One-man Rule in Salmon Caseby Editors
Democrat-Herald of Albany, Oregon, June 14, 2005
We hardly need another example of how judges rule America, but here's another one anyhow.
The venerable James A. Redden, a longtime federal judge in Portland, has found fault with the federal plan for dealing with salmon in the Columbia and Snake rivers. Last week he followed up his previous rulings with an order to increase the volume of water to be spilled through five dams this summer, one on the Columbia and four on the Snake. He agreed with plaintiffs in a lawsuit that federal resource agencies were wrong and the additional spill was needed to protect the salmon runs.
As a result, a large amount of electricity will not be generated and the wholesale price of power in the Northwest is likely to increase. According to last week's news report, there likely will be a 2 percent rise in the price of power for residential customers.
The upshot is that we have a federal judge setting power rates in the Northwest, not directly but indirectly.
Judge Redden, of course, cites the law. Faced with the government's plan to spill a smaller amount of water, he said, "The law says you can't do that."
The law doesn't actually say that. If it did, there would be no dispute. Instead, the law is ambiguous. In general terms, Congress has authorized the dams and their operation. When they were built, Congress said they should generate power. Congress also authored the Endangered Species Act and various other laws on protecting the natural environment. More recently -- annually in fact -- Congress also appropriated money for the federal resource agencies, giving them implied marching orders to do their jobs according to law.
After their previous conservation plan for fish species was rejected by the court, the federal resource agencies labored mightily to come up with a new one. But Judge Redden found this "biological opinion" faulty, too, and threw it out, ordering yet another one to be drawn up. The likely result: Years of additional work.
It is obvious by now that Congress has given conflicting orders, abdicating its responsibility to make a choice between power, transportation and in some cases flood control on the one hand, and fish and fisheries interests on the other.
If our elected Congress won't govern, elections mean nothing. And on issues such as fish conservation and power rates, that leaves our vaunted self-government in the hands of a single judge.
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