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Third Plan for Columbia Basin Dams and Wild Salmon may Still Have Holes, Judge James A. Redden Warns by Scott Learn The Oregonian, May 9, 2011

Federal Judge James A. Redden's potential swan song hearing on the Northwest's highest-profile salmon case Monday was short but not particularly sweet.

Redden, 82, has presided over the U.S. District Court case since 2003. He has twice rejected government plans to operate hydropower dams on the Columbia and Snake rivers while protecting seven thin runs of salmon and steelhead above Bonneville Dam. He's expected to rule on the third plan soon.

On Monday, he began his final hearing before ruling by again expressing skepticism about the latest plan's compliance with the Endangered Species Act.

Redden lauded an "unparalleled collaborative effort" between the federal government, three states and five tribal nations to improve wild fish stocks. But he highlighted the uncertain benefits of fish habitat improvements included in the government's plan.

"The job isn't done and you know this," Redden told government attorneys. "I'm concerned about the specific survival benefits that the federal defendants expect to achieve."

Government lawyers fired back, saying the plan and the biological opinion from the National Oceanic and Atmospheric Administration that backs it are the most thorough in the nation.

Detailed check-ins beginning in 2013 will allow the government to adjust if its predictions don't pan out, they said.

Mark Stermitz, an attorney for Idaho, Montana and Washington, said key arguments have been hashed out repeatedly for four years.

"It's somewhat frustrating to be quite frank," Stermitz said. "This biological opinion is groundbreaking and it has tremendous support from most of the people in this courtroom."

Lawyers for the plaintiffs, including Oregon, the Nez Perce and conservation groups, attacked NOAA's analysis, saying the risk of extinction is still too great for fish populations that are often low and highly variable.

The plan gives the federal government -- including the Bonneville Power Administration, which sells power from the dams, and the U.S. Army Corps of Engineers, which operates most of them -- too much control over what happens on the river if populations decline, they said.

And the government's reliance on "safety net" hatchery programs to save wild populations if they dip risks doing long-term damage to wild runs, they added, with hatchery fish likely to interbreed and weaken wild fish.

Redden abruptly ended the hearing shortly before noon. In a letter last week he also questioned whether the government has "exhausted all technologically and economically feasible" improvements at the hydropower dams that would benefit wild fish.

The judge can either endorse the new plan or reject it once again.

Either way, court observers figure it's likely to be his last ruling on the case. They also expect the government to appeal a broad rejection to the Ninth Circuit Court of Appeals rather than go back to the drawing boards for a third time.