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Salmon Justice by Ken Olsen High Country News, January 22, 2007

An interview with U.S. District Judge Jim Redden, who's given uncooperative federal agencies clear warning:
Submit a viable salmon restoration plan for the Snake/Columbia River Basin, or face the possible breaching of four major dams.

On a spring afternoon in 1963, a controversial and universally disliked Oregon state representative returned to the House chambers in Salem from the noon break, well under the influence of a multiple-martini lunch. When he arrived, a fellow lawmaker -- freshman Jim Redden from Medford -- was waiting. Having accurately predicted that his colleague would spend his lunch hour getting lubricated, Redden enlisted other legislators to help give the man a special reception. Redden took to the floor and made a motion that the inebriated lawmaker should preside over the Oregon House of Representatives for the rest of the day. And Redden's practical joke passed unanimously. A group of fellow representatives all but carried the besotted man to the speaker's platform, where he collapsed into a chair, one foot in the wastebasket, while the other lawmakers commenced his verbal shredding.

Legislators from that era won't name the target of Redden's practical joke, but they are quick to say the prank was richly deserved. And they tell this and other stories of Redden wit with "I wish I had thought of that" awe.

More than four decades later, Redden -- now a federal judge in Portland -- is capturing attention for his ingenuity and resolve under far more serious circumstances. He presides over a long-running case that pits survival of Columbia and Snake River salmon against four hydroelectric dams that are steadily eliminating what once were some of the world's most bountiful salmon runs. Fed up with bureaucratic foot-dragging and dodging, Redden is forcing the federal government to live up to its responsibilities under the Endangered Species Act before the last wild salmon disappear. Redden has repeatedly found the government's plans for saving 13 stocks of threatened or endangered salmon woefully inadequate and illegal. Now he is warning the federal agencies he may order them to consider "breaching the four dams on the lower Snake River if all else fails."

A veteran of complex litigation, Redden is well steeped in the salmon wars. Longtime legal observers say he also is oblivious to the insults lobbed by federal legislators, irrigators and others who benefit from publicly subsidized hydroelectric dams.

"He is one of the great judicial figures of this region É and will not cower to political bullying," says Mary Wood, law professor and Dean's Distinguished Faculty Fellow at the University of Oregon. "If there are wild salmon in the Columbia River 100 years from now, it will be because Judge Redden carried out his responsibilities as a judge enforcing the Endangered Species Act."

Only time will tell whether Redden's carefully worded court orders spur the National Marine Fisheries Service, Bonneville Power Administration and U.S. Army Corps of Engineers to produce a salmon recovery plan that meets the judge's approval by mid-year. But Redden has made one thing clear: This is the federal government's last chance.

"Landslide Redden"

Born and raised in Springfield, Mass., James A. Redden landed his first job at age 13, working in a drugstore. His dentist father urged him to leave high school early and join the Army to take advantage of the GI Bill. He started his tour as a hospital medic with occupation forces in post-war Japan in 1946.

Redden returned home three years later, finished high school, attended Boston University as an undergraduate and developed an affinity for the Red Sox that is reflected in the souvenir Wheaties box, baseball cap and baseball books tucked about his spacious chambers in the federal courthouse at the corner of Main and Salmon in downtown Portland. He enrolled in Boston College, married high school sweetheart Joan Johnson, and worked as a ditch digger, janitor, file clerk and holiday extra at the Post Office while earning his law degree. After graduation, Redden followed a professor's advice to move west, spending a year in Portland working for a title company and then an insurance company before joining the Hugh Collins law firm in Medford.

"A trial lawyer's life is a tough life in a lot of ways," says Redden, who tried cases all over southern Oregon. "When you walked into court that first day to select a jury, there was that old knot in the stomach. I enjoyed it. (But) it's a lot easier being a judge." Many fellow jurists admired his work.

"One of the things he taught me early on was integrity in the practice of law," says Lane County Circuit Judge Lyle C. Velure, who, fresh out of law school, joined what by then was the Collins & Redden law firm. "He said two things would get me fired: if I ever went south on my word; and if I ever saw him making a mistake and didn't tell him about it." Redden and his wife, Joan, raised two sons -- Bill, a Portland public defender, and Jim, a reporter for the Portland Tribune newspaper.

"I remember it being pretty Ozzie and Harriet," son Jim says. "My parents were at home every night. They liked to watch The Dean Martin Show and read big, thick, hardbound books."

