Writings and observations

Redden on salmon, and beyond

Toward the beginning of U.S. District Judge William Redden’s decision Tuesday in American Rivers v. NOAA Fisheries, there was a sentence with a striking word in it.

The sentence was, “This opinion addresses the latest in a series of biological opinions issued by the federal government that have ostensibly attempted to stem the decline of threatened and endangered Columbia and Snake River Basin salmon while preserving tribal fishing rights, and protecting the region’s economic and political interest in cheap hydropower, agricultural irrigation, and commercial/recreational fishing.”

Did you catch the “ostensibly”?

Redden’s decisions over the last few years have built a portrait of the judge as a persistent and accelerating critic of federal environmental policies, and an ally of environmental groups (even if, in this decision, he technically gave American Rivers only a partial win). He can’t force congressional policy, and so he remains simply at loggerheads with his critics . . .

Unless, that is, this latest decision upends a key section of the federal-state-Nez Perce Tribe agreement, so carefully worked out over a period of years, in the Snake River Basin Adjudication.

That may not be the case, and for the moment it isn’t – necessarily. For one thing many of the key points were not actually decided but remanded for more evaluation. Redden’s key conclusion read like this: “I conclude that the 2005upperSnakeBiOp is arbitrary and capricious, and invalid under the ESA because it relies on the same flawed comparative jeopardy analysis used in the 2004BiOp for the down-river dams. The 2005upperSnakeBiOp will be
remanded with further instructions to NOAA and BOR to correct its flaws. I conclude that NOAA and BOR may continue to segment the upper Snake water projects from the down-river FCRPS operations in the upcoming consultations during the remand period for both biological opinions.”

The segmentation approach for the river is critical in this; if the river can be amanged only in a unitary way, the Nez Perce agreement may not be managable.

So. The Idaho congressional delegation started their response by saying “Not only does this ruling jeopardize the careful and long collaboration process between the federal, state, and local governments and the Tribes, but it also jeopardizes the potential for a long-term solution.” But it added: “We do note that the judge put the remand of the Upper Snake and Federal Columbia River Power System Biops on the same schedule and agreed they should remain segmented. With these objectives in mind, we will watch very carefully the way that the region responds to the judge’s ruling, particularly with regard to the way the remand order is implemented.”

It doesn’t endanger the SRBA or the Nez Perce agreement yet. But Redden is unlikely to hold much sacred, and you almost start to wonder whether he’s just found the two-by-four that gets the attention of a whole bunch of regional elected officials.

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