Just before the end of the day Friday Judge James Redden gave attorneys for the federal dam managers and fisheries officials something to think about before they go to a hearing Dec 12 about the latest biological opinions on the Columbia and Snake River dams.
Redden's letter was frank. It was clear. It was ominous.
He doesn’t think the current draft biological opinions meet the science or the law of the Endangered Species Act. If the final drafts don’t, he could issue a “permanent injunction directing Federal Defendants to implement additional spill and flow augmentation measures, to obtain additional water from the upper Snake and Columbia Rivers, or to implement reservoir drawdowns to enhance in-river flows.”
All of these could cost the Pacific Northwest’s economy hundreds of millions of dollars. But if you are one of the major decision-makers, he issued another, scarier warning. He said he would not send a failed biological opinion back to to them to fix. Instead he would simply leave them without a biological opinion.
That means that any of the fish that die because of dams likely falls under the Endangered Species Act's “takings “ section. Agencies and individuals are not allowed to take species or their habitat and actions that can be stopped by court injunction can be stopped.
To determine how good the federal government’s science is Redden suggested he might convene an independent panel of scientists to evaluate the biological benefits of the measures they propose and the additional water, spill and reservoir drawdowns he’s considering.
He also reminded the federal attorneys he wanted them to consider all measures to help the fish including removal of four dams in Washington on the Snake River. And he expressed doubts that many of the measures the federal government proposed will actually occur.
Despite all of this he told federal attorneys it is not too late.
“I remain hopeful that they will produce final Biological Opinions that are scientifically and legally defensible,” Redden wrote.