Redden Tighten's the Noose
Yesterday (10/7) Judge James Redden issued an Order and Remand to NOAA (National Oceanic and Atmospheric Administration) Fisheries, Army Corps of Engineers and th Bureau of Reclamation. He said that they have failed to comply with the E.S.A. (Endangered Species Act) in regards to dam opperations on the Columbia and Snake River systems. He is giving them 1 year to come up with a solution. Here are some excerpts from his order that are provided by Earthjustice;
"The many failures in the past have taught us that the preperation or revision of NOAA's biological opinion on remand must not be a secret process with a disastrous surprise ending. The parties must confer and collaborate if we are to reach the goal of a valid biological opinion. The Governments inaction appears to some parties to be a strategy intended to avoid making hard choices and offending those who favor the status quo. Without real action from the Action Agencies, the result will be the LOSS of the Wild Salmon"
'The May 26, 2005 Opinion and Order demonstrated that the runs for all 12 listed Species, and the one Species proposed for listing, continue to dwindle. Four of the Species are in danger of extinction, and the remainder 9 Threatend are likely to become Endangered in the near future"
"A failure now will result in vacating the biological opinion. The Action Agencies and others will be exposed to liability for TAKING listed species under section 9 of the E.S.A. This may sound benign to some, but the parties are aware of the severe consequences that would follow."
"In such an event, the Courts would be required to 'Run the River'. The Executive, Legislative, and especially the Judicial Branches abhour such action by the Courts. Such a dysfunction of Government is NOT a rational option. There must be cooperation between the parties and all of the three branches of Government to avoid such an embarrassment"
"NOAA and the Action Agencies seem offended at the thought of doing more than merely listining to others, but more than that is needed to produce a Biological Opinion lodged without challenge. This remand, like the rewmand of the 2000BiOP requires NOAA and the Action Agencies to be aware of the possibility of breaching 4 dams on the Lower Snake River if all else fails. 'Speeching' on the dams will NOT avoid breaching the dams. Cooperation and assistance may."
Earthjustice has a link to the full text of this ruling, I would suggest that everyone take the time to read it. Judge Redden is standing up for ethical treatment of Species that are on the brink. Support him, support the fish.
Now we need a judge to tell WDFW and ODFW to stop the commercial netting on the Columbia during the time the endangered and threatened salmon and steelhead are ascending the river to keep them from being taken in the commercial net fishery. Perhaps, a judge could also rule that until the salmon and steelhead of the Columbia/Snake systems are no longer threatened or endangered the tribes cannot net them either.
So far, it looks like the federal judges and the environmental groups like Earth justice have decided to leave the commercial fishing by tribal and non-tribal fishers in the Columbia alone. It would appear that the commercial take of threatened and endangered salmon and steelhead is a significant contributor to reducing run sizes, or at the least, slowing down recovery of them.
"Subject to any further orders, the remand period shall be one year, during which the 2004BiOP shall remain in place. During the remand period, NOAA shall:
1. Correct it's improper segregation of the ellements of the proposed action NOAA deems to be nondiscretionary
2. Correct it's improper comparison, rather than aggregation, of the effects of the proposed action on the listed Salmon and Steelhead.
3.Correct it's flawed determinations as to whether the proposed action destroys or adversely modifies critical habitat.
4. Correct it's failure to consider the effects of the proposed action on both recovery and survival of the listed species in determining whether the proposed action is likley to jeopardize the continued existence of listed Salmon and Steelhead; and
5. Correct it's past reliance on mitigation measures that are not reasonably certain to occur and/or have not undergone Section 7 consultation.
During the remand period, NOAA, the Action Agencies, Army Corps of Engineers and Bureau of Reclamation shall collaborate with the sovereign entities, including the States of Idaho, Montana, Oregon, and Washington, and the Tribes who are parties or Amici in this action (Nez Perce, Umatila, Warm Springs, and Kootenai Tribes) to achive the goals of:
A. Developing items to be included in the proposed action; and
B. Clarifying policy issues and reaching aggrement or narrowing the areas of disagreement on scientific and technical information.
Look, clearly this is not the "Panacia" for all the problems of the Columbia and Snake Systems. From my point of view, it takes no consideration in relation to Pollution of these systems or the loss of Tributary habitat. Bottom line is, I know you can't just throw a truck load of lumber on a piece of property and call it a House. You have to start with a foundation, then BUILD from that. Judge Redden is laying the cornerstones of that foundation with these and hopefuly future actions for these systems.
It looks like he has left the door open in alot of areas. Now would be the time to bring up matters prevalent to this action!
Don't want to sound like a broken record here, but everyone should read the Judge's remand order, it's the story of the future of fishing!
I agree, it is a start.
I do wonder how the Bureau of Reclamation and Army Corps of Engineers are going to react though since Redden's order conflicts somewhat with the Spokane federal judge's order (which was upheld by the 9th Circuit last fall) that pretty said the lower Snake and upper Columbia dams can be run as the Bureau of Rec and Army Corps see fit since it cannot be proven without question that the dams and how they are operated are preventing the rebuilding of the fish populations. I suspect both of these agencies will be filing appeals based on the conflict between these rulings, although they may very well wait until after NOAA's recovery plan is re-written before doing so.
As I opined last year, it appears we are entering into a phase of various and sundry lawsuits being filed in different federal district courts by the various interested in the Columbia/Snake fish or power/agriculture/industrial/development potential. It seems this is exactly what is happening because we are having different judges sitting on different federal district courts ruling on the Columbia/Snake and the rulings are not in agreement with each other. There also seems to be a bit of "judge shopping" going on by the interests groups to get the rulings each one wants and then let the 9th circuit work it out on the appeals.
You also have the tribal fishing rights that were granted by treaty and affirmed by the federal courts, which could well prove to be a wild card that either helps or hinders the recovery efforts.
What I'm trying to point out is that no one court decision is going to put it to rest and that there are factors other than the dams and fish passage that are impacting the survival and numbers of fish. And among these factors are the treaty tribes fishing rights, WDFW, ODFW, non-tribal commercial fishermen, municipalities, power producers, agriculture, developers, industry, shippers, sportsfishers, and federal judge rulings that are in conflict with one another to some degree or another. In other words, we can't hang our hats on Redden's ruling and assume the fight for the survival of the fish has turned the tide in the favor of the fish.
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