Judge Redden did what he could, but he couldn’t do it all. At some point, the Federal government (Executive Branch) needed to do what was necessary. And they failed. Repeatedly.

But there was a reason for that. Unlike some Federal actions (e.g., a Forest Service timber sale or a BLM grazing permit), shutting down the Federal hydropower system due to non-compliance with the ESA was never an option. Water is going to flow downhill regardless of the politics or the legal rulings. So they gotta run the turbines and manage the water even if it’s outside the bounds of Federal law.

My sense is that if shutting off the hydropower system were possible, Judge Redden would have done so. I know because I sat in his court room on many occasions to listen to the legal arguments on the application of the ESA on the Columbia River. Judge Redden was often very frustrated with the position taken by the Federal government, but he knew his limits. And so did the Federal government. That’s why the Federal government has failed so many times. It’s because they can get away with it, and still operate the hydropower system.

I would add that Judge Simon, who took over for Judge Redden, has the same limitations. Best of luck to Judge Simon.