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NW Fishletter #270, January 21, 2010

[5] Feds Want Limited BiOp Remand

Federal attorneys have told U.S. District Judge James Redden they are OK with a limited, voluntary remand of the 2008 BiOp if it sticks to the matter at hand, by simply adding an adaptive management implementation plan (AMIP) to the BiOp that was written by the Obama administration after its review of the salmon plan. But plaintiffs in the case say that would not be legal.

In November, Redden had asked the feds if they would reinitiate consultation of the BiOp for the purpose of adding the AMIP. Redden was worried that by simply supplementing the BiOp with the AMIP, as the feds had suggested, it would run afoul of the Administrative Procedures Act. And upon appeal, might be sent back to his court by the 9th U.S. Circuit Court of Appeals because of the procedural snafu.

But at the Nov. 23 hearing in Redden's Portland courtroom, Justice Department attorney Coby Howell said federal agencies were leery of reinitiating consultation for fear that plaintiffs would try to expand the remand to include other areas of disagreement--like the jeopardy analysis used as the plan's backbone.

But Redden indicated that he was inclined to OK the plan if his concerns were allayed, although he didn't buy defendants' argument that simply adhering to the adaptive management provisions of the BiOp was enough to legally add the AMIP to the salmon plan. The feds argued that the administrative record could be supplemented according to the Ninth Circuit's exceptions to record review principles.

However, even in their Dec. 21 filing, the feds still seemed a bit gun-shy about reinitiating consultation. They portrayed the AMIP as the completion of an "informal" remand that began after a May letter from the judge outlined some recommendations the plan needed before he was inclined to rule it legal.

In their latest filing, the feds said they have two alternatives. First, they could supplement the administrative records with all the material from the Obama administration's review and development of the AMIP, and have the judge approve the move in accordance with the Niners' exceptions to record review principles.

By doing that, the feds said the court would then have the entire record on which to conduct its review.

The other alternative would be a limited, "voluntary" remand process to add the AMIP to the BiOp, an action they said could be done within 10 days of the Court's approval.

The feds were leery of plaintiffs' reaction to such a situation. "Plaintiffs will likely argue that there must be some recognition of deficiency before the court can grant a voluntary remand. This is not the case," said the feds' brief, which explained that an agency may request a remand without confessing error.

Such a voluntary remand could be limited in scope, and the feds cited several cases to support their argument.

The feds brief distinguishes between the Judge's question about whether they would reinitiate consultation to just integrate the BiOp and the AMIP, and a voluntary remand process, which they preferred. They said in a footnote that a reinitiation process might be much broader and therefore, take much more time.

"Reinitiation is not necessary," the brief said, "nor advisable, in light of the region-wide consensus in getting out of the courtroom in order to start implementing the many beneficial aspects of the 2008 BiOp and AMIP.

The feds pointed out to the judge that there are also differences between a voluntary and involuntary remand. An involuntary one, they said, would need the court to make findings on the merits of the BiOp and "explain why there are deficiencies."

They said plaintiffs will likely ask that the scope of any remand be broadened to deal with their issues, but such an expansion would convert a voluntary remand order into an involuntary one.

As if on cue, BPA and federal agencies released on the same day a progress report on the 2008 salmon plan detailing improvements made in hydro operations, harvest, hatcheries and habitat to benefit ESA-listed salmonids in the Columbia Basin.

"Tribes, states and federal agencies are rightfully proud of their progress," said BPA Administrator Steve Wright. "This program spans four states and involves hundreds of millions of dollars a year. Given that scale, it's a challenge to keep the program on track while spending countless hours managing litigation. We're all anxious to concentrate wholly on our work for fish in the rivers and streams where it counts most."

On Jan. 15, plaintiffs responded, arguing that the feds can't use a "voluntary remand" to "aide and abet them in accomplishing something they are otherwise barred from doing: using post-decisional evidence to construct a rationale justifying a decision already made."

Earthjustice attorney Todd True, said in his filing, that the judge could rule on the BiOp without regard for the AMIP, followed by a carefully structured , court-ordered remand to produce a legally adequate biological opinion.

True said federal agencies could also make a "genuine request" so agencies could reinitiate consultation on the 2008 BiOp "to correct the analysis and the RPA, include aspects of the AMIP, and other necessary steps and issue a new decision."

True said another option would be a negotiated settlement between plaintiffs and federal defendants, perhaps even using the AMIP as a starting point. But they admitted the feds don't seem interested in "mutual, substantive discussion of the issues NWF and others have raised about the 2008 BiOp, it would appear this option may not currently be available."

Since the government is unwilling to seek a genuine remand, reinitiate consultation and make a new decision, True said Judge Redden should decide the summary judgment motions, without the AMIP, and find the 2008 BiOp illegal for all the reasons they have argued, so they can come up with a new, valid opinion quickly, and proceed on to consider plaintiffs' pending injunction motion, "both to ensure diligence by the government during the remand effort and to ensure protection of ESA-listed salmon and steelhead until the government complies with the law."

It is fairly clear what plaintiffs want in an injunction. Oregon Gov. Ted Kulongoski was blunt about that in a recent op-ed in The Oregonian, where he said he wanted 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." 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.

The feds get the last word in this exchange before the issue is settled by the judge. Their comments are due Jan. 29. -B. R.

The following links were mentioned in this story:

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