[4] BiOp Plaintiffs Charge Feds With Changing Directions In Remand

At last Friday's status conference on the hydro BiOp remand case (NWF v. NMFS) in Portland, plaintiffs' attorney Todd True told U.S. District Judge James Redden his clients were concerned federal agencies were "changing horses in midstream," and sidestepping the federal agencies' so-called 'gap' analysis to estimate improvements needed to boost ESA-listed fish populations from current to viable levels.

True pointed to a memo from NOAA Fisheries regional head Bob Lohn that True said suggested the agency may be softening its analysis on proposed hydro operations and whether they jeopardize the survival and recovery of ESA-listed salmon. The memo said the agency might judge proposed mitigation measures sufficient as long as listed fish populations are "trending towards recovery" within "a reasonable time."

U.S. Department of Justice attorney Robert Gulley said the plaintiffs were just trying to draw the court into the issue, because they had not expressed any earlier concern about Lohn's memo during the normal workings of the collaborative policy group dealing with the remand.

Gulley urged the judge not to even comment, but to let the collaborative process continue in the Policy Work Group. He said the memo doesn't detract from the feds' commitment to the conceptual framework outlined at the beginning of the process. He pointed out that filling the gap leads to delisting the stock, not avoiding jeopardy, so concern over not reaching these goals over the 10-year term of the BiOp is misplaced.

There was also discussion over memo language that said the feds' "trending toward recovery" idea would satisfy Redden if the agencies' analysis finds the proposed action, along with other federal and non-federal actions, would reverse any trend towards extinction.

If fish numbers were going up, BiOp actions would not be jeopardizing listed stocks, and would more than satisfy ESA language that says actions are permissible if they "do not reduce appreciably" survival and recovery of listed species.

Critics of the feds' memo said later it would put the government on the spot for making sure all the runs keep going up, no matter what, when dips could occur from other factors like a downturn in ocean conditions.

Gulley told the judge there was a semantics problem, and the term "gap filling" was being used in a number of ways. He said the feds don't believe they are required to get the gaps filled in the BiOp.

But Redden said his duty is to see if the next BiOp meshes with the ESA, and if it doesn't, he will "dispose of it" and take "more dramatic actions." -B. R.

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