Posted by Matthew Preusch, The Oregonian
March 05, 2009
Attorneys will take their seats Friday morning in a ceremonial court in downtown Portland's federal courthouse. There, they will make their case to the man who, more than anyone, commands the Northwest's multibillion-dollar salmon-recovery effort.
The hearing before U.S. District Judge James Redden is the latest milestone in a two-decade legal battle over how best to balance the needs of salmon, a regional icon in long-term decline, with federal hydropower dams producing cheap, relatively clean power.
The outcome could have far-reaching impact, affecting such things as Portland's power bills and Montana's reservoir levels.
Under scrutiny is the federal government's recovery plan, called a Biological Opinion, for Columbia River and Snake River salmon. Redden has twice thrown out such plans, calling the 2004 plan an "analytical sleight of hand," and signs indicate he may again be at that point.
"It appears that the judge is running out of patience with this continued cycle of putting out a biological opinion that's flawed under the Endangered Species Act, and that he would prefer at this point to structure some sort of final resolution," said Mike Carrier, natural resources adviser to Gov. Ted Kulongoski. Oregon has joined conservation groups and the Nez Perce tribe in challenging the plan.
Attorneys, activists and others involved in the case said two letters the judge sent out last month provide some clues. In one of the letters, Redden hints that the discussion may be moving past the current plan and toward how to proceed if he rejects it again. "My goal is to have enough time at oral argument to discuss how to resolve this matter if the 2008 BiOp fails," he wrote last month.
Redden highlights three areas of concern: the federal government's standard for salmon survival; the proposed reduction of water spilled at dams to aid fish passage; and the uncertainty and assumptions made about habitat improvements benefiting salmon.
On the first point, the federal plan redefines the "jeopardy standard" -- the benchmark for deciding whether an action reduces the likelihood of the fish's survival or recovery -- to say the fish only need be "trending towards recovery."
"His questions appear to signal that he has serious reservations, as does Oregon, about the latest jeopardy standard, and that he appears poised to reject that jeopardy standard and the jeopardy analysis," Carrier said.
In the weeks leading to the hearing, Redden has asked the government some tough questions. He points out that the director of science and research at National Marine Fisheries Service, the agency in charge of fish recovery, said two years ago that his agency's own plan for improving estuary habitat was inadequate.
Did the government "disregard their own scientists' criticisms regarding the estuary plan?" Redden wrote.
But he also praised the government for working with Northwest tribes to develop the plan and for committing to spending $1 billion over the next 10 years for hatchery and habitat programs throughout the basin.
The 2008 plan responds to Redden's concerns over the rejected 2004 plan, said Terry Flores, executive director of Northwest RiverPartners, a coalition of ports, farmers and others who have sided with the government in the case.
"We think this plan is enough," she said.
Nonetheless, Redden raises the specter of removing four lower Snake River dams by asking the federal government why it isn't considering that feasibility. Dam removal, which many consider the surest step toward salmon recovery in the Snake, is anathema to the groups Flores represents because of the dams' importance to transportation and agriculture.
The federal government needs Redden to sign off on its biological opinion so it can legally operate the dams on the Snake and Columbia rivers. When he's rejected biological opinions in the past, he nonetheless left the plans in place while sending them back for changes.
He's said he has no interest in remanding the plan again. His options include:
Reject the plan and don't leave it in place. Most consider this unlikely because the government could theoretically be considered to be killing salmon without a permit, a violation of the Endangered Species Act that carries a criminal penalty of up to $50,000 per incident and a year in jail.
Approve the plan outright or with certain stipulations. Redden has before taken steps toward overseeing the rivers, such as ordering the government to alter dam operations to aid migrating fish. He could make similar demands this time.
Order a settlement. Most are pointing to this outcome. In his questions, he asked the federal lawyers if they would be comfortable including some of the things salmon advocates have asked for in legal documents, and he asked the salmon interests if they could live with such an amended plan.
But whatever his ruling after today's hearing, one thing appears likely: The loser will appeal, and the litigation will continue.
-- Matthew Preusch; firstname.lastname@example.org