Case 3:01-cv-00640-RE Document 1844 Filed 05/03/11 Page 1 of 2 Page ID#:

24264

United States District Court

DISTRICT OF OREGON
1527 United States Courthouse
1000 S.W. Third Avenue
Portland, Oregon 97204-2902

Chambers of
JAMES A. REDDEN Phone: 503-326-8370
United States District Judge Fax: 503-326-8379

May 3, 2011

To: Counsel of Record, Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv., CV 01-640 RE
Re: May 9, 2011 Oral Argument

Dear Counsel,

On May 9, 2011, we will meet in the 16th floor cOUliroom at 9:30 a.m. We may carryover
into the early afternoon, but I do not anticipate that argument will last all day.

Please make any client introductions as brief as possible. I would like to hear from
Federal Defendants, NWF, and Oregon on each issue. Each of the remaining parties will then
have no more than five minutes to make additional points. We will then move to the next issue.

We will break at noon, and reconvene at 1:30 p.m., if necessary.

Please focus on the following issues:

(1) Federal Defendants argue that if there is any positive growth in abundance or
productivity (i. e. a greater than 1 to 1 ratio of adult returns per spawner), a species is "trending
toward recovery" and thus not likely to be 'Jeopardized." Does this mean that an incremental
survival improvement is sufficient to avoid jeopardy regardless of the already vulnerable status of
the species?

(2) Does Federal Defendants' most recent data reflect increased survival and recovery
gaps for most of the listed populations? If so, what are the consequences?

(3) Are Federal Defendants' predictions regarding the specific survival benefits of habitat
improvement based upon independent, reliable, and scientifically verifiable information? Lands
Council v. McNair, 629 F.3d 1070, 1078-79 (9th Cir. 2010).
Case 3:01-cv-00640-RE Document 1844 Filed 05/03/11 Page 2 of 2 Page ID#:
24265

Letter to Counsel of Record, CV 01-640-RE

May 3, 2011
Page 2

(4) Have Federal Defendants exhausted all technologically and economically feasible
hydro mitigation actions that would likely improve survival of the listed species?

(5) What are the prospects for the survival and eventual recovery of listed Upper
Columbia River populations in light of the severely degraded habitat?

(6) Given the uncertainty as to the survival benefits resulting from habitat improvement,
will Federal Defendants consider reporting to the comi in the event that the 2013 or 2016
Comprehensive Evaluations do not reflect the anticipated improvements?

This letter does not contain any express or implied finding regarding the validity ofthe
2010 Supplemental Biological Opinion, and the parties should refrain from relying on statements
in any of my correspondence to support an argument.

Very truly yours,

Ja s . kit----
United States District Judge

JAR: mfljs