In a retrospective interview with Idaho Public Television previewed this week, the long-time presiding federal judge in the Columbia River basin’s salmon recovery debate said efforts may to this point have fallen short by assuming dam breaching is not an option.
“I think we need to take those dams down….,” James A. Redden said during an interview with reporter Aaron Kunz for Idaho Public Television that was excerpted this week by Earthfix.opb.org.
“And I’ve never ordered them you know – or tried to order them that you’ve gotta take those dams down. But I have urged them to do some work on those dams… and they have,” Redden said of the federal dams operated by the U.S. Army Corps of Engineers.
During the interview Redden also said that fish survival statistics has shown that the spilling of water at hydro projects in spring and in summer for fish passage, as mandated by the court in recent years, “has been very helpful.”
The federal judge, who has for nearly 10 years held federal feet to the fire over Columbia-Snake river basin salmon protection efforts, said in interview excerpts released this week that he is perplexed that lower Snake dam breaching has been dismissed as a recovery tool.
“It’s a lot easier than putting them up,” the judge said of breaching the dams.
The Corps of Engineers, which operates the dams, could “dig out the ditch and let it [the river] go around,” Redden said of the dams.
The four lower Snake dams, completed in the 1960s and 1970s, swamp what was prime spawning habitat for, particularly, fall chinook salmon. But even with breaching of the four dams upriver passage to much of the fall chinook’s historic habitat would remain blocked just upriver at the Idaho Power Company’s Hells Canyon Complex along the Idaho-Oregon border.
In a Nov. 22, 2011 e-mail to litigants, Judge Redden asked that the lawsuit over the validity of the federal salmon protection strategy – the 2008 Federal Columbia River Power System biological opinion -- be assigned to another judge. The NOAA Fisheries BiOp judges whether the federal dams jeopardize the survival of 13 Columbia/Snake river salmon and steelhead stocks whose wild portions are protected under the Endangered Species Act.
“At our last meeting I indicated that I would step down prior to the filing of the 2014 BiOp,” Redden said in the November e-mail. He was referring to a FCRPS BiOp that now is being developed by NOAA Fisheries -- in official ESA “consultation” with federal agencies that operate the Columbia-Snake River Power System -- to replace a 2008/2010 version. Those agencies include the Corps and Bureau, which operate the Columbia/Snake river dams, and the Bonneville Power Administration, which markets hydro power generated in the system.
Redden ruled in August 2011 that the 2008/2010 FCRPS BiOp, which was to prevail for 10 years, was illegal and ordered that its legal flaws be corrected by Jan. 1, 2014. BiOps are required under the ESA to evaluate whether federal actions, such as the operation of the dams, jeopardize listed stocks.
Redden said he stepped down in order to allow a new judge “to review the history of this matter before the 2014 BiOp is filed.”
“I will follow this matter with great interest,” Redden wrote.
The court announced shortly thereafter that the case had been reassigned to Judge Michael Simon.
“I struck the 2000 BiOp, and the 2004 BiOp, and the 2008/2011 BiOp,” said Redden, who was assigned the case in February 2003. In May 2003 Judge Redden granted motions for summary judgment invalidating the 2000 strategy, which was replaced by the 2004 BiOp. On May 2005 Redden declared the 2004 BiOp “arbitrary and capricious.” It was eventually replaced by the 2008 BiOp, which was supplemented in 2010.
The long-running lawsuit has pitted a coalition of fishing and conservation groups against the federal government but has also involved tribes, utility interests, irrigators, navigators and others with a vested interest in the fish and/or other river resources.
U.S. Rep. Doc Hastings, R-WA., the congressman from the southeast Washington district where the four dams are found, immediately blasted the judge for his comments. The House Natural Resources Committee chairman is a strong-voiced opponent of dam removal.
“This interview candidly reveals the activist bias of Judge Redden that I and many in the Pacific Northwest have suspected for years. Due to his personal views, this one judge unilaterally dragged and drove costly litigation on for nearly a decade,” Hastings said in a statement released Thursday
“He ignored clear and sound science that salmon species are returning in numbers greater than before these dams were built, and forced taxpayers to pay for millions of dollars in higher energy bills and lawyers’ fees,” Hastings said of Redden. “He ordered the waste of tens of millions of dollars by forcing the spilling of water past dams that science reveals has benefited few, if any, fish, and may have actually harmed them.