Jackson County voters elected Redden, a Democrat, state representative in 1963 as part of a freshman class that included future U.S. Sen. Bob Packwood and other Oregon notables.

"We called him ÔLandslide Redden' because he won by 200 votes," says U.S. District Judge Robert E. Jones, then a fellow legislator who served on the Judiciary Committee with Redden. Jones described Redden as "the jokester in the Legislature," recalling how he would circulate funny notes about bills and fellow legislators.

Redden's wife shares her husband's sense of humor, and the dark-haired couple became known in social circles for their parody of President and Mrs. Kennedy. "Since they were both from Massachusetts, they could have that Massachusetts accent when they wanted to," says former state Rep. Ed Whelan, laughing at the memory. "He would take off with those long Ôa's' and she joined right in. It was almost like they rehearsed it."

Redden's sense of humor helped him win over adversaries. His easy-going manner made him a catalyst for compromises, including landmark legislation guaranteeing public access to Oregon's beaches. Redden also was well respected by both parties for his intellect and accessibility and was elected House minority leader during his final term in 1969.

"You could always talk to Jim," says former Oregon State Bar Association president Art Johnson. "He had straight answers. He wasn't intimidated by lobbyists. He made up his own mind."

Democrats drafted Redden to run for state treasurer in 1972 after their nominee was disqualified for an earlier campaign violation. Redden won that race and ran for governor two years later.

"I lost in the primary, thank God," Redden says. "It's a great thing for your vanity and ego to be governor. But people expect so much, and you can deliver so little."

He was elected state attorney general in 1976 and made his mark as a reformer. Redden ordered investigations into mismanagement and wrongdoing that led to the ouster of the Marion County district attorney -- who was later prosecuted for mishandling expense accounts -- and the head of the Oregon Liquor Control Commission. His probe of state-licensed nursing homes prompted passage of extensive reform legislation. And Redden's investigation of a state mental hospital in Pendleton sent attendants to jail for abusing patients.

Redden was resisting entreaties to make another run for governor in 1980 when President Jimmy Carter appointed him to the federal bench with the support of Republican U.S. Sen. Mark Hatfield.

"We all missed the chance to have a great governor," U.S. District Court Judge Owen Panner says.

Fishing lessons

Many consider Redden's work as a federal judge impeccable. "I've been grading his papers for 30 years," says Alfred T. Goodwin, senior judge -- and former chief justice -- of the 9th U.S. Circuit Court of Appeals. "He will be remembered as a judge who cared about doing good legal work and didn't care if a decision was popular or unpopular."

Redden had his first taste of salmon issues as attorney general, inheriting contentious litigation over Indian fishing claims on the Columbia River. He broke with both his predecessor and Washing-ton state's attorney general by acknowledging that the tribes had valid treaty fishing rights. The result was a first in the long-running dispute, says Douglas Nash, who represented the Umatilla Tribes and then the Nez Perce in the case -- a settlement that attempted to give everyone a portion of the salmon harvest. "His predecessor would have no discussions with the tribes -- it was full-blown war," Nash says. "Redden reached out. It saved horrendous amounts of litigation, time and money."

The current Columbia/Snake salmon litigation is part of a controversy dating to the end of World War II. In 1945, Congress authorized construction of the four lower Snake River dams to make Lewiston, Idaho -- 465 miles inland -- a port. At that time,

Idaho produced half of the chinook salmon in the Columbia River Basin. Fisheries agencies, concerned the dams would annihilate Idaho's salmon and steelhead runs, immediately began a long battle to stop the projects.

Dams kill salmon and steelhead in multiple ways. Of course, fish often die while traveling through a dam's hydroelectric turbines. Equally significant: Juvenile salmon evolved to ride the surge in spring runoff to the Pacific Ocean in two to three weeks. Reservoirs slow that journey to as much as three months, interfering with the salmon's time-sensitive biological transformation from a freshwater fish to a saltwater fish. Reservoirs also make salmon more vulnerable to predators and increase water temperatures to the point of killing juvenile salmon migrating to the sea as well as adults returning to spawn. In addition, warmer water means lethal fish diseases.

Beyond the environmental arena, there were questions about the fiscal wisdom of the four lower Snake River dams. The dams do not provide flood control, they benefit few irrigators, and they generate only a small percentage of the power consumed by the Pacific North-west. But pork-barrel dams have a history of trumping science and economics in the American West, and, after an arduous battle, the four dams were constructed between 1960 and 1975.

