Federal attorneys this week told U.S. District Court Judge James A. Redden that a Sept. 15 addendum to the government's 2008 Columbia River basin hydro system salmon protection strategy could simply be added to the court record the judge will consider in deciding whether the plan is legal under the Endangered Species Act.

Or, say the attorneys, Redden could order a brief "voluntary" remand. A 10-day remand would be used only to decide if federal agencies should officially incorporate the newly created Adaptive Management Implementation Plan into the May 2008 NOAA Fisheries Service's Federal Columbia River Power System biological opinion and into the federal agencies' records of decision adopting that BiOp.

That done, the AMIP and support documents could be added to the BiOp litigation's administrative record.

Plaintiffs in the long-running lawsuit have asked Redden to declare the 2008 BiOp illegal, and the federal government has asked the judge to toss out the complaint. The judge will at some point rule on those requests for summary judgment.

The brief filed Monday is the first salvo in arguments over whether the judge can properly consider information contained in the AMIP as he ponders the legality of BiOp. The plaintiffs in the case have said that the AMIP and associated information can not be considered, per rules established in the Administrative Procedures Act, because it was created following the "final agency action" – the completion of the BiOp.

Adding information to the administrative record following the agency action is prohibited, with a few exceptions, according to the plaintiffs -- the state of Oregon and a coalition of fishing and conservation groups led by the National Wildlife Federation and represented by Earthjustice. The Nez Perce Tribe has filed briefs throughout the litigation in support of the plaintiffs.

The federal brief filed Monday says the AMIP information qualifies under those exemptions, one of which allows the addition of materials to explain complex or technical subject matter. The defendants are the U.S. Army Corps of Engineers and Bureau of Reclamation, which operate the federal dams, and NOAA Fisheries Service. The Bonneville Power Administration, which markets power generated in the Columbia-Snake hydro system, was involved in the development of the BiOp and AMIP as a federal "action" agency.

The federal defendants "believe this Court can consider the AMIP and would be well within its discretion to allow supplementation of the administrative record with the AMIP" in accordance with past precedent set in the U.S. Court of Appeals for the Ninth Circuit that established the exceptions to APA record review principles.

An alliance made up of the states of Idaho, Montana and Washington and the Colville, Idaho Kootenai, Salish-Kootenai, Umatilla, Warm Springs and Yakima tribes has in briefings urged Judge Redden to validate the BiOp, and the AMIP. Irrigators, utilities, river navigators and other user groups have also supported the new BiOp.

The four states with Columbia basin territory as well as many of the basin's tribes were involved in a two-and-a-half year collaboration with federal agencies in the development of the 2008 BiOp. Redden required the collaboration in what is normally a federal-only process after having declared a 2004 version of the FCRPS BiOp illegal.

And while process did not earn a consensus on all scientific points about what needs to be done to help salmon, the federal agencies and supporters have touted the new strategy as "the most comprehensive and robust BiOp ever issued" for the FCRPS as well as the one with the most overall support in the region.

Any of the parties to the lawsuit may now file a response by Jan. 15 to the Dec. 21 federal supplemental brief and then the federal defendants will be allowed a reply, which is due Jan. 29, according to a scheduling order issued earlier this month by Redden. The extra round of briefing in the lawsuit allows the plaintiffs to reply by Jan. 29 to any briefs filed by intervenor-defendants and/or allied amici.

The new filings continue the prolonged legal debate over the validity of the 2008 BiOp, which says the dams and their operation do not jeopardize the survival of 13 listed Columbia-Snake river basin salmon and steelhead stocks as long as mitigation actions described in the document's "reasonable and prudent alternative."

The BiOp RPA describes hydro system actions to be carried out during the 10-year life of the plan that are intended to improve salmon survivals and mitigate for impacts resulting from the existence and operation of the hydro projects. It also includes a program of habitat restoration in the tributaries and estuary, predator management and other mitigation measures.

The 2008 BiOp was immediately challenged by the coalition of fishing and conservation and Oregon, who argued that the documents biological "jeopardy" analysis is flawed and that the actions it describes fall well short of what is needed to improve the status of imperiled salmon populations.

