When I heard that U.S. District Judge James Redden had, for the third time, rejected a biological opinion designed to protect Columbia River salmon from extinction, my mind leaped to this ongoing question: Will this decision move us closer or further away from removing dams from the Snake River?
After reading Redden’s opinion (PDF, 1.1 mb), I’m not sure. But I can understand why various sides of the debate must be feeling a mixture of hope and frustration from a legal battle that has continued for more than 10 years.
Redden was clear that NOAA Fisheries (National Marine Fisheries Service) could not conclude that salmon are on their way to recovery by relying on undetermined and unplanned habitat improvements proposed from 2013 to 2018 — not so very far in the future.
Quoting from his own opinions upheld by higher courts, Redden wrote in a fairly straight-forward way:
“The ESA (Endangered Species Act) prohibits NOAA Fisheries from relying on uncertain and speculative actions that are not ‘reasonably certain to occur.’ Mitigation measures may be relied upon only where they involve ‘specific and binding plans’ and ‘a clear, definite commitment of resources to implement those measures …’
“Mitigation measures supporting a biological opinion’s no-jeopardy conclusion must be ‘reasonably specific, certain to occur, and capable of implementation; they must be subject to deadlines or otherwise-enforceable obligations; and, most important, they must be address the threats to the species in a way that satisfies the jeopardy and adverse-modification standards.
“Here, NOAA Fisheries improperly relies on habitat mitigation measures that are neither reasonably specific nor reasonably certain to occur, and in some cases not even identified….
“It is one thing to identify a list of actions, or combination of actions through adaptive management to reflect changed circumstances. It is another to simply promise to figure it all out in the future….
“Coupled with the significant uncertainty surrounding the reliability of NOAA Fisheries habitat methodologies, the evidence that habitat actions are falling behind schedule, and that benefits are not accruing as promised, NOAA Fisheries’ approach to these issues is neither cautious nor rational.”
In a footnote, Redden said he is troubled that the agencies have been unable to come up with numerical predictions for salmon survival based on the habitat improvements proposed.
Redden said he would keep the biological opinion in place, flawed as it is, to ensure that NOAA Fisheries will “get out of the courtroom and get to work for the next two and a half years.”
By 2014, Redden wants a new biological opinion that thoroughly discusses the mitigation efforts but also addresses “more aggressive action, such as dam removal and/or additional flow augmentation and reservoir modifications….
“As a practical matter,” he notes, “it may be difficult for federal defendants to develop a long-term biological opinion that relies only on mitigation measures that are reasonably certain to occur.”
That last sentence about the difficulty of relying on mitigation measures keeps the door open to a future court order involving dam removal — but Redden clearly understands that he cannot replace a biological opinion with a legal ruling.
Will Stelle, regional director of NOAA Fisheries put a positive spin on the ruling. He told Scott Learn of The Oregonian that adding more detail to the biological opinion should be enough satisfy the judge.
“He ordered us to tighten up on the habitat program after 2013, and that’s fine,” Stelle was quoted as saying. “We were intending to do it anyway.”
Environmental and fishing groups celebrated the judge’s ruling, as they explained in a joint news release (Scribd). The following comment is from Zeke Grader, executive director of Pacific Coast Federation of Fishermen’s Associations:
“Now is the time for the Obama Administration to walk the talk on real salmon solutions. As this ruling highlights, the federal government has spent nearly 20 years spending enormous sums of money foolishly by doing all the wrong stuff.
“Facing the problem squarely, including potential removal of the four fish-killing dams on the lower Snake River, will create many thousands more jobs, revive the fishing industry, save billions of dollars for taxpayers, and lead in the development of clean, renewable, more efficient energy.
“What we need most now is for this administration to lead us to those solutions, not just bury its head in the sand in denial as has so often happened in the past.”
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