Salmon and steelhead runs almost immediately plummeted. In 1991, Snake River sockeye became the first of 13 salmon and steelhead stocks to hit the endangered species list, forcing the federal government to come up with a formal plan to modify dam operations to stop killing the fish. The Idaho Department of Fish and Game successfully sued over the first recovery plan in 1993. U.S. District Judge Malcolm Marsh threw out the biological opinion, as recovery plans are called, and refereed ensuing battles until he took senior status in 2000 and relinquished the case.

Redden agreed to take over. His experience with Columbia River issues gave him extensive knowledge of both the science and the thankless nature of the task ahead.

"He watched Judge (Robert) Belloni and Judge (George) Boldt take tremendous abuse over the Columbia River Indian fishing cases," Judge Panner says. "And he volunteered to take it. He felt it was his duty."

Indeed, after Belloni and Boldt issued rulings in the late '60s and early '70s upholding the Indians' right to fish the Columbia, bumper stickers reviled them with slogans such as "Slice Belloni, Screw Boldt." Boldt was hanged in effigy so often that removing the mock corpses dangling from outside various federal courthouses "became a mundane duty of the U.S. Marshals," Charles Wilkinson notes in his book, Messages from Frank's Landing. A sign looped around the neck of one declared "A Dead Boldt is a Good Boldt."

By the time Redden took the gavel in the latest litigation, the list of plaintiffs contesting the federal government's failing salmon plans ranged from conservation groups to commercial and sport fishermen to Native American tribes. Today, the pressure for genuine salmon recovery has become even more intense. Only three sockeye -- all hatchery fish -- made the 1,000-mile journey from the Pacific Ocean to Redfish Lake in central Idaho this fall, meaning wild Snake River sockeye are essentially extinct. Mayors of small Idaho towns that lost their salmon-based tourism revenue after the last Snake River dam was completed are raising their voices. West Coast commercial fishermen are furious over fishing restrictions driven by the threatened and endangered Columbia/Snake runs.

"Dams kill the majority of the Columbia and Snake river salmon," says Dale Kelley, executive director of the Alaska Trollers Association. "And yet fishermen are chronically punished for the damage the dams inflict."

Don Chapman, a well-respected fisheries scientist who long opposed dam removal as a consultant to the energy industry, now calls breaching the four lower Snake River dams an imperative. Chapman no longer believes barging and trucking juvenile salmon around the dams is effective, because wild salmon populations have continued to plummet despite the effort.

And the prospect of continued global warming -- which could further increase river temperatures and stress cold-water-loving salmon -- makes the deaths inflicted by dams that much more harmful to the fish population as a whole. Former Interior Secretary Bruce Babbitt, who says he erred by not more aggressively pushing for Snake River dam removal during his tenure, is actively campaigning for dam breaching.

"We have spent billions of dollars trying to rationalize our way around the reality of those dams," Babbitt said in a recent tour of the Pacific Northwest. "The game is about up."

Midnight riders

A trim 77-year-old in khaki slacks and deep blue shirt, Redden stands 5 feet 9 inches tall; he has thinning gray hair, large glasses and a boyish grin that fills his face. The windows in the east wall of his chambers look toward Naito Park, Redden's favorite jogging spot. He started running at age 48, when, weighing 200 pounds and smoking two packs a day, he found he could barely walk up a flight of stairs. Despite his healthy habits, he doesn't care to eat salmon.

"If it's oily -- and the good stuff is -- it doesn't agree with me," Redden says. "If you plank it, grill it, and put enough ketchup and beer on it, it's OK."

Redden is unusual among federal judges in his willingness to speak to the press. His son Jim, the journalist, believes his father's experience in the Legislature, back in the days before press aides and professional staff ran interference, left him comfortable with the media. "I got used to having my name in the paper when I was in politics," the judge says with a smile. "And I got sick of it before I got out."

Redden has repeatedly rejected the federal government's salmon recovery plans, most notably in regard to the Bush administration's insistence that the dams are a natural part of the landscape -- a position that would allow the federal government to ignore the lethal effects of dams on salmon. He is mystified by such an approach. "The New York Times said I was flabbergasted when I saw their plans," Redden says. "Well, I was."

And a bit frustrated.

"If you really want to do something for the whole Columbia Basin and the salmon and the dams and the irrigators, you have scientists sit down and figure it out," Redden says. "You can't do it if the announcement is made in advance that it isn't going to happen."

The Bush administration has appealed Redden's ruling that it must address the damage dams inflict on salmon. The 9th Circuit Court of Appeals is expected to rule soon.

