Former Judge says
by Eric Barker
Before retiring, James Redden was a key figure
in the ongoing salmon versus dams controversy
The recently (April 2012) retired judge who presided over the long-running salmon versus dams case in the Columbia Basin told a reporter the four lower Snake River dams should be breached.
Speaking recently (April 2012) with Aaron Kunz, an Idaho Public Television and Boise State Public Radio reporter, former Judge James Redden said "I think we need to take those dams down."
The judge has been a key figure in the more than 20-year-old regional effort to craft a plan that reconciles the operation of the federal hydro power system on the Snake and Columbia rivers with the needs of threatened and endangered salmon and steelhead. Three times Redden has tossed government plans which he said did too little to protect the fish that include Snake River sockeye, steelhead, fall chinook and spring chinook. In doing so, he sided with environmental groups, fishing interests and the Nez Perce Tribe who advocate breaching Ice Harbor, Lower Monumental, Little Goose and Lower Granite dams.
The legal argument, however, has never focused directly on dam breaching. The Endangered Species Act requires the federal government to ensure its actions do not jeopardize the survival of protected plants, animals and fish. In 2000, 2004 and 2008, the National Marine Fisheries Service issued documents known as biological opinions, that have said plans to alter the way the U.S. Army Corps of Engineers dams are operated, combined with other actions like habitat improvement and hatchery and harvest reform would prevent the protected fish from being jeopardized.
The Nez Perce Tribe, Oregon, fishing groups and environmentalists have challenged those findings and won. Redden did not have the power to remove the dams and instead directed the government to come up with a better plan. Only Congress, that authorized the dams, can direct and fund the U.S. Army Corps of Engineers to breach them. Redden did order the government to institute a regimen of spring and summer spill at the dams to help juvenile fish avoid passing through turbines during their journey to the ocean. Many observers credit that spill along with improved ocean conditions for increases in the return of both wild and hatchery fish during the past few years.
For more than a decade, breaching advocates have carried on a campaign to convince political leaders and the general public that dam breaching is the only way to save the fish. On Wednesday, after Kunz published snippets of his interview with Redden, breaching supporters said his comments show there is a clear scientific and legal argument for dam removal.
"He has taken a true independent look at it and said fish respond better when a river actually acts like a river," said Nicole Cordan, public policy director for the Save Our Wild Salmon campaign. "It was certainly exciting to hear him say that and it's always affirming to have somebody of his caliber having understood the scientific and legal side of all of this."
At least one opponent said he was not surprised by Redden's support for dam removal and said he suspected the judge had environmental leanings. Attorney James Buchal who represents irrigators in the ongoing case and authored "The Great Salmon Hoax," previously tried to have Redden disqualified from the case for what he felt was a bias against the dams.
"(It) has always been clear to me, he wants the dams out," said Buchal. "It's not a surprise." Buchal said it is not common for a retired judge to comment on an ongoing case.
"It it is unusual, but people who are real hard-core environmentalists, it's like a religious thing, it is something that is deeply held and people are motivated to spread the gospel."
Cordan rejected the idea Redden acted in a biased way and said the judge could have taken even stronger steps against the government but did not.
"I think that is what makes this judge such an amazing judge. He might have had a particular view but he didn't let that view dictate on how he operated in court, he made decisions based on the law and that is his job."
Redden stepped down from the case last November but not before ordering the government to come up with a new plan by 2013. Kunz interviewed him for an "Outdoor Idaho" episode on salmon recovery that will air in July. Snippets of his interview are available at http://bit.ly/I5FK4D.
Feds Hope for Collaborative Effort on Salmon Long-Term Planning by Aaron Kunz, Idaho Public Television, 12/17/12
Feds Give Stakeholders Bigger Salmon Recovery Role by Aaron Kunz, Oregon Public Broadcasting, 12/11/12
Lonesome Larry Hits 20-Year Anniversary by Aaron Kunz, Northwest Public Radio, 7/19/12
Judge Redden Says Tear Snake River Dams Down by Aaron Kunz, Boise State Public Radio, 4/25/12
Judge: Salmon Plan Falls Short by Aaron Kunz, KPLU, 8/2/11
Federal Judge to Hear Arguments on Salmon Recovery by Aaron Kunz, Oregon Public Broadcasting, 5/9/11
Outdoor Idaho Salmon Conversations: Judge James Redden
In April of 2012, Judge James Redden with the U.S. District Court of Oregon sat down with Outdoor Idaho Producer Aaron Kunz to discuss the two-decade-long salmon case. It was during that conversation that Judge Redden made it clear what he thinks about the four federal dams on the lower Snake River in Washington.
Judge Redden is a former Oregon legislator and state attorney general.
