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Judge Concerned About BiOp Rewrite Getting Off Track by Barry Espenson Columbia Basin Bulletin - June 4, 2004

The judge who last year ordered the federal government to shore up its Columbia River Basin salmon protection plan expressed concern this week that the effort may have strayed from the path set out by the court.

But U.S. District Court Judge James A. Redden, after hearing an explanation from the federal attorneys involved in the case, opted keep a loose rein on the 13-month old remand process that he ordered. The judge in May 2003 declared NOAA Fisheries 2000 Federal Columbia River Power System biological opinion in violation of the Endangered Species Act.

Redden told attorneys involved in the lawsuit that he feared a "train wreck" if the remand proceedings ran their course and the final product (a new biological opinion) did not satisfy the terms of his remand order.

He described a changed "playing field" in which the jeopardy posed to ESA-listed salmon and steelhead would be judged on federal hydrosystem operations alone. A new NOAA proposal start from an environmental baseline that includes the existence of the dams themselves rather than the 2000 BiOp approach that lumps dam/reservoir effects with operational impacts.

"If we go to the new baseline it isn't the 2000 BiOp" on which the remand order was based, Redden said. He asked the federal attorneys to explain how, if such a change in the jeopardy analysis framework is made, the agency could comply with a remand order based on the existing BiOp structure.

"Instead of following the remand order, it (NOAA) is now going back to address jeopardy," Redden said. A coalition of fishing and conservation groups led by the National Wildlife Federation filed a lawsuit early in 2001 challenging the 2000 BiOp on scientific and procedural grounds. Redden ruled in May of last year that the BiOp relied improperly on certain off-site mitigation actions that either had not completed federal consultation or were non-federal actions that were not reasonably certain to occur as the ESA requires. He ordered those parts of the BiOp be assured and that a legal BiOp be issued by June 2.

NOAA is amidst a complete re-evaluation of the document and the science on which its conclusions are based. The deadline for submittal of a final BiOp has been pushed back to the end of November. The federal agency has promised a draft by the end of August.

"I've got an order out there that doesn't contemplate changing the baseline," Redden told Justice Department attorneys that represent NOAA Fisheries, and Earthjustice attorneys representing the plaintiffs. Also taking part were legal representatives of the states of Idaho, Montana, Oregon and Washington, Columbia Basin tribes, river user groups and other entities that have joined the lawsuit either as intervenors or amici.

Redden asked that if on Nov. 30 the target document is a "new BiOp rather than the 2000 BiOp, is it a viable one?" The prospective change in environmental baseline from one that judges the effects of both the dams' existence and their operation for power production, navigation, irrigation and flood control was unveiled during the course of a scientific collaboration that began at mid-winter and concluded at the end of May. Co-managers of the basin's fish and wildlife -- state and tribal agencies -- had requested that they be allowed a window to the federal process and the opportunity to help shape the BiOp's scientific foundation through their comments.

Those co-managers, and the attorneys that represent their interests, have expressed a wariness about the proposed baseline shift.

"We're in a different ballgame, I believe, than what any of us thought we were in," Earthjustice attorney Todd True said in a continuation of the judge's analogy.

"What the government has decided to do is move the goal line toward the ball," said True, by removing the dams' and reservoirs' existence from the analysis of whether or not hydosystem operations jeopardize the survival of listed fish.

He said the court had left the 2000 BiOp in place "on the assumption we would be going down a certain path." With that path now detoured True said the plaintiffs may have to ask the court again, as they did shortly after the judge's May 2003 order, to declare the BiOP invalid and/or ask for an injunction ordering more fish friendly operation of the dams.

Most vexing, Nez Perce Tribe attorney David Cummings said, is the fact that explanation of the proposed baseline shift and its effects on salmon survival have fallen short.

"It's remarkable that after 13 months we don't even know what the federal agencies are proposing," Cummings said.

David Leith, an Oregon assistant attorney general, told the judge that the state remained "very concerned" about NOAA's proposed jeopardy analysis framework.

"Our concern has not been assuaged, much to the contrary," as result of the collaboration process, Leith said. He suggested that NOAA Fisheries produce a short "white paper" to explain the differences, including the cumulative effects on fish, between the environmental baseline approach used for the 1995 and 2000 BiOps and the one proposed for the remand. He noted that NOAA had already produced or updated "white papers" on other scientific topics during the course of the remand so such a task would not be unusual.

"These are questions the United States must be asking itself," Leith said. "It would help everyone undersand what is going on."

Justice Department attorney Fred Disheroon said that a decision to adopt the new environmental baseline had not been made. The technical collaboration has just ended and NOAA is now beginning to put pen to paper to produce a draft BiOp. Producing such a white paper would likely delay the process, Disheroon said, adding that NOAA Fisheries' full strategy would be laid out in the draft opinion. That would leave several months for the parties to the lawsuit, including the co-managers, and the court to react.

"My concern is avoiding a train wreck," Redden said. "After you get a draft, isn't it too late to change your ways?"

Disheroon told the judge that 90 days would be allowed to collect comments on the draft and allow NOAA to respond to them. Meanwhile, comments will be welcomed throughout the next few months as the draft BiOp is being produced.

Michael Grossman, an assistant attorney general for Washington, told the judge that such a white paper explanation is appropriate in the short term since NOAA and the action agencies seem to have already agreed to use a new environmental baseline. The action agencies are the Corps of Engineers and the Bonneville Power Administration who, respectively, operate the dams and market the power produced in the system.

"We have expressed a desire to stick with the 2000 framework and have been told that is not an option," Grossman said. He said a white paper would be helpful but said he preferred it be produced voluntarily rather than as a result of a court order.

Redden said that a request for a white paper seemed reasonable but said that he would not, at least immediately, force the issue.

During this week's meeting Disheroon said that NOAA is obliged under the terms of the ESA to consider the latest scientific information when it reopens consultation on a BiOp. That is despite the fact the May 2003 order intentionally left scientific issues pressed by the plaintiffs for consideration following remand completion.

He said that under the court's order NOAA "is charged with coming up with a new biological opinion that did not rely on these factors. I believe that is what NOAA is doing."

He said the 2000 opinion took a novel approach to avoiding jeopardy by employing an "All H" strategy that relied on actions outside of hydro operations to bring fish survival improvements.

The new BiOp will likely include most of those off-site elements but will employ a "more standard approach" to the jeopardy analysis that requires the dams as part of the environmental baseline.

"Those dams are in the baseline as a matter of law," Disheroon said. He said NOAA's post-May 2003 review of the document made it clear the ESA requires a differentiation between dam operations and dam existence.

"There is no action related to the dams in place," Disheroon said. The BiOp requires, rather, that NOAA determine what discretion the Corps' has in actual dam operations.

He stressed that the draft BiOp "will provide a clear view" of NOAA's strategy.

"My concerns have been allayed, a bit," Redden said of his fear that the end product would not meet legal standards and, as a result would leave the system without a BiOp in place.

"That would leave the government open to many, many lawsuits and would leave someone else running the dams," Redden said. The court had no desire to be a "dam master," he added.