Meanwhile, Redden says, "the dams are killing the fish. So we have to mitigate that. That is the big issue."

Time is of the essence, he adds, a point he's repeatedly made from the bench.

"The Snake River salmon are truly endangered," Redden says. "We can't continue to go in circles."

For the past three years, Redden has ordered the federal government to spill additional water at eight Snake and Columbia river dams to give juvenile salmon safer passage to the ocean.

"The government has opposed most of what I've ordered," Redden says. "Nobody -- not even the court -- has been enthusiastic about having the court do these things. But the runs have been pretty good."

Indeed, Redden's orders for more spill have definitely increased juvenile salmon survival, government scientists say.

The order also prompted U.S. Sen. Larry Craig -- an Idaho Republican who earned the National Hydropower Association's 2002 "Legislator of the Year" award -- to introduce a budget rider that would eliminate funding for the federal agency that tracks salmon migration and mortality through the Columbia/Snake dam system. That rider spawned its own litigation, which is still pending in federal court. If Craig doesn't like the judge's rulings this year, he is expected to introduce legislation that would block Redden from enforcing salmon recovery under the Endangered Species Act.

Craig is getting boisterous support from Norm Semanko, executive director of the Idaho Water Users Association, which represents farmers, irrigator companies and municipalities -- entities that worry they will have to give up water for salmon recovery. Although he does not name Redden, no doubt because he is one of the attorneys fighting to limit the scope of salmon recovery, Semanko criticizes Redden's rulings as the misguided decisions of an "activist judge."

James Buchal, an attorney who filed a motion asking that Redden be removed from the case, complains of "long and bitter experiences in (Redden's) court." The judge "is a nice man. He's a good man, in some senses," says Buchal, who has unsuccessfully tried to intervene in the current litigation on behalf of the Columbia-Snake River Irrigators Association. But, Buchal says, Redden also is "trapped by these misconceptions about fish and rivers and harvest." As a result, he says, Redden's rulings are "unmanageable and irrational." Buchal's recusal motion is pending before a federal appeals court.

Some legal scholars, however, say Redden is simply doing what the law and Supreme Court rulings compel him to do.

"When you see him taking charge of changing the Columbia River hydro system in that way, it says the violations of the law are not only serious but repeated, and he's convinced if he doesn't take a stronger role, the problems aren't going to cease," says

Pat Parenteau, director of the Vermont Environmental Law Clinic, a professor at the Vermont Law School and one of the nation's pre-eminent Endangered Species Act experts.

How far will Redden go if the federal government doesn't deliver a legal salmon recovery plan next year? Federal courts have taken over schools, prisons, sewage treatment plants and -- when Oregon and Washington refused to honor tribal treaty rights -- fisheries management on the Columbia River. In fact, the U.S. District Court in Oregon still oversees the treaty fishing case.

"He has the inherent authority to do whatever he thinks is necessary to bring the federal hydro system into compliance," Parenteau says.

That's exactly what Buchal fears.

"The only parallel is the civil rights era, when judges took over school districts in St. Louis," Buchal says of a situation in which Redden would run the hydro system. "They have a beautiful school system they cannot afford to maintain, and school achievement is as low as it's ever been."

But Mary Wood of the University of Oregon disputes Buchal's example.

"The state of schools in St. Louis today have very little to do with the court's action during the civil rights era," Wood says. "During the fishing wars, the courts -- by necessity -- had to take control of harvest management for a time in order to uphold the tribes' treaty property rights. This judicial control had a successful outcome because it forced the states to work out a management plan with the tribes."

Lawyers and scholars familiar with Redden's work say he is a man of considerable restraint who does not relish the thought of running the river.

"I can remember (Redden) saying federal judges shouldn't run the Columbia River back when he was attorney general," says attorney Nash, who now is at Seattle University. "Consequently, I don't believe he would make any significant ruling regarding the river or the fish runs unless he's convinced the federal agencies won't comply with the law."

Yet Wood believes Redden is serious when he warns the agencies that he won't tolerate another inadequate salmon recovery plan. "The federal agencies have had their time, and they have squandered it," Wood says. "At a certain point, a species has a death sentence with very little time left."

Quiet thunder

It's another standing-room-only day in Redden's courtroom despite the stellar weather outside, the last sunny spell before winter's gray deluge settles over western Oregon. Some 20 attorneys are on hand along with a horde of litigants: federal bureaucrats, representatives of irrigation districts and other groups and industries that benefit from the dams; and members of organizations fighting to recover wild salmon and steelhead in one of the most dammed watersheds in the world. Redden has called this crowd together for a quarterly progress report, part of his effort to avoid having to overturn another biological opinion.

