The Role of the Judge in Endangered Species Act Implementation: District Judge James Redden and the Columbia Basin Salmon Saga

Abstract

After rejecting three federal biological opinions (BiOps) for favoring federal Columbia Basin hydroelectric operations over salmon protected by the Endangered Species Act (ESA), Judge James A. Redden has retired, passing oversight of the litigation to a new federal judge. This complex case, which concerns the accommodations the world’s largest hydropower system must give to the region’s signature natural resource, has now spanned nearly twenty years and five different BiOps. For his part, Judge Redden worked closely with the parties in an attempt to arrive at improvements in salmon survival. In this managerial role, he acted perhaps as the archetypical federal judge in public law litigation sketched long ago by Harvard Professor Abraham Chayes. Judge Redden leaves behind giant shoes that will be difficult to fill: a willingness to stand up to virtually all the most powerful interests in the region involved in hydropower generation, navigation, and the trade on the Columbia River — some of the most formidable lobbies in the Pacific Northwest — in addition to the federal agencies urging him to defer to their expertise. This article provides background on the clash between hydropower operations and salmonids and discusses Judge Redden’s review of the Columbia Basin BiOps over the past decade. It then reviews concepts of judicial management of complex public litigation such as the Columbia River salmon saga and concludes that continued close judicial oversight will be necessary if the salmon are to recover from the damage inflicted by the federal Columbia River hydropower system.

Keywords: environmental law, natural resources law, managerial judging, Endangered Species Act

JEL Classification: H82, K23, K32, L94, L98, N52, Q22, Q25, Q28, Q48