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Columbia Salmon Plan Goes Before Judge for Third Try by Warren Cornwall The Seattle Times, February 10, 2009

Perhaps no person has more control over the fate of Columbia River salmon and dams today than a 79-year-old Red Sox fan who doesn't fish or much care for the taste of salmon.

From his Portland courtroom, U.S. District Judge James Redden has scolded top federal bureaucrats like the coach of a losing football team.

He's taken the extraordinary step of seizing partial control of a string of massive government dams, against the wishes of the government. He has even raised the prospect of tearing down dams to make way for endangered fish.

Now, in the twilight of a 47-year political and judicial career, Redden is trying to prod, threaten and cajole to solve a conflict that has vexed the Northwest for decades.

He's expected to rule on the adequacy of a federal plan meant to operate the dams while simultaneously reviving sickly salmon runs. The case is to be argued in his court in early March. If he deems the plan a failure, he has warned of even more court oversight of dam operations.

It's the government's third try with Redden, and - he has warned - their last. At 79, it might be his last chance, too.

The stakes are high. His handling of the case will help shape the future of the West's biggest river, which generates power for hundreds of thousands of homes and once boasted jaw-dropping salmon runs. It also will define a career that has taken Redden from the state capital in Salem to the campaign trail for governor to the federal courthouse.

"We've been going on with this since 1992. We're running out of time," Redden said at a 2005 hearing about the new version of the plan now in front of him. "This time, we're going to do it."

"A real straight shooter"

It would be easy to imagine Redden as someone bent on saving fish at all costs.

But friends, colleagues and legal observers paint a different picture.

Redden's not an outdoorsman or angler - he told one reporter he doesn't particularly like eating salmon. Instead, he's described as a pragmatist using his legal skills and political experience to prod everyone toward a solution.

"I'm sure people think he's some kind of environmental activist. He's not. I think it's about finding solutions as opposed to saying one group is black and the other is white," said Mark Nelson, a friend and former Redden adviser who lobbies for a group opposed to the judge's restrictions on the dams.

Redden declined to speak for this story, citing the sensitivity of the case right now.

His career first crossed with Columbia River salmon three decades ago, before he became a judge. It was 1977, the height of the "fish wars" pitting tribal fishermen against nontribal anglers and their allies, the states of Washington and Oregon.

The adversaries had fought to a virtual standstill in the courts over how many fish each could catch in the Columbia River. So Redden, Oregon's newly elected attorney general, tried something different. He offered to sit down with the tribes and negotiate.

"He was a real breath of fresh air," recalled Tim Weaver, who represented the Yakama Nation in the case. "He's just a real straight shooter, a fair and honorable man in my opinion."

A year later the two sides agreed to a plan to split the salmon.

Humor and pragmatism

Redden was a young trial lawyer from Medford when he was elected as a Democrat to the state House in 1962. The transplant from Springfield, Mass., rose quickly through the ranks and soon became minority leader for House Democrats.

He helped broker a deal on one of the state's landmark environmental laws, a fiercely debated 1967 bill cementing public control of beaches along Oregon's coast.

"Redden was a vital part of getting that solution," said Roger Martin, a Republican lawmaker at the time. "He had a delightful sense of humor and he could take people who were very angry and joke them out of being angry."

Redden went on to be elected state treasurer in 1972. He ran for governor in 1974, losing in a three-way Democratic primary. Two years later he was elected state attorney general. As he finished his term, then-President Carter appointed him to the federal bench.

As a judge, Redden earned a reputation for his self-deprecating humor and his willingness to flex judicial muscles. His political background was unusual for a post more often filled by prosecutors and local judges.

"He was just very pragmatic. And he liked to deal with, 'What's the problem here? What are the key issues? And what's the right solution,' " said Mike Pierson, a Seattle lawyer who clerked for Redden in the 1980s.

