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Irrigators in Limbo over BiOp Suit; Call for Judge to Step Down by Bill Rudolph NW Fishletter, February 26, 2004

After a Feb. 12 session with BiOp judge James Redden, Portland attorney James Buchal left Oregon District Court still unsure of the status of a lawsuit filed last September by his irrigator clients against NOAA Fisheries' 2000 hydro BiOp after the document was already in a remand process.

"We're in limbo," Buchal told Northwest Fishletter.

The irrigators allege that the 2000 BiOp has serious scientific shortcomings, but they filed a motion to consolidate their action into the remand, hoping to have more clout as the new document is written.

But the fate of that motion is still somewhat murky, as is Buchal's membership on the remand's steering committee. "I think I'm out," said Buchal, who had volunteered earlier to stay the irrigators lawsuit if they were allowed into the remand process.

Discussion last month among the remand parties over whether to consolidate the irrigators' suit into the remand was never settled, but Judge Redden seemed to leave it up to Justice Department attorneys and Buchal to "handle it," according to minutes from the Jan. 17 steering committee meeting.

Buchal said he interpreted the judge's remarks as giving the Justice Department the go-head to file a motion to stay.

However, plaintiffs in the case (National Wildlife Federation v. NMFS), represented by Earthjustice attorney Todd True, objected to giving the irrigators full standing. The irrigators had filed for amicus standing last year, but Redden denied their motion.

Buchal has filed another motion asking the judge to disqualify himself from their lawsuit because Redden's "impartiality might reasonably be questioned," and because the judge has "a personal bias and prejudice concerning a party or personal knowledge of dispute evidentiary facts concerning the proceeding."

"It's a question of accountability," said Darryll Olsen, speaking for the Columbia/Snake and Eastern Oregon Irrigators Associations. "The judge is running roughshod over the process."

The irrigators say the steering committee Redden established to oversee the remand violates rules barring courts from adding extra-statutory procedural requirements on agencies. The committee is also "requiring special rights for 'scientific' input for state and tribal fishery experts, while denying such participation to other interested parties."

The irrigators also criticized Redden for requiring special confidentiality provisions to protect state and tribal input from future litigation. They say the judge has become a political activist who has made it clear that he wants to secure more fish recovery money for state and tribal agencies.

Buchal also claimed in an affidavit that the remand steering committee discussed staying the irrigators' action with the judge last October, but the discussion was not part of the transcript of the meeting. Buchal was not part of that proceeding.

One witness to the October discussion, Buchal said, told him that Redden encouraged the Justice Department to file a motion for the stay. He said four other participants in that meeting confirmed the discussion. But none were willing to step forward and voluntarily testify "because they fear Judge Redden's reaction, and expect that Judge Redden will be handling this and other salmon cases in which their organizations, clients, or members have an interest," Buchal said. He added that he'd been advised that he could subpoena "multiple participants" in the meeting to overcome their fear of being singled out by the court.

The Justice Department's lead attorney later told him, Buchal said, that the judge was likely to grant the stay, which persuaded him to believe that his clients would have more influence in the decision-making if he were appointed to the steering committee.

But at the Jan. 16 meeting of the steering committee, the judge decided the irrigators would not get a seat at the remand table. According to Buchal, at that time, the Justice Department attorney still thought the judge would grant a stay.

Buchal says that if the judge does grant the stay, "it will effectively terminate" his lawsuit since a new BiOp will be issued sometime after June that will moot any question of legality of the 2000 BiOp, and mean more months of delay before irrigators could file a new lawsuit.

He also said he could find no public record of the numerous documents being handed to the judge at the January meeting.

The irrigators say the 2000 BiOp channeled "junk science through specious interpretations of the Endangered Species Act," giving the hydro system the duty of offsetting salmon mortality throughout the Northwest.