[2] Feds Announce Appeal Of 2004 Hydro BiOp

The Justice Department announced Dec. 21 that it will appeal Judge James Redden's ruling earlier this year that threw out NOAA Fisheries' latest plan for operating federal dams on the Columbia and Snake Rivers. The state of Idaho has also indicated it will take part in an appeal.

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 would not jeopardize the ESA-listed species in the Columbia Basin. He had already found the 2000 BiOp wanting (NWF v. NMFS) and had 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.

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.

The notice of appeal means that NMFS, the Bureau of Reclamation and the Corps of Engineers will be heading down two tracks at the same time. Last week, they told Redden they were fully committed to writing a new BiOp and collaborating with plaintiffs as part of the process. They are expected to explain progress in a Jan. 3 update for the judge. It was reported that the feds are developing a massive effort to satisfy Redden's call for collaboration, one that depends on a more formalized process than the previous iteration.

But in a short Dec. 21 press release, federal agencies said they "believe that all legal options must remain open during the remand process. This appeal does just that." It was reported that the Solicitor General's office made the final decision to appeal after getting differing recommendations from NOAA Fisheries and the US Fish and Wildlife Service, with NOAA Fisheries supporting an appeal, but USFWS not -B. R.

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