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Judge Gives Salmon BiOp Challengers More Time To Review Thousands Of Submitted Documents
Posted on Friday, October 01, 2010 (PST)

Because of the need to review a mountain of related documents, and an otherwise busy work schedule, a coalition of fishing and conservation groups asked U.S. District Court Judge James A. Redden for 17 additional days to formulate their legal challenge to the federal government’s Columbia River hydro system salmon protection plan.


The request arrived Tuesday. Redden responded Wednesday, moving the deadline for the National Wildlife Federation and other groups to file their supplemental summary judgment memoranda from Oct. 12 to Oct. 29. The federal defendants -- NOAA Fisheries Service, the U.S. Army Corps of Engineers and the Bureau of Reclamation -- and allied parties have until Dec. 23 to file response memoranda, according to the order issued by Redden this week. The federal deadline had been Nov. 29.


The federal agencies on Aug. 27 filed with the court the administrative record in the ongoing lawsuit – documents and other information used in developing NOAA Fisheries’ 2010 supplemental biological opinion on the Federal Columbia River Power System. The BiOp judges that the hydro system did does not jeopardize the survival of salmon and steelhead stocks that are listed under the Endangered Species Act.


Plaintiffs in the lawsuit, Oregon and the coalition, were given 45 days from the filing of that administrative record to file supplemental summary judgment motions. The state and coalition contend that the 2010 BiOp, and its predecessor, the 2008 version, do not satisfy the requirements of the ESA.


The administrative record for Adaptive Management Implementation Plan (a support document) and the 2010 Supplemental BiOp consists of seven DVDs, according to the request for an extension.


“The supplemental record from NOAA consists of two separate records, one for the AMIP and one for the 2010 BiOp, each of which runs in the thousands of documents and many thousands of pages,” the request says. “The BOR’s supplemental record consists of five DVDs containing over 28,000 pages of Bates-stamped documents and the record from the Corps is yet another DVD that contains well over 2,000 additional documents and further thousands of pages.


“The NOAA record for the AMIP alone includes over 200 documents that are individually indexed as well as some 2,695 emails, many (if not most) with attachments. In addition, federal defendants have withheld nearly 1,800 additional emails and documents from the NOAA AMIP.”


“As a consequence, reviewing the NOAA, BOR, and Corps administrative records is still ongoing and has already absorbed a very large amount of time. This unexpected challenge alone warrants the relatively small adjustment in the briefing schedule plaintiffs seek.”


The request also said that time requirements stemming from other lawsuits have served to limit to some degree the time that can be spent reviewing the FCRPS BiOp documents.


“None of these matters were scheduled at the time the Court set the schedule for supplemental summary judgment briefs in this case and each will require a significant amount of counsels’ attention before October 12, 2010, the current due date for supplemental memoranda in this case.


Redden early in September granted permission for Oregon and the coalition to file amended complaints in the long-running lawsuit that has brought legal challenges to a series of federal strategies for protecting salmon that swim up and down the Columbia-Snake river hydro system.


The next day the state delivered its third supplemental complaint and the coalition, represented by Earthjustice, delivered its sixth supplemental complaint in the lawsuit, which began as a challenge to the 2000 FCRPS BiOp. Redden declared the 2000 BiOp and its successor, the 2004 BiOp, unlawful.


Both updated complaints target a supplemental FCRPS BiOP issued May 20 by NOAA Fisheries Service and adopted, via official records of decision, by the Corps and Bureau.


The 2008 BiOp was also challenged in district court, but Redden has yet to rule on the legal merit of that salmon protection strategy. Meanwhile, the federal agencies developed an AMIP to bolster the 2008 BiOp, but Redden decided that the AMIP could not be considered in judging the legality of the 2008 BiOp.


The judge earlier this year ordered a remand so that the science underpinning the 2008 BiOp could be updated and the AMIP be made an official part of the legal record being considered in the lawsuit. The product of the remand is the 2010 supplemental FCRPS BiOp, which includes the AMIP as part of its "reasonable and prudent alternative." The RPA outlines hydro system operation and capital improvements that would be implemented to improve fish survivals and includes off-site measures, such as habitat improvements.


The supplemental complaint filed by Earthjustice seeks review of the 2010 BiOp, the 2008 BiOp as incorporated into the 2010 BiOp, and the acts and omissions of the Corps and BOR, including their supplemental records of decision in response to the 2010 BiOp and their records of decision adopting and relying upon the 2008 BiOp, for violations of the ESA, the Clean Water Act and the Administrative Procedure Act.


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