The Endangered Species Act of 1973 has a long and litigious history in the Columbia River Basin. Twelve specific populations, or evolutionarily significant units, of four species of Columbia River Basin salmon and steelhead, and two resident species, bull trout and Kootenai River white sturgeon, have been listed for protection under the ESA since 1991. Recovery plans have been proposed, biological opinions issued and re-issued, and legal battles fought over what actions, proposed and implemented, should be taken to avoid further jeopardizing the listed species, especially salmon and steelhead directly affected by hydropower dams.
The ESA has been hailed by some as a savior of salmon and the environment that will force necessary sacrifices to benefit society in the long term, and derided by others as a politically manipulated tool of industry to avoid any real sacrifices to protect salmon or the environment. It has become full-employment legislation for many lawyers.
In the Columbia River Basin salmon became the lightning rod of the ESA because salmon are affected by so many human activities, from hydropower to agriculture to land development. What is done under the auspices of the ESA for salmon affects many important economic activities, and therefore stirs controversy. The effort to recover Snake River salmon is the primary ESA battleground, with its undertones of the potential for breaching Snake River dams and for restrictions on logging, agriculture, river navigation and fish harvest.
The decline of Snake River salmon occurred over decades but seemed to accelerate after the 1960s. Anecdotal evidence based on cannery records and harvest reports suggests that in the 1800s about 1.5 million salmon and steelhead returned to the Snake River each year to spawn. In its 1995 Proposed Recovery Plan for Snake River Salmon, the National Marine Fisheries Service noted that the estimated annual returns of spring/summer Chinook declined from 125,000 fish between 1950 and 1960 to just 12,000 fish in 1979 despite increased hatchery production of salmon after 1966. In 1994, the run size of naturally spawning spring/summer Chinook, as opposed to hatchery fish (at the time, the naturally spawning fish were the focus of the ESA), was estimated at just 1,822 fish. That same year; the naturally spawning Snake River fall Chinook run was estimated at just 404 fish—actually an increase from a low of 78 fish in 1990. Snake River sockeye returning to Redfish Lake at the headwaters of the Salmon River, a Snake tributary, were near extinction. The annual run declined from several thousand fish in the 1950s to several hundred in the 1960s to just eight fish in 1993 and one in and 1994 (only one fish returned in 1988, 1989 and 1992, as well). The run rebounded to double-digit numbers in the early 2000s, and even triple digits later in the decade, largely as the result of an aggressive fish-production program that is helping to boost the number of natural spawners.
The Columbia River Basin ESA saga began in 1978, when the National Marine Fisheries Service and the U.S. Fish and Wildlife Service considered protecting salmon under the ESA. The agencies began a status review to determine which populations might deserve ESA protection but suspended it in 1980 in anticipation of the Northwest Power Act, which was under development and which Congress adopted in December of that year. The Act authorized the four Northwest states that share the bulk of the Columbia River Basin to form the Northwest Power and Conservation Council (called the Northwest Power Planning Council until 2003). The Act directed the Council to write a program to mitigate the impacts of hydropower dams on fish and wildlife. The Council adopted the first version of its program in November 1982.
The program included recovery measures for salmon such as spawning habitat improvements, increased artificial production of fish, improved fish bypass systems at the dams and juvenile fish transportation downriver in barges, particularly for Snake River salmon and steelhead. In the mid-1980s, it appeared the Council’s program might be having some success, even though it was only several years old, as adult fish counts at the mainstem dams increased, compared to counts in the 1970s. But the runs began to decline again in the late 1980s, and some populations, particularly Snake River sockeye, which spawn in the mountain lakes at the headwaters of the Salmon River in central Idaho, declined precipitously.
In April 1990, the Shoshone-Bannock Tribe, whose reservation is in southeastern Idaho and whose members historically fished in the headwaters area of the Salmon River, petitioned the National Marine Fisheries Service to list the sockeye as an endangered species. Two months later, petitions to list Snake River spring, summer and fall Chinook as threatened species were filed by a coalition that included Oregon Trout, the Oregon Natural Resources Council, the Northwest Environmental Defense Center, American Rivers, and the American Fisheries Society. Through the 1990s, one salmon or steelhead population after another was listed for protection under the ESA as run sizes continued to decline. Kootenai River white sturgeon and bull trout also were listed for protection. Eventually, the Columbia River Basin salmon and steelhead listings totaled 12, including:
- Snake River Sockeye, November 1991
- Snake River fall Chinook and combined spring/summer Chinook, April 1992
- Lower Columbia River Chinook, March 1999
- Upper Willamette River Chinook, March 1999
- Upper Columbia River Chinook, March 1999
- Columbia River chum salmon, March 1999
- Upper Columbia River steelhead, August 1997
- Snake River Basin steelhead, August 1997
- Lower Columbia River steelhead, March 1999
- Upper Willamette River steelhead, March 1999
- Middle Columbia River steelhead, March 1999
In response to the Snake River salmon listings, in January 1992 the National Marine Fisheries Service, which implements the ESA for salmon and steelhead, appointed the Snake River Salmon Recovery Team to make recommendations for the recovery of the fish. The team included three fisheries scientists, two engineers and a natural resource economist. Members came from Idaho, Oregon, and Washington. The Team was chaired by Donald E. Bevan, Professor Emeritus of Fisheries and Marine Affairs at the University of Washington. The team worked for 27 months and released its draft recommendations on October 20, 1993 for scientific peer review. The final recommendations, which incorporated revisions based on the peer review including updated scientific information and new analysis, were completed in May 1994. The recommendations formed the basis of the Fisheries Service’s Proposed Recovery Plan for Snake River Salmon, issued in March 1995.
The Recovery Team’s 1993 recommendations included a number of short-term and long-term actions to assist the salmon toward recovery that later were incorporated into the draft recovery plan. The team said irrigation water diversions needed better fish screens, and grazing and livestock-handling practices needed improvement, as did mining and forestry practices, to protect spawning and rearing habitat for salmon. The Recovery Team also recommended improved hatchery practices, reduced harvest of the listed species and changes in fishery management to take pressure off the weak stocks and focus on stronger stocks through, for example, terminal fisheries — fishing directed at a particular stock in a particular place. These were reasonable actions that portended better survival of juvenile and adult fish.
