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NW Fishletter #251, September 4, 2008

[2] Judge Says No To BiOp Science Review

Federal District Court Judge James Redden ruled Aug. 21 that the new BiOp will not get any independent scientific scrutiny before he decides whether to throw it out.

Plaintiff environmental and fishing groups are mounting a challenge to the new salmon plan and have asked for such a review. Redden spent the afternoon of Aug. 21 listening to the pros and cons of putting together an independent panel to weigh in on the salmon science used in the hydro BiOp released last May.

But attorneys for the defendants, especially Coby Howell from the Department of Justice, evidently swayed the judge. Redden had posed a few questions to all parties, including whether it was even legal to convene such a panel before he had ruled on summary judgment.

Even Earthjustice attorney Todd True admitted there was no precedent for such an action. Others pointed out that if such a course were followed, there was a good chance it would be reversed since it raised serious issues of legality.

But Redden left the door open for the possibility that a panel of independent scientists, likely picked from former ISAB members, could be used to answer narrow, technical questions during litigation over a preliminary injunction. However, federal attorneys argued the timeframe for injunction proceedings was too short to institute a panel. Besides, they felt the main issues in the new BiOp had already been vetted by the ISAB or were in the process thereof (the ISAB is expected to release its review of the new BiOp's fish transportation strategy at the Sept. 17 meeting of the Northwest Power and Conservation Council).

Plaintiffs are expected to file a motion for preliminary injunction by Oct. 1 challenging current reservoir operations--especially flood control constraints--because they want more water for fish flows.

They were joined by the state of Oregon, whose attorney, David Leith, also argued for a science review before the judge rules on summary judgment.

The Nez Perce tribes weighed in with plaintiffs in the call for more review. Tribal attorney David Cummings said the tribe was still committed to the Upper Snake BiOp agreement, but was maintaining its position as a leading advocate for breaching the four lower Snake dams.

The other three lower Columbia tribes, along with the Colvilles, have now joined defendants in support of the BiOp and said no further review was necessary. The Salish-Kootenai tribes also voiced support for the new salmon plan.

The Spokane tribe has switched sides since the litigation over the 2004 BiOp, and now supports the plaintiffs' challenge. They said it would take an independent review to ensure the BiOp used the "best, available science."

The other three Northwest states expressed support for the feds' position. Mike Grossman, from Washington AG's office, said his state biologists just "rolled their eyes" when he asked them about using an independent panel. He said the region has argued for decades about the science and the region needs a decision with NOAA as the final decision-maker. "To referee the referee is inappropriate," he said.

Representing Montana, attorney Mark Stermitz said the new BiOp is nothing like its predecessor. He said it takes an ESU-by-ESU approach, "doing what the judge wants," and its efficacy will be decided by its All-H approach [improvements to habitat, hatcheries, harvest and hydro], rather than more debate on flow and spill issues.

Near the end of the hearing, Earthjustice attorney True argued that the new BiOp was not really a product of collaboration, since debate over science issues had been elevated to a policy workgroup.

He was doing his best to counter the feds' characterization of the new salmon plan, with its hundreds of millions of dollars in extra projects for tribes to improve fish habitat, as a product of years of meetings and representing a new paradigm for parties in the region.

DOJ attorney Howell said the latest BiOp collaboration was maybe the first time that federal agencies really listened to the other sovereigns.

"We did that at your order," he told the judge.

Redden said he would deny the motion to form a science panel, though no party had actually filed one, and told the litigants to get on with their briefing over the new round of litigation.

He complimented the BiOp parties for "a remarkable effort," but cautioned that very likely there will be "holes" in the new BiOp.

However, he wondered out loud whether that would be enough to "throw the whole thing out." -B. R.

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