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Briefs Filed In Appeals Court To Expedite Challenge To Increased Spill For Juvenile Salmon,Steelhead
Posted on Friday, December 08, 2017 (PST)

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 Species Act.

 

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 vacated.”

 

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.

 

Also see:

 

--CBB, December 1, 2017, “Judge Floats Idea Of Suspending Work On 2018 BiOp For Salmon/Steelhead Due To Lack Of Completed EIS,” http://www.cbbulletin.com/439901.aspx

 

-- 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 2018,” http://www.cbbulletin.com/439147.aspx

 

--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 2018,” http://www.cbbulletin.com/436667

 

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