Some environmental interests thought the recommendations did not go far enough to protect salmon, and some economic interests thought the recommendations went too far in some respects and not far enough in others. By far the most controversial of the Recovery Team’s recommendations were those concerning salmon passage at the mainstem Snake and Columbia river dams. The team recommended that river flows should be managed to provide maximum benefit for salmon, and new sources of water should be secured to provide additional flows in the Snake. Juvenile fish collection needed to be improved at the dams for purposes of barging fish downriver, and barge designs needed to be improved to lower the stress on the transported fish, the team recommended. And, the team said, fish barging, as opposed to Snake River reservoir drawdowns, was the best option for improving fish survival past the dams.
The recovery team concluded that while “. . .drawdown of the four Snake River reservoirs to river level (or removal of the dams) is the alternative which might provide the ‘suitable conditions’ for in-river migration of the smolts through the lower Snake River. . . tests would probably be needed to determine if transport around the four lower dams would be better than leaving the fish in the river.” The testing would take time, and so in the interim “. . .improved collection and transport of smolts around most of the Snake and Columbia river dams is the alternative that would deliver the maximum number of smolts to the lower Columbia River.” This, too, was reasonable, but there was a problem: the benefits of drawdown could only be theorized until testing could occur and, Catch 22, testing could not be conducted without real fish in the river—threatened and endangered species that might die in the testing. “If someone does come forward with a scientifically sound design for a biological test of drawdown, then it might be appropriate to conduct the test and put off decisions until the test is completed,” the team wrote. The Corps of Engineers had conducted a drawdown test at Lower Granite Dam in March 1992, but that was a structural test to learn about potential impacts to shorelines and the navigation channel, not a biological test because in March there are virtually no juvenile fish in the river.
Drawdown of the Snake River reservoirs, or breaching the dams, was the ESA lightning rod in the Columbia Basin. Idaho’s Governor Cecil Andrus, Idaho environmentalist Ed Chaney, and other salmon advocates pushed for Snake River dam drawdowns at the 1991
Salmon Summit, which was convened by U.S. Senator Mark Hatfield, R-OR, in an effort to devise a regional response to the Snake River salmon listings that might be accepted by the Fisheries Service as a recovery plan. The Salmon Summit produced only recommendations, no recovery plan and, importantly, no endorsement of drawdowns. Drawdown advocates remained convinced that the best way to improve the survival of the listed fish as juveniles migrating to the ocean was to speed their passage past the four federal dams on the lower Snake River by drawing down the reservoirs, thus increasing the water velocity and spilling the fish over the dams.
Following the Salmon Summit, Chaney’s organization, the Northwest Resource Information Center, sought a preliminary injunction against the Fisheries Service to stop the barging of juvenile fish and force a decision on drawdowns. On April 30, 1993, U.S. District Judge Malcom Marsh denied the motion on the grounds that the Fisheries Service’s approval of a permit for the Corps of Engineers to collect and barge the ESA-listed fish was neither arbitrary nor capricious given conflicting scientific evidence about whether barging was good or bad for the fish.
The Salmon Summit recommendations passed to the Northwest Power and Conservation Council to incorporate into a revision of its Columbia River Basin Fish and Wildlife Program. The Council, like the Recovery Team, did not endorse the drawdown concept and did not include drawdowns in its subsequent program revisions, which the Council accomplished between 1991 and 1993.
Following these revisions, drawdown advocates successfully sued the Council. In 1993, the Ninth U.S. Circuit Court of Appeals, which is the court of original jurisdiction for lawsuits against the Council, remanded the fish and wildlife revisions to the Council with instructions to try again, and this time to pay more attention to the recommendations of fish and wildlife managers and Indian tribes — who include drawdown advocates. These instructions were in the dicta, not in the opinion itself, which remanded the revisions on a technical issue regarding the construction of the Council document. The Council revised the program and reissued it in December 1994 with a strategy to test drawdowns and implement them, if warranted by the test results, over a period of six years. This time there was no legal challenge.
Meanwhile, the Fisheries Service issued a series of biological opinions under the ESA beginning in 1993. Biological opinions direct federal agencies to take specific actions, such as fish barging or flow augmentation or spills at dams, to avoid jeopardizing the listed species. In essence, biological opinions take the place of recovery plans while recovery plans are being developed. The Fisheries Service issued biological opinions in 1993, 1995, and 1998. Each was challenged in court. The litigants ran the gamut of affected and interested parties — environmental and fishing organizations, state fish and wildlife agencies, Indian tribes, electric utilities, and river-dependent industries. Everyone, it seemed, found some fault with the government’s plans for salmon recovery. Not surprisingly, salmon advocates thought the government did not go far enough to protect the fish, and others, such as industries that depend on inexpensive hydropower, thought the government went too far in imposing costs and actions that would reduce hydropower generation and, ultimately, raise power rates over the long term.
Critics of the salmon-recovery effort generally, and of the ESA specifically, included electric utilities and energy-intensive industries, including aluminum companies that bought power from Bonneville for their Northwest facilities. Industrialists and environmentalists had the same goal—healthy salmon runs. But the two sides disagreed on virtually everything about salmon recovery, from how it should be accomplished to the interpretation of scientific research results. At root, though, industries wanted to reduce the cost of salmon recovery. They pushed the Bonneville Power Administration to lower its non-power costs, such as fish and wildlife mitigation and recovery, because they added to the cost of Bonneville’s power.
Commercial fishing was another target for those concerned about the cost of salmon recovery. The Fisheries Service had to allow some harvest of the endangered and threatened salmon and steelhead, as they were taken incidentally with more numerous populations in mixed-stock fisheries. If fewer fish were killed, so the logic went, then more would return to spawn. In this logic, over time harvest cutbacks would allow more fish to return to spawn, fish populations would rebound, the cost of fish and wildlife recovery would decline as a result, and Bonneville could lower its rates.
In 1994 aluminum companies sued the Fisheries Service under the ESA seeking to force a halt to commercial fishing. The companies, which were joined in the lawsuit by the Public Power Council, an association of Northwest electric utilities, argued that while Bonneville was spending millions of dollars of ratepayer money to restore runs of endangered salmon, commercial fisheries on the Columbia River were violating the ESA by catching and killing the fish.
But Judge Malcom Marsh of the U.S. District Court for Oregon disagreed. He said the industries and utilities had no standing and threw out the suit. Marsh wrote:
By invoking the ESA they purport to represent the interests of the listed species. Yet when push comes to shove, if the resources became so scarce that truly hard choices had to be made, plaintiffs’ asserted interests in the listed species may yield to . . . their interests in power and water for hydroelectric use. . . .To permit these plaintiffs to proceed with their claims under the ESA would be akin to permitting a fox to complain the chickens have not been fed—sure, he has an interest in seeing the chickens are well fed, but it’s just not the same interest the farmer has, nor is it an interest shared by the chickens.