The air soon is thick with a bewildering mix of acronyms, legalese and agency-speak delivered with Sunday-sermon earnestness. Redden listens attentively, rarely interjecting himself during nearly two hours of dense rhetoric. When he finally speaks, it's a strain to hear his soft, congenial voice from the back of the courtroom. And it's impossible to miss the thunder of his words.

When the federal government submits its next salmon restoration plan -- its third attempt since he's inherited the case -- Redden says, he will make sure the plan accomplishes what the Endangered Species Act requires. "And if it doesn't," Redden says, "I will dispose of (the plan) and take, I think, more dramatic actions."

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History of a decline

Pre-European settlement
The Columbia/Snake River Basin produces between 10 million and 16 million salmon, making it the most bountiful salmon spawning ground in the world.

1933
President Franklin Roosevelt authorizes Bonneville Dam about 40 miles east of Portland, Ore., the first major dam on the Columbia River.

1945
Congress approves construction of the four lower Snake River dams to make Lewiston, Idaho, a port. The resulting barge transportation will supplant existing rail and trucking operations for moving Inland Northwest wheat crops to Portland for overseas shipment. Fearing the dams will wipe out Idaho's legendary salmon and steelhead, fisheries agencies begin a long battle to stop them.

1952
The U.S. Army Corps of Engineers refuses to publish a report by biologist Harlan Holmes that predicts each Columbia and Snake river dam will kill 15 percent of the juvenile salmon migrating downstream to the ocean. Holmes' forecast will prove highly accurate.

1955
Congress finally appropriates money for the first Snake River dam.

1961
Ice Harbor Dam, the first of the four Snake River dams, is completed.

1975
Lower Granite Dam, the last of the four Snake dams, is completed.

1988
Snake River coho are declared extinct.

1991
Snake River sockeye become the first of 13 stocks of salmon and steelhead to be listed as threatened or endangered.

1993
The Idaho Department of Fish and Game sues the federal government over its plan -- or biological opinion -- for saving salmon.

1994
U.S. District Judge Malcolm Marsh of Portland overturns the biological opinion with a stern rebuke of the federal government for its lackluster salmon recovery effort. The National Marine Fisheries Service issues a new opinion that is immediately challenged as having many of the same flaws.

1997
As the 1994 biological opinion is being challenged, the National Marine Fisheries Service writes a new salmon recovery plan. As a result, the 9th U.S. Circuit Court of Appeals dismisses challenges to the 1994 biological opinion as moot. The new salmon recovery plan is upheld by the courts.

2000
National Marine Fisheries Service issues new biological opinion. U.S. District Judge Malcolm Marsh takes senior status and relinquishes the Snake River salmon case. U.S. District Judge James A. Redden agrees to take over.

2001
Conservation groups, commercial and sport fishermen, tribes, and businesses file legal challenge to biological opinion.

2003
Judge Redden throws out biological opinion and gives federal agencies 18 months to craft a legal, effective salmon recovery effort.

Summer 2004
Judge Redden orders the U.S. Army Corps of Engineers to continue releasing extra water through dam spillways Ð a measure that aids juvenile salmon migration to the sea Ð for the duration of the summer. The Corps had plans to stop the releases midsummer.

November 2004
National Marine Fisheries Service issues new biological opinion declaring dams a natural part of the landscape, and therefore freeing the agency from obligation to offset harm the dams inflict on salmon and steelhead.

December 2004
Conservation groups, fishermen, tribes and businesses file legal challenge to this new biological opinion. May 2005 Judge Redden again throws out the biological opinion. Federal agencies appeal to the 9th U.S. Circuit Court of Appeals.

June 2005
Redden orders the U.S. Army Corps of Engineers to release additional water through the spillways to aid juvenile salmon migration.

July 2005
9th U.S. Circuit Court of Appeals upholds Redden's order for additional water releases over the dams.

Summer 2006
Judge Redden orders additional water releases over the dams to aid juvenile salmon migration.

Fall 2006
Just three Snake River sockeye Ð all hatchery fish Ð make the 1,000-mile journey from the Pacific Ocean to Redfish Lake in central Idaho. Wild Snake River sockeye are essentially extinct.

July 2007
Deadline for the federal agencies to submit a new salmon recovery plan for the lower Columbia River system. The upper Columbia and Snake River recovery plan is due four months later.