June 24, 2003

INTRODUCTION Good morning, Chairman Crapo. My name is Anthony Johnson and I am Chairman of the Nez Perce Tribe. I would like to thank you and the members of the subcommittee for holding this hearing.

THE SALMON’S IMPORTANCE TO THE NEZ PERCE TRIBE The Nez Perce Tribe has fished since time immemorial, and in our 1855 Treaty with the United States, our ancestors expressly reserved the right to take fish at all our usual and accustomed places throughout the Columbia River Basin. For the Nez Perce Tribe, salmon are more than an icon of the Pacific Northwest; they are crucial to our culture, our way of life, our spiritual beliefs, and our economy. Without them, we are not Niimiipuu.

THE IMPACTS OF THE FEDERAL HYDROPOWER SYSTEM HAS LED TO SALMON BEING LISTED AS “ENDANGERED” OR “THREATENED” The impact of the federal hydropower system on the salmon, and on our people has been devastating. Today, in large part due to the federal hydropower system, every run of Snake River salmon that returns to the Nez Perce Tribe’s usual and accustomed fishing places in the Columbia River Basin is either extinct, or listed as threatened or endangered under the Endangered Species Act. These include Snake River coho, Snake River sockeye, Snake River spring, summer, and fall chinook, and Snake River steelhead.

TODAY’S HEARING – THREE POINTS Today, you have invited me to speak on “The implementation of the National Marine Fisheries Service’s 2000 Biological Opinion regarding the operation of the Federal Columbia River Power System.” I would like to make three points.

FIRST, THE FCRPS BIOLOGICAL OPINION HAS BEEN DECLARED ILLEGAL!

The federal district court’s recent ruling that NMFS’ Biological Opinion for the FCRPS is illegal should come as no surprise.

The ESA has highlighted that FCRPS cries out for a major overhaul In 1994, Judge Malcolm Marsh declared that the hydropower system “was literally crying out for a major overhaul” in one of the initial legal challenges to FCRPS operations under the Endangered Species Act. (Idaho Department of Fish and Game v. NMFS).

NMFS has avoided facing reality shown it by the Basin’s salmon managers

Senator Crapo, we know that you have carefully followed impact of the FCRPS on salmon over the years. You, like us, watched as NMFS deferred its decision on a “major overhaul” for five years. You, like us, watched as NMFS discarded the closest thing to a true collaborative approach in the Columbia Basin: PATH (Plan for Analyzing and Testing Hypotheses), which involved biologists from the states, the tribes, the federal government, and independent scientists known as. Senator Crapo, you will recall that the Idaho Department of Fish and Game testified before you concerning NMFS’ departure from the conclusions reached by PATH. NMFS’ departure from the PATH conclusions, and its peer review, appeared to be motivated by the fact that PATH had concluded that breaching the four lower Snake River dams was the best means for restoring Snake River salmon.

NOAA’s flawed approach NMFS’ “non-breach” biological opinion appeared to the Nez Perce Tribe and all the other salmon managers in the Columbia Basin to be biologically flawed. And, while NMFS’ biological opinion was billed as an “aggressive non-breach” approach, upon closer examination it was clear that it was mostly hope and good intentions.

The litigation has exposed the biological concerns with NOAA’s approach The Nez Perce Tribe, along with the State of Oregon, has actively participated in this litigation to point out the flaws in the 2000 FCRPS BiOp. One point the Nez Perce Tribe made is that no matter which side of the litigation the states and tribes ended up on in this litigation, the formal comments they submitted in the record, and all detail the biological flaws with NMFS’ approach.

SECOND, WHERE DO WE GO FROM HERE?

Leadership Is Needed The federal court’s ruling regarding the illegality of NMFS’ BiOp under the ESA cries out for leadership, the kind you, Mr. Crapo, are showing, by calling this hearing. After the Court’s ruling, I stated that, “The decision gives the Columbia Basin’s sovereigns a tremendous opportunity to ensure that salmon are recovered by actions, not words.”