Attorneys for the plaintiffs, stung by the loss, responded that their clients were being injured by ESA requirements for river flows that aided fish migration but took water away from power generation, thus reducing its supply and increasing its cost. Some aluminum officials even publicly expressed concern for the future of the salmon runs. Ken Peterson, then president of Columbia Aluminum, which operated a smelter at The Dalles, Oregon, said the lawsuit was intended to “stop the squandering of the inheritance of our children.” But the aluminum companies were not credible salmon advocates, as historian Richard White comments in his book The Organic Machine: “When it comes to dams, Mr. Peterson managed to keep his solicitude for the salmon under control. It was gillnetters he sued, not the BPA.”
Meanwhile, the Fisheries Service completed its 1995 biological opinion on hydropower operations. Environmental groups sued and won, forcing another rewrite. In 2000, the Fisheries Service responded with a major revision, and like its predecessors it did not endorse drawdowns or breaching the four federal dams in the Snake River. This time the Fisheries Service attempted to balance the need to generate hydropower against the need to provide sufficient flows at and between the dams to allow safe salmon passage, particularly for the downstream-migrating juvenile fish. At the same time, the U.S. Fish and Wildlife Service issued a biological opinion regarding ESA-listed bull trout in the Columbia Basin and Kootenai River sturgeon.
Because hydropower dam operations in Montana and Idaho affect the listed sturgeon and bull trout as well as salmon and steelhead downstream, the two federal agencies coordinated their biological opinions regarding hydropower operations. The Fisheries Service biological opinion recommended:
- increasing water spills at Snake and Columbia River dams to aid juvenile fish passage (these spill requirements reduced hydropower generation by about 1,000 megawatts, on average, per year, a little more than the previous opinion)
- acquiring additional water from willing sellers to boost river flows
- continuing to transport juvenile fish downstream in barges when that option is likely to provide greater fish survival than inriver migration
- adjusting the rate of water releases from storage reservoirs to protect fish that live in and near them, and
- seeking ways to improve water quality and fish survival in the reservoirs.
The biological opinions also recommended increased attention — and spending — on improving spawning and rearing habitat, hatchery reforms to reduce potentially harmful effects on ESA-listed fish (this includes the development of genetic management plans), development of terminal or selective fisheries to reduce the harvest pressure on listed populations, and coordination with the Northwest Power and Conservation Council’s Columbia River Basin Fish and Wildlife Program.
Breaching the Snake River dams remained an option, but only if the other actions didn’t work. The Fisheries Service and Fish and Wildlife Service recommended that one-year and five-year implementation plans be developed for the biological opinions, and that checkpoints be established in 2003 and 2008 to determine whether the actions recommended in the biological opinions — there were 199 actions in the Reasonable and Prudent Alternative of the 2000 Opinion — are reversing the decline of the listed species. If not, other and more drastic actions, such as breaching the four lower Snake River dams, would be pursued. But that decision was at least three to eight years in the future, and perhaps longer.
The 2000 Opinion also called for aggressive “offsite mitigation” activities to improve salmon survival away from the hydropower dams in the habitat and at hatcheries. Bonneville, which at the time was spending about $250 million annually to implement the Northwest Power and Conservation Council’s fish and wildlife program, estimated the new Biological Opinion would add $175 million to $190 million in habitat and hatchery expenditures — the offsite mitigation — plus about $100 million per year in other costs such as power purchases to make up for lost hydropower generation as the result of required water spills.
Public reaction was mixed, and the old adversaries again were at polar opposites of opinion. Commercial river users and electric utilities generally supported the Fisheries Service; Indian tribes and environmental organizations generally did not. Scott Corwin of PNGC Power, a consortium of small public utilities that buy power from Bonneville, said he was reassured “to see NMFS listen to their top scientists who say breaching dams will not work. Throwing away 2,300 megawatts of electricity peaking capacity provided by these dams — enough power to run the city of Seattle — will not bring the fish back now, not in five or eight years from now.” On the other hand, Olney Patt, Jr., chair of the Columbia River Inter-Tribal Fish Commission and a Warm Springs tribal member, was critical: “The federal government is taking a regulate-for-scarcity approach just as we’re breaking through on a collaboration-for-abundance plan with the states. The federal agencies can help this effort through less interference and foot-dragging.”
The activities recommended in the biological opinion were detailed in an implementation strategy issued in December 2000, at the same time the Fisheries Service issued its biological opinion. The strategy was issued by the Federal Caucus, a coalition of nine federal agencies that have responsibilities for land, water and electricity and whose activities, therefore, affect the listed species. In early 2001, the Federal Caucus agencies followed up with a draft implementation plan based on the two biological opinions and the strategy.
A few months later, in May, a coalition of 12 conservation and fishing groups filed a lawsuit over the implementation plan — and by extension the biological opinions — contending that the plan was insufficient to reverse the decline of the listed species. The plaintiffs alleged that the plan tipped the balance between hydropower and river flows for salmon and steelhead too far in favor of hydropower, as the biological opinions allow Bonneville to suspend water spills at the dams in favor of hydropower generation if Bonneville declares a power emergency, as it did during a drought in the summer of 2001. The plaintiffs also contended that the Fisheries Service and the Fish and Wildlife Service ignored contemporary scientific thinking about the most effective ways to rebuild fish runs, relied too heavily on non-federal activities to improve habitat and did not commit enough money to the recovery effort.
In June 2003, U.S. District Court Judge James Redden of Portland ruled on behalf of the plaintiffs, chastising the Fisheries Service, which by then had changed its name to NOAA Fisheries, for relying on non-federal offsite mitigation activities that it could not control. Ironically, the primary offsite mitigation is, collectively, the actions directed by the Power Council’s fish and wildlife program. While it is not directed by the federal agencies, the Council and its program are likely to continue. The ESA allows non-federal activities as part of a recovery plan, but only if the listing agency first demonstrates there is a “reasonable certainty” they will occur. NOAA Fisheries did not do that, the judge ruled. Nor did the agency consult with other federal agencies to ensure they would follow through on their required actions in the biological opinion, the judge ruled. He remanded the biological opinion to NOAA Fisheries for revisions, continuing the now-familiar cycle of biological opinion revision and subsequent litigation.
