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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