Can this BiOp be saved? That's the underlying question this morning when the usual suspects appear in federal court to argue for what may (but probably won't) be the last time over the government's biological opinion on operation of its Columbia River dam system.
Over the last two weeks, U.S. District Judge James Redden, who has already tossed two prior BiOps, sent the parties a couple of letters outlining the questions he wanted addressed and perhaps providing a glimpse into his thinking. Redden had already made it clear that he didn't want to see the federal government go back and try yet again, but he wasn't eager to dictate how the feds ran their dam system. This is the fifth BiOp since the first Columbia River system salmon were listed more than 15 years ago, and not one has been approved by the federal courts, The Bush administration cranked out this BiOp late last year. The Obama administration has clung to it but, in an effort to rectify its more obvious legal shortcomings, has issued an Adaptive Management Implementation Plan. The trouble is, Redden acknowledged, the AMIP isn't part of the BiOp. And it isn't part of a negotiated settlement. 'êDo federal defendants have the discretion to unilaterally modify the 2008 Federal Columbia River Power System Biological Opinion ("2008 BiOp") at any time?'ê Redden asked. More pointedly, he wondered: 'êIs the AMIP part of the BiOp, or an impermissible post hoc rationalization?'ê
Whatever the adaptive management plan is, the judge pressed the plaintiffs to concede that it at least represented a step forward: 'êDo they acknowledge that the AMIP contains positive measures,'ê he asked. 'ê[W]hat additional measures do they suggest that federal defendants implement? As a practical matter, what more can federal defendants do?'ê
Well, for one thing, they can stop hiding the ball. 'êAs you know,'ê Redden wrote, 'êfederal defendants have an affirmative duty to use the 'best' available science.'ê  Although they 'êassert that the AMIP is based on the best available science, they continue to withhold from public review the documents that may, or may not support that assertion.'ê
Still, he wound up last Wednesday's message to the parties by accentuating the positive. 'êWe have come a long way since the 2004 BiOp,'ê he wrote. 'êFederal Defendants have finally made a good faith effort to address the flaws in the 2000 BiOp; they deserve credit for working with local, tribal, and state entities to attempt to ensure that this BiOp's tributary and estuary habitat mitigation measures are reasonably certain to occur.'ê He didn't let the feds entirely off the hook. Instead, he said that (just as the plaintiffs have argued) 'êFederal defendants can do more to ensure that those habitat actions are reasonably certain to result in the predicted benefits."
Redden still pushed the parties to sit down and reason together. "After we discuss whether the AMIP is properly before the court" he wrote, "I want the parties to focus on its positive attributes, and suggest additional measures to further improve the BiOp (through negotiation, or the appropriate procedural avenues).'ê
It's a nice idea. Stay tuned.
