Behind a judge's refusal to go along with Obama's river plan

The Obama administration has essentially adopted the Bush administration's position that everything is fine for fish on the Columbia if it says so. A federal judge, who has lost patience, is demanding better planning, even if it requires dam removal.

Little Goose Dam near Starbuck in Eastern Washington is one of four that have been considered possible candidates for demolition. The others are Ice Harbor, Lower Monumental, and Lower Granite

Little Goose Dam near Starbuck in Eastern Washington is one of four that have been considered possible candidates for demolition. The others are Ice Harbor, Lower Monumental, and Lower Granite Bonneville Power Administration

Extra! Extra! Read all about it! The sun has risen in the east! And United States District Court Judge James Redden has tossed the Obama administration's (nee the Bush administration's) biological opinion for operation of the federal Columbia River dam system onto the scrap heap of history.

This is the third Columbia River biological opinion (BiOp) Redden has tossed, the fourth that has been rejected by the federal courts. He has been expressing his skepticism about and frustration with this BiOp for years. So, no one should be surprised that he has sent it back to NOAA Fisheries with instructions to come up with something better by 2014.

"Because [the current biological opinion] is based on unidentified mitigation measures that are not reasonably likely to occur," Redden wrote in his new decision, "I find NOAA Fisheries' 'no jeopardy' conclusion arbitrary and capricious, at least as it extends beyond 2013." The judge made it clear that the feds were attributing specific survival benefits to habitat improvements that had not even been identified. Not surprising, he wrote that he has continued "to have serious concerns about the specific numerical survival benefits NOAA Fisheries attributes to habitat mitigation."

And, although he was way too judicial to call it flim-flam, he had clearly lost patience with the feds' manipulation of "science" to reach politically determined ends. "Although the court may be required to defer to NOAA Fisheries' technical and scientific 'expertise' in predicting the benefits of habitat mitigation," he wrote, "the court is not required to defer to uncertain survival predictions that are based upon unidentified mitigation plans."

The court was also not required to reach some of the more fundamental questions that the plaintiffs had raised. The Bush administration had suggested that the government could comply with the Endangered Species Act if the listed salmon populations were "trending toward recovery." That could presumably mean one more fish per year. It was a concept foreign to statute or case law. When the Obama administration basically took the Bush BiOp as its own, Redden made it clear that the document was probably a loser. Among other things, he said, "I still have serious reservations about whether the 'trending toward recovery' standard complies with the Endangered Species Act, its implementing regulations, and the case law. Even if 'trending toward recovery' is a permissible interpretation ... the conclusion that all 13 species are, in fact, on a 'trend toward recovery' is arbitrary and capricious."

The new ruling says that because the BiOp failed by relying on unidentified and uncertain habitat improvements, Redden didn't have to address "trending toward recovery." But he had already expressed his concern that the feds had "improperly rel[ied] on speculative, uncertain, and unidentified tributary and estuary habitat improvement actions" even though their "own scientists have concluded that many of the proposed estuary mitigation measures (and the assumed benefits) are unsupported by scientific literature."

“Even if 'trending toward recovery' is a permissible interpretation of the jeopardy regulation,” Redden wrote the attorneys on both sides a couple of years ago, “the conclusion that all 13 species are, in fact, on a 'trend toward recovery' is arbitrary and capricious.” Redden's reasons for considering it arbitrary and capricious included:

(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.

Given that statement, and the fact that the Obama administration had tweaked but not fundamentally changed the BiOp, Redden's decision seemed a foregone conclusion.


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Comments:

Posted Thu, Aug 4, 7:53 a.m. Inappropriate

No mention, whatsoever, of harvest? Doesn't killing fish, uh, kill fish? Ah, politics. I mean, science. I mean....

I've heard WA Department of Fish and Wildlife is intentionally misreporting data on tribal fisheries. The coverup is being orchestrated via the Governor's Office of Indian Affairs. That agency, by the way, recently obtained an "exemption" to the State's spending "freeze" (good one!) to hire a Confidential Secretary. Hey, if you're gonna be falsifying data, you gotta keep it on the downlow.

