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Plaintiffs In Spill For Fish Case File Reply Briefs In Ninth Circuit; Oral Arguments In March
Posted on Friday, January 12, 2018 (PST)

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, Steelhead,”


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 spill.”


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, plaintiffs said.


“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 its discretion.”


The appeals court is currently working with both defendants and plaintiffs to set oral arguments in March.


Also see:


--CBB, December 1, 2017, “Judge Floats Idea Of Suspending Work On 2018 BiOp For Salmon/Steelhead Due To Lack Of Completed EIS,”


-- CBB, Nov. 3, 2017, “Federal Agencies Update Court On NEPA, EIS Process For Columbia/Snake Salmon, Steelhead”


--CBB, December 1, 2017, “Judge Denies Irrigators’ Motion For Hearing On 2015 Spill/Transportation, Spread The Risk,”


-- CBB, June 23, 2017, “Litigants In Salmon BiOp Case Working Together To Develop Court-Ordered Spill-For-Fish Plan In 2018,”


--CBB, May 19, 2017, “Spill Advocates, Federal Agencies Agree To Status Conference Schedule, Protocol In Salmon BiOp Case,”


-- CBB, April 7, 2017, “Court Order Requires Earlier Spill For Salmon In 2018; Orders Design Study, Monitoring,”


-- CBB, May 6, 2016, “Federal Court Again Rejects Columbia Basin Salmon/Steelhead Recovery Plan; Orders New BiOp By 2018,”


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