Department of Interior
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.”
In other words, breaching had better be on the table. One imagines a fuss out on the playground: “He said the 'B' word! He did! He did! We all heard him!”
Salmon advocates have argued for years that breaching is the only way to save the Snake River runs, and that the alternatives, ginned up by officials who will promise virtually anything in order to save the dams, are doomed to fail. Others, who value the dams as a source of electricity and irrigation water and as key parts of a system that makes Lewiston, Idaho, a deep-water port, have always argued that the salmon can do just fine with the dams as they are. The arguments go round and round. Even “trending toward recovery” mirrors an argument made to the judge who tossed out the very first Columbia River BiOp in 1994. “The most amazing thing to me after working on this case for nine years,” Mashuda says, “has been how often we've returned to the same arguments.”
No one ever doubted where the last administration stood. “George W. Bush made it clear that [breaching] would never happen on his watch,” Kim Murphy wrote in the Los Angeles Times. “The dams, after all, are generating enough electricity to power Seattle, and to provide Lewiston, Idaho, with a port for barging valuable cargoes of grain 140 miles down the river. But it's a new watch. ”
True thinks it's significant that Judge Redden's recent letter “comes at a time at which the new administration is re-examining the Biological Opinion." We're hopeful, he says, that the Obama administration will decide to chart a different course Still, he observes, when it comes to Columbia River salmon, “the history of hijacked science is long.”
Clearly, not everyone wants to see dam removal on the table, even as a contingency. “We’ve got a judge who put on a black robe and thinks it came with a crown and throne,” eastern Washington Congressman Doc Hastings said in a press release. “Judge Redden has no authority to order dam removal, and dam removal will never happen because Northwest citizens understand we can protect our clean, renewable hydropower dams and recover salmon at the same time. Federal law doesn’t allow dam removal and no Democrat-politician-turned-activist-Judge can rewrite the law. Only Congress has the authority to authorize dam removal and as the top Republican on the Committee of jurisdiction, you can be certain I’ll do everything in my power to stop any such extreme action."
Elsewhere, similarly extreme action has been gaining credence, if not momentum.
The Elwha dams on the Olympic Peninsula are supposed to start coming down in three years. PacifiCorp has agreed to remove the 125-foot Condit Dam on Washington's White Salmon River. Condit is scheduled to come down in 2010.
On a grander scale, PacifiCorp has agreed in principle with the federal government and the states of Oregon and California to get rid of four dams on the Klamath River. (American Rivers, other environmental groups, counties, tribes, and farming and commercial fishing groups have all been parties to the negotiations, but did not sign the formal agreement in principle.) If a long list of conditions is met, demolition on the Klamath River may start in 2020, and the parties are supposed to conclude a final agreement by the end of June.
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