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Judge Redden's BiOp Legacy-- Shakedown or Salvation for Fish? by Bill Rudolph NW Fishletter, December 14, 2011

Federal judge James Redden has retired from the salmon wars, after knocking off three federal plans that purported to operate Columbia/Snake dams in a way that didn't appreciably jeopardize existence or recovery of ESA-listed salmonids. He recently ruled federal agencies must spell out more specific actions to improve habitat and has given them two years to do it. By then, the latest revision of the 10-year plan he just dumped will be seven years old, and the region will be trotting out its experts to start the process all over again, with no end in sight to the self-perpetuating salmon recovery machine that feeds hundreds of biologists, lawyers, and even a few journalists.

May 2003. A federal judge in Oregon has followed through with his inclination to throw out the 2000 Columbia Basin hydro Biological Opinion because it relies on actions that would take place outside the Federal Columbia River Power System. The measures, which the BiOp required as a way to mitigate ESA-listed fish losses in the basin, "are not reasonably certain to occur," U.S. District Court Judge James Redden said in his May 7 ruling . "I have a recurring nightmare that we're still talking up here about the fish problem and somebody catches the last one." The plan had been challenged by environmental and fishing groups. A month before, during oral arguments, Redden said he saw no point in discussing "the science of this matter," though a remand at some point may be necessary, he said. "At this juncture, there's a hurdle for the government to get over, for all of us to get over, before we need to get to the science. At least, that's the way I've approached it, and if I'm incorrect in my opinion, why, let me know why." Government attorneys wasted no time explaining why they thought the judge had misread the BiOp. NOAA lead counsel Sam Rauch tried to clarify the difference between the Reasonable, Prudent Alternative [RPA] to proposed hydro operations spelled out in the BiOp and the basinwide salmon recovery strategies that were outlined as well, and one of the main targets for plaintiffs' arguments.

October 2003. The report included federal action agencies' "2003 check-in" document, a requirement from the old BiOp to gage progress of its implementation. The check-in positively gushed over recent salmon returns, noting that seven of the eight ESUs [Evolutionarily Significant Units] jeopardized by hydro operations "are showing significant improvement."

February 2004. Collaboration may be an aberration in the salmon recovery industry, but that may change since U.S. District Court Judge James Redden told the BiOp remand parties that federal scientists need to listen more to state and tribal fish managers.

June 2004. Meanwhile, the "collaboration" was scheduled to continue through May . . . The controversial new analysis includes dam operations in the environmental baseline for the new BiOp that the old BiOp did not. Since this is likely to reduce estimates of adverse impacts of hydro operations on listed stocks from the 2000 BiOp's analysis, plaintiffs have voiced opposition from the start . . . In another collaboration meeting last week, it was reported that state and tribal agencies still differed significantly with NOAA's recent revision of a scientific document that outlines the latest findings on dams and fish survival . . . Dams do not play the biggest role in fish survival, the feds claim. "It is clear, though, that ocean conditions are the dominating factor in determining return rates, overriding variability associated with the hydropower system. Return rates have increased by an order of magnitude since the recent upturn in ocean conditions while survival through the hydropower system . . . BiOp judge James Redden told parties to the remand process that he was concerned about the new tack the federal government has taken in its quest to complete a new biological opinion for the hydro system. At the June 4 steering committee meeting in Portland, Redden said if the new BiOp didn't fit into the order of the remand, it "could cause a train wreck."

August 2004. The judge agreed with the groups who took issue with NOAA Fisheries' decision to approve an additional 100 KAF from Idaho's Brownlee Reservoir to make up for the losses . . . Redden's ruling wasn't unexpected by long-time court watchers familiar with his record. They say that since his days as Oregon's attorney general, Redden has shown strongly pro-environmental views.

September 2004. Lohn (then regional NMFS director) said the jeopardy standards in both BiOps are the same, but the new point of analysis, the dams' operations, was adopted because it was more faithful to the ESA, and had partly come about because Judge Redden asked federal agencies to be much more specific as to their findings.

June 2005. Judge James Redden ruled last week in Oregon District Court that the 2004 biological opinion for running hydro operations to help ESA-listed fish populations is invalid. The judge sidestepped an optimistic 2004 update to the status of listed salmon and steelhead by private consultants included in the BiOp analysis, and stuck with an earlier NMFS status review already years out of date, and said, "It is apparent that the listed species are in serious decline and not evidencing signs of recovery." Defending this new methodology in court, federal attorney Fred Disheroon said that NMFS erred in its earlier BiOp by including too many actions that should have been part of the region's overall recovery obligation and pinning the blame for all salmon mortality on the hydro system. But the judge didn't buy that one bit. He said the agency was entitled to only "limited deference" for its latest interpretation because it conflicted with its earlier interpretation.