In September 2003, the federal agencies published the 88-page “Endangered Species Act 2003 Check-In Report for the Federal Columbia River Power System.” Published with a notice about Judge Redden’s decision invalidating the 2000 Biological Opinion, the report nonetheless was optimistic about success to date: “Most salmon and steelhead populations listed under ESA and affected by the federal hydrosystem have demonstrated dramatic improvements in productivity since the BiOp,” the report stated, adding: “all of these [listed populations], except Snake River sockeye, are clearly in less jeopardy of extinction today than when they were listed in the 1990s and at the time the 2000 BiOp was implemented.”
The report did not mention the possibility of dam-breaching.
In September 2004, NOAA Fisheries responded to Judge Redden’s remand order with yet another revision of the biological opinion. This one included a new interpretation of what constitutes the baseline of impacts on the listed fish. In this interpretation, the existence of dams is not an issue because the dams were in place when the fish were listed and impacts on survival and recovery activities are determined with dam operations as a baseline. Within this framework, continuing to fix the dams to improve fish passage survival is an option, but removing the dams is not. The decision by NOAA Fisheries to redefine, and lessen, the hydropower system’s responsibilities for species recovery, thus pushing more of the responsibility onto other impacts to salmon, such as habitat, hatcheries and harvest, seemed doomed to invite further litigation. In fact, later that month, when Judge Redden called together the litigants for a status conference on the remand of the 2000 Biological Opinion, he issued an order in advance of the hearing requesting that the litigants to be prepared to answer some leading questions, such as: “Under what legal authority did NOAA Fisheries change the environmental baseline in the Draft Revised 2000 BiOp?” and “What scientific evidence supports the new conception of environmental baseline?” The order also advised: “Plaintiffs, intervenors, states, Treaty Tribes, and other amici curiae may identify and describe their most serious five concerns and e-mail them to the court.” At the hearing, the audience expected fireworks and Judge Redden appeared ready to begin litigating the new draft biological opinion that day, but the hearing was anticlimactic. The revised biological opinion, after all, was still just a draft. The litigants stated their positions, but the inevitable litigation had to wait until the draft biological opinion was issued in final form.
Meanwhile, the fish were not being ignored. The 2000 Biological Opinion remained in force during the remand period, and most of its 199 actions were being implemented, both by federal agencies and through the Power and Conservation Council’s fish and wildlife program. Snake River dam breaching or reservoir drawdowns remained no closer to reality, however, and it seemed certain that advocates would keep up the drumbeat of litigation.
Then, inevitably, the parties that challenged the 2000 Biological Opinion filed suit against the 2004 Opinion, and won. Again. In May 2005, Judge Redden granted summary judgment in favor of the plaintiffs, led by the National Wildlife Federation, ruling that the 2004 Opinion was legally flawed. Clearly, he was not pleased that NMFS/NOAA had decided to rewrite the entire 2000 Opinion rather than fix the narrow problem on which the remand hinged. In his order, the judge wrote:
“I found the 2000 BiOp was flawed because many of the . . . mitigation actions were not reasonably certain to occur and I remanded it to NOAA to correct the flaws. Instead of correcting the flaws, which would have required funding of NOAA’s efforts and active collaboration with the sovereigns, NOAA abruptly abandoned its analytical framework. The new framework ignored ESA regulations and NOAA’s own handbook and, not surprisingly, found that the proposed dam operations would not jeopardize the listed species. This finding eliminated the need for an RPA [Reasonable and Prudent Alternative — the suite of actions that implement the opinion], additional federal funding, or serious collaboration with any of the sovereigns. In sum, NOAA returned to the practice, criticized by Judge Marsh in 1995, of tailoring its framework for analyzing jeopardy in order to reach a no-jeopardy finding.”
In a not-so-veiled slap at the Bush Administration, which supervised the preparation of the 2004 Biological Opinion (the 2000 BiOp was a Clinton-era product), and the Republican-controlled Congress, the judge continued:
If the Executive and Legislative Branches do not allow NOAA to follow the law of the land, NOAA and the Action Agencies will fail again to take the steps that are plainly necessary to do what the ESA requires and what the listed species require in order to survive and recover. We are all aware of the demands of the other users of the resources of the Columbia River and Snake River but we need to be far more aware of the needs of the endangered and threatened species.”
The judge wrote that if the law were not followed, the result would be liability for killing listed species (Section 9 of the ESA prohibits such “takings”), and the courts would be required to run the river, a result that would be “abhorred” by all three branches of government, including the Judicial Branch. The judge urged “cooperation between the parties and all of the three branches of government” in order “to avoid such an embarrassment.”
It was no surprise, then, when the judge ordered the parties to the litigation to collaborate in preparing the next biological opinion. NOAA resisted, arguing that it alone has responsibility for preparing the biological opinion, but in the end the parties did collaborate. The judge required regular reporting of meetings and progress, and these were provided.
Meanwhile, the federal defendants appealed Judge Redden’s remand of the 2004 Biological Opinion. In April 2007, the Ninth Circuit Court of Appeals upheld Judge Redden, agreeing with him that the Biological Opinion “contained structural flaws that rendered it incompatible with the ESA.” Particularly, the appeals court pointed out the government’s assertion that the federal dams were part of the environmental baseline because they were authorized by Congress in legislation that predated the ESA. Thus, the court also rejected the government’s use of a “reference operation” in the jeopardy analysis, through which the government omitted analysis of the effects of dam operations that the government considered “nondiscretionary,” such as hydropower generation. According to the court, “[a]ll aspects of FCRPS operations, and any dam maintenance or structural modifications, are within the agencies’ discretion.”
The appeals court also agreed with Judge Redden that by using the “reference operation” as a surrogate for actual operations, and thus manipulating the reference operation, the government “impermissibly failed to incorporate degraded baseline conditions into its jeopardy analysis.” The court said the government should have analyzed whether the dams’ actual operations, in combination with baseline conditions, “would tip the species into jeopardy.” The court also held that dam operations “constitute an ‘existing human activity’ that endangers the fishes’ survival and recovery.” This must be analyzed by the government in the biological opinion, the court concluded.
