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Salmon BiOp Plaintiffs’ Urge New Judge To Consider Settlement Judge, Science Panel
Posted on Friday, December 09, 2011 (PST)

Plaintiffs have asked for another shot at convincing a new presiding judge to add two new processes to a court-ordered remand intended to rebuild the federal government’s Columbia/Snake river salmon protection plan.


The request comes in the long-running lawsuit over NOAA Fisheries Service’s Endangered Species Act biological opinion for the Federal Columbia River Power System. The BiOp judges whether the federal Columbia/Snake river hydro system jeopardizes 13 salmon and steelhead stocks that are ESA protected.


The 2008/2010 BiOp developed by NOAA Fisheries says that the wild salmon and steelhead are not jeopardized as long as mitigation actions described in the BiOp’s “reasonable and prudent alternative” are implemented.


Those actions include improved hydro operations as well as habitat restoration and implementation of more wild-friendly harvest and artificial production regimes. Roughly 80 percent of the salmon and steelhead produced in the Columbia River basin come from hatcheries. The BiOp’s “take” restrictions aim to reduce mortality of protected naturally produced fish.


Judge James A. Redden on Aug. 2 judged that, in the 2008/2010 BiOp, NOAA Fisheries had failed “to identify specific mitigation plans to be implemented beyond 2013. Because the 2008/2010 BiOp’s no jeopardy conclusion is based on unidentified habitat mitigation measures, NOAA Fisheries’ opinion that the FCRPS operations after 2013 will not jeopardize listed species is arbitrary and capricious.”


“The ESA prohibits NOAA Fisheries from relying on the effects of uncertain and speculative actions that are not ‘reasonably certain to occur,’” Redden wrote.


The judge ordered a court-monitored remand with a Jan. 1, 2014, delivery date for “a new BiOp that reevaluates the efficacy of the RPAs in avoiding jeopardy, identifies reasonably specific mitigation plans for the life of the biological opinion, and considers whether more aggressive action, such as dam removal and/or additional flow augmentation and reservoir modifications are necessary to avoid jeopardy.” RPAs (reasonable and prudent alternatives) are mitigation actions, such as changed hydro operations and habitat restoration, listed in the BiOp for implementation.


The federal government in late September filed a notice of appeal of Redden’s order. The U.S. Ninth Court of Appeals late week issued an order saying that the appeal would be focused on injunctive relief ordered by Redden – the continuation of court-ordered spill levels at dams to provide passage for fish – but would not address the U.S. District Court’s decision in total. The court of appeals had earlier said it questioned whether Redden’s Aug. 2 decision was indeed appealable, since, given the remand, it was not a final decision.


(For more information see CBB, Oct. 7, 2011, “Salmon BiOp: Feds File Notice Leaving Open Appeal Of Redden’s Aug. 2 Decision; Ninth Sets Schedule”


Redden has since stepped down, and Judge Michael H. Simon last week was named as his replacement.


Overlapping the judicial transition were Oct. 25 requests from a coalition of fishing conservation groups led by the National Wildlife Federation and the state of Oregon, which are plaintiffs in the lawsuit, and ally Nez Perce Tribe, that criticized the federal government’s progress report on 2010 implementation of 2008/2010 BiOp measures.


Those requests said “... NWF respectfully asks the Court to take two steps, both within the context of the current remand, to bring sufficient accountability to the remand to ensure that it results in a scientifically sound and legally adequate revised biological opinion.” Those requested steps would involve the appointment of a settlement judge and the creation of an independent science panel to review the work being done to repair NOAA Fisheries Federal Columbia River Power System biological opinion.


The federal government responded by asking the judge to “decline” the requests, insisting that the process in place for fortifying the BiOp is well on its way to satisfying the judge’s concerns about the government’s strategy for boosting salmon stocks.”


The federal brief filed Nov. 16 says the federal agencies are “fully committed to following the Court’s remand order.


“The agencies are aggressively implementing the RPA actions and obtaining scientific and technical data to support mitigation measures and the completion of a new or supplemental

biological opinion by 2014. In particular, the agencies are continuing to work with local experts

and through established forums to identify specific habitat restoration projects – in the estuary

and tributary habitats – through 2018.” As now written the BiOp is scheduled to be in place through 2018.


In a Dec. 1 brief the plaintiffs and Nez Perce Tribe collectively asked the judge for permission to respond to the Justice Department’s Nov. 16 brief.


Along with their Dec. 1 “motion for leave” to file a response, the NWF, Oregon and Nez Perce Tribe filed a proposed “short, joint reply memorandum.” As of Thursday the judge had not granted permission for the memorandum filing.


The memo addresses “arguments raised in the memoranda of Federal Defendants and allied parties in response to Plaintiffs’ comments on Federal Defendants’ 2010 Progress Report. Because these parties’ arguments were necessarily raised and developed for the first time in response to Plaintiffs’ comments, Plaintiffs have had no other opportunity to respond to them,” according to the motion for leave. “Plaintiffs have limited their joint reply to only the most significant of these issues and have prepared it as expeditiously as possible in light of holiday schedules and their desire to file a single joint reply. The proposed reply is attached to assist the Court in resolving this motion.”


The plaintiffs had earlier “asked the Court --within the context of its ongoing and broad authority to supervise a remand -- to appoint a settlement Judge to help Plaintiffs and Federal Defendants reach agreement regarding the issues NOAA Fisheries will address on remand in light of the Courts ruling on the 2008/2010 BiOps.” They also asked the court to appoint an independent scientists to assess whether implementation of the RPA “is achieving the survival improvements the BiOps predicted would be necessary to avoid jeopardy.”


“If we are to break the cycle of failure that has now led to multiple inadequate biological opinions -- and well over a decade of litigation -- we must employ all reasonable and available tools, and do so sooner rather than later,” the plaintiffs’ proposed brief says.


For more information go to CBB, Nov. 18, 2011, “State, Tribal Coalitions, Feds Oppose Inserting Science Panel, Settlement Judge Into BiOp Remand”


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