An overtime legal debate came to a close late last week with the federal government reiterating its stance that it can supplement the official record in the long-running lawsuit over the legitimacy of its Columbia-Snake river hydro system "BiOp."

And the plaintiffs stated once again that such supplementation would be a violation of the Administrative Procedures Act.

Both briefs were filed Jan. 29 in Portland's U.S. District Court. Now Judge James A. Redden will pick a winner in that procedural argument and move on to deciding whether NOAA Fisheries Service's Federal Columbia River Power System biological opinion complies with the Endangered Species Act.

Redden has twice before declared FCRPS BiOps illegal, tossing out the 2000 version and its replacement, which was completed in 2004. The ESA requires that NOAA Fisheries prepare the biological analyses to judge whether federal actions, such as the operation of the dams, jeopardize the survival of protected salmon and steelhead stocks. There are 13 such ESA-listed stocks in the Columbia-Snake river basin.

The latest FCRPS BiOp was completed in May of 2008 after a 2 ½-year consultation-collaboration that included involved federal agencies, as required by the ESA, and Columbia basin states and tribes, as required by Redden when he ordered a remand to build a replacement for the 2004 BiOp.

The new BiOp was soon challenged by the state of Oregon and a coalition of fishing and conservation groups led by the National Wildlife Federation. They claim that NOAA Fisheries' jeopardy analysis violates the ESA and that the BiOp prescriptions don't do enough to help beleaguered salmon stocks.

The federal agencies say the restoration strategy is legal and the most ambitious ever devised.

Yet Redden had reason to pause last March at the close of oral arguments, which are usually the last words before a lawsuit is decided on the merits of legal arguments presented to that point. He questioned whether planned tributary and estuary habitat enhancement strategies encased in the BiOp were reasonably certain to occur, as the ESA requires, and would bring the benefits assumed in the biological analysis. The actions are intended to mitigate for negative impacts that the hydro system has on salmon and steelhead.

A month later the judge called the litigants to a conference discuss his concerns and won the commitment of the federal defendants, Oregon, the coalition and the Nez Perce Tribe, which sides with the plaintiffs, to jointly explore all "possible legal avenues" for resolving the lawsuit.

The judge on May 1 received a request from the Obama Administration that it be allowed to review the BiOp, which was developed by the prior administration. Redden OK'd the request and in a May 18 note outlined what he felt was wrong with the BiOp and what might be done to correct it.

The administration announced on Sept. 15 that it had determined that the science underlying the BiOp is fundamentally sound, but that there are uncertainties in some predictions regarding the future condition of the listed species. As a result, the administration developed an "insurance policy for the fish" as a new BiOp implementation tool. The "Adaptive Management Implementation Plan" added, among other things, contingency measures to be implemented in case of a significant decline in fish abundance.

The most recent round of briefing has been focused on whether the AMIP and its building blocks can properly be considered by the judge as he weighs the legality of the BiOp.

Federal attorneys say the judge can simply consider the information in the AMIP and support documents prepared this past summer as part of the administrative record in the lawsuit.

"… it could do so by identifying one of the Ninth Circuit's exceptions to record review" required by the APA, according to a brief filed Jan. 29 by the U.S. Department of Justice that cites appellate court precedent.

Or, the federal defendants could "proceed to file a Notice of Filing Supplemental Administrative Records on February 26, 2010," the federal brief said.

"The third option would involve the Court entering the proposed order for a limited voluntary remand; Federal Defendants would comply with the terms of that proposed order, including supplementing the administrative records, and present the Court with a notice of completion of remand within ten days."

In a brief also filed Jan. 29, the plaintiffs say the law is clear – the administrative record can only include information used to make the decision in question.

"… under unambiguous Ninth Circuit precedent, each of the proposals advanced by the government is an improper attempt to use the AMIP as a post-hoc justification for the only final agency action before the Court – the 2008 BiOp," the response filed jointly by the plaintiffs. It responds to a brief filed jointly Jan. 15 by three Northwest states and six tribes in support of the federal arguments.

"The law, however, plainly requires a final agency action to stand or fall on its own merit in light of the record before the agency at the time the decision was made, not some later effort to shore up the decision," according to the brief filed last Friday for the plaintiffs by Earthjustice.

"In the absence of either a decision by federal defendants to reinitiate consultation, reconsider the 2008 BiOp, prepare a new record, and make a new decision (on the one hand), or a commitment to engage plaintiffs in substantive settlement discussions that are successful (on the other), the only lawful path forward to reach a resolution of this case is for the Court to decide the pending motions for summary judgment against the 2008 BiOp based on the record for that decision," the Earthjustice brief concludes.

"While the federal agencies' continued refusal to actually reconsider or in any way change the 2008 BiOp and make a new decision that complies with the law is frustrating and makes it tempting to employ some 'expedient' path to allow the Court to consider the AMIP and its supporting documents now, this would be a short-sighted and ultimately unlawful approach."

Federal attorneys argue that the AMIP is intended to implement the existing commitments in NOAA's BiOP, not expand legal arguments about the 2008 document's legality.

"Importantly, Federal Defendants are not seeking a voluntary remand of ten days to conduct some new process, but rather to formalize and conclude an exhaustive review that was inclusive of all of the underlying biological and legal issues, just as Plaintiffs request," the Jan. 29 federal brief says.

"The Administration evaluated all of the Court's concerns and although this did not result in the substantive changes the Plaintiffs desired, it nevertheless considered each issue and provided its reasoning and conclusions. See AMIP, Appendix 1 at 7-23 (discussing spring and summer spill; summer flow augmentation, habitat methodologies).

"The AMIP was the culmination of careful and intensive consideration of these issues with the assistance of both independent and agency experts. Plaintiffs cannot pretend that a thorough reconsideration of the issues did not already occur," the federal brief says.

"… the agencies are not just 'piling on evidence' for the sole purpose of bolstering a litigation position, but rather seek for the Court to recognize the end-product of a structured process in which the new Administration sought, with an open-mind, to determine whether the Action Agencies had sufficiently fulfilled their substantive obligations under" the ESA.

"Had the Administration reached a different result, that information would have been presented equally to this Court."

"There is no dispute, or even a question, that this new political leadership engaged in this process in good faith and brought a tremendous of amount expertise and insight to bear on each aspect of its review," the federal brief concludes.

"The fact that this Administration chose not to withdraw this BiOp is precisely the reason the Plaintiffs urge this Court to ignore the results of that process. But dissatisfaction with the Administration's review is not a legitimate procedural ground for objection."

For more information and documents related to BiOp litigation go to www.salmonrecovery.gov