October 2005. The judge called on NOAA Fisheries and the action agencies to collaborate with the states and Treaty Tribes in the development of the next proposal for dam operations, and the clarification of policy issues and "reaching agreement or narrowing the areas of disagreement on scientific and technical information." Redden said the remand "requires NOAA and the Action Agencies to be aware of the possibility of breaching the four dams on the lower Snake River, if all else fails."

January 2006. Federal agencies, citing their latest survival research, developed a new proposal that would spill more water in early April than is specified in the 2004 BiOp, and then move to a maxed-out fish barging strategy beginning April 20 . . . They estimated a 16-percent boost in returns of wild chinook, and nearly 25 percent more wild steelhead from their proposed change in operations compared to the 2004 BiOp mandates . . . But Redden called the feds' late spring max-barging proposal a "radical departure" from their "spread-the-risk" philosophy and "not justified in light of the best available science."

April 2006. The feds say the 2004 BiOp that Redden threw out was a product of their "best, available science," and that the new methodology they had developed was created to satisfy the court's concerns over the 2000 BiOp . . . They said it was "inherently impossible for the agency to make informed projections 100 years into the future and across the species' range, as it had attempted to do in the 2000 BiOp, while at the same time limiting consideration only to the proposed action and to the environmental baseline and cumulative effects within the action area." . . . In their latest status update, federal agencies say they are on track to develop a BiOp for the Columbia hydro system that uses the "best available science" to fill any gaps between current fish survival and recovery goals with improvements in the other H's--habitat, hatcheries, and harvest . . . The latest NMFS barging proposal was based on recent research that showed barged fish did better overall (returning as adults) than inriver migrants after April 20. NMFS said it would add thousands of fish to returning numbers of chinook and steelhead above the base BiOp operation, boosting wild spring chinook runs by 15 percent, hatchery chinook by 10 percent, and wild steelhead by 22 percent.

June 2006. Controversy over how much fish mortality can be pinned on the hydro system is heating up, with several recent papers being circulated that examine different aspects of the topic. One article currently undergoing peer review posits that the latent mortality from dam passage may not really occur at all, while another recently published paper suggests that further improvements of the in-river survival of migrating smolts may have little effect on population viability.

August 2006. Two weeks ago at the July Power Council meeting, NMFS scientists said the region could only expect to wring about 5 percent better survival from the hydro system in the lower Snake, even after removable spillway weirs are installed. That means the next BiOp will be faced with filling most of the gaps with improvements outside the hydro corridor, similar to the 2000 BiOp.

October 2006. "We have said it before and we will say it again; let there be no mistake," Craig (ex-senator from Idaho) said. "We will protect Idaho's water and the Snake River Basin Agreement at all costs. Yesterday's decision has more to do with establishing a personal judicial legacy than saving a species. This court continues to ignore the big picture and all the factors that are in play. We're not makin' biscuits here, so just adding water isn't the answer". . . The judge put the entire state of Idaho on notice that more water was needed. He pointed out that NOAA, from its own 2004 administrative record, had estimated that a million acre-feet would be needed to mitigate depletions caused by the Bureau's Upper Snake operations.

Dec. 2007. By the end of the session, Judge Redden said the collaboration has worked very well, but "some more talk" was needed. He reminded everyone what he had said in his letter the previous week, that there will be serious consequences if the BiOp fails to pass muster and that a permanent injunction "would be very harsh. And I don't know just how harsh," he muttered, "I don't even think the scientists would like it." Redden said he didn't think the God Squad would say there was nothing more the region could do--"because there's always something else." He called on all parties to come up with a BiOp they can all live with.

April 2008. BPA Administrator Steve Wright announced April 7 that the action agencies [BPA, Corps of Engineers, Bureau of Reclamation] have reached long-term settlements with four Columbia Basin tribes that would cost $900 million for 10 years' worth of more habitat restoration and hatchery improvements, while providing long-term funding certainty for many existing projects in the region's fish and wildlife program. In return for the 200 or so new projects, three lower Columbia tribes promised not to contest the upcoming hydro BiOp, scheduled for release in early May, nor support breaching of the four lower Snake dams for the next 10 years.

May 2008. NMFS researchers say, and state and tribal scientists have finally agreed--that steelhead always do better when barged. On the other hand, overall spring chinook returns seem to fare better when the early migrants travel inriver and the later ones are barged. This strategy is at odds with the current court-ordered spill strategy, rolled over from 2007 to this year as well, which never maxes barging. According to NMFS scientists, their data, to date, says that the current operation will reduce both steelhead and spring chinook returns compared to the BiOp strategy planned for 2009.

September 2008. DOJ attorney Coby Howell said the latest BiOp collaboration was maybe the first time that federal agencies really listened to the other sovereigns. "We did that at your order," he told the judge.

