A three-judge federal appeals court panel
ruled this week in favor of an Oregon U.S. District Court injunction ordering more
spill at eight lower Snake and Columbia river dams intended to benefit migrating
juvenile salmon and steelhead.
The Ninth Circuit Court of Appeals heard oral
arguments March 20 in which federal agencies argued that the lower court
injunction to provide more spring spill based on total dissolved gas levels was
both difficult to achieve and an improper use of an injunction. The panel
released its decision April 2.
Total dissolved gas limits are intended to
protect young fish from gas bubble trauma in the dams’ tailraces during spill.
The appeal was heard by Chief Judge Sidney R.
Thomas, Senior Circuit Judge A. Wallace Tashima and Circuit Judge Richard A.
Paez, and Tashima promised the court would meet the expedited schedule
requested by defendants.
With the decision, spill began this week at
lower Snake River dams and will begin April 10 at lower Columbia River dams.
The decision, written by Thomas, says that the
federal defendants’ – NOAA Fisheries and the U.S. Army Corps of Engineers,
among others – argument that the plaintiffs (National Wildlife Federation and
the State of Oregon) call for increased spill “only identified vague and
hypothetical survival benefits” is incorrect.
“In support of its injunction motion, Oregon
presented expert declarations attesting that increased spill would improve
juvenile survival and adult returns,” Thomas wrote. “This evidence is not of
‘potential’ or ‘hypothesized’ survival benefits; it includes significant
evidence from decades of studies showing that spill volumes higher than those
proposed in the 2014 BiOp (biological opinion) will lead to higher survival
rates for outmigrating salmonids.”
“At best, federal defendants establish
uncertainty about the benefits of increased spill, but the existence of
scientific uncertainty does not render the district court’s findings clearly
erroneous,” Thomas wrote.
The Appeals Court decision is at https://earthjustice.org/sites/default/files/files/Ninth%20Circuit%202018%20Spill%20Injunction%20Ruling.pdf.
The request for injunctive relief for more
spill was enjoined with an earlier case argued in District Court. The initial
case, heard by Judge Michael H. Simon, 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 by plaintiffs in the original case, the National Wildlife Federation and
the State of Oregon, among others, asking the court to begin ordering spill to
maximum total dissolved gas levels as set by Oregon and Washington 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. The
plan 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.
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.
“After more than 20 years of federal failure,
salmon are in desperate need of help now,” said Todd True, Earthjustice
attorney representing the plaintiffs in the case. “The measures the Court
upheld will give salmon a fighting chance while the federal government catches
up to the scale and urgency of what the law requires to protect these fish from
Neither NOAA nor the Department of Justice,
which represented the federal defendants, wanted to comment on the Appeals
Court decision, but the Bonneville Power Administration said that “this
decision creates a new multi-million dollar obligation for the region’s
“As we stated in our newly released agency
strategic plan, achieving the full scope of BPA’s mission requires a careful
balance between sometimes competing objectives. Specifically, we at BPA are
committed to delivering on our vast public responsibilities through a
commercially successful business. We are analyzing the full financial impacts
of this court decision and we will make more information available in the
Liz Hamilton, executive director of the
Northwest Sportfishing Industry Association, says the claim of lost power
opportunities is a false alarm since the Northwest power grid is often faced
with a surplus, especially in the spring months. Fewer fish also has an
economic impact on communities and small businesses, she said.
“Fewer fish could be a nail in the coffin for
more iconic Northwest fishing brands,” Hamilton said. “I know of companies
trying to decide whether this is their last year in existence – brands that
fishermen would recognize and recommend. We need hope, not more despair. And at
the spill level the court required – and that has now been affirmed on appeal –
we are going to see larger adult salmon returns.”
The Appeals Court process spurred a March16
letter from Washington U.S. Reps. Dan Newhouse, Cathy McMorris Rodgers and
Jaime Herrera Beutler urging the state’s U.S. Sens. Patty Murray and Maria
Cantwell to join them in the appropriations process to place a pause on the
court-mandated spill order.
“We implore you as Washington’s U.S. Senators
to assist our efforts to place a pause on the impending spill order mandated to
begin April 3, 2018 at the eight lower Snake River and lower Columbia River
dams,” the representatives wrote in the letter (https://newhouse.house.gov/sites/newhouse.house.gov/files/03%2016%202018%20NewhouseMcMorris%20RodgersHerreraBeutlertoMurrayCantwell.pdf).
“We are very concerned by the unintended
consequences this forced spill order could have on our shared constituents, as
well as the rest of the Pacific Northwest,” saying that BPA, the Corps and the
Bureau of Reclamation estimate the cost of the spill at $40 million.
“As you well know, over 70 percent of
Washington’s electricity comes from clean, renewable hydropower—the impact on
our power system will not only affect our Districts, but rather all of Pacific
Northwest ratepayers,” they wrote.
The representatives are sponsoring H.R. 3144
that was introduced last June. It would prohibit removing the four lower Snake
River dams without congressional approval, and it would approve the 2014
Federal Columbia River Power System biological opinion for salmon and steelhead,
including its spill levels, until 2022. By court order federal agencies are
currently working to complete a new BiOp by 2018.
The bill is also sponsored by Kurt Schrader
(D-OR) and Greg Walden (R-OR).
Following the appeals court ruling McMorris
Rodgers said H.R. 3144 “would be coming up for a vote in the U.S. House of
Representatives in the coming weeks.
“Hydropower helped build the Northwest, and
still today it offers us clean, renewable, reliable, and affordable energy to
help power our homes, businesses, and communities. I’m proud to announce that
my bipartisan legislation to protect our dams will come before the House of
Representatives in the coming weeks to be voted on and sent to the Senate. My
goal is to ensure that dams and fish can co-exist, and this Biological Opinion
provides a collaborative approach so we can continue to improve technology and
fish recovery efforts, while supporting the clean energy produced on our dams.
I’m proud to lead this effort along with the support of organizations and people
all across Eastern Washington.”
(See CBB, October 20, 2017, “New House Bill
Would Move Anadromous Fish ESA Listings From Commerce Dept. To Interior,” http://www.cbbulletin.com/439744.aspx)
The Corps said it began implementing the
additional spill up to TDG limits this week at Snake River dams.
"The Corps has been tasked with
increasing spill up to the limits of state water quality standards," said
Julie Ammann, chief of the Reservoir Control Center for the Corps’ Northwestern
Division. “We will use our expertise and best professional judgment to
implement this operation and maximize spill up to the state limits. There are
many factors that influence total dissolved gas, so managing spill at all our
lower Snake and lower Columbia River dams will be challenging.
“The Corps has been working collaboratively
with the region for the past year to prepare for this new spill operation,”
Ammann continued. “Since this voluntary spill operation has not been
implemented before, the Corps will closely monitor the system and respond as
necessary if we see any unintended consequences."
--CBB, March 23, 2018, “Ninth Circuit Hears
Arguments On More Spill For Juvenile Salmon/Steelhead At Columbia/Snake Dams,” http://www.cbbulletin.com/440399.aspx
--CBB, January 26, 2018, “Salmon BiOp
Challengers Argue New 2018 BiOp Due End Of Year Would Be Illegal Without EIS
-- 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