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Judge Orders More Input on Salmon Biop by Mitch Lies Capital Press, November 27, 2009

The federal government's latest plan for protecting fish in the Columbia-Snake River System remains in limbo after a federal judge on Monday, Nov. 23, delayed making a decision pending the resolution of what he called an "important" consideration.

Judge James Redden asked the U.S. Department of Justice lawyers to submit a brief by mid-December explaining the ramifications of a provision within the current salmon plan, called a biological opinion.

At issue is whether the provision in question, the government's adaptive management implementation plan, constitutes an amended plan or simply a provision of the 2008 biological opinion.

"It is our contention that the adaptive management implementation plan is not a new or amended biop, but just a natural outgrowth of provisions in the biop," said Brian Gorman, a spokesman for NOAA Fisheries.

Plaintiffs in the case brought by the National Wildlife Federation claim the provision constitutes an amended biological opinion, Gorman said, and as such is subject to additional public disclosure.

Lawyers for the plaintiffs could not be reached for comment by press deadline.

The four federal agencies involved in the Columbia-Snake River System inserted the adaptive management implementation plan to account for changes in climate or other conditions during the 10-year life of the salmon plan, Gorman said.

The agencies, six major Northwest tribes and Washington, Idaho and Montana all support the current biological opinion.

"The biological opinion has broad and unprecedented support from the region," Gorman said.

Also, according to an Associated Press story, Redden indicated he supported the biological opinion, but was concerned that approving the plan as it currently stands could make his decision vulnerable on appeal for violating federal procedural rules.

"Our concern as a federal agency," Gorman said, "is while all this dithering and litigation is going on, the real issue of protecting fish and getting on the road to recovery is getting lost.

"The more resources we spend in the courtroom and more time arguing about technical provisions of the biological opinion, the less time and less money we spend protecting fish," Gorman said.