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Judge Redden Denies Motion to Expand Hydro BiOp's Action Area by Bill Rudolph NW Fishletter, December 19, 2003

Oregon District Court Judge James Redden has denied a supplemental motion by environmental and fishing groups [NWF. v. NMFS] to expand the federal action area of the hydro BiOp that's been in remand.

The groups wanted to add upper Snake BiOp issues into the remand process, citing the need to use water from the upper Snake to meet flow targets in the lower part of the river for migrating salmon listed for protection under the Endangered Species Act.

The use of upper Snake water for ESA salmon has been examined in another BiOp written by the Bureau of Reclamation and OK'd by NOAA Fisheries. The upper Snake BiOp governs federal irrigation storage projects that hold water for farmers who hold state water rights.

Redden said he disagreed with the plaintiffs, who alleged that the scope of federal agency actions has ever been an issue in this case. He pointed out that until now, the plaintiffs had never alleged that the feds had "improperly segregated" the two hydro operations for consultation.

Furthermore, the judge said plaintiffs used "their understanding of the science" relating to timing and flows to protect salmon to justify their contention that defendant's segregation of the federal agency actions is improper."

Redden said that contravened his admonition that his court "does not intend to delve into the science during the remand period."

Lastly, Redden said it was inappropriate at this stage of the case, "to interject" issues raised by the upper Snake BiOp. He noted that operations examined by the upper Snake BiOp have been the subject of intense discussions, including an unsuccessful attempt at mediation by Idaho Sen. Mike Crapo (R), and are now the subject of a potential lawsuit by one of the plaintiffs, and others who are not parties to the remand process.

Redden said the federal defendant submitted that it was expanding its action area from the original BiOp, so "it appears at this stage of the remand period, defendant agrees with the court's conclusion regarding the action area to be considered on remand."

Utility interests were buoyed by the court's ruling. "These are separate issues, with a whole separate opinion," said Scott Corwin, spokesman for Pacific Northwest Generating Cooperative.