“This one politician-turned-judge kept pursuing his agenda and imposing his own views over the policies of the elected Presidential Administrations of Bill Clinton, George W. Bush and Barack Obama.
“Judge Redden’s bias is being used to further this radical agenda just months after he announced his retirement from the case and as a new, hopefully partial, judge has been appointed to oversee the endless and unclear future of litigation he perpetuated.
“It’s time for the endless litigation and radical agendas -- bolstered by one man’s personal views and grip on a judge’s gavel -- to stop and to ensure that the Northwest will be given certainty that a plan supported by states, tribes and others will be approved to ensure that dams keep producing clean, renewable hydropower and allow for abundant salmon for generations to come,” Hastings said.
Executive director Terry Flores of Northwest RiverPartners, which represents port, shipping and hydro power interests, also disagrees with Redden when it comes to the issue of taking down the lower Snake River dams.
“Judge Redden’s remarks do provide insight into why no salmon plan, no matter how comprehensive, collaborative, scientifically sound or expensive met with his complete approval since they did not include removal of the Snake River dams,” Flores said. “It would appear that nothing short of an extreme action like dam removal would have satisfied the judge.
“Further, dam removal was not an issue before the court, nor could it be ordered by the court. Only Congress has that authority.
“We are astonished at Judge Redden’s lack of appreciation for the value of the Snake River dams to the Northwest. There is simply no question that the Snake River dams are a tremendous resource for the region, generating enough clean renewable energy to power a city the size of Seattle,” Flores said. “And let’s not forget those dams provide irrigation for farmers to grow and ship crops that feed the Northwest and the world.
“Despite the judge’s comments, there is simply no disputing reality: the salmon plan is based in the best possible science, as confirmed in an independent science review by the Obama Administration and world class scientists; it was developed in an unprecedented collaboration that continues today; and it is the most comprehensive and expensive plan to help endangered species anywhere in the country, Flores said.”
Save Our Wild Salmon policy director Nicole Cordan said the judge was on the right track.
“Judge Redden agrees with what we have known for years: that the river needs to run more like a river if we are going to save wild salmon. His remarks highlight a need to bring stakeholders together and discuss options, including lower Snake River dam removal, in a collaborative and science-based forum,” Cordan said.
“Removing the lower Snake dams is the measure most likely to restore wild Snake River salmon,” according to Doug DeHart, former chief of Fisheries for the Oregon Department of Fish and Wildlife. “The judge knows it, scientists and economists know it, conservationists know it. The only real question now is why don’t the federal agencies know it?
“The endorsement is great news for thousands of businesses in the Pacific salmon states, as salmon restoration is responsible for jobs from California to Alaska,” DeHart said.
“The judge’s statements call into question the federal agencies interpretation of the ruling from last August that they’re on the ‘right track,’” said Glen Spain of Pacific Coast Federation of Fishermen’s Associations. “Clearly the judge intended for more serious revisions to the illegal BiOp.”
Meanwhile, late last fall the 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, 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’ BiOp.
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.
Judge Simon has not yet to responded to the requests.
Redden was nominated to U. S. District Court, District of Oregon, by Jimmy Carter in December 1979 and received his commission on Feb. 20, 1980. He served as chief judge, 1990-1995, and assumed senior status on March 13, 1995.
Judge Redden was involved in private practice in Medford, Ore., from 1956-1972 and during that time served as an Oregon state representative (1963-1969) and as House minority leader (1967-1969). He was chairman of the state Public Employee Relations Board from 1969-1972; state treasurer for Oregon in 1973-1976, and state attorney general from1977-1980.
For more information go to:
CBB, Aug. 5, 2011, “Redden Orders New Salmon BiOp By 2014; Says Post-2013 Mitigation, Benefits Unidentified” http://www.cbbulletin.com/411336.aspx
CBB, Dec. 2, 2011, “Redden Steps Down; Allows New Judge Simon To Review Salmon Litigation Before 2014 BiOp Filed” http://www.cbbulletin.com/414468.aspx
CBB, Dec. 9, 2011, “Salmon BiOp Plaintiffs’ Urge New Judge To Consider Settlement Judge, Science Panel” http://www.cbbulletin.com/414646.aspx
For documents related to BiOp litigation go to www.salmonrecovery.gov