The parties to the 2004 Biological Opinion expected to complete a new one in 2007, but it was delayed until 2008. Part of the reason for the delay was that the federal agencies were negotiating agreements with some of the plaintiffs to, in essence, win their support for the new Biological Opinion. This was one outcome of the collaboration that Judge Redden ordered after the failure of the 2004 Biological Opinion.
The previous month, on April 7, Bonneville Power Administration Administrator Steve Wright announced long-term agreements with the Warm Springs, Yakama, Umatilla, and Colville tribes, and also the Columbia River Inter-Tribal Fish Commission and the states of Idaho and Montana, that promised about $900 million over the 10-year period 2009-2019 to pay for habitat restoration, hatchery improvements, and fish-and-wildlife research. Later, similar agreements were completed with the Shoshone-Bannock Tribe and the state of Washington. Collectively, these were called the Columbia Basin Fish Accords. Notably absent from the agreements were the state of Oregon and the Nez Perce Tribe, both plaintiffs in the Biop litigation.
All of the Accords were built on the mainstem and off-site mitigation foundations developed in the Council’s Fish and Wildlife Program since its inception in 1982, from the water-management and fish-passage measures in the 1982 Program to subbasin management plans that were added to the Program in 2004 and 2005 (subbasin plans for the Bitterroot and Blackfoot rivers were under consideration by the Council in late 2009 with approval scheduled in early 2010).
With the support of its Fish Accord partners, the government touted collaboration in announcing the 2008 Biological Opinion. Coincident with the new opinion, the government released a 30-year plan to guide operations of irrigation dams in the upper Snake River Basin and a plan for tribal and non-tribal fish harvest in the Columbia and Snake rivers. In all, it was an avalanche of paper — more than 4,000 pages. The primary conclusion was that most ESA stocks are improving and will recover if the prescriptions in the biological opinion are followed. These included many now-familiar actions — fish-barging, habitat improvements, reprogramming hatcheries. The new opinion resurrected some elements of the 2000 opinion, including an all-H approach and updated survival analyses.
But the fell-good atmosphere did not last. Plaintiffs that did not sign Fish Accords, including the state of Oregon, Nez Perce Tribe, and others, filed challenges. Rather than entertain motions to reject the new opinion, Judge Redden instead asked the government to reconsider some parts of the document and then invited the parties to respond to his concerns.
These he laid out in a letter to the lawyers dated May 18, 2009. First, he complimented the Obama administration for “becoming more fully engaged in the complex issues presented by this case.” He also complimented the parties for being willing to discuss issues that could lead to a resolution of the conflict. But then he ticked off a long list of complaints that clearly showed he did not believe the new opinion differed much from the last one, which dated to the middle of the Bush administration.
“I still have serious reservations about whether the ‘trending toward recovery’ standard complies with the Endangered Species Act, its implementing regulations, and the case law,” he wrote. “Even if “trending toward recovery” is a permissible interpretation of the jeopardy regulation, he wrote, the conclusion that all 13 species are, in fact, on a “trend toward recovery” is arbitrary and capricious. He cited six potential flaws in the Biop’s analysis and conclusions, including:
- Federal agencies rely on “speculative, uncertain, and unidentified” tributary and estuary habitat improvements to find that threatened and endangered species are “trending toward recovery”
- Federal scientists conclude that many of the proposed estuary actions are unsupported by scientific literature
- The federal agencies assign “implausible and arbitrary numerical survival improvements” to tributary habitat actions
- The Biop has no performance standards to measure survival improvements
- The Biop does not include a contingency plan in the event the proposed actions don’t work
- The federal agencies did not offer a science-based explanation for their decision to curtail spring and summer spill
Judge Redden pointed out that while the federal agencies told the court in a hearing the previous month that they would not amend the 2008 Biop, they also had just signed an agreement with the state of Washington and also agreed to modify spring spill — both of which were examples of flexibility inherent in the concept of adaptive management. So the judge asked the agencies to consider some additional actions, including committing more money and time to monitoring estuary and tributary habitat actions to prove their effectiveness, allowing independent scientific oversight of tributary and habitat actions, developing a contingency plan to study specific alternative actions in the hydrosystem, including reservoir drawdowns and dam-breaching, and continuing spring and summer spills to aid fish passage.
The judge concluded with a suggestion and a warning:
“With a commitment to these additional and specific mitigation actions, independent scientific review, and the development of a contingency plan, the parties and the entire region may be able to avoid the additional costs and uncertainty of yet another round of consultation and litigation. Federal defendants have spent the better part of the last decade treading water, and avoiding their obligations under the Endangered Species Act. Only recently, have they begun to commit the kind of financial and political capital necessary to save these threatened and endangered species, some of which are on the brink of extinction. We simply cannot afford to waste another decade.”
The Obama Administration got the message. Since the president’s election, federal agency officials had been working to familiarize the Obama agency appointees with the 2008 BiOp. This includes a series of conversations and “listening sessions” with the other parties and with agency and external scientists, guided by letters from the judge like the one quoted above. Despite his criticisms, in general Judge Redden expressed support for the federal agencies’ approach in the 2008 BiOp.
In September 2009, the Obama Administration issued a statement supporting the 2008 BiOp and its scientific and analytical foundation. Simultaneously, the federal agencies issued a new Adaptive Management Implementation Plan (AMIP) that addressed many of the concerns raised by the judge. When it was filed with the court, a new round of filings ensued. Plaintiffs including the state of Oregon and the coalition of environmental groups filed procedural and substantive objections, and the states of Washington, Idaho, and Montana, and allied tribes — those that signed the 10-year agreements with Bonneville — filed motions in support of the federal defendants.
Judge Redden called the parties into his courtroom in November for oral arguments, an event that had a certain star power because of the presence in the audience of luminaries such as Jane Lubchenko, the former Oregon State University professor tapped by the Obama Administration as the undersecretary of Commerce for Oceans and Atmosphere and thus director of the National Oceanic and Atmospheric Administration, and elders of several tribes involved in the litigation. In pre-hearing letters, Judge Redden asked the parties to focus on several issues, most notably whether he could consider the AMIP as part of the 2008 Biop — he clearly indicated he would like to — or whether it falls into the category of “post-hoc rationalization” — that is, a Biop add-on and not therefore part of the record, which officially closed when the Biop was issued in May 2008. The plaintiffs hoped the judge would rule on their longstanding summary-judgment motion and toss the 2008 Biop the way he had tossed the others, and the federal agency attorneys hoped he would dismiss the motion and declare the Biop valid.
