Irrigators in eastern Washington will not get a
court hearing to show how the choice of spill over transportation in 2015
resulted in a loss of adult fish returning to the Snake River.
The Columbia-Snake River Irrigators Association had alleged that the
choice in 2015 to continue spilling water for juvenile fish instead of putting
them on barges resulted in the loss of 65 percent of wild spring chinook adults
that would have returned in 2016 and 2017, and that the choice violated the
2014 Biological Opinion’s mandate to spread the risk.
Some 13 percent of juvenile salmon and
steelhead were barged during the low flow and high water temperature year, the
CSRIA alleged, the lowest percent transported since 1993.
The CSRIA petitioned September 29 the U.S.
District Court in Portland to convene an evidentiary hearing to air their
assertions in court before Judge Michael H. Simon. That information, they said
in their petition, is not being considered by NOAA Fisheries and the U.S. Army
Corps of Engineers as they plan additional court-ordered spring spill
operations at Snake and lower Columbia river dams that are to begin April 3.
(See CBB, October 6, 2017, “Irrigators Seek
Hearing In Federal Court On Spill/Transportation Protocol In Low Water 2015,” http://www.cbbulletin.com/439681.aspx)
In May 2016, Simon remanded the 2014 BiOp and
set a 5-year schedule for federal agencies – the Corps, U.S. Bureau of
Reclamation and NOAA Fisheries – to complete a National Environmental Policy
Act process and redo the BiOp by 2021. The request for injunctive relief for
more spill was enjoined to this case in January 2017 by the National Wildlife Federation
and the State of Oregon, with the support of the Nez Perce Tribe. The groups
asked the court to begin ordering spill to maximum total dissolved gas levels
beginning April 3 this year and to continue for each year of the BiOp remand.
Simon gave the federal agencies one year to design a spill plan, putting off
the beginning of additional spring spill until April 2018.
The federal agencies and Northwest River
Partners have taken Simon’s spill decision to the Ninth Circuit Court of
Appeals and are asking the Appeals Court to decide by April 3, 2018.
The plaintiffs in the irrigators’ case, as
well as most of the defendants, objected to what they called “relitigating”
Simon’s spill decision and Simon agreed in his November 21 order denying
CSRIA’s motion for an evidentiary hearing.
In his denial, Simon said that CSRIA was
making the same argument that it made in opposing additional spring spill.
“The Court did not find this argument
persuasive and granted the injunction over CSRIA’s objection. CSRIA also argues
that the government has ignored its obligation to ‘spread the risk’ and has
improperly reduced smolt transportation. In so arguing, CSRIA uses the exact
same chart that it included in its brief in opposition to the original
injunction motion,” Simon wrote.
Simon went on to say that “CSRIA’s motion is
nothing more than a disguised motion for reconsideration. … Any assertion by
CSRIA that its current motion is not a motion to again debate the merits of
additional spill is belied by the motion itself.”
Besides, Simon acknowledged, his decision to
allow more spring spill is now being appealed before the Ninth Circuit Court
and so he no longer has jurisdiction to reconsider his own opinion.
--CBB, July 21, 2017, “Irrigators Petition Corps,
NOAA To Investigate River Management Decisions During 2015 Low/Hot Water,” http://www.cbbulletin.com/439311.aspx
--CBB, June 23, 2017, “Litigants In Salmon
BiOp Case Working Together To Develop Court-Ordered Spill-For-Fish Plan In
--CBB, June 9, 2017, “Federal Agencies Give
Notice Of Possible Appeal Of Court Ruling Providing Earlier Spill For Fish,” http://www.cbbulletin.com/439055.aspx
--CBB, April 1, 2016, “Corps Report On 2015
Columbia/Snake Warm Water, Fish Die-Off Will Discuss Actions To Avoid Repeat,” http://www.cbbulletin.com/436358.aspx
-- CBB, December 2, 2016, “Irrigators Petition
Trump Transition Team For ‘God Squad’ Intervention In Salmon BiOp Remand,” http://www.cbbulletin.com/438042.aspx
-- CBB, December 4, 2015, “Post-Mortem 2015
Snake River Sockeye Run; 90 Percent Of Fish Dead Before Reaching Ice Harbor
-- CBB, November 6, 2015, “Report Analyzes
Impacts, Causes Of This Year’s Warm Fish-Killing Water In Columbia/Snake,” http://www.cbbulletin.com/435505.aspx
-- CBB, September 11, 2015, “Snake River
Sockeye: Lowest Return Since 2007, Captive Broodstock Program Increases