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Judge Wants More Role
for States, Tribes in BiOp Rewrite

by Barry Espenson
Columbia Basin Bulletin - January 16, 2004

A judge told the federal government today (Jan. 16) that, even if it prolongs the process, he wants state and tribal representatives to be allowed more involvement in the processes now under way to build the scientific foundation for a new Federal Columbia River Power System biological opinion.

Recent letters from the Oregon and Washington and the Columbia River Inter-Tribal Fish Commission fishery officials to U.S. Department of Justice attorney Fred Disheroon expressed frustration about the role given the state and tribal co-managers as NOAA Fisheries updates its salmon protection plan for the basin.

U.S. District Court Judge James A. Redden in May 2003 declared the existing plan, or “BiOp,” in violation of the Endangered Species and gave NOAA one year (from June 2, 2003) to correct the deficiencies. In ordering the remand he said the project should be undertaken in collaboration with the state and tribal co-managers.

A Dec. 18 joint CRITFC-Washington Department of Fish and Wildlife letter said the BiOp remand process had been falling short, with NOAA offering "a notice and comment opportunity at certain steps and for certain documents" rather that involving state and tribal scientists in the discussions that lead to the scientific conclusions in those documents.

Disheroon responded in a Jan. 9 letter, saying that the agency had been trying to involve the co-managers at as many of the remand junctures as possible. But he said NOAA would consider the states' and tribes' requests, provided they came forward with more specifics about their desires.

"NOAA Fisheries is always willing to have further discussions as to way to improve state and tribal participation and believes it has provided specific meaningful mechanisms for that participation within the current consultation. However, in its view, it is simply not reasonably possible in the limited time available to engage in processes to identify additional processes, which could then be used to facilitate collaboration thereafter," Disheroon wrote.

"If NOAA Fisheries receives such a specific request for a specific process that can be conducted within the timeframes of the current remand, NOAA Fisheries will thoroughly consider such a suggestion," Disheroon wrote.

"NOAA has laid out a process that it feels works best for it. They are not trying to hide anything," Disheroon told the judge this week. "We simply don’t have the time to do that now."

"We may have to make time," the judge responded.

NOAA Fisheries expressed the same sentiments in its second quarterly "status report" to the court regarding the progress of the remand. That Dec. 30 report suggested a series of "facilitated" discussions in February to add to comment opportunities all ready afforded the states and tribes.

The states and tribes want "more than just a one-time meeting of scientists in a room," said Todd True of Earthjustice, which is representing the plaintiffs in a lawsuit filed in May 2001 by a coalition of conservation and fishing groups that challenged a FCRPS BiOp issued by NOAA in December 2000. He and the legal representatives for the many parties now involved in the case met today (Jan. 16) with Redden to discuss issues that are cropping up during the course of the remand.

David Leith, an attorney for the state of Oregon, said that the states and tribes want more than an opportunity to comment, they "want scientific participation in the (NOAA) work groups."

"Our abilities (to participate) so far have been extremely limited," the WDFW's Bill Tweit told the judge. As an example, he said work is now under way to re-evaluate population trends for the salmon and steelhead stocks covered under the BiOp with the inclusion of the latest years' returns. He said states and tribes should be involved in discussions about how to judge the status of the ESA-listed stocks whose populations hit low ebbs in the 1990s before rebounding in recent years.

"That's some key information -- what are the strengths of the stocks," Tweit said.

Nez Perce Tribe attorney David Cummings said the scientific debate generated by a more interactive process "could benefit the ultimate product. We need collaboration on these underlying scientific issues."

Judge Redden agreed, asking "Do we need more time -- a block of time to allow these workshops to occur. I think it's important."

"I just want to see these people talk to each other," the judge said.

Disheroon said that NOAA has no problem sharing the information it is developing with the co-managers, or hearing the view of their scientists. But getting a scientific consensus may be an impossible goal.

"I'm not sure that paradigm works," Disheroon said. "Ultimately the opinion has to be that of NOAA Fisheries."

The 2000 BiOp declared that the planned FCRPS operations threatened the survival of eight of the 12 Columbia Basin salmon and steelhead stocks that are ESA-listed. The document went on to describe actions both within the hydrosystem and off-site that it felt necessary to avoid jeopardizing the stocks' survival. Among the deficiencies cited by Redden was a reliance on certain non-federal actions that are not "reasonably certain to occur" as the ESA requires.

Disheroon said the agency was more than willing to "kick around the issues," but he said he felt we're being asked to do more than that."

Redden, before leaving the federal courthouse conference room in late morning, advised NOAA and the state and federal managers to devise plans for a more integrated process, and advise him how much they expected it might prolong the remand process. The next "attorneys steering committee" meeting is Feb. 12.

"You might change minds; you might get them to agree" Redden said as he looked from side to side. "I think it will be a little of both."

"It's not a strategy to win a lawsuit. It is a strategy to avoid one," the judge said. Several times during the course of the discussion Redden said he was willing to extend the remand deadline if necessary to accommodate the scientific exchanges.

Jay Waldron of the Inland Ports and Navigation Group and Karen Budd-Falen representing the Washington Farm Bureau both indicated that they would also like their scientists to participate. But True, and the judge, headed off that notion, saying that the exchanges should be limited to the fish co-managers. Redden said scientists for other entities could attend, though not participate.

Barry Espenson
Judge Wants More Role for States, Tribes in BiOp Rewrite
Columbia Basin Bulletin, January 16, 2004

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