[5] Enviros Want Judge To Reconsider Upper Snake BiOp Decision

Plaintiffs in the Upper Snake BiOp litigation (American Rivers v. NOAA Fisheries) have asked Oregon District Court Judge James Redden to reconsider part of his May opinion that threw out the Upper Snake BiOp and ordered the feds to look at the Bureau of Reclamation' water storage operations in the context of other federal actions in the lower Snake to help ESA-listed salmonids.

Plaintiffs wanted both upper and lower Snake BiOps to be joined, but Judge Redden ruled that it was up to federal agencies whether they wrote one or two opinions to satisfy his ruling.

Now plaintiffs say Judge Redden should order that a single opinion be written to cover both operations, because of a June decision in the Ninth Circuit Court (Defenders of Wildlife v. EPA) that said that different actions should be analyzed together, if together they might affect the listed species.

Redden has said that the federal agencies had the discretion to write one or two biological opinions as long a they complied with Justice Burger's admonition to "halt and reverse the trend toward species extinction whatever the cost." (TVA v. Hill).

But plaintiffs say that the Niners' decision means that that an action like the upper Snake operations may have multiple causes "and still be related to another action under the "but for" test of Sierra Club v. Marsh, as long as that other action (operation of the downstream dams) is one of the causes for the upper Snake project operations."

So far, the state of Idaho has responded, and they say the plaintiffs have got it backwards, and that the case environmental attorneys cite does not provide any legal basis for reconsidering Redden's opinion.

On June 14, Judge Redden ordered that all parties submission of proposals for a remand structure will be due a week after he rules on the plaintiffs' request for partial reconsideration. -B. R.

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