Hero, Activist, Hell-raiser:
by Cassandra Profita
Do we truly have the will to undo this?
Judge James Redden has been a mighty force in the long-running court battle over managing dams in the Columbia River Basin to protect salmon.
Now 83, Redden stepped down from the iconic dams vs. salmon case in November - three months after rejecting a third federal dam management plan.
EarthFix reporter Aaron Kunz and I met with Redden last week to discuss the case and his departure from it. You might have seen some of the highlights of the interview already; the judge told us he thinks the four lower Snake River dams should be breached - a pretty big reveal for people who have been following the case.
But that's not nearly all he said.
Redden reflected on his frustration with federal agencies, the power of the Endangered Species Act, his role in protecting fish and the limits of what he could do as a federal judge in the case.
"I'm sure they're very happy I decided to step down," he said of federal dam managers. "And it was the right thing for me to do. I'd been ill and in the hospital with heart surgery and I'm getting old. But I'm happy about what I've done, although I know I haven't done enough. There's not much a judge can do, but you can raise hell. And I did."
As you may know, the case is quite complicated. It has pitted environmentalists, states and tribes against the federal government, hydropower customers, shipping and farming industries for the past two decades. In the 10 years Redden has presided over the case, he has all but cleared his case load and enlisted the help of a technical advisor.
He's accused the feds of "treading water" and avoiding their responsibility to protect fish. He's ordered disparate parties in the case to work together. And at times, he's insisted on additional protections for fish despite the impacts they could have on valuable irrigation, flood control, power production, and navigation services that dams provide.
One thing the judge hadn't done - until last week - is openly call for the removal of four dams on the lower Snake River. That had long been a nuclear option that would directly impact farmers who export grain via barge through the locks on the dams in southwest Washington.
But Redden said he doesn't see those dams as all that necessary. If the Endangered Species Act had allowed it, he said, he would have used it to remove at least some of those dams.
"I think we need to take those dams down," he said. "Trying to take out a dam is not very difficult. It's a lot easier than it is putting them up. . . . I think we can take them down, one by one. It's probably the best thing to do."
Redden was clear in our interview that he never ordered dam removal, because he couldn't. It takes Congress to do that.
Instead, one of the biggest successes - and hell-raising moves - Redden claimed last week was ordering the feds to spill more water over dams to help fish migrate downstream. That means changing the flow and storage of water in the river and foregoing hydropower generation.
"Our idea is to get as much water over the dams for the fish - period - and don't worry about the hydros," Redden said. "Don't worry about the power problems. We're concerned about the fish because that's the law. And that's our job. The spill was the only thing you could do that would be helpful to the fish."
Some have been impressed at Redden's level of commitment to the case. Others have been appalled at the way he's used his judicial power to revamp the river.
Michael Blumm, an environmental law professor at Lewis and Clark Law School, has been following the case closely because "it's the biggest natural resources issue outside the forests in the Northwest," he said. "I don't know if it's bigger than the forests, but it has involved more money. I know that."
He called Redden "a judicial hero" for the way he implemented endangered species protections.
"The (Endangered Species Act) has a reputation for being big environmental slayer of projects, and it hasn't done much slaying here," he said. "All that's stood between the federal agencies and maintaining their status quo has been this lonely federal judge who's read the act and means to implement it. The forces against him are mighty and many."
Joan Dukes, an Oregon representative on the Northwest Power and Conservation Council, which advises the Bonneville Power Administration on fish and wildlife issues, said the judge spent a lot of time looking at the science behind the central question in the case: Were dam managers really doing enough to ensure salmon survival?
"I am impressed with a judge who spends as much time as Redden has understanding the issues," Dukes said. At one point, Redden specifically told the federal agencies to put more time and money into restoring fish habitat in the river's tributaries and estuary.
"That came from somebody who had spent some time looking at the science and who understood what had to be done, in his opinion, to make a difference," said Dukes.
Terry Flores, director of the Northwest River partners, which represents farmers, utilities, ports and businesses that rely on the federal dams, said the judge left his mark on the case after he rejected the 2004 dam management plan. The feds appealed his ruling to the Ninth Circuit Court of Appeals, and the Court sided with Redden. Afterward, Redden ordered the "sovereign" parties in the case - including the feds, states and tribes - to work together on the next plan. By 2008, all the states except Oregon and all the tribes except the Nez Perce had switched positions to support the government's case.
"Whatever you think about Judge Redden," Flores said. "It's because of him that there is so much more collaboration than we've ever seen from the region before."
But, she said, Redden was notoriously hard to please.
"People were trying to meet and satisfy what the judge was looking for," said Flores. "They were genuinely trying to satisfy him. And they never could meet his standards. The bar kept shifting."
Redden had his critics right up to his last ruling in August last year, when he rejected the latest dam management plan (also known as the Biological Opinion, or BiOp), saying it didn't do enough to guarantee salmon survival past 2014.
U.S. Rep Doc Hastings, R-WA, called him an "activist judge."
"With this ruling, Judge Redden has gone farther than ever before in substituting his decades as a lawyer for the combined wisdom of hundreds of biologists and scientists at the federal, state and tribal agencies that joined together to develop this broad, collaborative fish recovery plan," Hastings said. "Despite broad, collaborative agreement on a recovery plan and years of record, or near record, fish returns, the Pacific Northwest is entrapped in a never-ending circle of litigation and judicial whim. At some point, reason and common sense need to prevail over an activist judge who is intent on keeping dam removal on the table and keeping this issue tied up in his courtroom for years."
The Judge v. The ESA
Dan Rohlf, a Lewis and Clark Law School professor who also worked as a lawyer for environmental groups in the case, there has long been speculation as to whether Redden's personal views on salmon affected how he handled the case. But he said there's actually proof the judge didn't overstep his bounds.
"There is quite the well-defined mechanism to determine whether Redden correctly interpreted the law, and that's called the Ninth Circuit Court of Appeals," Rohlf said. "His decisions have been appealed, and they have been upheld. Other appellate judges - including those outside of Oregon - have agreed Redden has correctly interpreted the law."
Although federal dam managers suggested they might appeal Redden's rejection of the latest BiOp last August, they released a statement in November with a promise to continue working on improvements to the plan so it's ready for the Judge Michael Simon to assess in 2014.
Redden said he enjoyed the case, though it was tough to get federal dam managers to change their ways.
"It's frustration from everybody," he said, "but particularly for the judge in charge of this because you know what the law is. You know they know what the law is, but it's very difficult to make a change."
And although he has no regrets, he said he thinks the federal agencies will be better off under a new judge.
"I think it's a good idea because I've been pretty tough on some of them and maybe too much," he said. "That gave them the right to rebound and say, 'It's the judge.' No, it's the Endangered Species Act."
learn more on topics covered in the film
see the video
read the script
learn the songs