The fish can't afford to wait much longer, and the judge doesn't want to: "Federal defendants have spent the better part of the last decade treading water and avoiding their obligations under the Endangered Species Act,” U.S. District Judge James Redden has written to the attorneys litigating the Bush administration's last Biological Opinion on operating the federal Columbia River dams. “Only recently have they begun to commit the kind of financial and political capital necessary to save these threatened and endangered species, some of which are on the brink of extinction. We simply cannot afford to waste another decade."
Redden's patience is running out. In February, he wrote the attorneys: “I have no desire to remand this biological opinion for yet another round of consultation. The revolving door of consultation and litigation does little to help endangered salmon and steelhead." "The odd thing” about public reaction to the judge's letter, says Earthjustice attorney Steve Mashuda, has been people's expressions of surprise. “He's been telling us he's had big concerns about the BiOp all along.”
Since 1991, when the first Columbia River system salmon population was listed, the National Marine Fisheries Service has issued five biological opinions on operation of the federal Columbia River power system. The courts have thrown out three. The agency withdrew one on its own. The fifth is now before Judge Redden — who threw out the BiOps issued in 2000 and 2004.
Does Redden's latest letter represent anything new? “Yes,” says Earthjustice attorney Todd True. The new letter makes it clear that “he doesn't think this Biological Opinion does what the law requires, and he wants some changes.”
Indeed, it does. “I still have serious reservations about whether the 'trending toward recovery' standard [that the Bush administration unveiled in this BiOp] complies with the Endangered Species Act, its implementing regulations, and the case law,” Redden wrote.
“Trending toward recovery” appears in neither statute nor case law. It is a new concept that the Bush administration artfully coined as part of its long-running effort to justify the status quo. Under Endangered Species Act regulations, a governmental action places a species in “jeopardy” if it “reduce[s] appreciably the likelihood of both revival and recovery of a listed species ....” Under the “trending toward recovery standard,” it isn't clear what jeopardy would mean.
As Redden has pointed out, the Bush administration has never really explained. American Rivers' Washington state conservation director, Michael Garrity, characterizes “trending toward recovery” as the “one more fish standard.” During oral argument, Redden himself asked if one additional Snake River fish per year for 10 years would qualify. He didn't get a direct answer.
“Trending” seems to set the bar pretty low. But the feds' approach to it has been less high jump than limbo. “Even if 'trending toward recovery' is a permissible interpretation of the jeopardy regulation,” Redden wrote, “the conclusion that all 13 species are, in fact, on a 'trend toward recovery' is arbitrary and capricious. . . .”
It doesn't get any clearer than that. Redden listed the reasons why he considered that conclusion arbitrary and capricious, including:
(1) Federal Defendants improperly rely on speculative, uncertain, and unidentified tributary and estuary habitat improvement actions to find that threatened and endangered salmon;
(2) Federal Defendants' own scientists have concluded that many of the proposed estuary mitigation measures (and the assumed benefits) are unsupported by scientific literature;
(3) Federal Defendants assign implausible and arbitrary numerical survival improvements to tributary habitat actions, even though they have not identified specific habitat actions beyond 2009, and there is no scientific data to support those predictions; . . .
(5) The BiOp does not articulate a rational contingency plan for threatened and endangered species in the event that the proposed habitat improvements and other remedial actions fail to achieve the survival benefits necessary to avoid jeopardy.”
So, what would a rational contingency plan look like? Redden proposed “developing a . . . plan to study specific, alternative hydro actions, such as flow augmentation and/or reservoir drawdowns, as well as what it will take to breach the lower Snake River dams if all other measures fail.”
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