Litigants took turns Monday (May 9) both praising and tearing down NOAA Fisheries’ plan for rejuvenating Columbia-Snake river salmon runs in their responses to questions posed by U.S. District Court Judge James A. Redden about the strategy’s scientific underpinnings and assumptions.
But those in the crowded Portland courtroom Monday left without hearing a word about when, or how, Redden might act.
The judge since August has been accepting briefs and other submittals regarding the legality of the NOAA Fisheries’ 2010 Federal Columbia River Power System biological opinion, which succeeded a 2008 version.
The federal agency says the BiOp assures that wild Columbia Basin salmon and steelhead stocks listed under the Endangered Species Act are not jeopardized by the hydro system. It includes operational prescriptions and construction at the dams intended to improve survival of fish swimming up and down through the dams and reservoirs.
It also relies heavily on other actions, habitat restoration in particular, to boost fish populations – those individual groupings within a species, such as Snake River fall chinook salmon – to levels at which fish are more than simply replacing themselves.
To open Monday’s oral arguments Redden congratulated those parties involved in salmon recovery for progress, “especially the unparalleled collaborative effort” in which federal agencies have worked with states and tribes in first building the 2008 BiOp and now helping guide its implementation.
The BiOp was brought whole into the 2010 version following a review by the Obama Administration along with an addendum, the Adaptive Management Implementation Plan.
The 2008 BiOp was challenged in U.S. District Court by the state of Oregon and a coalition of fishing and conservation groups but Redden never rendered an opinion in the case. Instead, he allowed the BiOp to be reshaped and updated.
“But the job isn’t done; you know that,” Redden said. He said he was worried about the fact that survival improvement goals had not been met in many cases and that the metrics used to measure that improvement show larger gaps.
He also said that it is a challenging task to identify survival-specific benefits that might be produced by habitat restoration actions, and he thought assumptions used by NOAA Fisheries and the action agencies in that regard “are perhaps questionable.” Action agencies are the U.S. Army Corps of Engineers and the Bureau of Reclamation, which operate the dams, and the Bonneville Power Administration, which markets power generated in the system.
Redden noted reporting by the federal agencies indicates that planned habitat work is “falling behind” schedule and some cases only a quarter of the anticipated survival benefits had accrued.
“And I have questions about the jeopardy framework,” Redden said of the analytical methods used to evaluate whether particular fish populations are being jeopardized.
The judge then listened to 2 ½ hours of argument, with federal attorneys defending the BiOp’s jeopardy analysis and those for Oregon and the coalition calling it illegal and invalid.
Redden asked, if he let the BiOp stand, what would guarantee accountability when the federal agencies produce “comprehensive evaluations” in 2013 and 2016? Redden last week, via letter to counsel, asked if “given the uncertainty as to the survival benefits resulting from habitat improvement, will Federal Defendants consider reporting to the court in the event that the 2013 or 2016 Comprehensive Evaluations do not reflect the anticipated improvements?”
Justice Department attorney Coby Howell pointed to the Regional Implementation Oversight Group, which is an extension of the collaborative forum that was formed during the development of the 2008 BiOp.
“If things are off track they’ll know about it,” Howell said of involved states and tribes. “It’s the right forum” for discussing what actions might be necessary.
Earthjustice attorney Todd True said the 2013 and 2016 reports “will not handle the problems we have today. “What we know is we’re behind” in habitat project implementation and habitat productivity.
Though Judge Redden’s letter had included a list of six questions that he said he would like to be discussed, he curtly ended the hearing shortly before noon after tackling only three (one, two and six) of the questions.
For more details on the questions Redden posed last week to litigants see CBB, May 6, 2011 “Judge Redden Informs Salmon BiOp Litigants Issues He Wants Discussed At Monday’s Oral Arguments” http://www.cbbulletin.com/408200.aspx
For more background information see:
--- CBB, Feb. 25, 2011 “Latest Briefs By Feds, 3 States, 3 Tribes, Ports Defend Salmon BiOp; Oral Arguments Likely Next” http://www.cbbulletin.com/405832.aspx
--- CBB, Jan. 28, 2011 “BiOp: “Oregon, Nez Perce, Coalition Again Contend Fish Survival Benefits ‘Remain Speculative'’ http://www.cbbulletin.com/404690.aspx
-- CBB, Dec. 23, 2010 “BiOp Litigation: Briefs Filed Contending Agencies’ Salmon Plan Legally, Scientifically Valid” http://www.cbbulletin.com/403321.aspx
-- CBB, Nov. 5, 2010, “BiOp Challengers: 2010 Supplemental Salmon BiOp ‘Adds Nothing Of Legal Significance’ http://www.cbbulletin.com/401381.aspx
For documents and information related to BiOp litigation go to www.salmonrecovery.gov