the notorious Snake River dams.

Rules May Favor Anti-Dam Groups

Some ESA provisions support anti-dam activist groups who say compliance eventually requires restoring pre-development environmental conditions. One such provision calls for preserving the ecosystems upon which an endangered species depends–i.e., not preserving the species to live under “artificial” conditions. Another provision defines conservation as bringing the species to a condition where further ESA-directed action is not required, possibly calling into question indefinite use of measures like hatchery supplementation and barge transportation, regardless of how many salmon those measures save or produce.

Not surprisingly, some ESA administrators and supporters see the law primarily as a habitat protection and restoration device, rather than a species-recovery tool. Procedures for implementing ESA also typically ignore costs and economic burdens. The law suggests whatever must be done to “save the species” (meaning protect or restore its habitat) must be done, regardless of cost.

It is thus plausible that ESA compliance requires turning the Columbia back into a river; supporting such proposals as removing Snake River dams, permanently lowering the John Day reservoir, and operating other dams to mimic pre-dam conditions. Never mind that technology (barging, conservation hatcheries, etc) can integrate salmon into the existing river system, while placing far fewer economic burdens on river users.

Future of Salmon Conservation

The National Wildlife Federation v. National Marine Fisheries Service lawsuit demonstrates that some activist groups will press ESA’s back-to-nature ideology to the limit, ignoring political reality or the potential of alternative salmon conservation strategies.

A better legal framework is needed for salmon conservation, but ESA reform by Congress appears unlikely. A more interesting possibility is the cabinet-level Endangered Species Committee provided by the current law.

Committee members are political appointees. Unlike ESA administrators, they are charged with considering the whole public interest in species preservation, including economic burdens. That charge not only conforms their decisions with common sense, but makes them more difficult to challenge in court. During the Bush administration (and perhaps beyond) it will be difficult for anti-dam groups to successfully oppose Committee decisions, though they can be expected to raise a political ruckus about any they dislike.

When Bush campaigned in the Northwest, he promised to help reconcile salmon conservation with other Columbia River uses. In their own ways, all the Northwest’s elected leaders echo that sentiment. Environmental activist groups have a different vision, and at least at the moment they have the courts on their side.

Robert Stokes is a retired Natural Resource Economist, now freelance writer, residing in Spokane, Washington.