He did neither. In fact, the judge came as close as he ever had to supporting a Biop. According to a report in the Columbia Basin Bulletin for Nov. 25, 2009, Judge Redden commented as he opened the hearing: “I really believe that with a little more work we'll have a BiOp … we've gone a long way” since the 2004 BiOp.
Importantly, though, he signaled his support for the BiOp and AMIP together: “I think this BiOp and this AMIP are really a good piece of work.” Therein lies the problem, however. The AMIP was not officially part of the 2008 BiOp and the two probably could not be considered together with the BiOp for the purpose of the summary judgment motion. Doing so, and accepting the BiOp and AMIP together, could be cause for a successful appeal, a potential outcome the judge acknowledged: “If we proceed like that, we may lose the whole ball of wax.”
Judge Redden clearly recognized that this was a serious procedural problem and wanted the federal representatives and other parties to recommend suggestions for how to get the AMIP before the court for review. One possibility was a limited remand, in which the judge would grant summary judgment in favor of the plaintiffs and remand the BiOp to the federal agencies primarily for the purpose of incorporating the AMIP -- and possibly fixing other deficiencies that the judge would point out in his remand ruling. Of these, perhaps the most difficult was the lingering, unresolved controversy over the jeopardy standard in the 2008 BiOp. The issue is whether “trending toward recovery” is an acceptable standard under the Endangered Species Act, which does not articulate any standard.
In fact, the judge partially remanded the BiOp, and in response NOAA Fisheries produced a supplemental BiOp in December 2010 that incorporated the AMIP but did not change the jeopardy framework or methodologies. The litigants filed motions in support and opposition, and Judge Redden scheduled oral arguments for May 9, 2011. He asked the litigants to respond to six specific questions. At the hearing, though, the litigants only got through the first two questions -- whether the listed populations were “trending toward recovery” and whether the scientific data reflect increased survival and recovery gaps for the listed populations – before Judge Redden began questioning the federal agency attorneys about the agencies’ commitment to report progress in 2013 and 2016, as promised in the BiOp. The federal attorneys said yes, and with that Judge Redden abruptly adjourned the hearing – without further discussion and without addressing the other four questions (although question six had to do with progress reporting). No new arguments were advanced by either side, and the sudden halt to the proceeding left a sense of confusion in the courtroom. The only thing to do at that point was wait for the judge’s decision.
That came on August 2, 2011 when Judge Redden issued his latest opinion, a concise (24-page) document that leaned in the direction of giving the federal agencies the opportunity to prove that the habitat measures and plans they say will help the listed populations avoid jeopardy in fact will work. As with past opinions, the judge again remanded the BiOp to the federal agencies to fix flaws. But it was a partial remand, in that the court allowed the BiOp to stay in place through the end of 2013 because it sufficiently identifies “specific and beneficial” mitigation measures and plans through that time period but not for the remainder of the 10-year BiOp through 2018. In remanding the BiOp, the court held that NOAA Fisheries’ failure to identify specific mitigation measures and plans to be implemented after 2013 rendered the BiOp’s no-jeopardy conclusion arbitrary and capricious because unidentified mitigation measures are neither “reasonably specific” nor “reasonably certain to occur.”
Accordingly, the court ordered NOAA Fisheries to produce a new BiOp for the 2014-2018 period and submit it to the court by January 1, 2014. In the meantime, spill at Columbia and Snake river dams will continue during the juvenile fish migration in the spring and summer, consistent with the court’s annual spill orders, and NOAA Fisheries must:
- Continue funding and implementing the 2008/2010 BiOp
- Continue collaboration with the states and tribes to develop mitigation measures and supporting scientific data for the new or supplemental BiOp
- File annual implementation progress reports
- Consider whether more aggressive action such as dam removal and/or additional flow augmentation and reservoir modifications are necessary to avoid jeopardy.
The judge was critical of numerical improvement estimates that the BiOp assumes will occur as the result of habitat actions, such as a 23-percent improvement in habitat quality in Catherine Creek in northeastern Oregon where there are listed populations of spring Chinook salmon. According to the opinion, “Federal Defendants simply cannot substitute their ‘commitment’ to survival improvement for specific actions they have evaluated and determined will provide the necessary biological response. It is one thing to identify a list of actions, or combination of potential actions, to produce an expected survival improvement and then modify those actions through adaptive management to reflect changed circumstances. It is another to simply promise to figure it all out in the future.”
And if the expected habitat improvements do not occur, the federal agencies should be ready to consider more aggressive actions, the judge wrote. These more aggressive actions, including dam removal, should be addressed in the 2014-2018 BiOp, which should “…consider whether more aggressive action, such as dam removal and/or additional flow augmentation and reservoir modifications are necessary to avoid jeopardy.” The judge wrote that he recognizes the inherent uncertainty of predicting the effects of future actions and that, in fact, requiring certainty before proceeding with a mitigation plan “would effectively prohibit ... any novel approach to avoiding jeopardy, including dam removal.”
Importantly, the court did not decide the thorny issue of whether the jeopardy framework in the BiOp – the “trending toward recovery” metric – meets the requirements of the ESA. In fact, Judge Redden wrote he did not need to decide that issue because while he is “[a]ssuming, without deciding, that NOAA Fisheries’ jeopardy framework and scientific methodologies are valid and based upon the best available science,” he also “… conclude[s] that it failed to adequately identify specific and verifiable mitigation plans beyond 2013 when current plans expire or are scheduled to be completed. Because it is based on unidentified mitigation measures that are not reasonably certain to occur, I find NOAA Fisheries ‘no-jeopardy’ conclusion arbitrary and capricious insofar as it extends beyond 2013.”
While Judge Redden did not go further into the details of the framework and how it is applied to assess jeopardy, he expressed doubts about it in a footnote: “I continue to have serious concerns about the specific, numerical survival benefits NOAA Fisheries attributes to habitat mitigation. … Although the court may be required to defer to NOAA Fisheries’ technical and scientific ‘expertise’ in predicting the benefits of habitat mitigation, the court is not required to defer to uncertain survival predictions that are based upon unidentified mitigation plans.”
