Judge Rips Federal Agency's
by Michael Milstein
The federal judge holding the government's feet to the fire to restore Northwest salmon says the latest federal strategy to help fish falls so far short it may be worse for salmon than the plans he's already rejected.
In a blunt letter to attorneys who will appear in his Portland courtroom Wednesday in a landmark salmon lawsuit, U.S. District Judge James A. Redden signaled that the government is close to fumbling its last chance to help fish hammered by federal hydroelectric dams on the Columbia and Snake Rivers.
He also offered an unsettling glimpse of what that would mean for the Northwest: a dam system that suddenly becomes illegal to operate and is taken over by the courts, with orders to divert extra water for protected fish and perhaps even drain reservoirs at what would likely be tremendous cost to the region.
Such action would compromise the capacity of hydroelectric dams to supply inexpensive electricity to the Northwest and could have repercussions on everything from irrigation to recreational fishing.
The Endangered Species Act requires the government to remedy the damage dams do to salmon if it wants to keep operating the dams legally. Redden has said he's reluctant to take control of the region's hydropower system and make those fixes himself.
But he also made clear that he might have to do for salmon what the federal government will not.
The federal plan Redden is reviewing is still a draft, set to be made final next year. But Redden told government attorneys they should be ready Wednesday to explain what more they can do for fish in the final version, because so far it looks like they're providing even less protection for salmon than before.
Brian Gorman, a spokesman for the National Marine Fisheries Service, which has prime responsibility for protecting salmon, cautioned against reading too much into Redden's warnings.
"He's simply raising all the appropriate questions," Gorman said. "We have legitimate answers to all of those questions."
Redden warned the government is unlikely to get another chance to do the right thing for salmon.
The judge has thrown out two previous federal proposals to remedy the damage dams do to salmon, saying they were based on flimsy and far-off promises that wouldn't provide the timely help salmon need.
The government could not persuade an appeals court to overrule Redden.
Federal agencies then responded last fall with what top officials described as their best and most comprehensive program for salmon ever, tailored to the needs of each species and population. They promised upgrades at dams to safeguard fish and habitat improvements in streams and the estuary near Astoria.
But the judge isn't buying it. He said much of the federal plan still depends on uncertain funding and may not help salmon soon enough.
He wrote attorneys late Friday outlining issues he wants to discuss on Wednesday. He said federal agencies appear to have not only produced another faulty plan, but they also ignored his instructions to consider all options for helping salmon - including tearing out four hydroelectric dams on the Lower Snake River.
"I instructed federal defendants to consider all mitigation measures necessary to avoid jeopardy (to salmon), including removal of the four lower Snake River Dams, if all else failed," he wrote. "I also instructed federal defendants to ensure that any mitigation measures were reasonably certain to occur."
"Despite these instructions," the judge wrote, the federal plans "again appear to rely heavily on mitigation actions that are neither reasonably certain to occur, nor certain to benefit listed species within a reasonable time.
"Moreover, federal defendants seem unwilling to seriously consider any significant changes to the status quo dam operations," Redden wrote.
The Bush administration has flatly refused to consider removing the four dams on the Snake River.
But Redden told attorneys to prepared to discuss the consequences should he decide to reject the new federal salmon blueprint, leaving the dams with no legal operating plan.
He underscored many of the concerns the state of Oregon, tribes on the lower Columbia River and conservation groups voiced in their court filings. Oregon officials have been some of the strongest critics of the federal approach, telling the judge that the federal plan "manipulates science to justify policy objectives that subordinate the needs of protected fish.
"Indeed, in some significant respects, the new plan provides even less protection for listed fish than did its predecessor," Oregon Department of Justice Attorney David Leith wrote on behalf of Attorney General Hardy Myers.
Washington and Montana officials, along with some upriver tribes and utility customers, were more complimentary, though. Washington benefits more than Oregon from inexpensive electricity generated at the dams.
Redden hinted in his letter that he is also skeptical of the government's salmon science, saying he may appoint his own panel of independent scientists to advise him on measures to help salmon.
"We have an opportunity to get this right," he wrote at the end of his letter. "I remain hopeful that the parties will do what needs to be done."
THE BATTLE OVER SALMON
More than 10 million wild salmon once flourished in the Northwest, where roughly 1 million now struggle to survive. Salmon's decline - in large part because of hydroelectric dams - provoked an endangered species battle before U.S. District Judge James A. Redden of Portland. Key turning points in that fight:
2003: Redden rejects a federal plan, called a "biological opinion," for operation of Columbia River hydroelectric dams. He rules it doesn't protect salmon harmed by the dams.
2004: Government issues new biological opinion that says dams do not pose a threat to salmon survival.
2005: Redden throws out the new biological opinion for violating the federal Endangered Species Act and overlooking the risk dams pose to salmon survival.
2007: Government issues another new biological opinion that it says is the most thorough recovery blueprint yet. But Redden insists this, too, falls short, and says time may be running out before the dams are found to violate law and courts overtake their operation.
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