[6] Feds Tell BiOp Judge 'Proposed Action' Ready For Review By April

At a March 9 hearing on the status of the BiOp remand, Justice Department attorney Robert Gulley reported that the action agencies should have a draft proposal for operating the hydro system ready for review by all parties sometime in April. Gulley said writing the proposed action was step 5 of the 10-step process that will culminate in a new biological opinion after July.

Earthjustice attorney Todd True complained that his groups had not been given access to all the information that sovereign tribes and states have received as part of the BiOp collaboration. But Gulley said they would get a copy of the draft proposed action as soon as it was completed, after further refinement during a retreat planned for several days in late April.

Gulley also addressed concerns by the Spokane Tribe that the process was not following the 10 steps, and not using the "gap" analysis as intended by the technical team that had developed them.

Earthjustice attorney True said the Spokanes' concern showed that "there's something here that doesn't add up between what the government is telling you about how well the process is going and what the other parties are telling you about how it's not going."

Gulley responded by telling the judge, "I think we get a clear signal that the plaintiffs, unlike the sovereigns ... seem to be seeking solutions, are not going to be satisfied until the dams come down.

"But they're [plaintiffs] dictated towards preserving their litigation position and preserving their positions to maximize the arguments that they want to make to take the dams down.

"Therefore, their participation, while I think it's important, I don't think is the same participation, nor do they have the same stake that the sovereigns have with respect to what's going on. When [one] recognizes and one has to find compromises, when one recognizes that there are more ways to solve it than just take the dams down."

Judge Redden asked Gulley why the defendants didn't give out the documents now.

"So though that may be what they want," said Redden, "Why don't the plaintiffs then get these documents and work? In the back of your mind, you know they're going to sue no matter how the BiOp comes out."

But True said the government was the one with the litigation strategy, and wanted to have all the documents polished for litigation before they handed them out.

Attorneys for Washington, Montana and the Colville Tribe supported the federal position, and said the collaborative process was generally working, despite a lack of consensus over some issues like "latent mortality."

An independent panel of scientists is expected to produce a report on delayed mortality around April 3, and the judge thought that may be the way to decide other "best science" questions--using a panel "with no axe to grind."

Judge Redden made comments that seemed to indicate he would OK a new BiOp that would keep the dams in place and be similar to the 2000 BiOp with more definitive funding attached to make sure things happened--"something like the 2000 and get the money."

On Mar.27, federal attorneys said they would release an updated proposed action/RPA on May 21 to all parties in the litigation. Both sides suggested to the court that they meet to discuss the plan on June 20. -B. R.

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