Aaron Kunz: How did you get the salmon Biological Opinion (The salmon management plan that has been in the federal court since 1992) case?
Redden: I was in my chambers and Judge Mike King came in. We were all very busy and he had the U.S. versus Oregon case and the fish case - both of them. It was impossible for one judge to handle both and he said that I couldn't take the U.S. versus Oregon case because I had been the Oregon Attorney General, and so I got the fish case. He's still working the U.S. versus Oregon case and I'm still working this one.
Kunz: Did you know how long this case would last?
Redden: No. No, not until we got into it. It's more than just the Endangered Species Act. There are a lot of things going around about that and it's a very tough case for a judge. We have - how many lawyers in that? The place is full. There are lawyers are working for irrigators all over and from all the states involved and all the tribes involved and they all have different things they want.
They made it really difficult to get the job done because they weren't considering or worrying about the salmon.
Kunz: Is the difficult part the fact that nobody seems willing to compromise?
Redden: Sure. That's right. The Endangered Species Act came in and that was amazing. President Nixon is the one who signed it and the public wanted that and it's a great act but it was just bumping right up against business.
The dams and the hydro and the power. They just didn't want to and do not want to make changes on dams. We've done some good work on that and urged them and told them that we're going to have to have a spill. We killed the Bi-Op (Bi-Op is short for Biological Opinion. It's the salmon management plan that has been in the federal court since 1992) and were going to do spill and they went crazy. Then all this went up to the 9th circuit and it was a couple of years before it came back down and the 9th circuit took it at them and followed exactly what I wanted to do and we've been doing it ever since.
So we had collaboration, we had meetings, we spent hours and hours - but there's always the plaintiff that wants it this way and the government that way. And that's not unusual, that's not unusual for human beings.
It makes it sort of easy for a Judge because he can just consider the fish, the law and the Endangered Species Act.
Kunz: What has helped you make decisions in the salmon case?
Redden: I'm just locked into the Endangered Species Act in the salmon case. We all have to live with that because it is a law and it is absolutely the right thing to do.
Kunz: You put a lot of emphasis on spill, allowing water to pass through the dams when juvenile salmon were migrating to the ocean. Based on what we know - has it worked?
Redden: The Corp. of Engineers would not do spills. That is very expensive in their view and they did it because I ordered it and the 9th circuit said you're right. And so we've been spilling now for 10 years and I think that saved the salmon to a certain extent. It's not enough and it's got to be more but at least they are growing. We get a better production from it.
The ocean has been very kind and the water has been good and we've got those spills and we've got some hope.
Kunz: Explain the role of dams here in the Northwest.
Redden: It was power from the people and power for electricity. That was the important and only thing and they didn't give a damn about the salmon.
We do have some alternatives and they've done things with the dams. The spills which they do not like but that has been very helpful…I think we need to take those dams down.
Kunz: Are you talking about all eight federal dams or just the four lower Snake River dams?
Redden: Oh no. We're talking basically right up the Snake River. The other Columbia River dams, they didn't have any help for salmon but they've done a lot of work on those too. So those 4 Snake River dams.
It would be very helpful. Trying to take out a dam is not very difficult. It's a lot easier than it is putting them up. You don't just take the whole thing down, you just let the water go around it. You just dig out the ditch and let it go around. And you can't do it all at once. It is very costly but even taking any one dam would be helpful.
Kunz: You threatened to tear down the dams. Who has that authority?
Redden: To take the dams down it's got to be the Corp. of Engineers but they can't do anything until Congress authorizes it. And that is a real battle. The Corp. can do it, they know it and everyone knows that they can do it.
Kunz: You place a lot of emphasis on habitat restoration projects. There are hundreds of them across the Northwest. How important is habitat restoration?
Redden: Before the dams they were free. The fish are up and down and there was no blockage. Nature would do one thing or another but there were thousands. They'd say you could walk over the river on the backs of the salmon.
And they had the 4-H when I took it and it was habitat, hydro and so forth. Yeah, it's really important because it has been destroyed and now they are working again very hard now - that is the government - and they really get into the habitat business and I think to avoid more spills, perhaps more habitat would be good. And so they spend millions of dollars to the tribes to do habitat work. We don't know how it is working or how well it's working or how it's working but they are doing that. (The Four H's refer to human activities that harm salmon: habitat degradation, harvest activities, hatchery production and hydropower operations.)
Kunz: Talk about the term best science, what does it mean and how does it play into the salmon case?
