Parties to a U.S. District Court of Oregon
injunction that orders higher spring spill for juvenile salmonids at
Columbia/Snake River dams got their day in the Ninth Circuit Court of Appeals
this week, March 20, in San Francisco.
The court agreed to hear the case on an
expedited schedule that could result in a decision by the first day the higher
spill would begin, April 3, at four lower Snake River and four lower Columbia
Plaintiffs in the District Court case,
represented by National Wildlife Federation’s attorney, Todd True of
Earthjustice, said that survival of juvenile salmon and steelhead predicted by
the 2014 Columbia River Power System biological opinion has not materialized
and the Reasonable and Prudent Alternative had not prevented jeopardy.
Defendants, National Marine Fisheries Service,
U.S. Army Corps of Engineers and the Bureau of Reclamation, represented in the
Appeals Court by Ellen Durkee, said that the injunctive relief for more spill
is “an extraordinary remedy.” According to the Administrative Procedures Act,
she continued, a court’s proper role is not to take control of programs or to engage
in experimental programs, a description she used for the injunction for gas cap
spill because more spill has yet to be shown to result in better survival.
“There is just one season before a new
biological opinion will address this,” she told the panel of three judges. “The
question is will there be irreparable harm?”
She said U.S. District Court Judge Michael H.
Simon in granting plaintiffs injunctive relief for higher spill levels only
made a cursory analysis before his finding of irreparable harm.
“That doesn’t consider the considerable
improvement in survival due to the current operations,” Durkee said. For example,
she added, juvenile spring chinook survival through the power system has been
in the 50-60 percent range.
“The defendants argue that if river conditions
are better today, then it can’t have harmed the fish,” True said. “That’s a
recipe for death by a thousand cuts.”
In a glass half empty counter to Durkee’s
claim of survival through the dams, True said that “this spring when juveniles
migrate about 50 percent will die. The current injunction will mitigate that
“If harm can be mitigated with a step like
this then that is an appropriate injunction,” True said.
Even NOAA Fisheries agrees that spill will not
harm salmon and steelhead, and that spill at or below the gas cap level has
been recognized as beneficial for fish, he said.
The appeal was heard by Chief Judge Sidney R.
Thomas, Senior Circuit Judge A. Wallace Tashima and Circuit Judge Richard A.
Paez. The judges asked few questions during the 40-minutes court session. At
the session’s conclusion, Tashima said the court would attempt to meet the
expedited schedule and have a decision before spill begins April 3.
The request for injunctive relief for more
spill was enjoined with an earlier case argued in District Court. 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
Jason Morgan, representing NW RiverPartners, a
defendant intervenor in the case, said that Simon failed to show plaintiffs
would be irreparably harmed without the additional spill.
“Plaintiffs say this may make things better
and the court said let’s give this a try, but an injunction has to flow from
harm,” he said. “There has been no irreparable harm from the status quo.”
In fact, if there has been so much irreparable
harm, why did the plaintiffs wait 9 years into a 10-year BiOp to ask for
relief? he asked. “If spill is a remedy, why wait so long?”
“In addition, they can’t claim irreparable
harm from a BiOp that’s been in place nine years and then ask for it to be
extended until 2021,” Morgan concluded.
In arguing recently for a change in the BiOp
remand schedule, plaintiffs suggested extending out to 2021 the current
2008/2014 BiOp that was to be replaced by the end of this year, giving the
federal defendants time to complete a new BiOp that would be supported by a
National Environmental Policy Act process and Environmental Impact Statement.
Federal defendants are currently involved in a five-year NEPA process, with a
new BiOp to be completed in 2021.
(See CBB, January 26, 2018, “Salmon BiOp
Challengers Argue New 2018 BiOp Due End Of Year Would Be Illegal Without EIS
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 plan in a January 8 order. The plan he approved is
for additional spill only during the spring of 2018 to the total dissolved 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’ BiOp. The monitoring will be at three of the dams
– Little Goose on the Snake River, and John Day and Bonneville on the Columbia
NOAA Fisheries, Northwest RiverPartners, the Kootenai
Tribe of Idaho, the states of Idaho and Montana, and the Inland Ports and
Navigation Group appealed Simon’s spill injunction in early June 2017.
In redirect, Durkee said that Simon had not
considered the complexity or cost of adding more spill.
“This is very different. It orders substantial
changes in operations,” she said. “The Corps (U.S. Army Corps of Engineers) has
never operated dams this way. Now they have to hit a water quality standard
exactly” as they operate dams with varying flows.
“This is a very complex thing they have to do
and it has real consequences,” she added.
“More spill is always better is not the case,”
Durkee said. “That’s like doubling the amount of medicine you take because it
-- CBB, December 8, 2017, “Briefs Filed In
Appeals Court To Expedite Challenge To Increased Spill For Juvenile Salmon,
--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, 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