gave notice in the U.S. District Court of Oregon that they are appealing to the
Ninth Circuit Court of Appeals an April 3rd order to provide earlier spill for
juvenile fish passage beginning next spring at lower Snake and Columbia river
the move to appeal the decision is more of a pre-emptive strategy awaiting the
outcome of study designs and spill protocols for each of the eight dams.
US has filed this appeal as a protective measure to preserve our rights, but a
final decision to pursue the appeal has not yet been made,” said Michael
Milstein, spokesperson for NOAA Fisheries West Coast Region.
groups, the state of Oregon and the Nez Perce Tribe had asked the court January
9 to order Columbia River operating agencies to begin spill each year by April
3, one to two weeks earlier than is currently required, at eight federal dams
to possibly improve survival rates for juvenile salmon and steelhead through
the hydroelectric system.
groups filed for injunctive relief in the U.S. District Court of Oregon for
spill to begin immediately, enjoining the same case in which Judge Michael H.
Simon had remanded the Columbia River hydropower system’s 2014 biological
opinion for salmon and steelhead in May 2016.
Simon’s amended opinion gave the federal agencies an additional year to develop
spill plans at each of the dams, with spill beginning April 3, 2018. The order
also requires the U.S. Army Corps of Engineers to operate bypass and PIT-tag
juvenile detection systems at the dams beginning March 1, 2018 (that now occurs
in mid-March to early April) and for the Corps to provide timely reviews of
future capital investments valued at over $1 million at the dams in order to
avoid a “significant risk of bias in the NEPA process,” according to the order.
of the defendants – NOAA Fisheries, the Corps and the U.S. Bureau of
Reclamation – filed Friday, June 2, notifying Simon’s Court that they are
appealing that order: Northwest River Partners, Inland Ports and Navigation
Group and the states of Montana and Idaho, joined the federal agencies in the
appeal this week.
defendants’ June 2 notification to the District Court is short and simple:
TAKE NOTICE that Federal Defendants, the National Marine Fisheries Service
(also known as NOAA Fisheries), the U.S. Army Corps of Engineers, and the U.S.
Bureau of Reclamation, hereby appeal to the United States Court of Appeals for
the Ninth Circuit from this Court’s April 3, 2017 Amended Opinion and Order
(ECF 2194) and subsequent orders (Order, ECF 2201; Order, ECF 2205).”
a pre-emptive strategic move in court, the appeal could be revoked if consensus
is achieved between defendants and plaintiffs in completing the study designs
and spill protocols at each of the dams
allows the parties to protect their ability to appeal the court’s order on a
2018 spill test should they want to, while the court ordered process to design
a spill test and attempt to reach consensus proceeds,” according to Terry
Flores, executive director of Northwest River Partners. She added that this is
sometimes referred to as a “protective” appeal.
unfortunate the parties are resisting the notion that is widely accepted in the
scientific community that spill is good for fish,” said Todd True, of
Earthjustice and lead attorney for the plaintiffs. “Our focus is on getting the
court’s injunctive order implemented.”
court-ordered spill will continue until NOAA Fisheries completes its next
biological opinion of the federal Columbia River power system, which is to be
done by court order December 31, 2018.
ordered the Corps and NOAA Fisheries to design a study this year that could be
used in 2018 when earlier spill is initiated that would help determine if the
additional spill provides benefits for juvenile salmon passage. In addition, he
ordered the Corps to design spill patterns at the dams to ensure dam and
Simon’s order plaintiffs and defendants have agreed to a schedule for periodic
status conferences. In a May 1 court filing, parties agreed to consider
protocols for spill at each dam, consider an adaptive management system and
work together to develop a spill implementation plan.
do this by identifying a team of technical representatives to “collaboratively
plan and carry out tasks such as modeling and analyses of a range of spill
levels and spill patterns as they agree is necessary to afford a basis for
identifying 2018 spring fish passage spill levels and spill patterns at each of
the eight lower Columbia River and lower Snake River dams,” while working with
the interagency Technical Management Team and others to complete the tasks.
team will take into account spill and gas caps, dam or safety issues, the
potential effects of spill levels and patterns on juvenile and adult salmon and
steelhead survival, and other factors identified by the Court’s Opinion and
Order, according to the joint filing.
will document the work and will advise the Court that “there are agreed-to
spring fish passage spill operations that may be incorporated into a proposed
injunction order, or advise the Court of any outstanding disagreements that may
necessitate the Court’s involvement to resolve. If necessary, the Court may
then set such procedures as it concludes are appropriate to resolve these
issues,” the filing says.
parties will file with the court a joint status report June 15, 2017, with a
draft available seven days ahead of time. Follow up in-person conferences will
occur in early August and late September.
May 19, 2017, “Spill Advocates, Federal Agencies Agree To Status Conference
Schedule, Protocol In Salmon BiOp Case,” http://www.cbbulletin.com/438950.aspx
CBB, April 7, 2017, “Court Order Requires Earlier Spill For Salmon In 2018;
Orders Design Study, Monitoring,” http://www.cbbulletin.com/438675.aspx
CBB, May 6, 2016, “Federal Court Again Rejects Columbia Basin Salmon/Steelhead
Recovery Plan; Orders New BiOp By 2018,” http://www.cbbulletin.com/436667