When it ordered more spring spill at eight
lower Snake and Columbia river dams for 2018, the U.S. District Court of Oregon
was acting well within its discretion, according to plaintiffs who brought the
case to the court last January.
In a Jan. 9, 2018, reply brief filed with the
Ninth Circuit Court of Appeals, the plaintiffs – National Wildlife Federation
and the State of Oregon – said the benefits of increased spill for juvenile
salmon are well-supported and will provide immediate benefit to the listed
species’ chance of survival.
“That increased spill is a necessary remedy to
offset some of the harm caused by the FCRPS,” they said in the reply brief.
“And ordering increased spill is an appropriate, narrowly-tailored remedy given
the federal defendants’ decades-long failure to comply with the ESA.
“Far from being a judicial overreach, the
district court took pains to consider the concerns of the federal agencies and
allied parties about the timing and potential unintended consequences of
increased spill in crafting appropriate injunctive relief,” they continued.
“Additionally, the spill addresses the harm resulting from the underlying ESA
violations that the district court found on summary judgment, which were based
on the federal defendants’ failure to apply the proper jeopardy standard,
failure to address the risks from climate change, and failure to provide any
survival cushion for the listed species.”
The request for injunctive relief for more
spill was enjoined with the earlier case argued in U.S. District Court of
Oregon, with Judge Michael H. Simon presiding. The initial case resulted in a
May 2016 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, asking 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 plan was submitted to the court Dec. 8,
2017 and Simon affirmed the spill plan in a Monday, January 8 order. The plan
he approved is for additional spill to the TDG gas caps set by Oregon and
Washington along with earlier PIT-tag monitoring of juvenile salmon. He ordered
that additional spill at the eight dams begin April 3, and that the monitoring
begin March 1, one month earlier than the timing called for by NOAA Fisheries’
2014 biological opinion of the federal Columbia River power system. The
monitoring will be at three of the dams – Little Goose on the Snake River, and
John Day and Bonneville on the Columbia River.
However, the appeal of Simon’s spill
injunction had already been filed in the appeals court in early June 2017 by
the federal agencies, Northwest RiverPartners, the Kootenai Tribe of Idaho, the
states of Idaho and Montana, and the Inland Ports and Navigation Group.
The federal defendants filed their opening
brief October 26. In that brief they 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. The appeals court has agreed to expedite the case, promising a ruling by
April 3, the first day of additional spill.
(See CBB, December 8, 2017, “Briefs Filed In
Appeals Court To Expedite Challenge To Increased Spill For Juvenile Salmon,
In arguing against the defendants, plaintiffs
called the district court injunction “well-reasoned, legally correct, and amply
supported by the record. The relief that the court ordered—additional spring
spill in 2018, to be implemented as determined by the parties’ collaborative
plan—is narrowly tailored to the unique circumstances of this case.”
In addition, they said the court was mindful
of the complexities of the federal power system and “deferential to the federal
defendants’ concerns about the potential unintended consequences of additional
The plaintiffs focused on three arguments they
say were made by the defendants in their appeal:
First, they asserted the district court
applied the incorrect legal standard for assessing irreparable harm. But that
argument fails because the standard used by Simon was set by the Ninth Circuit
Court of Appeals.
Second, they challenged the factual basis for
the district court’s finding that continuation of the status quo is likely to
result in irreparable harm to listed species and that additional spill will
benefit fish. But, Simon’s findings are well-supported by the record,
“Third, defendants argue that the trial court
abused its discretion in granting injunctive relief because the court was not
sufficiently deferential to the federal agencies and because the injunction is
not narrowly tailored,” the plaintiffs said. “To the contrary, over plaintiffs’
objections, the district court accepted the federal defendants’ assertion that
ordering spill in2017 could have unintended adverse effects and therefore
deferred requiring increased spill until 2018. The express purpose of the court
ordered-process was to address defendants’ various concerns while still
providing a benefit to fish through increased spill. The court did not abuse
The appeals court is currently working with
both defendants and plaintiffs to set oral arguments in March.
--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