Feds Lose Bad Gamble
The biggest fear about the effort to save struggling salmon runs from the Columbia River hydrosystem has always been that a judge, not the region, would end up deciding how the job gets done.
That scenario is awfully close to coming to pass in a Portland courtroom, where a federal judge last week invalidated the Bush administrationĺ─˘s blueprint for accomplishing the feat.
U.S. District Judge James Redden ruled Thursday that the federal governmentĺ─˘s plan to mitigate for the damsĺ─˘ effects on salmon -- called a "biological opinion" -- violated the Endangered Species Act.
The ruling was the result of a bad gamble by the Bush administration. In 2003, Redden ruled the governmentĺ─˘s last biological opinion was inadequate. He told the agencies to rewrite parts of the plan so that it relied on salmon recovery activities that were more certain to happen.
Instead, the new Bush administration took the opportunity to reinterpret the very core of the plan: how the Endangered Species Act applies to the hydrosystem. Federal agencies claimed responsibility only for fish mortality caused by changes in dam operations, not the greater damage from dams themselves.
It was a logical argument, to an extent. The dams were in place before the Endangered Species Act. Besides, the federal agencies donĺ─˘t have the authority to say that the dams are coming down. Thatĺ─˘s up to Congress.
But, as the state of Washington argued, the federal government cannot just ignore the damsĺ─˘ existence. It has to acknowledge their effects, show that those effects are unavoidable and find other ways of making up for the harm they cause.
Now that the biological opinion is void, Redden faces the question of how federal agencies will operate the dams on the Columbia and Snake rivers during the critical summer season -- a task made especially troublesome given the Northwestĺ─˘s drought.
Environmental groups want more water sent over the dams to help fish migration. The feds want to stay the course they have already set, saying that sending more water over the dams rather than through the turbines would cost Northwest power customers an extra $100 million.
Chances are, the feds will lose the argument. In 2003, when Redden declared the last biological opinion inadequate, he allowed the federal government to keep its operations plan until a new biological opinion could be written. He has since said he wonĺ─˘t be that naive again.
That would leave the court writing at least broad guidelines for balancing power production against the needs of fish -- exactly what just about every party to the case has professed they donĺ─˘t want to happen.
There may be no other option. Environmental groups argue that a biological opinion cannot be legally defensible without including the breaching of the four lower Snake River dams. President Bush has said the dams are not coming down on his watch, and dam-breaching is yet a non-starter in Congress. This is a cycle of litigation with no end.
Redden is a respected judge who has now had years to immerse himself in salmon recovery. But no judge should have to determine how to balance fish protection and power needs. The appropriate venue is outside the courtroom, with the federal government leading the region in collaboration and compromise. Itĺ─˘s not too late for that to happen.
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