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Redden Rules to Keep BiOp in Place During Year-Long Remand by Bill Rudolph NW Fishletter, June 30, 2003

Oregon District Court Judge James Redden denied last week a supplemental motion by the National Wildlife Federation and other environmental and fishing groups to vacate and set aside the 2000 hydro BiOp. Judge Redden, who ruled the BiOp invalid last month, said his latest opinion would be ready by July 3 to expand on his latest ruling.

Plaintiffs wanted the BiOp completely tossed out. Such a move would have given them an opportunity to add more draconian hydro actions to a new BiOp via injunctive relief.

Redden's decision means that the huge document which governs federal hydro operations and outlines 199 different fish recovery actions for ESA stocks in the Columbia Basin will remain in place while federal authorities fix it. Redden has already given NOAA Fisheries a year to satisfy his demands, which he hasn't yet made very specific.

In a succinct June 25 statement Redden said "he will discuss his expectations on remand, including NMFS's interaction with affected federal agencies re: consultations and with the sovereign parties re: offsite mitigation."

Redden ruled quickly on the BiOp issue. He denied the plaintiffs' supplemental motion less than a week after he received their last memo. His action caught most parties by surprise.

We're obviously delighted," said Brian Gorman, NOAA Fisheries spokesman. "It would have been a real disaster if it had been set aside."

But the plaintiffs felt otherwise, pointing out in their latest memo that NOAA's agitation at the thought of having its BiOp vacated and set aside was "like the steadfast attachment of the character Linus in Peanuts to his blue blanket; it is fierce but unwarranted."

After Redden's announcement, Earthjustice attorney Steve Mashuda was cautious. "We don’t want to speculate about what this means without having the full opinion from the Court," he said. "But the Court has made clear that it will be keeping a very close eye on this process over the next 11 months. We'll have an opportunity to address any concerns and problems that arise during that process and quickly bring them to the court's attention," Mashuda said.

Redden has asked the feds and other parties to check in every three months to report on progress of the remand.

Mashuda said NOAA should not see Redden's decision as any reason to do less for listed fish than they are doing now. His lead client was more pointed.

"The current plan is illegal ... and there's nothing in this newest ruling that changes that reality," said Jan Hasselman of the National Wildlife Federation. "Fundamental rethinking will be required to come up with a plan that really recovers salmon. More paperwork and minor tweaks aren't going to get us there," he said.

Hasselman was referring to comments made by NOAA Fisheries Northwest regional administrator Bob Lohn after the judge's initial ruling in May. At the time, Lohn told NW Fishletter that his agency must choose whether to respond to the technical issues of the ruling and more carefully "document" the certainty of fish recovery actions outside the hydro system, or undertake a more intense analysis that uses more and better information than was previously available.

It looks like the agency may be going in both directions.

In recent testimony before a Senate subcommittee, Lohn said status updates for ESA stocks should be ready for public review by the end of the year. That will include analysis of hatchery and wild stock interactions and weigh ongoing conservation and recovery efforts before the agency determines which ESUs will require continued protection under the ESA.

But Judge Redden hasn't yet explained exactly what he wants. His brief statement also said a status conference will be scheduled "to discuss a road map for proceedings on remand, including specific timetables for the activities that are to be undertaken and reported on. The court will also seek and discuss constructive approaches offered by the parties."

"We're pleased that Judge Redden decided not to vacate our biological opinion," Lohn told NW Fishletter. "This assures that restoration activities called for in the biological opinion will continue without interruption while we complete the thorough review, additional analysis and revisions necessary to comply with the Court's remand order of June 3.

"Implementation of the biological opinion is generally on track, and we're seeing increased numbers of fish returning," Lohn said. "We believe that the All-H Strategy of working with states, tribes and local groups on continued improvements to hydropower, hatcheries, harvest and habitat remains the best approach for restoring Columbia River salmon and steelhead."

The latest reply memorandum filed June 19 by the plaintiffs had argued that relevant case law did not support leaving the BiOp in place during remand. The memo took issue with federal attorneys who argued that setting aside the BiOp would likely cause chaos with hydro operations.

The June 19 memo also argued that leaving the BiOp in place "would pose a serious threat of harm to ESA-listed salmon and steelhead." Environmental attorneys said high fish returns in recent years did not show an actual change in their prospects for survival.

Both sides argued with citations from the same NOAA Fisheries draft document on ESA fish status updates. A June 12 declaration by regional administrator Lohn said that abundance of most listed ESUs [Evolutionarily Significant Units] had improved since the BiOp was issued in December 2000, thereby causing little concern over short-term survival.

Plaintiffs pointed out that the draft document attributed the increased runs to "unusually favorable conditions in the marine environment rather than more permanent alleviations in the factors that led to widespread decline in abundance over the past century." The plaintiffs' memo said Lohn's and his agency's "new-found optimism" was not shared by his own scientists, "on whom Mr. Lohn relies."

So all parties are waiting for the judge's latest pronouncement. Meanwhile, NOAA Fisheries spokesman Brian Gorman said his agency still hasn't decided whether to appeal Redden's original ruling that invalidated the BiOp.