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Judge Rejects Preliminary Injunction To Halt ‘Immediate Needs’ Lower Snake Dredging
Posted on Friday, January 09, 2015 (PST)

Planned dredging of lower Snake River sites in southeast Washington this winter in the name of navigation safety and economy can move ahead as planned, according to a federal court order issued Wednesday.


The U.S. District Court in a Jan. 7 order says the benefits of dredging outweigh alleged harms that might come through river disturbances that might affect Pacific lamprey and protected salmon and steelhead.


The dredging plan, scheduled by the U.S. Army Corps of Engineers is to begin in early January.

(Also see, “Six Week Lower Snake Dredging Starts Next Week, First Time Since 2006; Sediment To Be Used For Salmon Habitat”


The order issued by the U.S. District Court for Western Washington by Judge James L. Robart rejects a preliminary injunction request from conservation groups and the Nez Perce Tribe that aimed to prevent an “immediate needs” dredging plan formulated by the U.S. Army Corps of Engineers.


That near-term dredging plan planned for this winter is intended to restore to congressionally mandated depth and width standards for segments of a commercial navigation channel near the confluence of the Clearwater and Snake rivers at the Idaho-Washington border.


Regardless of this week’s decision on the preliminary injunction request, arguments are ongoing regarding the Corps’ long-term plan for addressing sediment build-up in the lower Snake – the agency’s “Lower Snake River Final Programmatic Sediment Management Plan.”


The tribes and conservation groups have long argued in and outside of federal court that the federal government must develop a plan to prevent sediment infiltration of the federally maintained navigation channel, other than relying on dredging.


Dredging disturbs in-river habitat for salmon, steelhead and lamprey migrants and rearing fish, but provides the necessary depth for fully loaded barges to bring grain and other goods up and down the river. The federally maintained navigation channel overall stretches from the Idaho border out to the Pacific Ocean.


“Because the court has found that plaintiffs have failed to demonstrate three of the required elements necessary for issuance of a preliminary injunction (that there is a likelihood of irreparable harm in the absence of an injunction, that the balance of equities favors an injunction, and that an injunction would be in the public interest), the court denies plaintiffs’ motion for a preliminary injunction,” Robart’s Jan. 7 order says.


During briefing over the past two months and during Monday oral arguments before Robart in Seattle’s federal courthouse, the Corps and the plaintiffs led by the Idaho Rivers United and the Nez Perce Tribe argued back and forth about the status of Pacific lamprey in the Columbia-Snake river system, and the species’ population trend.


The Columbia River basin’s lamprey population is greatly declined from historic levels, yet the species is not protected under the Endangered Species Act, as are four salmon and steelhead stocks that migrate up and down the Snake River and its tributaries.


Native Pacific lamprey are in a tenuous state, and could be threatened by the dredging of river rearing areas, the conservation groups and tribe have said. The Corps’ attorneys have countered with the assertion that there is no evidence that lamprey inhabit the particular areas designated for dredging this winter.


“The court, however, does not need to resolve the parties’ factual disputes concerning population trends of the Pacific lamprey or the location of individual lamprey within the dredging zone. Even if Plaintiffs are correct on these issues, they nevertheless fail to carry their burden of persuasion ‘by a clear showing’ that the Corps’ planned winter maintenance dredging activity on the lower Snake River will likely result in irreparable harm to the Pacific lamprey,” Robart’s order says.


The order also says that it “likewise concludes that, when weighing the equities, the factors and concerns raised by the Corps and Interveners tip the balance against issuing a preliminary injunction.”


“…courts must “balance all of the competing interests at stake” including potential economic harm.”


“The Corps argues persuasively that imposition of a preliminary injunction against dredging will undermine full implementation of measures that NMFS has determined are necessary to ensure the ongoing protection of salmon and steelhead listed as threatened and endangered species under the ESA,” says the order. “Congress has charged NMFS with evaluating effects on listed salmonids, see 50 C.F.R. § 402.01(b), and pursuant to that charge, NMFS issued a biological opinion for the Federal Columbia River Power System that addresses the Corps’ operation of the LSRP, including Lower Granite Dam.


“The biological opinion directs the Corps to operate the LSRP within one foot of MOP from April through the beginning of September each year, unless an adjustment is necessary to meet authorized project purposes—such as navigation. (Vail Decl. ¶ 6 & Ex. A; see also EIS at xii, 1-5.) The measures required by the NMFS biological opinion are intended to aid in downstream juvenile salmon migration through the reservoir. (Vail Decl. ¶ 6 & Ex. A.)


“Although NMFS has recognized that the Corps may employ limited adjustments to these operations, NMFS has also clearly specified that operating the LSRP at or near MOP is the most beneficial to listed and endangered salmonids. (See generally id. Ex. A.) Nevertheless, due to the current navigational impairments, the Corps has found it necessary to raise the pool level at Lower Granite Dam in order to implement Congress’s navigational directive and to ensure safe navigation.


“The Corps argues that, if the court imposes an injunction against its proposed dredging, it will be forced to continue to elevate the pool level at the Lower Granite Dam in contravention to the operational parameters that the NMFS found in its biological opinion to be most beneficial to listed salmonids.


“The court agrees. It makes little sense to issue a preliminary injunction to protect against alleged harm to Pacific lamprey when the result will undermine full implementation of the LSRP [Lower Snake River Projects] operational parameters recommended by NMFS that are designed to benefit other listed and endangered species.”


“Although the lower Snake River is not on the high seas, the court can discern no reason to conclude that safe navigation on inland waters is not also in the public interest. Indeed, Congress has expressly authorized the Corps to maintain a navigation channel on the lower Snake River, see Flood Control Act of 1962, Pub. L. No. 87-874, 76 Stat. 1173, 1193 (1962), and has appropriated funds multiple times since the 1980s for the Corps to conduct maintenance dredging actions involving the LSRP, including the most recent dredging action in the winter of 2005/2006, in order to restore the navigation channel to a depth of 14 feet consistent with the Flood Control Act of 1962 (see EIS at 3-55). Based on the forgoing, the court cannot conclude that Plaintiffs have met their burden of demonstrating that the preliminary injunction they seek is in the public interest.”


Also see:


-- CBB, Dec. 31, 2014, “Lower Snake Dredging Opponents: Loss Of Revenues Does Not Out Weigh Irreparable Environmental Injury”


-- CBB, Dec. 19, 2014, “Will Lower Snake Dredging Harm Lamprey? In Court Filings Feds, Ports Say Such Claims ‘Speculative’ ”


-- CBB, Dec. 5, 2014, “Groups File To Halt Lower Snake Dredging; Inland Ports Counter, ‘Risk Serious Accident Could Occur' ”


-- CBB, Nov. 21, 2014, “Long-Term Sediment Management Plan For Lower Snake River Approved; Maintenance Dredging Set”


-- CBB, April 8, 2011, “Lack Of Dredging Behind Lower Granite Forces Balancing Act For Fish, Navigation, Flood Control,”


-- CBB, Jan. 25, 2013, “Information Meeting In Lewiston Highlights Views On Draft Lower Snake Sediment Management Plan”


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