Redden: Everybody's got a best science. We want to have the best science there is and the 9th circuit says whatever agency has a science, that's it so don't bother us. The basic agencies have scientists and sometimes they have different ideas but they're all good. They all know the business but the politics of it makes it difficult for some of the scientists I think
What is best science? We know what it is. We know what they need to do. We have to go back to the way it was before the dams. We need to take some of the dams down. That's not the courts to do that. It's to the public to do that and urge the people to do that. But because they don't take the dams down - they've worked on those dams so they've had shoots and spills, very expensive. It's a boom to the fish and the fisheries and it is working really very well considering what we're up against
Kunz: In reading some of your rulings over the years, I sense impatience and even frustration. You wrote that the defendants were treading water and avoiding their obligation under the ESA … what did you mean?
Redden: Just what I said. This is what we've got to do now. Oh yes. It is frustration. It is frustration from everybody but particularly for the judge in charge of this because you know what the law is, you know they know what the law is.
Kunz: Now that you've stepped down from this case, tell us about the new judge - Judge Michael Simon.
Redden: I think Judge Simon is going to be a good judge period and good in this issue. He put up his hand and said I'll do it and he'll follow the law. I'm sure that they (defendants) are very happy that I decided to take a step down and it was the right thing for me to do. I'd been ill and in the hospital and this and that, heart surgery and all that stuff. I'm getting old - as I told them in court.
Water being released from a dam
I'm happy about what I have done although I know I haven't done enough but there's not much a judge can do but you can raise hell - and I did.
Kunz: Why step down now - aren't we close to a conclusion in this case?
Redden: Here we are and I'm in the 80s. I'm not going to be around and I'm not going to have the energy. I'm not going to have that urge. We get old and the family gets older. I like to come into the office, I like to work but I don't want to run another Bi-Op - and I think it is a good idea because I've been pretty tough on some of them (federal defendants) and maybe too much so…that gave them a right to rebound.
I do think that they will be easier with another judge and this guy is a good judge. And so when the judge goes out in the courtroom and sits down they'll be interested in what his view is like it was for me earlier. But the last few times I worked with them and I was getting rougher all the time I think they would say I'm not going to do anything for that guy.
Kunz: Do you have any regrets?
Redden: No. It was a tough case. It was tough. I enjoyed it.
Kunz: Was there ever a moment where you thought you could finish the case?
Redden: No. Every time I did the Bi-Op they'd say okay, we're going to do this and do this and they put on big shows. The last one looks better than the last. I was convinced they'll drag us out as long as they can. I think they'll be happier without me but I think they're still going to get an Article 3 judge who is going to follow the law.
Any judge can do it. We don't have to run for election like the poor state judges so we do what we have to do. I'm confidant that will continue very well, getting better and better and better.
Kunz: I read somewhere that you aren't a sportsman, that you don't even like the taste of salmon? Is that true?
Redden: It was true when I first took this case and an Associated Press guy came up and did a story and at that point I didn't eat salmon. I was an east coast guy and east coast salmon was terrible - at least the way they cooked it. But then I started doing some steelhead fishing on the Rogue and now I've been going out in Astoria and not catching anything but I've had a lot of fun.
I enjoy fishing. It's a lot of fun. I enjoy it. And I like barbecuing it. Howard Horton, again, my scientist. I said how do you make this? He gave me this recipe and it's wonderful and I eat a lot of it and so does Joan with me.
Kunz: Are you an environmentalist?
Redden: I guess I am, but basically I'm a judge in an environmental case. I was getting pretty environmentalist when I was a legislator.
Kunz: What has been your favorite job?
Redden: I enjoyed every one of them. I really liked the legislature but you couldn't do it because you've got a law practice and it went to hell. This job as a federal judge. I didn't know whether I'd really like it because I like trials. I was a trial lawyer and I like to get in front of the jury and get in front of the judge and do these things. But I got to like it very quickly. Criminal cases as well as civil. I like to take and did take really complex cases including this one because it was a challenge. I've enjoyed it. I really have. I thought I've run some good things.
You know, judges, it's an easy job in the sense of you just follow the law and you can tell lawyers this and federal judges can be very strong about it too because we're not going to have to go to election. But we've got a good federal court in the northwest. Ours is a very good one. I'm proud to be in it and I've enjoyed it. I really have - particularly this crazy case. That's a challenge. I enjoyed it and I'm looking forward to what happens.
Kunz: When you stepped away from this case, you didn't say you were retiring. What's next for you?
Redden: I'm backing off a little bit. I do some cases - Social Security cases. I'm not going to take any more trials -- there is an awful lot of paperwork for a judge and I don't work 40 hours. I come in, I think, about 3 or 4, maybe 5 days but maybe sometimes just a couple of hours and I have the right to do that and I know that I'm somewhat helpful and I hope I'll continue to do that.
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