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Salmon Recovery Plan Before U.S. Judge

by Matthew Preusch
The Oregonian, March 5, 2009

(Torsten Kjellstrand photo) US District Court Judge James Redden Lawyers, activists and agency folks from around the Northwest are filling the straight-backed benches in a ceremonial courtroom in downtown Portland this morning to argue over the government's plan for the coexistence of salmon and federal dams in the Columbia and Snake Rivers.

Their audience: US District Court Judge James Redden, who has twice thrown out the government's salmon plans and has expressed concerns about the current one in two recent letters.

Oral arguments start at 9:30 a.m., and we'll be providing updates from the courthouse throughout the day.

9:30 a.m.
The judge is expected to show up in court anytime, and in the meantime people are remarking on the fact that for the first time in this case Northwest tribes (except the Nez Perce) are sharing a table with the U.S. government.

Last year, the government signed an accord with four Columbia Basin tribes that will send about $1 billion to habitat improvement and other salmon-friendly projects tribes want over the next ten years.

That change in alliances was the focus of an editorial in this morning's Oregonian.

9:45 a.m.
Judge Redden started the day with a joke, commenting on when the decorative tapestries were installed in this ceremonial courtroom.

"That was back when (U.S. District Court Judge) Malcolm (Marsh) had the dam case," said Redden. "D-a-m."

He then repeated his earlier praise of the collaborative effort between tribes and the government that went into this biological opinion.

"I think there's been more effort put in this Biop perhaps than any others combined," he said.

9:55 a.m.
As expected, Judge Redden made clear he would not rule from the bench today on the legality of the biological opinion. He'd take the time to weigh the arguments, in addition to the considerable legal record, before making a ruling, he said.

"I know and you know that there will be no resolution of this matter this month," he said. But he did ask that the government continue court-mandated spill at federal dams to aid migrating fish starting next month, and the government agreed to do so.

10:25 a.m.
Quote of the day thus far goes to Earthjustice attorney Todd True, responding to praise given to the federal government for working collaboratively with tribes to develop their salmon plan:

"These are good people, but the issue here is simple because salmon don't swim in collaboration."

1 p.m.
People are trickling back into court after a lunch recess. Prior to calling the break, Judge Redden seemed to be getting a bit impatient with attorneys' pontificating, and he asked them to stick to the questions he posed to them.

"We'll be here for three days if you keep arguing," he said. "Just answer the questions." The first of those questions centered on the government's threshold for whether its dams imperil salmon, the so-called "jeopardy standard."

The government said they predict that while operating federal dams under their plan, all the 13 listed salmon runs in the Columbia Basin have a high likelihood of survival -- 95 percent -- and they also that the potential to recover.

"We are entitled to deference on our interpretation of our own regulation," said Coby Howell, a Department of Justice attorney.

Todd True, the Earthjustice attorney, countered that they were not due such deference from the court.

"At bottom this standard is really an effort to rewrite the jeopardy standard," True said, adding that the Endangered Species Act puts the focus on whether an action will "appreciably reduce" the chance for a species' recovery.

True and his allies, including the state of Oregon, argue that the government's operation of the dams do just that.

2:45 p.m.
The conversation has moved on to estuary and tributary habitat improvements proposed in the biological opinion that the government contends will ensure the survival of salmon.

"We're investing like never before, both in dollars and research," said Bridget McNeil, a Department of Justice attorney.

An attorney for the Confederated Tribes of the Warm Springs followed up by showing multiple pages of site-specific habitat improvement projects.

Critics argue that many of those projects are not certain to receive funding or be carried out, and that means the biological opinion does not meet the Endangered Species Act's standards for caution when it comes to possible extinction.

"The plain fact is, speculation compounded by uncertainty can not equal caution," said Todd True of Earthjustice.

The elephant in the room is the possible removal of four lower Snake River dams. In his written questions to attorneys, Judge Redden has asked why the government isn't studying the feasibility of breaching the dams, which many fish advocates consider the surest step to recovering salmon runs.

But so far it has not been discussed.

4:30 p.m.
Court adjourned shortly after 4 p.m., with Redden again praising the collaboration that went into this BiOp.

"I think it's very close," he said.

He said his primary concern with it was its reliance on future habitat improvements, and he wondered why the government didn't include a provision to at least study dam removal should habitat work and other measures prove insufficient for the survival of threatened and endangered Columbia Basin salmon.

"I don't know that the breaching of the dams is the solution, I don't know," he said. "But if you took a look at the BiOp and said, OK, at some point, 5 years, 7 years, you take a look at what we are doing and how it's worked, and they say, 'Boy, it's just not working,' I don't think the answer can be, well, lets' go do some more habitat work."

See the full story in tomorrow's Oregonian.

Matthew Preusch
Salmon Recovery Plan Before U.S. Judge
The Oregonian, March 5, 2009

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