[2] Feds Appeal Spill Decision to Ninth Circuit
Three federal agencies have announced they will file for an emergency stay of Judge James Redden's June 10 order in the 9th Circuit Court that calls for adding $67 million in summer spill at federal dams, part of a request by environmental, fishing groups and some tribes who had earlier successfully challenged the latest BiOp on hydro operations. The BPA customers group involved in the BiOp litigation also filed a motion to appeal the spill order.
With spill slated to begin at lower Snake dams on June 21, federal attorneys say an emergency stay is necessary to avoid "immediate and irreparable" harm to ESA-listed fall chinook. They headed into court, armed with a motion that said Judge Redden had taken "the unprecedented step of experimenting with salmon migration by altering long-standing Corps summer operations..."
The Bureau of Reclamation, the Corps of Engineers and the National Marine Fisheries Service say that Redden's error is "exacerbated by the fact that it does not point to any specific findings or evidence in the record to justify this experiment, nor does it even address any of the numerous declarations and evidence put forward by NMFS and the Corps to the contrary."
"We support the Department of Justice's decision to appeal the injunction decision," said Bob Lohn, Northwest regional administrator of NOAA Fisheries in a June 16 press release. "The primary effect of the injunction is to greatly reduce barging of lower Snake River fall chinook this summer, at a time when the Snake River is likely to have especially low flows and warm water. Both of these conditions are risks for salmon."
The emergency motion says that Redden's order is based on "mistaken interpretations of past NOAA statements," and could lead to higher levels of total dissolved gas that violate state standards and harm fish, along with the possibility of compromising research.
The feds' latest motion also says the only basis cited by the court for its order is the "mistaken belief" that the ordered spill regime is consistent with requirements of the 2000 BiOp's "reasonable, prudent alternative" and would help the listed stock by allowing more fish to migrate inriver to compare with transported fish. The feds say the 2000 BiOp called for a study after transmission upgrades had been completed, which they now have. Under the 2004 BiOp, the feds say the research is still on the table, though it has been deferred until surface passage improvements (the addition of removable spillway weirs) are completed to make results relevant to future operations.
By putting more fish in the river to "spread the risk" as is done with spring chinook, the feds say the court has mistakenly compared apples with oranges, since the agencies "expressly" did not adopt such a policy for the summer migrants because of the different circumstances facing them. The motion says NMFS has rejected the shift away from transporting summer fish, "pending development of better information about the relative benefit of transport." They say the court has imposed "unwarranted risks" by substituting its own judgment and imposing an "untried and experimental approach."
Further, they say the court abused its discretion by not including "in the balance the harm to the public from lower electricity production by BPA and likely rate increases to customers." BPA administrator Steve Wright has said the added spill could boost wholesale rates 4 to 5 percent next year. -B. R.
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