[2] BiOp Plaintiffs Turned Down Settlement Talks

Plaintiff groups in the hydro BiOp litigation turned down an Aug. 17 invitation by the federal government to meet with "all parties" to see if a settlement over the 2008 salmon plan could be reached before the Obama administration announced its final position on the BiOp on Sept. 15. The feds suggested a mediator might help, as well.

But in their Aug. 19 response, plaintiffs said "no way," and presented a set of conditions to the feds before they would consider a meeting with only the feds minus "all parties."

The plaintiffs said it appeared the feds "either intentionally or unintentionally substantially misread" their position outlined in an earlier August filing in U.S. District Judge James Redden's court that called for a status conference.

They wanted a status conference--which necessarily includes all parties to the BiOp--to voice their concerns about the process the Obama administration was going through to develop its final position on the hydro BiOp.

Plaintiffs told the judge they had not had any "meaningful engagement" with agencies and the administration to determine whether further talks were warranted.

Up to that point, plaintiffs had presented their positions to administration officials in a pair of hour-long "listening sessions." Defendant-intervenors got equal time. Federal officials also heard from agency scientists and independent ones, as well, who weighed in on the scientific merit of the salmon plan.

However, after reviewing some documents and emails garnered through the FOIA process, plaintiffs said it was clear the administration was moving forward to accept the "Bush" salmon plan, and that deficiencies in the 2008 BiOp, identified by both plaintiffs and the judge, "apparently have been largely ignored or down-played."

The judge denied their request Aug. 12. Five days later, the administration offered to meet with "all parties."

Then plaintiff attorneys wanted the administration to put its position in writing before the feds' Sept. 15 deadline for reporting to the judge so their clients could review it before any possible meeting.

If they decided to meet with the feds, plaintiffs said they expected it to include only federal defendants and the National Wildlife Federation, the state of Oregon, and the Nez Perce Tribe, not "all parties."

They also wanted any potential facilitator to be appointed or approved by the court, not an employee or contractor employed by the feds, along with "clear, written assurance from the federal defendants committing to engage in substantive discussions about the elements we have consistently articulated as necessary to resolve this case."

Some of those elements were likely deal breakers for supporters of the salmon plan.

In May, Earthjustice attorneys sent a letter to the Obama administration echoing an earlier letter they sent to Redden calling for throwing out the "trending towards recovery" jeopardy standard used by the feds in the 2008 BiOp.

The attorneys said a revised analysis would show "in simple terms, how deep is the hole in which we find ourselves." They said it would also recognize the need for more flow and spill, seasonal reservoir drawdowns, and breaching the four lower Snake dams to avoid jeopardizing the ESA-listed salmon and steelhead stocks, along with more evaluation of habitat mitigation actions and effects of hatcheries and global warming.

Department of Justice attorneys Coby Howell and Bridget McNeil responded in an Aug. 25 letter saying the plaintiffs did not accurately represent the administration's efforts.

"Specifically, we would note that the Federal agencies have had meetings with your clients [Northwest Wildlife Federation, Oregon, Nez Perce Tribe] designed to further explain the Administration's current position and hear feedback from your clients," it said.

The feds' letter said those meetings included discussions with "high level administration officials," and "have allowed us to continue to modify our position as we move forward."

The feds said they would be willing to meet with the plaintiffs alone, but sovereign states and tribes that supported the BiOp still need to be consulted "and agree to any proposal resulting from such a meeting."

However, the feds flatly excluded any possibility of getting their position down on paper for the plaintiffs before the Sept. 15 date for reporting to the judge. They also said the other preconditions requested by the plaintiffs were not necessary "to a meaningful discussion on whether there is common ground that can be achieved, based on the Administration's review, and we are hopeful that you can agree to a discussion without these preconditions."

In a footnote, the feds said they had met individually with each plaintiff to explain the administration's process and position on the FCRPS BiOp, "so that you do have information to evaluate before determining whether you would like to meet with us further. We understand that it would be preferable to have this information in writing, but note that other parties, including the state of Oregon, have been able to provide input based on these oral presentations."

The feds suggested a Sept. 2 meeting in Portland. It was reported a meeting was actually held between Earthjustice attorneys and administration attorneys in Washington DC on that day, but the two sides found little common ground and no reason to continue talks. Soon after, word was trickling out that the Obama administration was going to stick with the overall BiOp, but adding some tweaks that would hopefully satisfy the judge. -B. R.

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