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Feds, Others File Reply Briefs In Ninth Circuit Over Judge’s More Spill For Fish Order
Posted on Friday, February 02, 2018 (PST)

Defendants in a district court case that resulted in injunctive relief ordering more spring spill at eight lower Snake and Columbia river dams said in reply briefs before the Ninth Circuit Court of Appeals that the current biological opinion covering dam operations on the rivers is improving survival of salmon and steelhead listed under the federal Endangered Species Act, not causing the irreparable harm that would be needed to warrant an injunction.


The National Wildlife Federation, the lead plaintiff in the case, had said in its reply brief earlier in January that increased spill for fish is a necessary remedy to offset harms caused by the federal Columbia River power system.


However, the defendants – NOAA Fisheries, U.S. Army Corps of Engineers and the Bureau of Reclamation – and other defendant intervenors disagree with this characterization of the federal power system’s impacts, saying that operating under the current 2014 BiOp and Reasonable and Prudent Alternative is helping fish, not harming them. In their reply brief, they said that injunctions should be used sparingly and only when immediate harm is resulting from an action.


“Injunctions are extraordinary remedies to be granted only where the action being enjoined is itself causing immediate, irreparable harm,” the Jan. 31 federal reply brief said. “Injunctions are not properly granted merely to conduct research or on the basis that some other, potentially beneficial action might exist.”


Plaintiffs must show, the brief said, that continued implementation of the BiOp during the remand is “likely to cause irreversible deterioration that is biologically significant to listed salmonids at the species level. The evidence shows the opposite: during implementation of the RPA, long-term viability of salmonids (at the species level) that outmigrate through the mainstem dams during the spring has remained generally stable or improved.”


The request for injunctive relief for more spring 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 2014 federal Columbia River power system biological opinion for salmon and steelhead listed under the Endangered Species Act.


The spill plea was brought to Simon seven months later in January 2017. It 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.


Although federal agencies developed the spill plan, they said it wasn’t because they agreed with Simon’s injunction. Their work on the spill plan had more to do with safe operations at the dams and a desire to avoid unintended harm to ESA listed salmon and steelhead juveniles migrating to the ocean during spring spill.


The federal defendants and others filed a motion in early June 2017 before the Appeals Court and then filed opening briefs Oct. 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 filing at the Appeals Court was 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 defendants’ filings in October were followed Jan. 9 by reply briefs from the plaintiffs and finally Jan. 31 with the most recent briefs giving defendants an opportunity to reply to the plaintiffs’ filings.


The appeals court has agreed to expedite the case, promising a ruling by April 3, the first day of additional spill. Oral arguments are scheduled March 20, 10 am in San Francisco.


The defendants said that much has changed since the first remand of a BiOp and that the plaintiffs had concentrated too much on old court decisions and had not given credit for the significant structural modification and operations at dams designed to improve juvenile fish passage.


“Not only has the law changed, but so have the facts,” said defendant intervenor NW RiverPartners in its Jan. 31 reply brief before the Appeals Court. “Plaintiffs’ one-sided story fails to address the significant improvements to the structure of the dams or the massive investment in habitat improvements that have occurred in the last 20 years.”


RiverPartners went on to say that the spill “experiment” would increase carbon emissions by 840,000 tons and cost an estimated $40 million.


The federal defendants said that the BiOp “is undeniably improving the survival of listed salmonids and numerous improvements in abundance and productivity have been realized during the RPA (BiOp and reasonable and prudent alternatives) implementation period.”


They said that plaintiffs “rely on the hypothesis that their preferred spill operations may improve salmonids’ fitness to survive the estuary and ocean phases of their life cycle and increase the probability that adults will return to their spawning grounds. But that theory fails to show that existing spill operations are irreparably harming the fish under existing conditions.”


Continuing, the defendants said that the plaintiffs’ sources of support for their allegations is NOAA Fisheries’ five-year status reviews, but the latest status review actually shows that the “species’ risk status has either been maintained or improved.”


A 2016 status review concluded that no changes to listing status of salmon and steelhead were warranted. However, according to the reply brief, there was:

1. a positive trend for Snake River sockeye salmon,

2. significant increases in most populations of Snake River spring/summer chinook,

3. upgrade of the Snake River fall chinook to viable.


(See CBB, June 2, 2016, “NOAA Status Review: None Of 28 ESA-Listed Pacific Salmon/Steelhead Stocks Warrant Status Change,”


These are improvements, the federal defendants said, that can be attributed in part to improved survival through the hydropower system.


Further, they said, the status review recommended continued implementation of the BiOp/RPA as a key protective measure.


“The injunction also differs from prior spill injunctions because it does not bolster the spread-the-risk approach that animated the district court’s prior spill injunctions,” the defendants said. “For these reasons, the 2017 injunction is unprecedented, despite plaintiffs’ efforts to portray it as routine.”


In their notes, the federal defendants described a “spread-the-risk” approach as using “combinations of transportation and spill to address scientific uncertainty regarding relative benefits of transportation compared to in-river migration to ensure that fish are protected pending resolution of the scientific uncertainty.”


Also see:


--CBB, January 12, 2018, “Plaintiffs In Spill For Fish Case File Reply Briefs In Ninth Circuit; Oral Arguments In March,”


--CBB, December 8, 2017, “Briefs Filed In Appeals Court To Expedite Challenge To Increased Spill For Juvenile Salmon, Steelhead,”


--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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