[4] Obama Administration Gets More Time To Study BiOp
BiOp Judge James Redden granted the Obama administration another 45 days to study the latest hydro BiOp, after Justice Department attorneys requested extending a June 30 deadline.
The DOJ's June 19 letter to the judge noted that the new leadership conducted listening sessions May 26 with technical personnel and sovereign parties, and planned another session June 25 for non-sovereign parties to the BiOp litigation.
The feds now say they will advise the court of the administration's leadership perspectives on the BiOp and "on whether further discussions are warranted."
The new administration has three choices--to defend the BiOp as is, work with plaintiffs on a settlement, or toss it out and start all over again.
In the end, it comes down to whether they accept the judgment of their own scientists, or side with plaintiff environmental and fishing groups, Oregon and the Nez Perce Tribe, who support long-standing beliefs in more flow, spill and dam breaching.
New NOAA head Jane Lubchenco was in Portland for the May 26 session, and sources said she is taking a special interest in the scientific issues related to the latest salmon plan.
However, at this stage, all parties are still where they were in April, committed to jointly exploring "all legal avenues" for settling on a BiOp.
The June 25 session had several defendant- and plaintiff-intervenors in Washington, D.C., for a chance to air their perspectives, after a recent media blitz by both sides on the salmon plan and the pros and cons of breaching Snake River dams.
Terry Flores, executive director of Northwest RiverPartners, headed back to D.C., after the alliance of ports, farmers and businesses issued a statement saying they were counting on the new administration "to send a strong signal to the judge in favor of the BiOp. That signal has the potential to put the Northwest on a positive path toward salmon recovery. Without it, there is a great risk of more extensive litigation, involving not just this BiOp, but others covering harvest and the Upper Snake River/Nez Perce agreement, which are linked to it."
They said though the 10-year plan's $10-billion cost "hasn't been easy to swallow, we've accepted it as part of an historic opportunity to bring about a resolution to litigation and provide constructive actions to help fish."
Earthjustice attorney Todd True, along with attorneys for the state of Oregon and the Nez Perce Tribe, penned a June 24 letter to Redden emphasizing the need, in their view, "for actual, substantive engagement by the new administration and federal agencies" and themselves, "to explore options for resolving our differences and developing a comprehensive solution, both for the future of ESA-listed salmon and steelhead and to address federal, state, tribal and other concerns."
In a May 18 letter to all parties, Redden applauded the new administration for its "efforts to become more fully engaged in the complex issues presented in this case," then laid out a slew of recommendations for a possible settlement. That letter destroyed the optimistic sentiments most BiOp defenders nurtured after his March hearing, where he told everyone that it "was a pretty good BiOp."
Redden also suggested more flow and spill at dams, more habitat actions, and the inclusion of a contingency plan for the listed stocks that includes the study of breaching the four lower Snake dams, if habitat improvements and other actions fail to keep the stocks from avoiding jeopardy.
In short, it seems that Redden is prepared to deny the salmon plan as is. In his letter, Redden reiterated his concerns over the feds' analysis, and said their conclusion that all 13 listed ESUs in the Columbia Basin were heading toward recovery was "arbitrary and capricious" for a bevy of reasons.
He also complained that the feds had not offered a "rational explanation" for why the BiOp calls for spilling less water than his temporary court order that is in effect again this spring and summer.
The feds are privately scratching their heads over this one, since they have already argued in Redden's court that their survival passage analysis shows that ESA-listed steelhead would benefit from less spill and more barging for several weeks in May.
An independent panel of scientists had earlier agreed with the feds' appraisal, which also found little to no correlation between spill and adult returns. But the panel said more barging might hurt ESA-listed sockeye, although they acknowledged there was no data to support that conclusion.
The judge sided with the science panel's recommendations, which irked some, who felt the panel had strayed out of scientific matters and into the policy arena.
Now, federal scientists may be in an awkward position with the new administration, if it wants to placate the judge, since they can't very well discount their previous computer passage analyses. In fact, it has been reported that a recent update of their spill and transport research, using data from 2006 and 2007 adult fish returns, adds even more weight to their original conclusion.
But the judge wants the feds to agree to spill more water over the 10-year life of the BiOp. That could be a deal breaker, since NMFS officials say privately that would doom millions of ESA-listed young steelhead that would have otherwise made it to adulthood by being barged downstream. All out of concern for potential adverse effects on a few hundred hatchery-raised ESA-listed sockeye?
A few years ago, a similar panel of independent scientists suggested pulling the plug on the entire program for the Redfish Lake sockeye captive broodstock program, because the stock was too far gone to be saved by the questionable supplementation effort.
Some say they trust Lubchenco to stick with her troops, but others caution that at this stage in the evolution of the region's latest BiOp, the science has definitely been trumped by political considerations. -Bill Rudolph
The following links were mentioned in this story:
Subscriptions and Feedback
Subscribe to the Fishletter notification e-mail list.
Send e-mail comments to the editor.
THE ARCHIVE :: Previous NW Fishletter issues and supporting documents.
NW Fishletter is produced by Energy NewsData.
Publisher: Cyrus Noë, Editor: Bill Rudolph
Phone: (206) 285-4848 Fax: (206) 281-8035
