[1] Redden Proposal Would Give Feds Three Months To Fix BiOp
U.S. District Judge James Redden has proposed an order that would give federal agencies a "limited, voluntary remand" to add more elements to the 2008 salmon plan that Obama administration officials concluded were needed to satisfy the judge's earlier concerns.
Redden decided Feb. 10 the feds must formally incorporate these additions into a final agency decision before he can rule on the 2008 BiOp as a whole, and gave them until Feb. 19 to decide whether to take him up on the offer.
The decision is a blow to BiOp plaintiffs, who had argued that the feds were required to re-initiate consultation over the BiOp before they could supplement the record, and that would require the judge to rule on the original BiOp first, then a remand could follow.
Though Redden called the Obama administration's add-ons--which were lumped together in a document called the "Adaptive Management Implementation Plan"--"a positive development," he said the feds need to add "more" than just the AMIP to the BiOp before he might approve it.
When the AMIP was unveiled in September, NOAA Administrator Jane Lubchenco said it included accelerated and enhanced actions to protect species; enhanced research and monitoring to improve the certainty of information needed for decision-making; and two types of specific biological triggers for contingencies linked to declining abundance of listed fish, that would prevent further declines if some fish populations start dropping fast.
Long-term contingencies included the possibilities of breaching the four lower Snake River dams and drawing down John Day Pool to minimum operating pool.
If the feds agree to the remand, he urged them to strengthen the salmon plan. "They need not 'start over from scratch,' or develop a new jeopardy framework," the judge wrote in a letter that accompanied the proposed order. "Federal Defendants should do more. Indeed, they have acknowledged that they can do more."
The judge wasn't very specific, but he said the feds should take another look at his previous concerns "regarding the lack of specificity and certainty (i.e., funding) in both the 2008 BiOp/RPA and the AMIP."
And he was blunt about the feds incorporating some actions that plaintiff environmental and fishing groups, the state of Oregon and the Nez Perce Tribe had been arguing for.
"I also encourage them to consider some of the parties' suggestions for improving the AMIP," Redden said, in what seems to be his last attempt at getting some sort of settlement between the parties.
Oregon Gov. Ted Kulongoski was blunt about that in an 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."
So the feds can only guess how much more will be enough to satisfy the judge, if they go the remand route.
Back in October, plaintiffs had argued that the AMIP, like the BiOp, didn't include the court-ordered spill regime in place the last few years, and that it relied on many, yet unidentified future projects for tributary and estuary improvement.
They said it was wrong for the feds to identify precise survival benefits to listed populations when the feds themselves acknowledged there was little published information that demonstrated effects of site-specific actions on egg-to-smolt survival at the population scale.
Plaintiffs also said the AMIP didn't really address impacts from climate change, though NOAA Administrator Lubchenco specifically mentioned that issue when the plan was released last September.
"It's pretty obvious that climate change is already under way and is expected to have very significant impacts on the Pacific Northwest, and therefore we felt it important to include that into our planning and our thinking," Lubchenco said at the time.
Redden said the defendants must not only supplement the record with all the documents that support the AMIP, but "must also include new and pertinent scientific information relating to the proposed action (e.g., recent climate change data). If that scientific data requires additional analysis or mitigation to avoid jeopardy, Federal Defendants must adequately address those issues."
However, a few sentences later, he said he wouldn't be dictating the scope or substance of the defendants' remand, but reminded them they must comply with the ESA in preparing any amended BiOp.
So it seems likely the feds will have to second-guess the Judge, if they go the remand route, which seems their most probable direction, according to several stakeholders, who also pointed out that the Judge seemed OK with the feds' jeopardy analysis, which was the plaintiffs' main complaint since the litigation over the 2008 BiOp began.
Redden reminded the feds they were free to disregard his suggestions, and simply insert the AMIP into the BiOp, but plaintiffs will certainly challenge the validity of the amended opinion.
But he ended his letter with one more hint. "If Federal Defendants conduct a superficial ten-day remand (as they have proposed), I will view that final agency decision with heightened skepticism."
Others said without knowing just how much "more" will satisfy the judge, NOAA Fisheries may be hard-pressed to fully amend the opinion in only three months.
BPA customers were not happy with Redden's latest move, and were quick to point out that some of the government's best scientists have already said the 2008 hydro BiOp passes muster as the best available science, especially with the added implementation plan.
"We couldn't be more disappointed in the Judge's latest letter," said Terry Flores, executive director of Northwest RiverPartners, a large coalition of river users, and a defendant-intervenor in the BiOp case.
"It fails to recognize the incredible consensus and unprecedented financial commitment being made by people in the Northwest in fish restoration. It would appear nothing can satisfy him if three different plans by three different Administrations have failed to do so, including the opinions of world class scientists and NOAA's own top scientist, Dr. Jane Lubchenco."
Plaintiffs fired back in a press release that touted a last-minute review of the Obama add-ons by the American Fisheries Society's western division. "With this review, the independent scientists of the American Fisheries Society have shed some much-needed light on a topic that has already generated quite a bit of heat," said Jim Martin, former chief of fisheries for the Oregon Department of Fish and Wildlife, in a press release from the Save Our Wild Salmon Coalition. "These experts looked at the AMIP and asked two all-important questions: does it do enough to help struggling salmon, and does it utilize the best science? Unfortunately, the answer to both questions appears to be no." Martin is now conservation director of the Berkeley Institute, an entity associated with the sportfishing industry.
The AFS' western division has supported breaching lower Snake dams for years, and its latest anonymous critique even lambasted the feds for ditching the old PATH process of the late 1990s that tried to bring regional scientists together in an effort to test different salmon recovery assumptions. -Bill Rudolph
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