Craig is getting boisterous support from Norm Semanko, executive director of the Idaho Water Users Association, which represents farmers, irrigator companies and municipalities — entities that worry they will have to give up water for salmon recovery. Although he does not name Redden, no doubt because he is one of the attorneys fighting to limit the scope of salmon recovery, Semanko criticizes Redden’s rulings as the misguided decisions of an “activist judge.”
James Buchal, an attorney who filed a motion asking that Redden be removed from the case, complains of “long and bitter experiences in (Redden’s) court.” The judge “is a nice man. He’s a good man, in some senses,” says Buchal, who has unsuccessfully tried to intervene in the current litigation on behalf of the Columbia-Snake River Irrigators Association. But, Buchal says, Redden also is “trapped by these misconceptions about fish and rivers and harvest.” As a result, he says, Redden’s rulings are “unmanageable and irrational.” Buchal’s recusal motion is pending before a federal appeals court.
Some legal scholars, however, say Redden is simply doing what the law and Supreme Court rulings compel him to do.
“When you see him taking charge of changing the Columbia River hydro system in that way, it says the violations of the law are not only serious but repeated, and he’s convinced if he doesn’t take a stronger role, the problems aren’t going to cease,” says Pat Parenteau, director of the Vermont Environmental Law Clinic, a professor at the Vermont Law School and one of the nation’s pre-eminent Endangered Species Act experts.
How far will Redden go if the federal government doesn’t deliver a legal salmon recovery plan next year? Federal courts have taken over schools, prisons, sewage treatment plants and — when Oregon and Washington refused to honor tribal treaty rights — fisheries management on the Columbia River. In fact, the U.S. District Court in Oregon still oversees the treaty fishing case.
“He has the inherent authority to do whatever he thinks is necessary to bring the federal hydro system into compliance,” Parenteau says.
That’s exactly what Buchal fears.
“The only parallel is the civil rights era, when judges took over school districts in St. Louis,” Buchal says of a situation in which Redden would run the hydro system. “They have a beautiful school system they cannot afford to maintain, and school achievement is as low as it’s ever been.”
But Mary Wood of the University of Oregon disputes Buchal’s example.
“The state of schools in St. Louis today have very little to do with the court’s action during the civil rights era,” Wood says. “During the fishing wars, the courts — by necessity — had to take control of harvest management for a time in order to uphold the tribes’ treaty property rights. This judicial control had a successful outcome because it forced the states to work out a management plan with the tribes.”
Lawyers and scholars familiar with Redden’s work say he is a man of considerable restraint who does not relish the thought of running the river.
“I can remember (Redden) saying federal judges shouldn’t run the Columbia River back when he was attorney general,” says attorney Nash, who now is at Seattle University. “Consequently, I don’t believe he would make any significant ruling regarding the river or the fish runs unless he’s convinced the federal agencies won’t comply with the law.”
Yet Wood believes Redden is serious when he warns the agencies that he won’t tolerate another inadequate salmon recovery plan. “The federal agencies have had their time, and they have squandered it,” Wood says. “At a certain point, a species has a death sentence with very little time left.”
It’s another standing-room-only day in Redden’s courtroom despite the stellar weather outside, the last sunny spell before winter’s gray deluge settles over western Oregon. Some 20 attorneys are on hand along with a horde of litigants: federal bureaucrats, representatives of irrigation districts and other groups and industries that benefit from the dams; and members of organizations fighting to recover wild salmon and steelhead in one of the most dammed watersheds in the world. Redden has called this crowd together for a quarterly progress report, part of his effort to avoid having to overturn another biological opinion.
The air soon is thick with a bewildering mix of acronyms, legalese and agency-speak delivered with Sunday-sermon earnestness. Redden listens attentively, rarely interjecting himself during nearly two hours of dense rhetoric. When he finally speaks, it’s a strain to hear his soft, congenial voice from the back of the courtroom. And it’s impossible to miss the thunder of his words.
When the federal government submits its next salmon restoration plan — its third attempt since he’s inherited the case — Redden says, he will make sure the plan accomplishes what the Endangered Species Act requires. “And if it doesn’t,” Redden says, “I will dispose of (the plan) and take, I think, more dramatic actions.”
Journalist and author Ken Olsen has covered the environment and natural resource issues throughout the West for more than 20 years.
An illustrated timeline charts the appearance of dams on the lower Snake River and the resulting decline of salmon, along with the so-far-inadequate response of the federal government.