Legal arguments in the lawsuit appeared to be ended March 6 with oral arguments in Portland, where the judge expressed a number of concerns about the BiOp. The Obama administration on May 1 asked for the opportunity to review the BiOp, which was crafted by the previous administration, and to consider Redden's April 2 suggestion "that the parties confer with each other to explore whether further discussions regarding the BiOp might be productive." The parties met with the judge April 2 to discuss the issues raised by Redden at the conclusion of oral arguments.

Redden agreed not to rule in the case during the administration's review and in a May 18 letter elaborated on his concerns, saying more funding commitments, higher guaranteed river flows, more spill for fish passage, additional scientific analysis and another look the breaching of four dams on the lower Snake River were all likely necessary to make the BiOp legal. The letter also said the judge has "serious reservations about whether the 'trending toward recovery' standard complies with the Endangered Species Act, its implementing regulations, and the case law."

The administration responded Sept. 15 with its 42-page Adaptive Management Implementation Plan.

This new chapter in BiOp litigation triggered another round of briefing, which concluded with a Nov. 23 conference at the federal courthouse in Portland. The fishing and conservation groups have said that the AMIP developed as a result of the administration's review neither fixes the BiOp nor responds adequately to the judge's concerns. Federal attorneys disagree.

"The 2008 BiOP corrected the identified flaws in the 2004 BiOp, and now, the AMIP addresses many, if not all, of the Court's additional concerns by accelerating actions, building on the RPA's robust monitoring system, and providing a contingency plan with readily identifiable biological triggers and implementable actions if the unforseen occurs and those triggers are tripped," according to an Oct. 23 brief explaining the AMIP's function.

In pre-conference letters to the litigants and during the Nov. 23 session, Judge Redden asked for the parties' views regarding whether and how the AMIP information could be added to the record.

"Despite the AMIP's positive attributes, I have serious concerns about whether it is properly before the court. Federal Defendants need to persuade me that it is, or take the steps necessary to include it in the BiOp," the judge said in a Nov. 13 letter. "I am still hopeful that Federal Defendants can make this BiOp work, but they cannot sidestep the requirements of the APA."

During the Nov. 23 conference, Justice Department attorneys offered to explain how, in their legal opinion, the BiOp and AMIP could be officially linked and in accordance with the APA.

This week's filings include the federal brief, which offered the two alternatives, and a proposed volunteer remand order.

A "volunteer" remand can be requested by federal agencies to make "mid-litigation corrections in court," according to the federal attorneys. In this case, the federal brief said that a remand targeting only the incorporation of AMIP information into the lawsuit's administrative record would only require 10 days.

"To be clear, the Court cannot dictate the substance of a BiOp, but it could allow the agencies to voluntarily evaluate this procedural issue in light of the Court's reservations" about qualification under the APA exceptions precedent, the federal brief says. "If allowed permission to do so, NOAA could integrate the AMIP and its record into the

administrative record for the BiOp and the action agencies could correspondingly integrate this determination into their respective administrative records for their Records of Decision (RODs).

"Consistent with the supplementation proposal discussed above, during this remand the agencies would supplement their administrative records and the Court could allow further, limited briefing on the merits of the 2008 BiOp as implemented through the AMIP before ruling on the pending cross-motions for summary judgment.

"The APA was not enacted to procedurally hamstring agencies or to present obstacles to implementation, but rather is an act that provides a mechanism for interested parties to seek and obtain judicial review of agency actions that they believe are unlawful," the federal brief concludes.

"Whether the Court chooses to have the agencies supplement the administrative record or chooses to issue a voluntary limited remand order, the end-result will largely be the same -- the Plaintiffs and public will have access to the documents detailing the decision-making process and this Court will have more than an adequate record on which to decide whether the agencies have complied with Section 7(a)(2) of the ESA."

The federal brief and proposed voluntary remand order, along with other BiOp litigation documents, can be found at http://www.salmonrecovery.gov/homepage.aspx