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Irrigators Seek BiOp Lawsuit Consolidation; Judge's Recusal by Barry Espenson Columbia Basin Bulletin - February 13, 2004

It appears that a pair of lawsuits attacking NOAA Fisheries' Columbia River salmon protection plan from different directions will continue on separate courses, and potentially with different judges presiding.

The plaintiffs in one of the lawsuits, the Columbia Snake River Irrigators and Eastern Oregon Irrigators Association, this week asked that the judge assigned to their case be disqualified. The motion to disqualify Judge James A. Redden accuses him of bias, saying he has "abandoned the judicial role in favor of the role of fish advocate."

Redden, based in Portland's U.S. District Court for the District of Oregon, has been since early last year presiding in a lawsuit brought by the National Wildlife Federation and other groups against NOAA Fisheries in 2001. It claimed that NOAA's 2000 Federal Columbia River Power System biological opinion improperly relied on actions in its "reasonable and prudent alternative" that were not reasonably certain to occur or that had not undergone consultation as is required by the law. The fishing and conservation groups also claimed failings in NOAA's scientific approach.

Redden ruled in May 2003 that the BiOp's RPA had improperly relied on certain factors, but withheld judgment on the lawsuit's scientific issues. In June the judge gave NOAA one year to correct the deficiencies he had cited.

This week, during an attorney steering committee meeting to discuss remand issues, the judge broached the subject of a request that the irrigators' lawsuit be consolidated with the NWF lawsuit. He also briefly discussed the motion filed by the irrigators asking that another judge be assigned that case, saying the recusal request "is my matter." As of late Thursday the judge was uncertain about how the recusal request would best be handled.

He did receive general agreement Thursday from attorneys in the NWF lawsuit that the cases would not be consolidated. The attorney for the irrigators said he would not withdraw the request.

"I think the cases can be carried out in parallel," Redden said.

The irrigators lawsuit was filed on Sept. 30, 2003, against the Secretary of Commerce and NOAA challenging the 2000 BiOp "because the Secretary essentially ignored the federal regulations in favor of an ad hoc approach to jeopardy, which failed entirely to identify the ‘effects of the action', found that operational plans acknowledged to increase salmon survival 'jeopardized' the salmon, and found, in substance, that because the salmon were endangered or threatened, even beneficial changes jeopardized them."

"The Secretary even assigned to the 'effects of agency action' the adverse impacts of future ongoing salmon harvest and essentially demanded that dam operators offset all other causes of salmon mortality, becoming single-handedly responsible for recovering salmon in the Pacific Northwest," the irrigators' attorney, James Buchal, wrote as background for his Feb. 10 motion to dismiss Redden. "In so doing, the Secretary adopted peculiar and anti-scientific approaches to risk assessment to find serious risk notwithstanding the largest salmon runs ever counted."

The irrigators in their lawsuit seek "to force NOAA Fisheries to obey the law and eschew junk science."

Buchal, in this week's motion, said "the irrigators have regrettably come to the conclusion… that they cannot obtain a fair hearing of their claims in this action before Judge Redden, both because the Judge's conduct with respect to this case and a related case constitutes circumstances under which 'his impartiality might reasonably be questioned'…."

"In response to the filing of this action (for consolidation) by the Irrigators, Judge Redden has, without notice to the Irrigators or any opportunity to respond, already determined that their arguments cannot be permitted to derail the federal defendants from proceeding down a 'track' of his design to refashion the challenged biological opinion to require much greater salmon spending -- or perhaps even dam removal. All these facts and circumstances confirm that Judge Redden will not give plaintiff's claims a hearing at all, much less a fair hearing," Buchal wrote.

"He has definite ideas that we have this crisis and we need more money," Buchal said of the judge. That mirrors the NWF plaintiffs' view, he said, while the irrigators say recent years' bumper salmon returns are indications that the high cost of implementing the BiOp is unnecessary and economically damaging.

The irrigators' attorney says that the judge's words and actions in the NWF lawsuit -- such as the creation of the steering committee -- "violate all fundamental axioms of governing judicial review of agency actions."

In the motion and a supporting affidavit, Buchal accuses the judge of summarily dismissing the motion to consolidate the cases, which was filed jointly by the federal defendant and irrigators. Those two parties also in January produced a stipulated agreement that called for a stay of the irrigators' claims until June 2, but would award them a seat on the NWF lawsuit's attorney's steering committee. The attorneys for the plaintiffs would not agree to the latter request.

The irrigators had last summer asked to file a brief in the case to "advise the Judge that, in fact, salmon were not at any appreciable risk of extinction, and that other serious flaws in the 2000BiOp ought to be addressed rather than focusing the remand on a question that was, or should be, inherently moot. (Because dam operations do not jeopardize the continued existence of salmon, or at the least the 2000BiOp grossly overstates risks caused by dam operations, the question of the adequacy of a "reasonable and prudent alternative" should not arise.)" But the judge denied the irrigators participation in the case.

The consolidation request is still simmering but both the plaintiffs and the defendants agreed that they should agree on separate tracks.

U.S. Justice Department attorney Fred Disheroon said the government would prefer to litigate the two Endangered Species Act and Administrative Procedures Act lawsuits together, since they target the same federal action -- the operations of the FCRPS. But he acknowledged the cases represent different claims. The NWF case says that the RPA does not adequately mitigate for the jeopardy posed by hydrosystem operations. The BiOp said those operations posed jeopardy to eight salmon and steelhead stocks listed under the ESA. The irrigators' case says that the jeopardy conclusion is wrong.

Earthjustice's Todd True, representing the plaintiffs, said the irrigators' case should proceed on its own in its attempt to have the jeopardy standard judged.

Redden did not indicate when he might rule on either the recusal or the consolidation request.

"Eventually a piece of paper will come out and tell me what happened to my motion," Buchal said Thursday.