1] Judge Finds Hydro BiOp Legally Flawed
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by private consultants included in the BiOp analysis, and stuck with an earlier NMFS status review already years out of date, and said, "It is apparent that the listed species are in serious decline and not evidencing signs of recovery."
In his May 26 opinion, Judge Redden took issue with every major point made by federal attorneys in their defense of the document that found proposed operations for the federal hydro system would not jeopardize the ESA-listed species in the Columbia Basin. He had already found the 2000 BiOp wanting (NWF v. NMFS) and ordered NMFS to rewrite it because the offsite mitigation activities designed to boost fish populations weren't reasonably certain to occur.
After much internal debate, NMFS completely changed its method of analysis the second time around -- by separating the fish mortality caused by the dams' existence from that caused by their operations -- and tried collaborating with regional fish managers on its development, with less than limited success.
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.
Nor did he accept the agency's analysis that it should only consider the effects of actions over which it had discretionary authority.
"This has the effect of substantially lowering the threshold required for the mitigation elements of the proposed action," wrote the judge, who said, "only a comprehensive approach to jeopardy analysis will meet the statutory mandate." He said that the feds' analysis wasn't comprehensive enough to ensure that federal actions wouldn't likely jeopardize listed fish. Redden also found fault with the agency's critical habitat determination and said the agency was wrong to compare, rather than aggregate, the effects of the proposed action.
Ruling against a BiOp challenge by several irrigators associations at the same time, Redden said the government was proper to include tribal harvest in the environmental baseline by which jeopardy is analyzed, and to include non-tribal harvest in the area of cumulative effects.
Redden also sidestepped any thorny scientific issues, saying he declined to rule on the irrigators' other main argument that the science used in the BiOp analysis was "junk" because he had already found the 2004 BiOp invalid for other reasons, thus their motion for summary judgment was moot.
The ruling means that the injunctive process -- begun earlier this year by plaintiff groups to change the BiOp's proposed summer actions -- will continue. In fact, Redden scheduled a June 10 court date for oral argument in the matter. The feds want to barge as many fish as possible out of the Snake River to bypass lethal low flows in this low water year. Plaintiffs want to rely less on barging, and instead improve inriver survival using a combination of reservoir drawdowns, more spill, and flow augmentation.
"If the plaintiffs' motion were granted by the court, we expect the cost of this year's operation for our system would go up over $100 million," said BPA Administrator Steve Wright. "These additional costs would have to be borne by Northwest ratepayers."
Regional NMFS administrator Bob Lohn called the plaintiffs' proposal risky and speculative. "The region cannot afford to depart from sound science in protecting these species at risk."
A statement from the BPA Customers Group involved in the litigation said the ruling is a setback in the region's salmon recovery efforts. "Science and expertise -- not litigation -- should drive these efforts," said the Group's press release. "It is time to move these issues out of the courtroom and let the federal agencies, which have the expertise in these matters, do their job of managing the river and the hydropower system. Despite this ruling, the BPA Customer Group will continue to work strenuously -- as it has for decades -- with federal agencies to achieve salmon recovery in the Columbia Basin."
But lower Columbia tribes applauded the judge's decision. "Judge Redden's opinion is well-grounded, comprehensive and unambiguous," said Olney Patt Jr., executive director of the Commission. "We now have the immediate task of securing protections for this summer's migration. This is still a low-flow year and protecting the many summer and fall juvenile migrants is important for any long term rebuilding effort."
Redden ruled that his order is not yet final, therefore not appealable. Justice Department attorney Fred Disheroon said the situation should become more clear after the June 10 hearing on the plaintiffs’ motion to change summer operations. Others had expected for some time that the BiOp will eventually be headed for the Ninth Circuit Court for resolution.
Some attorneys have found in Redden’s ruling a yearning to go back to the previous BiOp with its strong reliance on offsite mitigation to help improve listed salmon stocks. However, Disheroon said "we don’t think we can legally go back to the 2000 BiOp." - Bill Rudolph
The following links were mentioned in this story:
Judge James Redden's Ruling, May 26, 2005
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