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Redden to Remain Judge for BiOp Remand, Irrigators Lawsuit by CBB Staff Columbia Basin Bulletin - March 12, 2004

The judge presiding over one legal challenge to the federal Columbia River basin salmon protection plan will remain as magistrate of record in a separate lawsuit that attacks the fish strategy from a different angle.

That's the ruling of U.S. District Court for the District of Oregon chief judge Ancer Haggerty, who issued an order March 4 denying a request that fellow judge James A. Redden be disqualified from the second case. In a separate order issued March 2, Redden denied a motion that the two cases be consolidated.

Redden has been presiding in the National Wildlife Federation v. National Marine Fisheries Service lawsuit for well over a year. The litigation filed by fishing and conservation groups in 2002 said that a 2000 federal biological opinion improperly relied on certain mitigation measures in concluding that federal hydrosystem operations would not jeopardize the survival of salmon and steelhead stocks listed under the Endangered Species Act.

In May 2003 Redden ruled that NMFS' (now called NOAA Fisheries) conclusion was arbitrary and capricious and ordered that the agency correct the flaws cited in his opinion. He allowed a one-year remand, "i.e. so it could consult with the required parties to insure that the range-wide federal mitigation actions have undergone Section 7 consultation and that range-wide off-site non-federal mitigation actions are reasonably certain to occur," according to Haggerty's recent opinion.

The NOAA BiOp said that federal Columbia/Snake river hydrosystem operations threatened the survival of 8 of 12 listed salmon and steelhead stocks. But the agency concluded that the implementation of certain actions (listed in the BiOp's reasonable and prudent alternative) within the hydrosystem, as well as mitigation actions off-site, would avoid that jeopardy.

The Columbia Snake River Irrigators Association and Eastern Oregon Irrigators Association on Sept. 30, 2003, filed the second challenge to the 2000 BiOp, saying NOAA 's conclusion that salmon stocks are jeopardized is wrong and the agency violated the ESA in making the conclusion. The irrigators filed the lawsuit after making what Redden and Haggerty called a tardy attempt to join the NWS v. NMFS lawsuit as amicus curiae. Redden was assigned the case.

The irrigators' attorney, Portland's James Buchal, in early February filed a motion accusing Redden of bias and asking that he be disqualified from the irrigators' lawsuit. The motion said Redden had "abandoned the judicial role in favor of the role of fish advocate." Attorneys for the federal defendants filed a respond indicating they do not believe disqualification is warranted.

Following last week's denial of the recusal and consolidation requests, Buchal called for action on Wednesday via the filing of a motion for partial summary judgment in the irrigators' lawsuit. It asks specifically that three of the points pressed by Buchal be weighed during the course of the BiOp remand.

The motion asserts that the defendants:

• must assess whether dam operations jeopardize the continued existence of the listed evolutionarily significant (ESU) as a whole;
• must exclude from their analysis of the "effects of the action" the effects of future federal action not yet authorized through consultations under sections 7 of the Endangered species Act, and -- may not find that dam operations jeopardize listed species on the basis of future state, tribal and private actions with adverse effects on salmon yet to be considered under appropriate ESA procedures. "Congress plainly did not intend to stop agency action on the basis of future, unrelated insults to listed species from other threats," according to the motion.

The irrigators also say that the BiOp in violation of the ESA by proclaiming an individual ESU in jeopardy when in fact many of that stocks' sub-units or "populations" are not in danger.

The motion says the BiOp wrongfully includes in its jeopardy analysis projections of harvests in the future -- beyond the time periods now approved in federal biological opinions. That wrongfully tips the scales in favor of jeopardy in estimations of whether ESUs will survive and/or recover over the long term, according to the irrigators.

Haggerty's March 4 opinion regarding the recusal of Redden said he found "no merit in then Irrigators' contentions. Many of their contentions flow from their basic disagreement with NOAA Fisheries approach and conclusions in the 2000 BiOp, and with Judge Redden's conclusions on summary judgment in the NWF v. NMFS case.

"The affidavit discusses the irrigators' science and disputes the science that supported NOAA Fisheries 2000 BiOp, which issues will not even be addressed in NWF v. NMFS until after the remand period," Haggerty wrote. A July 3, 2003, supplemental order from Redden said that because the remand "was on the basis of threshold preliminary issues, court has yet to address or make findings as to the science underlying the defendant agency's conclusions as to each of the threatened or endangered salmon species."

The fishing and conservation groups' lawsuit said the RPA and science were insufficient to avoid jeopardy. The irrigators' lawsuit contends hydrosystem operations do not jeopardize the listed stocks, with or without the RPA.

Haggerty wrote that the affidavit written by Buchal in support of the disqualification request "relieves heavily on counsel's unsupported conclusions, suspicions, rumor, and innuendo. The affidavit includes inaccurate and misunderstood assessments of the proceeding and processes the parties are using in NWF v. NMFS, and reliance on statements and actions taken out of the actual context."

The irrigators motion to consolidate theirs and the conservation groups' cases cited federal code that says if "actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in the issue in the actions…."

Attorneys for the conservation and fishing groups strongly opposed consolidation during discussions with Redden in steering committee meetings called by the judge to review progress of the remand. Attorneys for NOAA Fisheries initially supported the consolidation provided the irrigators' issues were stayed until completion of the remand. The federal government has now withdrawn that support.

But Redden, in his March 2 order, concluded that "consolidation is not appropriate because although common questions of law and fact regarding the validity of the 2000 BiOp are pending before the court arising from these two cases, substantial unnecessary costs and undue delay would accrue were the cases to be consolidated."

Redden noted that the irrigators could have sought amicus curiae status in the NWS lawsuit but did not attempt to file a brief until after the judge issued his opinion in the case. He denied the brief because it was "untimely." Redden subsequently ordered the remand to correct the BiOp flaws noted in his opinion.

"NOAA Fisheries, the plaintiffs, the intervenors, and the amici have worked diligently and expended considerable time and resources towards that goal," Redden wrote. "That time and effort would be substantially for naught if the court were to allow consolidation of the issues raised by plaintiffs here with the issues now pending in NWF v. NMFS.

"In light of the allegations the plaintiffs make in this case, any consolidation of the case with NWF vs. NMFS would also require the court to reconsider its ruling on summary judgment. As a consequence, there would be a substantial delay in make the final decision on the continuing validity of the 2000 BiOp."

Redden said such delay is particularly unjustified since the irrigators had the opportunity but failed to take it before the ruling was made in the NWS case.