Notices of intent to appeal Judge Redden’s August 2 decision to the Ninth Circuit Court of Appeals were due by October 31, 2011, and in mid-October notices were filed by the federal defendants and by Northwest RiverPartners and the Inland Ports and Navigation Group as interveners. The federal defendants issued a statement at the time saying they filed with the court to protect their right to appeal at a later date but had not decided whether to appeal. In a separate document NOAA Fisheries/National Marine Fisheries Service indicated that the issue that might be at the heart of an appeal would be whether Judge Redden “erred in concluding that the 2008/2010 biological opinion is deficient because it does not identify specific habitat improvement projects beyond 2013 and by ordering injunctive relief” with respect to spill — ordering the federal agencies to continue to conduct spring and summer spill consistent with the court’s earlier orders. The appeal notices were voluntarily dismissed in April 2012 at the request of the parties.
Per Judge Redden’s decision, the federal defendants had until January 1, 2014 to produce a new or supplemental biological opinion that corrects the existing opinion's reliance on mitigation measures that are unidentified and not reasonably certain to occur. Judge Redden retired in late 2011, and the case was assigned to Judge Michael Simon. Meanwhile, the challenge to the record of decision adopting the opinion filed in the 9th Circuit Court of Appeals was voluntarily dismissed in 2012.
In September 2013, NOAA Fisheries released its Draft 2013 Federal Columbia River Power System Supplemental Biological Opinion. It was a “sovereign review” draft intended for comment by sovereign governments -- states, tribes, and federal agencies. As well, the ESA Section 7 consultation process does not require a draft for comment by the general public. However, NOAA invited public comments on the sovereign review draft (through October 7, 2013) and also announced it would release the final version of the BiOp by December 2013 in order to comply with Judge Redden’s January 1, 2014 deadline. As ordered by Judge Redden, the draft 2013 BiOp includes habitat mitigation plans containing specific habitat actions for the years after 2013 and a revised jeopardy analysis.
In a statement released with the draft BiOp, NOAA Fisheries said that it evaluated the effects of implementing the reasonable and prudent alternative habitat actions for the 2014-2018 period and deemed them reasonably certain to occur. According to the statement, “the FCRPS Action Agencies have built significant capacity to implement projects based on successful partnerships, resulting in broad institutional and stakeholder support for implementation. The adaptive management framework ensures that the objectives, as outlined in the 2008 BiOp, are met by 2018. They have laid out credible strategies for achieving performance standards and associated survival improvements for the affected salmon and steelhead.”
The statement also said NOAA Fisheries “… considered new scientific information, such as the current biological status of the fish, to assess whether new information showed any significant discrepancies from expected results, ”... and concluded that the actions in the draft BiOp are “likely to achieve the survival improvements anticipated in the 2008 FCRPS BiOP … the 2008 FCRPS Biological Opinion conclusions remain valid, and the operation of the FCRPS is not likely to jeopardize the listed species or adversely modify their critical habitats.”
NOAA issued the 2014 Supplemental BiOp on January 17, 2014. The new BiOp addressed dam operations for the ensuing five years, through 2018, and declared that those operations would not further jeopardize the listed species because of additional habitat actions in tributaries and the estuary, efforts to reduce predation on smolts by fish-eating birds, and barging more juvenile fish past the dams, notably steelhead.
In a statement released with the new BiOp, Will Stelle, West Coast NOAA director, said the new BiOp “confirms we are on the right track when it comes to ensuring the survival of salmon and steelhead species in the Columbia River now and well into the future.”
The additional habitat actions in the new BiOp respond to Judge Redden’s order in August 2011 criticizing the original BiOp for not including habitat-improvement actions beyond 2013.
NOAA cited a number of key elements of the 2014 Supplemental Biop, including:
- Begin barging juvenile salmon and steelhead earlier in the year, primarily to benefit wild steelhead
- End summer spill earlier in August than in recent years (spill now will end when fewer than 300 smolts are counted at Snake River dams for three consecutive days)
- Reduce the size of the double-crested cormorant population in the estuary and Caspian tern colonies in the mid-Columbia region
- The adaptive-management components of the Reasonable and Prudent Alternative in the 2008 BiOp are working well and, for some populations, are more beneficial than anticipated in the 2008 BiOp, and the 2008 BiOp analyses and conclusions, supplemented in 2010, remain valid
- The BiOp is based on the best available scientific knowledge
- Spill levels in the new BiOp will be sufficient to meet the juvenile-fish passage performance standards of 96 percent for spring-migrating fish and 93 percent for summer-migrating fish. NOAA rejected calls for higher spill levels in comments on the draft BiOp, saying proposals to increase spill from 120 percent dissolved-gas levels in dam tailraces to 125 percent could 1) hurt juvenile and adult fish and other aquatic organisms; 2) create hydraulic conditions that would actually delay passage; 3) make surface collectors less efficient, causing more fish to pass dams through the other spillways and face a higher risk of mortality; and 4) alter flow patterns at some dams and delay or block upstream passage of adult fish.
As well, NOAA said the spill experiment proposed in the comments could take 28 years or more to identify a measurable difference in smolt-to-adult returns compared to the spill levels in the current BiOp.
In June 2014, the same plaintiffs, led by the National Wildlife Federation, went back to the U.S. District Court for Oregon -- their seventh amended complaint since 2001 -- and challenged not only the 2014 BiOp but also, for the first time in the litigation history of the current BiOp, the Corps of Engineers and the Bureau of Reclamation (BOR) regarding compliance with the National Environmental Policy Act (NEPA). The plaintiffs argued that NEPA requires the Corps and BOR to prepare a comprehensive environmental impact statement (EIS) for all or most of the 73 actions that implement the 2014 BiOp.
In May 2016, the court issued the opinion by Judge Michael Simon, who sided with the plaintiffs on almost every matter. Regarding the requested EIS, the judge agreed, commenting that "a comprehensive environmental impact statement that evaluates a broad range of alternatives may finally break the decades-long cycle of court-invalidated biological opinions that identify essentially the same narrow approach to the critical task of saving these dangerously imperiled species." One advantage of an EIS, according to the opinion, is that all alternatives, including controversial ones like breaching mainstem dams, could be considered equally. The judge wrote: "Congress enacted the National Environmental Policy Act to ensure a process in which all reasonable alternatives are given a 'hard look' and all necessary information is provided to the public. In addition, a central purpose of an environmental impact statement is 'to force the consideration of environmental impacts in the decisionmaking process.' For example, the option of breaching, bypassing, or even removing a dam may be considered more financially prudent and environmentally effective than spending hundreds of millions of dollars more on uncertain habitat restoration and other alternative actions."
