Judge blasts latest federal salmon recovery plan

  Judge James Redden's letter outlining his concerns over a proposed salmon recovery plan.

by ERIK ROBINSON, Columbian Staff Writer December 07, 2007

The federal judge who has twice rejected federal plans to balance imperiled salmon against dams in the Columbia River basin signaled Friday that dam managers are doing no better with their latest plan — and consequences could be severe.

U.S. District Judge James Redden raised the possibility that, without substantial changes in favor of salmon, federal dam operators could even be held criminally or civilly liable.

Redden, in a letter sent Friday in advance of a status conference scheduled for next week in his Portland courtroom, wrote that he is unlikely to send the latest plan — called a biological opinion, or bi-op – back for federal agencies to try again.

“If I decide not to remand the Bi-Op, but decide to simply vacate the opinion instead, would this not result in wrongful ‘taking’ by the Corps of Engineers, the Bonneville Power Administration, and the Bureau of Reclamation?” Redden wrote. “What are the consequences of such ‘takings?’”

A “take” under the Endangered Species Act means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect a threatened or endangered species.

The law provides for both civil and criminal penalties for killing species listed by the law, with criminal fines up to $50,000 and/or a year in prison. Civil fines of as much as $25,000 per violation are also possible.

Thirteen stocks of Columbia basin salmon and steelhead have dwindled nearly to the point of extinction, and Redden has made it clear he expects federal authorities to ensure dams do not jeopardize their survival. He’s ruled two federal dam management plans illegal so far, one submitted by the Clinton administration in 2000 and one by the Bush administration in 2004.

Federal officials say they will offset harming salmon in the dams by taking a variety of expensive measures to improve salmon survival.

But Redden has repeatedly raised concern that many of these mitigation measures — including habitat restoration, hatchery improvements and new fish slides to reduce the number of young salmon that pass the dams en route to the Pacific Ocean — are not reasonably certain to occur. In Friday’s letter, Redden said the latest plan appears to share many of the flaws as the plan he rejected in 2004.

“I instructed Federal Defendants to consider all mitigation measures necessary to avoid jeopardy, including removal of the four lower Snake River Dams, if all else failed,” the judge wrote. “Despite those instructions, the (biological opinions) 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.”

Scott Simms, a BPA spokesman in Portland, said the agency had no immediate response to the missive from Redden.

“We just received the letter and we are reviewing it,” he said late Friday.