NOR'WESTER NEWSLETTER ISSUE #324                                               

masthead

March 7, 2009

In This Issue:
Judge Redden on BiOp: "It is very close"
Judge Redden on BiOp: "It is very close"
 
Judge James Redden opened the March 6th Columbia River salmon Biological Opinion (BiOp) status conference by saying that others are telling him what to do. He was referring to an Oregonian editorial and an op-ed co-authored by U.S. Representatives Peter DeFazio (D, OR-4) and Greg Walden (R, OR-2). Both urged support for the BiOp.
 
Redden then said there would be no resolution this month. He asked the federal defendants if they were willing to roll over 2008 river operations, including court-ordered spill, into 2009 and avoid arguing over a preliminary injunction. Department of Justice attorney Coby Howell agreed. River operations to assist juvenile fish passage begin April 1st.
 
The judge prepared seven questions for the parties: two related to the definition of jeopardy, one on the data NOAA used, three on estuary habitat and one on tributary habitat. Judge Redden did not ask about flow measures, such as drawing down reservoirs.
 
The federal and Washington attorneys described recent and future estuary habitat restoration projects. In addition to projects in the BiOp, they presented estuary habitat projects managed by the Lower Columbia River Estuary Partnership and projects completed with annual funding authorized by WRDA 2000 Section 536, originally introduced by Rep. Earl Blumenauer (D, OR-3) after consultation with environmental groups and ports.
 
In closing, Jay Waldron, Schwabe Williamson & Wyatt attorney representing navigation interests, summed up for the defense. He told Judge Redden, "You have three major accomplishments since 2000. First, you created a collaborative process that not only helped create the BiOp, but it continues on to involve all of the sovereigns in monitoring progress and recommending changes in an adaptive management process. Second, you increased funding commitments by $1 billion. Third, you increased accountability. Fish accords with treaty tribes, upriver tribes, and three states guarantee that the federal government will be accountable in the future.
 
Waldron said that the key question is whether the BiOp and fish accord actions are reasonably certain to occur. He told Redden, "It requires trust. You have to decide if you have the trust in the collaborative group you created to measure performance, provide funding and collaborate on adaptive management."
 
Judge Redden addressed the parties, saying, "Performance standards need trust. I have no problem with that. I will rule on the rule of law. I can't tell you how I will rule. I think it is very close....The most serious flaw is habitat, in particular, estuary habitat. Give some thought on how to make it reasonably certain to occur."
 
Redden did mention dam breaching. "The 2000 BiOp included a dam breach clause (but) it would have been not reasonably certain to occur....I don't know if breaching dams is the solution, but if at some point in five or seven years, habitat doesn't work, what are the options?.... I may end up saying it is fine as it is."
 
Redden closed by asking the parties to "Give some thought to what we are going to do now. Give some thought if you want a settlement judge. It's not going to be quick. I may send letters to ask you for some things. If habitat is not going well, we have to do something else. The money from Bonneville has made this a good BiOp and we are taking it seriously. "
 
PNWA manages the Inland Ports and Navigation Group, defendant intervenors representing navigation interests. We will continue to work toward a solution that results in a BiOp that meets the needs of fish and legal requirements while maintaining the economic benefits of the Columbia Snake River System. 
 
PNWA staff contact: Glenn Vanselow