Federal defendants filed opening briefs in
late October in the Ninth Circuit Court of Appeals to expedite a reversal of an
April 3 U.S. District Court of Oregon injunction that called for earlier spill
in 2018 to aid juvenile fish passage and monitoring at federal dams.
The request for injunctive relief for more
spill was enjoined with the earlier case argued in Judge Michael H. Simon’s
court that resulted in May 2016 a remand of the federal Columbia River power
system biological opinion for salmon and steelhead listed under the Endangered
The spill plea was brought to Simon 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, 2017 and to
continue for each year of the BiOp remand. Simon agreed that more spring spill
would benefit ESA-listed fish, but delayed the action until 2018 while federal
agencies completed a spill plan for lower Snake and Columbia river dams. That
spill plan is in progress.
The spill decision was appealed by the federal
agencies, Northwest RiverPartners, the Kootenai Tribe of Idaho, the states of
Idaho and Montana, and the Inland Ports and Navigation Group in early June to
the Court of Appeals. The parties have now moved forward in court asking to
expedite the appeal and for a decision prior to April 3, 2018, when Simon said
the additional spill should begin.
In their October 26 opening brief, the federal
defendants said that Simon had not considered the complexity or cost of adding
more spill, that additional spill is not necessary to avoid irreparable harm to
species listed under the federal Endangered Species Act, and that he had
misused the injunction process that ordered the spill.
“Equitable principles require that, in
considering injunctive relief, a court be mindful of the enormity and
complexity of this congressionally-authorized system, as well as the
uncertainty of the science pertaining to salmonid species listed under the
Endangered Species Act (ESA) and affected by this system.”
The brief continued, saying that the Supreme
Court has said that “an injunction is an extraordinary and drastic remedy,
never awarded as of right” and that an injunction, when ordered must be
“narrowly tailored to remedy only the violation and the specific irreparable
harm that would occur in the absence of an injunction.”
Judge Simon failed this task when he ordered
24-hour spring spill to begin earlier in the year than is required by the
current 2014 BiOp, they said.
“The court ordered wholesale changes in the
way these dams are operated—changes that were not shown to be necessary to
avoid irreparable harm to ESA-listed salmon and steelhead at the species
level,” the brief says. “And the court refused to consider the harm to
Northwest communities from the tradeoffs that come with increased spill in the form
of increased electricity rates, potential reductions in funding for programs
that benefit the region, and increased reliability risks for the federal power
system and electrical grid.”
The federal defendants said that spilling to
the “gas cap on a 24-hour basis at all eight dams decreases system-wide
operational flexibility, which poses risks to the reliability of the
interconnected federal power and transmission systems, particularly during low
flow conditions. Such spill operations also impose significant monetary costs
that must be borne by the public either through reductions or eliminations of
existing programs or through electricity rate increases.”
Plaintiffs had also failed to prove that
irreparable harm to ESA-listed species would result if the spill is not
approved, they said.
“Plaintiffs didn't meet the standards for
injunctive relief (it has be ‘narrowly tailored’ but wasn't) and court’s
findings on ‘irreparable harm,’" Terry Flores, Executive Director of
Northwest RiverPartners said by email. “There has to be ‘irreparable’ harm to
plaintiffs and species. Plaintiffs didn't make the case for themselves on
irreparable harm and it seems unlikely species will suffer irreparably before
the new BiOp and operations in 2018.”
The brief also claims the spill order diverted
already busy and limited agency resources – the Bonneville Power Administration,
U.S. Army Corps of Engineers and the Bureau of Reclamation – away from the work
of preparing a new BiOp.
“The district court has gone too far. The
extraordinary and drastic remedy of an injunction should not be used as a tool
to conduct experiments or collect data that the court thinks might be useful,”
the federal defendants conclude. “The court’s injunction order should be
Parties to the case have until January 9, 2018
to file briefs and a final decision is anticipated by April 3, the day Simon is
requiring the additional spring spill to begin.
Legislation that would negate Simon’s spill
injunction and addresses removal of the four lower Snake River dams has been
introduced in Congress and is now in the House Natural Resources Committee.
H.R. 3144, introduced in late June, would, in effect, reverse Simon’s spill
injunction and prohibit breaching the dams without congressional approval.
The bill was sponsored by Pacific Northwest
U.S. Reps. Cathy McMorris Rodgers (R-WA), Jaime Herrera Beutler (R-WA), Dan
Newhouse (R-WA), Kurt Schrader (D-OR), and Greg Walden (R-OR).
This week Washington Gov. Jay Inslee wrote a
letter opposing the bill.
“HR 3144 would thwart constructive ongoing
efforts to improve future salmon and dam management,” he wrote in the Dec. 5
letter. “This would not only hurt salmon but also the recreational and
commercial fisheries, tribes, and other species (such as Puget Sound’s southern
resident killer whales) that benefit from healthy salmon runs.”
In addition to modifications made to the dams
to aid listed salmon and steelhead over the past 20 years, he said, “there is
evidence that salmon may further benefit from additional modifications to dam
operations that would help restore salmon populations,” pointing to the spill
tests beginning next year.
“This discussion and learning opportunity
would be blocked by HR 3144’s prohibition on any studies or actions that restrict
electricity generation at any dams in the Federal Columbia River Power System,
even by a small amount,” he said
“I encourage the Subcommittee on Water, Power
and Oceans, the full Natural Resources Committee, and the full House of
Representatives to oppose HR 3144,” he concluded.
The full text of H.R. 3144 can be found at http://www.wildsalmon.org/images/factsheets-and-reports/2017-MMR-bill-HR3144.pdf. It was
introduced June 29.
In response to the legislation’s potential
limits on additional spill at Snake and Columbia river dams, 37 conservation,
salmon, orca, clean energy advocacy organizations and business associations
sent a letter August 23 to Northwest congressional representatives and
policymakers urging them to oppose H.R. 3144.
--CBB, December 1, 2017, “Judge Floats Idea Of
Suspending Work On 2018 BiOp For Salmon/Steelhead Due To Lack Of Completed
-- CBB, Nov. 3, 2017, “Federal Agencies Update
Court On NEPA, EIS Process For Columbia/Snake Salmon, Steelhead” http://www.cbbulletin.com/439818.aspx
--CBB, December 1, 2017, “Judge Denies
Irrigators’ Motion For Hearing On 2015 Spill/Transportation, Spread The Risk,” http://www.cbbulletin.com/439900.aspx
-- CBB, June 23, 2017, “Litigants In Salmon
BiOp Case Working Together To Develop Court-Ordered Spill-For-Fish Plan In
--CBB, 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