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BIOP Judge Calls for Meeting to Outline Expectations Over Remand by Bill Rudolph NW Fishletter, July 22, 2003

Oregon federal District Court Judge James Redden presided over a July 21 conference for all parties in National Wildlife Federation v. NMFS to outline his expectations and consider their recommendations to ensure that the hydro Biological Opinion will be fixed by the one-year period Redden gave the federal fish agency to rewrite part of it.

It was reported that Justice Department attorney Fred Disheroon told the judge NOAA Fisheries wants to implement a two-track process to satisfy the judge's concerns over the BiOp. First the federal fish agency would complete consultations with other federal agencies over ESA Section 7 issues and firm up agreements with Northwest states over salmon recovery actions outside the hydro system.

The second track would be to refresh the agency's jeopardy analysis, updated with current fish status to reflect recent improvements in salmon runs.

In a supplemental order released July 8, Judge Redden said he would also ask whether the parties need a settlement judge or special master to help resolve the issues. He said the government's first progress report is due Oct. 1, to show how it is working to make sure that offsite fish mitigation actions "will be reasonably certain to occur. On July 21 Redden suggested creating a committee of ten or so attorneys to follow up the process.

Redden also noted in his July 8 order that the BiOp calls for a 2003 progress report that requires a "failure" if key actions spelled out in the opinion are insufficiently implemented. "The consequences of insufficient implementation," said the judge, "include hydropower mitigation actions, up to and including the breaching of Snake River dams."

In his latest meeting, Redden pointed out that any breaching of dams would likely require authorization by Congress. "I summarized, perhaps, ineptly," he told participants at the July 21 conference, referring to his earlier order.

In his July 8 order, Redden said the court "does not intend to delve into the science during the remand period." During this week's conference, he remained ambiguous on that issue.