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Judge Redden Expresses Concern About BiOp Remand Process

by Barry Espenson
Columbia Basin Bulletin - October 1, 2004

The first legal shots were fired over the bow of the federal government's draft Columbia River basin salmon protection plan this week by litigants who forced a reworking of the existing strategy, and by the judge who last year called the prevailing strategy illegal under the Endangered Species Act.

U.S. District Court Judge James A. Redden on Tuesday repeatedly said he feared the remand process set up to rework NOAA Fisheries' federal Columbia River hydrosystem biological opinion was headed for "a train wreck."

"BiOps" are required under the ESA to analyze whether a particular federal action -- in this case proposed future operations of the Columbia/Snake river mainstem hydrosystem -- would jeopardize the survival of ESA-listed species. The NOAA BiOp focuses on 12 listed Columbia River basin salmon and steelhead species.

"If it is legally infirm it will be vacated," Redden said Tuesday of the final BiOp that is to be delivered by Nov. 30 by court order. The judge in May, 2003 declared that the 2000 BiOp's no-jeopardy conclusion was illegal because it improperly relied on future non-federal actions there were "not reasonably certain to occur" and on uncompleted federal actions.

The judge left the 2000 BiOp in place during the ongoing remand but said he would not be so inclined if the new BiOp was again found "legally insufficient."

Redden warned that there would be "serious consequences if the government has no biological opinion effect," but he did not elaborate. It is not, however, a foregone conclusion that the breaching of four dams on the lower Snake River would be inserted as an additional action to improve fish survivals.

It is "not a quick fix," the judge said. Getting the necessary authorizations and implementing such a process would take years if accomplished at all. Such action was considered and rejected as a course of action following a late 1990s study of the issue by the Army Corps of Engineers, which operates the dams. The study was prompted by provisions in the 1995 FCRPS BiOp.

"And none of us really knows if it is going to be a fix" Redden said about competing science regarding the benefits of dam breaching.

On Tuesday during a hearing with attorneys involved in the lawsuit, and in a Sept. 23 order, Redden expressed "concerns regarding whether the remand process has diverged significantly from the intent and terms of the court's orders" and whether the draft "is consistent with the law in this case."

He noted that the 2000 BiOp judged that the action posed jeopardy, but it prescribed a set of actions that NOAA Fisheries predicted would raise survivals enough to avoid jeopardy. The draft, Redden wrote, "differs markedly from the 2000 BiOp in both its analytical approach and its conclusions."

The draft, based on a new method of analysis and new "environmental baseline," concludes hydrosystem operations pose no jeopardy. Justice Department attorney Fred Disheroon told the judge that the draft "Updated Proposed Action" on which the BiOp is based has folded within it "many if not most" of the recommended actions from the 2000 reasonable and prudent alternative.

"The same conclusion logically results," Disheroon said. In response to an earlier Redden query, Disheroon said that "uncertainties that this court ruled invalid" in the 2000 BiOp had been removed. Proposed "off-site" actions intended to mitigate for adverse hydrosystem impacts "are proposed specific actions that the agencies will carry out."

Redden also asked about the legal and scientific defensibility of NOAA's "new conception of the 'environmental baseline' " on which the survival analysis is based. The analysis for the draft includes the existence of the dams in the baseline and judges alone the effects of operations on listed fish. The 2000 and previous FCRPS BiOps did not separate the effects of the dams' existence from the operations of the system for hydro generation, irrigation, flood control, navigation and fish.

Previous BiOps "always assumed that the existence of the dams was in the baseline," Disheroon said, but the agencies did not have the technical wherewithal to separate the effects of the "action" from those of the dams' and reservoirs' existence. He said the current approach actually is closer to the letter of the law -- which requires a judgment of the proposed action.

He said he felt the final 2004 BiOp would "not only be defensible but will be a much better biological opinion" than the one it will replace.

Fishing and conservation groups, tribes and the state of Oregon claimed the draft is severely flawed. They said if the prescription is not changed drastically before being finalized in November, legal challenges would undoubtedly resume. In his Sept. 23 order Redden asked parties to submit by Sept. 27 "their most serious five concerns" about the draft BiOp.

David Cummings, attorney for the Nez Perce Tribe, said the federal agencies seem set on a predetermined course.

"My guess will be we may end up with a (final) biological opinion that looks like what we see here," Cummings said. That is not acceptable, he said.

"Clearly we are headed for litigation," Cummings said.

An Oregon list of "concerns" called the draft BiOp a pulling back of the aggressive, non-breach approach avowed in the reigning BiOp and supported by four Northwest governors.

"This could result in putting the issue of dam breaching back onto the table for serious consideration," according to comments submitted to the judge by the Oregon Attorney General's office.

Oregon's list of preliminary concerns said the "draft biological opinion produced on remand provides even less comfort for listed fish than its defective predecessor." The tribes, Oregon and other participants in the lawsuit have said they will submit formal comments on the draft to NOAA by an Oct. 8 deadline. NOAA has said it will consider those comments as it crafts a final BiOp.

Comments submitted by Oregon, Earthjustice and Cummings for four Columbia River treaty tribes say the draft BiOp ignores the fact that many of the stocks are in a "deficit" situation, i.e. with population trends toward extinction, and that the BiOp only attempts to reduce that deficit. Rather, the critics say, the ESA requires the agencies aim for recovery of the species -- not just survival.

Oregon's comments said the BiOp's " 'reference operation'--which serves as the yardstick against which the proposed action is measured--does not include numerous measures that should be part of an 'aggressive nonbreach strategy.' For example, under the reference operation, flows are not provided from all available reservoirs, the presumed spill is inadequate, removable spillway weirs and other beneficial technologies are not pursued aggressively, and transportation of juvenile migrants is relied upon disproportionately." The "gap analysis" done for the draft measures the difference between survival of the reference operation and the proposed operation.

Neither the current Federal Columbia River Power System BiOp, nor the draft of the document that will replace it, suggest dam breaching as a measure to improve the survival of salmon and steelhead listed under the Endangered Species Act. The 2000 document that now holds sway did say that failure to sufficiently implement actions intended to improve survivals, or a failure of those actions to produce results, could force the agencies involved to purse other actions. It used, as an example, seeking authorization from Congress to breach the dams.

In previewing the draft earlier this month, NOAA Fisheries' regional chief, Bob Lohn, and others have simply said that the agencies do not have the authority to breach the dams so that action was not considered as a potential future action.

Idaho Deputy Attorney General Clay Smith said that arguments regarding the merits of the draft BiOp were irrelevant within the context of proceedings about 2000 BiOp. When completed, the 2004 BiOp will replace the 2000 BiOp, effectively rendering moot the legal challenge of the earlier document.

"All of these issues will become ripe" for legal discussion once the new BiOp is adopted and if a new legal challenge is mounted, Smith said.

Earthjustice's Todd True agreed. Earthjustice represents the fishing and conservation groups in the lawsuit.

"If there is a next round of litigation, it would focus on the new biological opinion," True said.

To gird the process for such a happening, Redden on Wednesday asked the parties involved to prepare in advance a briefing schedule that could commence soon after the new BiOp is released and challenged legally. True, and the judge, indicated a desire to get the core issues resolved before the next juvenile salmon outmigration begins in the spring. That's when actions keyed to aid that migration would take place.

"I was naive enough to think this remand would do that," Redden said of resolution of issues.

Related Pages:
Bureau of Rec Reports 2004 Flow Augmentation Numbers from Idaho Columbia Basin Bulletin, 8/6/4

Barry Espenson
Judge Redden Expresses Concern About BiOp Remand Process
Columbia Basin Bulletin, October 1, 2004

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