[3] Judge Questions Legality Of BiOp Additions
With less than a week before they squared off in his courtroom, U.S. District Judge James Redden was still trying to get federal agencies and environmental and fishing groups to agree on a plan to manage the Columbia River for the next 10 years.
But chances of a settlement seemed slim to none before they were scheduled to meet on Nov. 23 in Redden's courtroom to consider the Obama administration's additions to the hydro 2008 BiOp (see story 2).
The additions went through a review that included a semi-secret independent scientific exam. That exam pronounced the overall salmon plan "sound," and even better after the add-ons, which were housed collectively in an addition called the Adaptive Management Implementation Plan (AMIP).
But in letters sent to parties in the litigation, Redden wondered if the add-ons were even legal. The AMIP included some of the recommendations Redden made in a May 18 letter outlining his concerns. At the time, he said the BiOp, as it stood, was not likely to pass his muster.
But the judge now even questioned whether NOAA Fisheries could legally add the AMIP to the hydro BiOp, and whether the court could even consider it in a ruling on the pending motions for summary judgment on the legality of the feds' latest salmon plan.
"Is the AMIP part of the BiOp, or an impermissible post hoc rationalization?" the judge asked, using language borrowed from plaintiffs.
Redden also questioned why the documents presented by the feds for in camera review to supposedly back up the AMIP were being withheld from public review. He pointed out that if the AMIP were part of the BiOp, some of these documents should be part of the administrative record.
He also wanted to know if the feds could reinitiate consultation for the sole purpose of inserting the AMIP into the record "... and/or making it part of the final agency action? What steps would be required. Will defendants take those steps?"
He asked the litigants if the court could remand the 2008 BiOp for the "limited purpose" of including the AMIP and its supporting documents.
Those questions seemed to cheer some BPA customers. Terry Flores, executive director of Northwest RiverPartners, said it seemed like the judge was looking for a way to get the AMIP into the BiOp.
However, Redden also asked for advice on how to proceed if he concluded that the Obama add-ons were a "post hoc rationalization," so that it was not proper for the court to review the AMIP.
"Should I simply rule on the pending motions for summary judgment without considering the AMIP?" he asked.
He reminded the parties that his May 18 letter had noted that the BiOp "appears to be flawed," and said federal defendants needed to convince him that the AMIP was properly before the court, or take the necessary steps to include it in the BiOp.
"I am still hopeful that Federal Defendants can make this BiOp work, but they cannot sidestep requirements of the APA [Administrative Procedures Act]."
In a long footnote, the judge said the feds had misinterpreted his May 18 letter. He said he did not "invite" them to circumvent the APA and develop additional actions to bolster the BiOp, but was trying to help the parties in "jointly exploring all possible legal avenues," to come up with a solution.
According to Redden, his May 18 missive was intended to move the parties toward a settlement, not "an invitation to 'further explain' the final agency action."
Redden said it was difficult to see how the feds' unilateral development of added mitigation and contingency measures could be characterized as an "explanation."
Plaintiffs had turned down a chance to meet with all parties back in August, which could have included mediation. Instead, they wanted a private meeting with the feds, with certain preconditions of their own, which the feds abruptly turned down.
In an August filing with the court, plaintiffs said it appeared the feds "either intentionally or unintentionally substantially misread" their position outlined in an earlier letter that called for a status conference--which necessarily would have included 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. By then, plaintiffs were well aware the new administration was going to support the ongoing salmon plan.
Without any explanation, the judge denied the plaintiffs' request and gave Obama officials more time to study the BiOp.
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.
When the AMIP was released Sept. 15, the feds said in a response to the judge that they had tried outreach with the plaintiffs, but the talks went nowhere and they did not believe that "continued discussions in an effort to reach a global resolution would be fruitful."
In their response to the court, the feds also argued that the AMIP was legal because it followed the judge's line of thinking in his May 18 letter that referred to the concept of "adaptive management" being flexible enough to allow the implementation of additional or modified actions under the existing BiOp.
The feds say the AMIP was simply a further refinement of the RPA [Reasonable, Prudent Alternative] implementation of the hydro BiOp.
In a Nov. 18 letter to all parties, the judge asked them to be ready on Nov. 23 to discuss whether the feds' promise to develop new, equally effective mitigation actions through "adaptive management" squared with the requirement that the actions should be fairly specific and "reasonably certain to occur."
But he also put plaintiffs on the spot, asking the state of Oregon, the Nez Perce Tribe, and environmental and fishing groups whether the AMIP contained positive measures that would enhance the BiOp, and what other measures they wanted to implement. And "as a practical matter, what more can Federal Defendants do?"
The judge also wanted to know why the feds weren't ready to implement certain actions now to improve listed species, rather than wait until their numbers dropped so much as to trigger contingencies.
Redden wondered why the feds still withheld certain documents from public review that may or may not have supported the feds' claim that the AMIP was based on the best available science.
"How can the court properly evaluate whether federal defendants did in fact use the best available science when they refuse to disclose the 'science' that was used to develop the AMIP?" the judge asked. "How do Federal Defendants justify withholding these documents?"
Redden ended his letter by acknowledging that the feds had made a good-faith effort to address the original flaws in the 2000 BiOp, especially by working with other parties "to attempt to ensure" that the new BiOp's tributary and estuary mitigation actions are reasonably certain to occur.
But he said the feds could still "do more to ensure that those habitat actions are reasonably certain to result in the predicted benefits. The AMIP suggests that they agree," he added.
In their last filing on Oct. 23, the feds defended the habitat improvement actions in the BiOp, but said survival benefits were not guaranteed because the kind of standard that plaintiffs want was impossible to achieve.
Redden told all parties he wanted them to focus on the AMIP's positive attributes and suggest additional measures to improve the BiOp--either through negotiation or "appropriate procedural avenues."
The word from the federal trenches was that Redden's missives were greeted with "muted pessimism."
It was fairly clear what plaintiffs want before they would be satisfied. Oregon Gov. Ted Kulongoski was blunt about that in a recent op-ed in The Oregonian, where he said he wanted a more aggressive approach to hydro actions--more flow and spill at dams, a reservoir drawdown at John Day Pool--and getting lower Snake dam-breaching studies under way now so their removal can begin if the fish "are not on a clear path to recovery within 10 years."
RiverPartners' director Flores said it was pretty clear the judge thought highly of the AMIP and wanted to get it in the BiOp. She hoped that Redden noticed that a lot of what Oregon wants is already there, and would be triggered by declines in fish populations.
Federal attorneys have already pointed out that many studies would have to be completed before a drawdown at John Day or dam breaching could be judged beneficial to the Snake River stocks.
Lower Columbia tribes did not seem too concerned about the prospects of latest courtroom face-off. Charles Hudson, spokesman for the Columbia River Inter-Tribal Fish Commission, said the Accord tribes were focused on implementing Fish Accords projects.
"No one here is burning daylight trying to figure out whether the APA concerns are a tweak or a poison pill."
The feds have since released documents and emails turned over to the judge for his review. One included a synopsis from a government staffer who attended a July meeting between independent scientists and NOAA head Dr. Jane Lubchenco, where they told her that the science behind the BiOp could not have been done better. The panel had reportedly said dam breaching would take a very long time, and would have very positive effects in the long run, but extremely negative short-term effects could negate the long-term positives. -B. R.
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