The Lack of Leadership Will Place The Issue in the Nation’s Hands, and Increase the Pressure for Breaching the Four Lower Snake River Dams Unfortunately, others in the region appear to be placing their heads in the sand.

The Governors’ Lowest Common Political Denominator After the federal court declared NMFS’ Biological Opinion for the FCRPS illegal, the regions’ four governors, in a testament to the lowest common political denominator, pledged to ensure that breaching the four lower Snake River dams is not on the table, because, in their words this issue is “polarizing and divisive.” While paying lip service to supporting federal agency budgets, and additional appropriations necessary to meet the “non-breach” approach, the governors refused to do so if it meant adjusting rates to meet the legal obligations of the Endangered Species Act or the Northwest Power Act’s equitable treatment mandate.

BPA is frustrating salmon recovery After the federal court declared NMFS’ Biological Opinion for the FCRPS illegal, Steve Wright, the Administrator of the Bonneville Power Administration, testified before the Senate Committee on Indian Affairs (on June 4, 2003) regarding fish and wildlife obligations to the Northwest Tribes. Amazingly, he completely failed to mention to the Senate that NMFS’ Biological Opinion had been declared illegal. At a time when the federal court and the salmon are crying out for more fish and wildlife recovery – not less– BPA has announced reductions in its fish and wildlife investments. BPA’s indifference to salmon restoration makes it nearly impossible for an “aggressive non-breach” approach to occur.

More than the status quo is required Simply put, the status quo is not good enough to satisfy the Endangered Species Act, to say nothing of the United States’ treaty and trust obligations. The Save Our Wild Salmon Coalition, in its detailed “Report Card” on the implementation of the BiOp, found that federal agencies received half of the funding required by the “non breach” plan and accomplished less than 30% of the work. We are disappointed that they are not here today, as we believe they are partially responsible for this hearing occurring. To that end, we would like to be sure that you pay special attention to the Save Our Wild Salmon testimony, which we understand has been submitted as part of the record.

THIRD, WE CALL ON YOUR LEADERSHIP TO PROVIDE WHAT IS NEEDED

We request your leadership in three ways.

First, monitor the development of the new FCRPS BiOp As NOAA rewrites its Biological Opinion for the FCPRS, we urge you to monitor this process closely. Neither we, nor the salmon, can afford to waste more time. We urge you to urge NMFS and the “Action Agencies” (Bonneville, the Bureau of Reclamation, and the Corps of Engineers) to ensure that they embark on a salmon recovery strategy that is economically feasible, scientifically credible, and realistically achievable. We urge you and the subcommittee members to monitor this process carefully.

Second, scrutinize BPA’s commitment to salmon recovery We urge your continued oversight of the actions of the Bonneville Power Administration with respect to its fish and wildlife funding. The Nez Perce Tribe has shown its on-the-ground leadership in implementing salmon recovery projects funded by Bonneville, including award-winning habitat restoration actions and the cutting edge Nez Perce Tribal Hatchery. Bonneville’s reluctance to fund fish and wildlife recovery projects undermines its commitment to a “non breach” alternative. We urge you to urge the General Accounting Office to continue its ongoing investigations into Bonneville’s financial and fish and wildlife obligations.

Third, continue to support the Pacific Coastal Salmon Recovery program Your support for Pacific Coastal Salmon Recovery has begun to show results with the projects implemented by the Nez Perce Tribe. We also support your efforts, and those of other members of the Idaho delegation, to see that the State of Idaho is included as a full participant in this critical program. We urge you to continue to ensure that this program is reauthorized for another six years, with increased funding for the tribes and states, in support of coordinated salmon restoration efforts, including the actions being implemented by the Nez Perce Tribe.

CONCLUSION I appreciate this opportunity for the Nez Perce Tribe to testify. I will be submitting amended written testimony for the record and ask that you also allow the written testimony of the other Columbia River treaty tribes to be included in the record.