[4] Judge Redden Dismisses Irrigators' Cross-Claims In Upper Snake BiOp Case

U.S. District Court judge James Redden has dismissed cross-claims by three irrigation districts in Oregon. The cross-claims were in response to litigation over NOAA Fisheries' BiOp on Upper Snake River water operations by the Bureau of Reclamation [American Rivers v. NOAA Fisheries and Bureau of Reclamation].

Environmental and fishing groups say the 2005 BiOp violated the ESA because NOAA Fisheries and the Bureau of Reclamation improperly segmented a single agency action. They also claimed that NOAA Fisheries used a jeopardy framework that was fatally flawed. The feds had judged that BuRec's Upper Snake operations did not harm ESA stocks downstream.

The three districts split from the main water users group, which is another intervenor in the lawsuit, and filed claims that challenged the 2005 Upper Snake BiOp, charging that the Bureau had no discretion to divert water from its intended irrigation use.

The three districts argued that each was a separate legal entity with the legal right to file a cross-claim.

Judge Redden disagreed. He said the three districts cannot break off now and intervene on the other side of the case. Besides, the judge said, the issues in the upper Snake case were "intertwined" with issues in the hydro BiOp litigation, now in its second remand. He said an early resolution of the Upper Snake case is "essential to facilitate" the remand. The cross-claim "is counter-productive to that goal."

Redden said if the Upper Snake BiOp survives the plaintiffs' motion for partial summary judgment, then the districts will have plenty of time to assert their cross-claim "in an appropriate forum."

The districts also challenged the NOAA Fisheries harvest BiOp, which authorized the harvest and killing of ESA-listed species, and argued that continuing funding of hatchery programs promotes the decline of the listed species.

But Redden ruled this cross-claim was improper because it did not arise "out of the transaction or occurrence" alleged in American Rivers' claims. He said the harvest BiOp was a separate opinion with its own administrative record. -B. R.

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