November 2008. A feisty group of Northwest irrigators has raised some serious questions about the latest salmon plan that is about to be tested in court . . . The irrigators cited the work of Canadian researcher David Welch, and said his latest studies show that juvenile fish survive passage through the hydro system at comparable rates to river systems without dams, like the Fraser, in British Columbia. Furthermore, they cited NOAA Fisheries' own analyses, which has found juvenile fish survival through the hydro system has "little influence on SAR [smolt-to-adult returns]."

March 2009. Redden does think the BiOp is short-changing actions to improve the habitat in the Columbia estuary since it has only committed federal agencies to spend $50 million over the next 10 years in that area, while the feds have estimated spending $500 million over the next 25 years . . . Redden seemed to give qualified approval March 6 to the federal government's latest salmon plan. But he said the feds need to add more habitat actions, particularly in the estuary . . . And if all that habitat improvement doesn't add enough to salmon numbers, the judge said the new BiOp needs an escape clause to begin a process that could lead to breaching lower Snake River dams . . . The judge's position did not surprise federal parties. Last August, Redden had suggested there would probably be "holes" in the BiOp, but they might not be enough of a problem to throw the whole plan out . . . But the judge said the BiOp's biggest flaw was the habitat section. "I don't know how you get there from here," he said, though he softened his ending remarks with the comment, "It's really a pretty good BiOp."

April 2009. BiOp judge James Redden surprised everyone at a recent meeting among litigants (no public or court reporter allowed) with his continual references that Snake River salmon were going extinct by 2017. He seems to have been misled by an old study that has since been proven to be totally wrong. Attendees reported being puzzled by his remarks, but the judge said nothing to explain why he had come up with the year 2017.

May 2009. An Oregon federal judge has released a letter that makes good his promise to offer guidance to the Obama administration in its study of the new hydro BiOp. But Judge James Redden's suggestions are not exactly what BPA customers were looking for . . . Redden gave the region little credit for salmon recovery efforts, saying federal agencies have spent most of the decade "treading water and avoiding their obligations under the Endangered Species Act. Only recently have they begun to commit the kind of financial and political capital necessary to save these threatened and endangered species, some of which are on the brink of extinction. We simply can't afford to waste another decade."

December 2009. He reminded the parties that his May 18 letter had noted that the BiOp "appears to be flawed," and said federal defendants needed to convince him that the AMIP [Adaptive Management Implementation Plan added to the BiOp by the Obama administration] was properly before the court, or take the necessary steps to include it in the BiOp.

May 2011. Judge Redden said he had enough information, and abruptly ended the session around noon, leaving onlookers to speculate what that really meant since some of his original questions had not been discussed.

August 2011. Federal judge James Redden ruled on Tuesday that the federal salmon plan for the Columbia Basin is good enough to stay in force for the next two years, but after that it's too vague to ensure it helps fish. Since federal agencies have no specific mitigation actions after 2013, Redden said agencies can't assume that future dam operations will not jeopardize ESA-listed fish runs, though he noted the Fish Accords with regional tribes and states have committed the Action Agencies to spend more than $900 million on salmon mitigation over the 10-year life of the BiOp. By granting another remand, he served notice that his court will not be leaving the salmon recovery scene any time soon. He gave the feds until January 2014 to produce a list of new, specific, and funded habitat restoration projects to complete over the last four years of the hydro BiOp before he may approve it again . . . Redden also sidestepped any ruling on the feds' jeopardy analysis that plaintiffs in the salmon litigation had been arguing for years was faulty . . . The judge said the lack of specific projects in the future was enough to declare the hydro BiOp "arbitrary and capricious insofar as it extends beyond 2013" . . . In a footnote, Redden acknowledged he must abide by a recent decision to defer to agency expertise [Lands Council v. McNair, 2010]. But he said he was troubled by the lack of scientific support for the feds' estimates of specific survival benefits from habitat improvements, and noted that NOAA Fisheries acknowledged benefits might not accrue for many years, "if ever." He said the court was not required to defer to uncertain survival predictions that were based on unidentified mitigation plans.

November 2011. Judge Redden announced he was retiring from the court and the salmon litigation, but he would keep watching. The case has been handed over to newly minted federal judge Michael Simon, who will now oversee suites of actions that began as a way to try to run the hydro system without jeopardizing ESA-listed fish runs, but have morphed into the planet's most expensive species' recovery initiative, with BPA-funded platoons of habitat restoration workers, biologists, middle managers, and attorneys expected to spread out across the land for decades to come. Meanwhile, Mother Ocean could be laughing at all the fuss, as regional fish managers have come up with a tremendous forecast for next year's spring chinook return--314,000 upriver spring chinook. That's almost 100,000 more than the 2011 return, and would be the fourth largest return since 1938, according to ODFW, if it comes to pass.