and conservation groups’ “speculative” claims of potential harm to Pacific
lamprey do not outweigh the need to ensure, via dredging, safe passage for
commercial vessels, and their operators, that ply the lower Snake River,
according to court documents filed this week by the federal government and
filings come in response to filings in late November with the U.S. District
Court for the District of Western Washington by six Northwest fishing and
conservation groups and the Nez Perce Tribe. The plaintiffs seek court action to
stop a planned $6.7 million Snake River navigation channel dredging project
that was scheduled to begin Dec. 15 or soon thereafter.
court documents – a complaint filed Nov. 24 and a preliminary injunction
request filed two days later – describe as illegal U.S. Army Corps of Engineers
decisions to issue a dredging contract with a winter work window from Dec.
15-Feb. 28 and a Corps plan outlining its long-term strategy for managing
sediment buildup in the lower Snake River that clogs the channel and impedes
commercial navigation, and in some cases makes it unsafe.
agency’s narrow focus on dredging leaves plaintiffs no choice but to once again
turn to this court to require the Corps to comply with NEPA and the Clean Water
Act (“CWA”) before it takes any action,” according to the Nov. 26 request for a
preliminary injunction filed for Idaho Rivers United, Pacific Federation of
Fishermen’s Associations, Institute of Fisheries Resources, Washington Wildlife
Federation, Sierra Club and Friends of the Clearwater and the Nez Perce Tribe.
PI motion alleges that the Corps failed to take the legally required “hard
look” at potential impact of dredging on Pacific lamprey, who spawn in the
river and whose young rear in river soils.
2014-2015 dredging project will likely result in irreparable harm to Pacific
lamprey. Pacific lamprey, or Heesu in the Nez Perce language, are a culturally
significant, treaty-reserved resource that have been integral to the spiritual,
physical, and economic health of the tribe since time immemorial,” the Nov. 26
preliminary injunction request says. Legal precedent requires that parties
seeking a preliminary injunction to stop an action must prove irreparable harm
would otherwise result.
Nez Perce Tribe has initiated Pacific lamprey conservation/restoration as a
result of what the plaintiffs say are “severe declines in lamprey abundance.”
Inland Port and Navigation Group and the Snake River Irrigators Association
have intervened in the proceedings in support of the Corps decisions, and in
opposition to the request for a preliminary injunction.
attorneys, in a response filed Monday, say that “Plaintiffs present only a
speculative harm to Pacific lamprey and fail to raise even a serious question
going to the merits of their claims.
the motion, by contrast, would leave the channel at dimensions other than those
specified by Congress and continue to present a harm to navigational safety,”
the federal response says.
federal responses says that a legal declaration crafted by Nez Perce Tribe
fishery biologist Dave Statler “opines that there is ‘a high likelihood to harm
or kill individual lamprey through dislodgement and downstream movement of
juvenile lamprey caused by removal of dredge material or placement of dredge
spoils in areas where juvenile lamprey are present; and through imbedding or
smothering in dredge material removal or placement.’”
problem is that none of the data Mr. Statler relies upon even facially support
his conclusion,” the federal response says. “The planned dredging is to occur
at River Mile 9.5 (Ice Harbor Dam) and upstream from River Mile 138 (the
confluence [with the Clearwater River]). But Mr. Statler’s data include no
lamprey counts downstream of River Mile 76 (66 miles from Ice Harbor Dam) or
upstream of River Mile 134 (four miles from the confluence).The data do not
show any lamprey to be present where the Corps will actually be dredging.”
if the data reflected a local lamprey presence, harm to any individual lamprey
-- a species that is not listed as threatened or endangered under the
Endangered Species Act -- would not justify a preliminary injunction.
Plaintiffs present no evidence that the species is at risk; to the contrary,
adult lamprey counts have been increasing.”
document filed for the Corps also says the complaint and preliminary injunction
motion wrongly accuse the federal agency of ignoring alternatives to dredging.
