[1] Spill Now, Argue Later, Says Ninth Circuit Court
The 9th U.S. Circuit Court of Appeals rejected a last-minute appeal on June 21 by federal agencies, irrigators and Bonneville Power Administration customers to stop the summer spill program that began just after midnight, June 20. A June 10 order called for spilling at dams where fish are collected for barging downstream, and muted the feds' maximized barging policy in low-flow years.
But the Niners requested briefs from all parties within 10 days to argue the full appeal at a later date. The decision held out hope to some that the court might possibly stop the $65 million spill action before its scheduled Aug. 31 end. Oral arguments are scheduled for July 13 in Seattle.
A brief filed by irrigators said federal Judge James Redden was "impervious" to evidence submitted by federal agencies that salmon survival would be reduced 26 to 48 percent if he granted the environmentalists' injunction to boost spill and thereby reduce the numbers of fish barged. The feds say barging will keep the fall chinook away from potentially lethal conditions in the low-flowing Snake River.
"We have now reached a dark day when even terrorists at Gitmo receive more due process of law from the federal judiciary than those attempting to defend dams from the lies of the environmentalists," said irrigators' attorney James Buchal the morning after the appeals court laid down the law.
In their own filing, federal attorneys said the plaintiffs' brief opposing their stay was "riddled with inaccurate factual generalities" that obscured a correct understanding of the issues.
However, plaintiff environmental and fishing groups said the injunctive spill relief should be granted to reduce harm to fish because the federal plan to barge most fall chinook in low-flow years was included in the "arbitrary and unlawful 2004 BiOp" that Judge Redden had ruled invalid May 26.
They said that even using the "contrived and improper efforts" in the 2004 BiOp to limit accountability for juvenile fish mortality to discretionary dam operations, the feds acknowledged that the harm of 1 to 4 percent of the migrating fall chinook "cannot be dismissed as de minimus under the ESA, and is irreparable."
Plaintiffs also took issue with earlier evidence from the feds that the fall chinook run is rebounding, noting that since 2001, the wild fall run has actually decreased by 50 percent.
However, a footnote in the feds' latest brief points out that such a statement is misleading because the 2001 fall chinook returns were the largest since the 1990s, and "part of the upswing in returns since the 1990s that have been occurring while the Corps has been maximizing transportation at the collector projects."
The feds say that Judge Redden made a fatal omission in his spill opinion because he never explained why spilling at collector dams remedied the alleged harm to fish. The feds noted that the plaintiffs admit the spill order is an "experiment," and point to a quote in the plaintiffs' brief as evidence.
The quote cites a June 14 Fish Passage Center memo that says the new summer spill strategy is a unique opportunity to "provide increased fish survival and to explore the questions regarding summer spill and fish passage that have not been possible to date because of the federal operators reluctance to provide spill."
The plaintiff groups also said it was wrong for the feds to include the potential cost of spill in their arguments as an example of public interest because the ESA does not provide for such considerations "when dealing with actions that will harm species threatened with extinction." They said the pennies a month that BPA customers would save by the federal plan doesn't outweigh the harm to fish.
A reply brief filed by the BPA customer group said the attempt to "trivialize" economic harm from the injunction conflicted with a slew of declarations that testified to the adverse economic impacts from the spill injunction.
Utilities were also ticked off at the state of Oregon for its amicus brief on behalf of the plaintiffs that argued against the feds' claim that the 2004 BiOp is lawful. Oregon has been involved with other Northwest states in discussions with federal agencies over long-term hydro operations, but broke with them during the June 10 spill hearing, when assistant attorney general David Leith said the state didn't believe the feds' barging plan was the best strategy for the fish. Leith said the state had only supported it to stay in the talks over long-term dam operations.
But federal agencies didn't throw in the towel. "This decision allows the injunction that was granted by the District Court to continue while we move forward with our appeal," Bob Lohn, Northwest regional administrator of NOAA Fisheries, said in a June 21 statement. "Our primary concern is that the injunction, which began yesterday, significantly reduces the number of fish transported in barges, leaving a large proportion to migrate under the adverse in-river conditions in this low water year. We are concerned about the prudence of wagering salmon recovery on an experiment instead of relying on proven measures," added Lohn.
Meanwhile, scientists like USFWS researcher Billy Conner say it's likely that most of the juvenile fall chinook in the Snake River have already headed downstream from Lower Granite Dam. Conner said it's been hard to find fish to pit tag lately. "Our catch is way down," he told NW Fishletter.
A 9th Circuit panel will convene July 13 in Seattle to hear oral arguments. The latest briefs filed by both sides repeated earlier arguments made before Judge Redden. The feds say plaintiffs failed to present any evidence that fall chinook would benefit from the added spill, while plaintiffs said the feds portrayed the injunction "as a head-long, unprecedented, and reckless experiment in river management by the district court that poses needless risk to juvenile fall chinook and imposes needless cost on the Bonneville Power Administration."
The latest proceedings have generated some interest beyond the region. Both the state of Nebraska and the National Association of Homebuilders filed amicus briefs on behalf of the federal defendants. Nebraska argued that Judge Redden relied inappropriately on two district court opinions regarding a biological opinion written by USFWS on the Corps of Engineers operation of Missouri River dams and operations and may be overturned by appeal any day. They say the NOAA Fisheries interpretation of the ESA implementing regulations is correct, and if it is struck down, "the conflict in the Missouri Basin will manifest itself nationwide."
The homebuilders association also filed a brief supporting the feds' jeopardy analysis used in the BiOp that Judge Redden had found illegal. "If this court affirms the district court decision and holds that the Service must make a jeopardy determination when it concludes that a federal action will reduce appreciably the likelihood of recovery of a listed species but not the likelihood of survival of that species, hundreds if not thousands of private projects previously approved under the ESA will be invalidated." They said if Redden's interpretation is allowed to stand, it could undermine hundreds of habitat conservation plans adopted by private landowners and local governments over the last 10 years. -Bill Rudolph
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