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Memo Shows Scientists Raised Doubts Actions to Save Salmon Will Do As Much As Advertised by Rocky Barker Idaho Statesman, November 30, 2009

A team of independent scientists expressed concerns that a series of actions proposed in the federal dam and salmon place before a federal judge would help the fish as much as agencies said.

But a memo, obtained by the Idaho Statesman, says the scientists praised the scientific analysis of the Obama Administration and agreed that breaching four dams on the Snake River should be a last resort for saving endangered salmon and steelhead.

U.S. District Judge James Redden told federal attorneys in the salmon and dam case a week ago in Portland they needed to go back and probably reinitiate consultations to incorporate the Obama Administration's Adaptive Management Implementation Plan into the 2008 biological opinion.

He said the administration's "unilateral, post-decisional development of "‘enhanced and accelerated'" mitigation actions, "‘enhanced'" research, monitoring, and evaluation, and "‘new'" biological triggers and contingency actions may not meet the legal requirements of the Administrative Procedure Act. The Administrative Procedure Act governs how federal agencies establish regulations and sets up a process for the courts to directly review agency decisions. Most new regulations must be published in the Federal Register first.

One of his main arguments was that the government had provided him with a set of documents that were to be kept from the public "in camera." Federal attorneys promised to provide the documents by today.

Well, here is one, they gave me late last week. It is a memo from Jennifer Costanza in the office of Legislative Affairs in the Department of Commerce about the Scientific Workshop, where a panel of independent scientists weighed in on the federal biological opinion.

Costanza said the scientists all praised the quality of the scientific analysis in the Bush 2008 biological opinion. But she said they expressed a lack of confidence the Reasonable and Prudent Alternatives in the plan could do what was hoped but attributed their views to a lack of data, not thought.

They noted the assumptions regarding the hatchery and habitat effects in those Reasonable and Prudent Alternatives may not be justified, she wrote. But again blamed their concern on a weakness of data. They also raised questions about the about the connections between the habitat Reasonable and Prudent Alternatives and salmon survival, the heart of the plan, because of lack of monitoring and data.

These flaws underscored the Obama Administration's decision to add a rapid response and contingency plan to the biological opinion, the so-called Adaptive Management Implementation Plan.

I suspect this information was withheld from the plaintiffs because they would clearly have used it to undercut the opinion before Redden. But both sides have something to use from this document and the scientific review.

The scientists said dam breaching will take a long time but would have positive benefits over the long run, Costanza wrote. But Costanza revealed their concerns that breaching's short term effect could threaten the long term benefits and that it should be considered "risky business" were included and generalized.

Its role as "last among many options," has been taken as the position of the administration just as it was Obama's view before the election. Redden has had these documents so it should not come as a surprise to him.