Corps’ purpose and need for the Current Immediate Need Action meets that
reasonableness standard. Sediment accumulation is currently impairing
navigation at the downstream approach to Ice Harbor Dam’s lock and the
confluence of the Snake and Clearwater rivers.” The Corps is obliged by
congressional mandate to maintain at desired depths and widths the navigation
channel created to facilitate commercial barge and ship traffic up the Columbia
and Snake rivers from the Pacific Ocean to the Idaho-Washington border at
Lewiston and Clarkston.
its purpose and need established, the Corps turned to its Programmatic Sediment
Management Plan to identify reasonable alternatives for the Current Immediate
Need Action. The plan identifies two management options when an immediate need
action is triggered for navigation. The first is changes in reservoir
operations. But those measures are only temporary – sediment continues to
accumulate and the Corps can only raise the reservoir so high given design and
the second option for a navigational immediate need action is to remove the
impairing sediment,” the federal filing says. “Plaintiffs argue that the range
of alternatives is unreasonable because it includes only those two
federal response cited a prior U.S. District Court ruling that it said
supported the Corps’ decision. “In that context, Judge Lasnik rejected the same
alternatives arguments that Plaintiffs bring here. ‘So long as “all reasonable
alternatives” have been considered and an appropriate explanation is provided
as to why an alternative was eliminated, the regulatory requirement is
satisfied,’ the Lasnik decision said.
EIS includes thirty-one pages of discussion on the practicality and
effectiveness of various management measures. Plaintiffs have not presented a
serious question going to their alternatives claim,” the federal document says.
Inland Ports and Navigation Group, in a Dec. 15, also faults the preliminary
14-foot navigation channel is critically in need of maintenance dredging to
clear hazards caused by sediment buildup. In recent years, barges, tugs and
cruise vessels have struck unseen rock formations, sandbars and other barriers
caused by sediment buildup as even the most seasoned pilots are unable to see
the uncharted hazards that lie in their path. Sediment buildup (also known as
shoaling) has caused these vessels to sustain physical damage, has imposed
significant economic costs, has left crew members stranded and has prevented
cruise vessels from reaching their intended destination,” the IPNG’s brief
plaintiffs – including the Nez Perce Tribe – expressly consented to this exact
same maintenance dredging in 2005-2006, and have pointed to no harm caused by
that prior maintenance, plaintiffs now ask the Court to enjoin the exact same
maintenance activity in 2014-2015 because, they claim, lamprey might be present
in the work area.
are not entitled to this extraordinary relief for any number of reasons,” the
IPNG’s brief says.
plaintiff replies to the federal and IPNG filing were scheduled to be filed by
the end of the day today, Dec. 19. The court will allow the plaintiffs to file
for a temporary restraining order in the event the dredging start date is prior
to a court ruling. That would potentially provide the fishing and conservation
groups, and the Nez Perce Tribe, with the opportunity to try to convince the
court to stall the dredging.
arguments regarding the preliminary injunction request is now scheduled in
Seattle on Jan. 2.
Dec 12, the Corps issued a notice to proceed to its dredging contractor. The
Corps says the contractor will need approximately 30 days to mobilize for the
project, and dredging is anticipated to begin on about Jan. 12. The timing for
the dredging is driven by an in-water work window of Dec. 15 to March 1, when
salmonids are less likely to be present. Salmon and steelhead, as well as
lamprey, migrate up and down the river system, and spawn and rear in the
Columbia and Snake and their tributaries.
CBB, Dec. 5, 2014, “Groups File To Halt Lower Snake Dredging; Inland Ports
Counter, ‘Risk Serious Accident Could Occur' ” http://www.cbbulletin.com/432728.aspx
CBB, Nov. 21, 2014, “Long-Term Sediment Management Plan For Lower Snake River
Approved; Maintenance Dredging Set” http://www.cbbulletin.com/432661.aspx
CBB, April 8, 2011, “Lack Of Dredging Behind Lower Granite Forces Balancing Act
For Fish, Navigation, Flood Control,” http://www.cbbulletin.com/407318.aspx
CBB, Jan. 25, 2013, “Information Meeting In Lewiston Highlights Views On Draft
Lower Snake Sediment Management Plan” http://www.cbbulletin.com/424720.aspx