Elsewhere in the 149-page opinion, Judge Simon commented:
"For more than 20 years, NOAA Fisheries, the Corps, and BOR have ignored the admonishments of Judge Marsh and Judge Redden to consider more aggressive changes to the FCRPS to save the imperiled listed species. The agencies instead continued to focus on essentially the same approach to saving the listed species—minimizing hydro mitigation efforts and maximizing habitat restoration. Despite billions of dollars spent on these efforts, the listed species continue to be in a perilous state. ... The FCRPS remains a system that 'cries out' for a new approach. A NEPA process may elucidate an approach that will finally move the listed species out of peril."
And like judges Marsh and Redden before him, Judge Simon expressed his frustration with what he sees as a business-as-usual approach by the federal agencies:
"Judge Redden, both formally in opinions and informally in letters to the parties, urged the relevant consulting and action agencies to consider breaching one or more of the four dams on the Lower Snake River. For more than 20 years, however, the federal agencies have ignored these admonishments and have continued to focus essentially on the same approach to saving the listed species—hydro-mitigation efforts that minimize the effect on hydropower generation operations with a predominant focus on habitat restoration. These efforts have already cost billions of dollars, yet they are failing. Many populations of the listed species continue to be in a perilous state. The 2014 BiOp continues down the same well-worn and legally insufficient path taken during the last 20 years. It impermissibly relies on supposedly precise, numerical survival improvement assumptions from habitat mitigation efforts that, in fact, have uncertain benefits and are not reasonably certain to occur. It also fails adequately to consider the effects of climate change and relies on a recovery standard that ignores the dangerously low abundance levels of many of the populations of the listed species."
The environmental impact statement envisioned in the opinion would not be the first to look at dams of the Federal Columbia River Power System (FCRPS). For example, in 2002, after seven years of work, the Corps completed an EIS on the four lower Snake River dams. The EIS evaluated four alternatives to help lower Snake River fall Chinook pass the dams: 1) the existing condition; 2) maximum barge transportation of juvenile salmon; 3) system improvements without drawdown; and 4) dam breaching. The study, which was peer-reviewed independently, concluded that dam breaching 1) by itself would not recover the ESA-listed fish; 2) would take the longest time to benefit fish; and 3) would be the most uncertain to implement of any of the alternatives. The Corps' preferred alternative in 2002 was major improvements to fish passage systems at the dams. These fish-passage improvements, combined with habitat and hatchery improvements, comprised the core foundation of the federal agencies' biological opinions.
In his opinion, Judge Simon ordered the federal agencies to complete a new BiOp by March 1, 2018 (later extended three years). He allowed the 2014 BiOp to remain in place until the new one is completed. The judge also wrote that he would set a "reasonable deadline" for the agencies to complete the EIS. That deadline turned out to be March 2021, with a new Biological Opinion and Records of Decision by late that year. In asking for the EIS, the judge said, “Although the Court is not predetermining any specific aspect of what a compliant NEPA analysis would look like in this case, it may well require consideration of the reasonable alternative of breaching, bypassing, or removing one or more of the four Lower Snake River Dams.”
On October 19, 2018, however, President Donald Trump issued a "presidential memorandum" that dealt mostly with water delivery in California but included a paragraph regarding the "Streamlining [of] Regulatory Processes and Removing Unnecessary Burdens on the Columbia River Water Infrastructure." This memorandum directed the federal agencies to develop a schedule (within 60 days) for completing the EIS and associated BiOp by 2020, a year earlier than the the schedule set by Judge Simon. The judge had extended the deadline to 2021 in response to petitions from the federal agencies that they needed the time to adequately complete the NEPA process. Ironically, the plaintiffs had asked for quicker action. The federal agencies issued a draft EIS (DEIS) on February 28, 2020 for public comment. Further complicating matters, the federal agencies signed extensions of the Columbia Basin Fish Accords totaling more than $400 million in September 2018, and language in the Extensions says they will remain in force "until the earlier of when the Action Agencies issue their final decisions on the Columbia River System Operation EIS and any associated consultation under the ESA for the Columbia River System, or September 30, 2022."
For the first time since 2002, the DEIS assessed breaching the four Snake River dams as one of the alternative strategies. The DEIS rejected dam-breaching and proposed, as its preferred alternative, to increase spill at all eight dams on the lower Snake and Columbia rivers to help speed juvenile fish to the ocean as they migrate down the rivers in the spring and early summer. While the Council did not participate in developing the DEIS, the Council’s Pacific Northwest Power Supply Adequacy Assessment for 2024 served as expert input into the federal agencies’ modeling to protect the species.
The increased spill in the preferred alternative would take water away from hydropower generation and result in reduced output amounting about 160 average megawatts in years when water conditions are average, and up to 300 average megawatts in years when water conditions are below average. Expressed as electricity consumed, that’s enough power for 115,000 to 215,000 Northwest homes.
In the 2020 DEIS, the agencies assessed the potential impacts of losing the generation from the four Snake River dams, which would happen if they were breached. The DEIS concluded that while breaching the dams and increasing spill at the four lower-Columbia dams would have the greatest benefit for Snake River salmon and steelhead, including three ESA-listed species, breaching would result in unacceptable impacts to the authorized purposes of the dams – hydropower, navigation, irrigation, and recreation. The DEIS also concluded that new resources would be needed to replace the lost generation, and that these would cost between $34 million a year for generators that burn a fossil fuel, and $161 million a year for variable-output renewable resources like wind and solar. Breaching also would defeat regional objectives for a reliable and economical power supply, according to the DEIS.
The DEIS and the 2020 BiOp were issued on July 31, 2020. Both documents were finalized with a Record of Decision issued September 28, 2020. There were no substantial changes. In October, a coalition of environmental groups and the Spokane Tribe of Indians filed 60-day notices of intent to sue with regard to the 2020 Biological Opinion, which was issued on July 31 and incorporates the EIS. Under the Endangered Species Act, lawsuits alleging violations must be filed within 60 days of the finalizing a decision. Finalizing the EIS also finalized the BiOp. While the notices of intent to sue did not mention the EIS, they did not need to – the National Environmental Policy Act, which governs the EIS, does not have a 60-day rule like the Endangered Species Act. The 60-day notices alleged the federal agencies again erred in concluding that operation of the 14 dams and reservoirs of the Columbia River hydropower system would not further jeopardize salmon and other species. In the notices, the groups alleged that the agencies do not explain in the BiOp why they believe its suite of actions that has failed to avoid jeopardy in the past will now produce different results.