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.”
Other news stories:
The News Tribune
Seattle Times
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