[2] Feds Come Out Swinging Against BiOp Judge In Appeal Brief

The federal government seems to have come down with a severe passive-aggressive disorder during the latest remand. In an April 3 status update on the new BiOp, they told U.S. District Court judge James Redden that the process is proceeding apace in collaborative fashion, though some fundamental disagreements remain. They pointed out that 12 different technical groups are grappling with the "best, available science" in the new remand, and that the groups are composed of federal, state and some tribal scientists, along with "observers" from environmental and BPA customer groups.

But a few days later, in a brief filed in the 9th U.S. Circuit Court of Appeals that deals with their appeal of the 2004 BiOp, the Justice Department said Judge Redden didn't have the right to dictate the terms of the remand, including the call for collaborating with other sovereign entities.

Predictably, the feds' took issue with Redden's ruling that the government's 2004 jeopardy analysis was flawed because the analysis separated the existence of dams from the operation of dams, and compared fish survival estimated from proposed operations to that of a hypothetical "reference" operation that was maxed-out for fish survival.

The federal analysis had found dam operations did not jeopardize survival of the ESA-listed salmon. Furthermore, Judge Redden had said the government must count all the other bad things that happen to the fish cumulatively when weighing fish losses from dam operations.

The feds say the 2004 BiOp that Redden threw out was a product of their "best, available science," and that the new methodology they had developed was created to satisfy the court's concerns over the 2000 BiOp, which Redden threw out in 2003.

They said it was "inherently impossible for the agency to make informed projections 100 years into the future and across the species' range, as it had attempted to do in the 2000 BiOp, while at the same time limiting consideration only to the proposed action and to the environmental baseline and cumulative effects within the action area."

The feds said the judge's ruling on the 2000 BiOp had rejected the long-term, range-wide approach and related "scientific tools" used in that document.

But in the new remand, the government has gone back to the standard convention in conservation biology to assess extinction risks of the listed stocks over the next 100 year, hoping to get that risk below 5 percent.

Plaintiffs in the BiOp litigation will respond to the government's arguments by the end of the month, but won the first round when the Niners OK'd a motion by Earthjustice attorneys to use the same three-judge panel that granted more spill for last summer's operations after a hearing in Seattle.

That panel was mentioned in an amicus brief filed by a Columbia-Snake irrigators' group that supported the government's appeal. The brief noted that the panel amended its earlier opinion after a government attorney said the dams killed up to 86 percent of the fall chinook in the Columbia and Snake rivers.

The panel admitted that a "non-trivial" level of mortality would occur in a free-flowing river, but irrigators' attorney James Buchal said the court had "still not gotten it right." He argued that most of the fish mortality in the rivers is natural, and that any mortality from dams is not the product of operational choices, but from other factors, like the decisions to build them, long before the ESA was written.

The state of Idaho also supported the NOAA Fisheries appeal, arguing that the feds' jeopardy analysis was proper and the agency was due deference in its judgments. Idaho also said the district court was wrong when it supported the plaintiffs' argument that all the adverse actions to salmon had to be added to the proposed effects from dam operations before the analysis could be completed --B. R.

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