Over the years Redden has repeatedly skewered government agencies. He imposed a temporary ban nationwide on a gypsy-moth pesticide, ordered the U.S. Census Bureau to release secret population counts, and halted cattle grazing in parts of southeast Oregon, saying the agency in charge wasn't doing its job.

But the salmon case is defining his tenure on the bench.

Redden joins the ranks of Northwest federal judges whose rulings transformed the politics surrounding an environmental issue.

In the 1960s and '70s, court rulings established Indian treaty rights to half the fish caught in much of the Northwest, giving tribes new clout. In 1991, a Seattle judge temporarily halted old-growth logging in federal forests to protect spotted owls, setting the stage for a political settlement to the old-growth timber wars.

"Judge Redden is now the latest of a long series of magnificently independent federal judges," said Bill Rodgers, a University of Washington professor of environmental law.

Much is at stake

On the salmon case, Redden has twice rejected a federal plan issued by the National Marine Fisheries Service for reviving salmon runs spanning 14 federal hydropower dams on the Columbia River system. He's said the plan doesn't do enough for salmon and steelhead protected by the Endangered Species Act.

His 2005 ruling forcing the release of water from dams to aid fish sent a jolt through Northwest political and legal circles. It effectively put his hands on the levers controlling dams run by the U.S. Army Corps of Engineers and the Bonneville Power Administration.

Since then, the dams have missed out on tens of millions of dollars in electricity - $74 million in 2005 alone - that could have been generated had that water been sent through turbines, according to BPA documents.

The decision was met with scorn by some politicians, including U.S. Rep. Doc Hastings of Pasco, who said it "flies in the face of common sense and amounts to gambling with the survival of these fish and the checkbooks of Northwest families and job-creating businesses."

James Buchal, an attorney representing Eastern Washington irrigators on the case, said Redden and previous judges are misinterpreting the Endangered Species Act to conclude the dams must be run to do everything possible for the fish.

"There's this widespread misperception that dams are killing a lot of fish and that's bad and, who cares what the law is, they must do more," said Buchal, who unsuccessfully tried to remove Redden from the case.

Salmon advocates, meanwhile, say Redden's spill order has been a boon for fish. They point to unusually strong returns of sockeye in 2008 as evidence of its success.

Perhaps more important, the ruling broke through a logjam in which paperwork shuttled back and forth in the courts for years with little substantive change, said Mary Wood, environmental-law professor at the University of Oregon. "He's the first to cut through the agency politics and provide meaningful relief on the river," she said. "He's actually doing what a judge should do, finally."

Momentous decision

Redden has pursued the case with a mixture of encouragement and threats.

He has expressed confidence that a solution is in reach. But his patience also appears to have worn thin. He has warned of a broader court takeover of dam operations if the plan again doesn't pass muster.

He even has made reference to breaching some Snake River dams to recreate a free-flowing river.

" 'Speeching' on the dams will not avoid breaching the dams," he wrote in a 2005 decision - likely a reference to a vow by then-President George W. Bush to not breach dams. "Cooperation and assistance may."

The federal government insists this time it's gotten it right. Officials note that tribes previously fighting them in court now support the salmon plan, after signing a $900 million settlement with the government earlier this year.

"We finally have a practical and comprehensive salmon plan," the Yakama, Warm Springs and Umatilla tribes stated in a court filing. "It may not be perfect, but it's based on the best available science."

Environmentalists, meanwhile, say it's the same old package with new wrapping. They point out that the Nez Percé Tribe, the only one with fishing rights above the Snake River dams, still opposes the plan.

Both sides agree Redden's ruling will be momentous.

If he signs off on the plan, it will deprive environmentalists of a major source of leverage in their push to remove the four Lower Snake River dams. If he rejects the federal plan yet again, and expands court control over the dams, environmentalists hope it will pressure Northwest politicians and the Obama administration to agree on a new way to run the river.

"His court," said Pat Ford, head of the salmon-advocacy group Save our Wild Salmon, "is very important to how this equation moves."