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Makah's do it again!!!

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Here are the articles I'm referring to:

From Saturday's Clark County Columbian Newspaper - Plot thickens?

Saturday, December 08, 2007
BY ERIK ROBINSON, Columbian staff writer

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 - a biological opinion, or BiOp - back for federal agencies to try again, and hinted at repercussions if he doesn't.

"If I decide not to remand the BiOp, 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?' "

To "take" under the Endangered Species Act means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect a member of a threatened or endangered species.

The law provides for both civil and criminal penalties for taking a species protected 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, 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 with 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 ocean-bound young salmon killed in crossing the dams - are not reasonably certain to occur. In Friday's letter, he said the latest plan appears to repeat many of the flaws of 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.

Judge rips latest plan to help salmon
Hydroelectric dams - A meeting with Judge James Redden is federal managers' last chance
Tuesday, December 11, 2007
The Oregonian
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 is 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 on Wednesday to explain what more they can do for fish in the final version, because so far it looks as if 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."

Two plans rejected

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 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.

Dam breach turned down

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, Native American 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," David Leith, an Oregon Department of Justice attorney, 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."

Michael Milstein: 503-294-7689;

2007 The Oregonian


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