BlueLight

Posted Thu, Aug 4, 8:56 a.m. Inappropriate

In response to BlueLight:

Yes, harvesting fish kills fish, but fishing is nothing compared to the dams. Take a look at this table:

http://www.workingsnakeriver.org/images/stories/snakeriver/pdf/Finaldam_harvest_table2.pdf

Granted, it doesn't list tribal fishery impacts, but people would have to fish an awful lot to kill as many fish as the dams do. Plus, the fish killed by the dams are utterly wasted. Fish killed by fishing feed people and the economy.

Also, because treaties have guaranteed salmon fishing to tribes, the government could wind up spending a lot of money on compensation if the federal policy on the hydrosystem causes the salmon runs to go extinct.

Kathryn

Posted Thu, Aug 4, 11:07 a.m. Inappropriate

The greatest fear that the dam supporters have is that the breaching of the Elwah dams turns out to be successful and that salmon return in large numbers to that river basin. That's in part why it took so long to get permission to remove those dams.

But Dam removal is not unique to our region. Maine is working the same issue for Atlantic Salmon and Chad runs on the Kennebec River, which drains 1/5th of the state. Slowly but surely those dams are coming out as well.

That said, I like hydro power, but we need to leave some rivers to run free. The Snake seems to me a good candidate.

GaryP

Posted Thu, Aug 4, 11:33 a.m. Inappropriate

Redden should be removed from the bench. He is exceeding his authority, and is himself arbitrary and capricious. For example, there is no proof rivers in Washington State are going to get warmer.

Posted Thu, Aug 4, 2:04 p.m. Inappropriate

Mr. Redden is doing the job he was appointed to, making sure that the government via NOAA has actual data on fish survival rates. Whether or not the West river basins warm or not, doesn't matter. Currently the salmon die in huge numbers going through the dams on the way to the sea, and fail to make it to the spawning grounds now. And no plan that the government has put forward so far has shown how they would change that with actual data. All that has been done has been to try and justify the no action that's currently being done and to delay any action for as long as possible.

GaryP

Posted Fri, Aug 5, 12:45 p.m. Inappropriate

Thank you Judge Redden for making a bold decision. We have turned the Columbia and Snake Rivers into a series of lakes that are not suitable for wild salmon anymore. We can still have affordable power and salmon too. Take the concrete out of the rivers and do off channel hydropower instead. There's no real need for a seaport in Lewiston, ID. The only reason the Lower Snake dams were built was because Senator Magnuson forced the issue despite analyses by the Corps of Engineers that the cost/benefit ratio didn't pencil out. It's time that we correct the mistake.

Posted Sat, Aug 6, 4:04 p.m. Inappropriate

Thank you Dan Chasan and Crosscut for posting this piece. It is amazing how little media coverage the Judge Redden's ruling recieved this time around. One of the reasons the federal plans have relied on so much smoke and mirrors is the deference they give to state plans, and though our state is good at planning it is unable to mandate habitat restoration nor stop continuing degradation and losses of habitat, ie, we are losing way more than we are restoring, so the downhill slide continues. We have known for at least a decade that high water temperatures and low water velocity in the river are signficant contributors to salmon losses, but little can done with the dams in place. Agriculture is wary of a return to a transportation monopoly by the railroads if the dams are breeched; surely we can find a way to help them avoid that outcome. The chart posted by another commenter tells the true story, I just the source had been noted.

Olysailor

Posted Mon, Aug 15, 7:51 p.m. Inappropriate

Republished by Fishlink "Sublegals" Vol. 17, No. 30, 5 August 2011 (fishlink@straylight.primelogic.com):

“Another serious threat to the Columbia river fishery is the proposed construction by the U.S. Army Engineers of Ice Harbor and three other dams on the lower Snake river between Pasco, Wash., and Lewiston, Idaho, to provide slackwater navigation and a relatively minor block of power. The development would remove part of the cost of waterborne shipping from the shipper and place it on the taxpayer, jeopardizing more than one-half of the Columbia river salmon production in exchange for 148 miles of subsidized barge route.... This policy of water development, the department maintains, is not in the best interest of the over-all economy of the state. Salmon must be protected from the type of unilateral thinking that would harm one industry to benefit another.... Loss of the Snake River fish production would be so serious that the department has consistently opposed the four-phase lower dam program that would begin with Ice Harbor dam near Pasco.”

--> From the State of Washington Department of Fisheries Annual Report for 1949

louploup

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