[1] Niners Uphold Spill Injunction
A three-judge panel from the 9th U.S. Circuit Court of Appeals has upheld a ruling from a federal District Court in Oregon that added two months of spill to summer operations at five federal dams in order to improve fish survival. The panel, which heard oral arguments in Seattle July 13 filed its opinion July 26, saying that Judge James Redden did not abuse his discretion by granting the injunction, nor did he base his decision on an erroneous legal standard or erroneous findings of fact. Those were the only two reasons upon which it would reverse, the panel said.
Though federal agencies argued that the added spill would likely kill up to 50 percent more of the juvenile fall chinook than would die from the agencies' preferred barging strategy, the panel said conflicting evidence about the spill strategy didn't imply that the judge had made a mistake in supporting it.
Plaintiff attorneys pointed out that even the National Marine Fisheries Service had admitted it wasn't sure if barging was better than leaving the fish inriver, and that the agency generally supported spill as the safest way to move fish past dams. But federal officials said they didn't know enough about fall chinook to come to that conclusion.
The officials had said barging the summer migrants would protect them from lethal summer temperatures in this low flow year. But plaintiffs argued that status quo operations weren't enough to protect the Snake fall chinook, and had also called for flow augmentation and reservoir drawdowns to speed inriver migration by 10 percent. Judge Redden granted only the spill side of their request, agreeing with plaintiffs that the stock was not showing real signs of recovery, another point hotly debated by federal attorneys.
But the Appeals Court said its job wasn't to weigh the evidence presented in District Court, only to decide whether the judge had abused his discretion.
The judicial panel cited a 1998 case, saying that as long as findings "are plausible in light of the record viewed in its entirety, a reviewing court may not reverse even if convinced it would have reached a different result." The panel said that when the record was viewed as a whole, they couldn't say that Redden's ruling "concerning irreparable harm was clearly erroneous."
As for the feds' argument that its expertise should be deferred to, the panel said there was no formal agency finding to which it might be owed, since the officials argued their case through expert affidavits. The panel pointed out that Judge Redden had already rejected the main premise of the government's methodology and the 2004 Biological Opinion.
The panel also said the government was wrong to argue that Redden had not allowed for a traditional preliminary injunction analysis or weighed the economic harm from the spill strategy, which the Bonneville Power Administration estimated would cost at least $67 million. The Ninth Circuit said the Supreme Court has ruled such an analysis does not apply to the Endangered Species Act and that Congress intended the ESA to balance in favor of endangered species.
But the judges conceded a point made by Justice Department attorneys and the BPA customers group that the spill injunction was too broad, citing modifications already made to the spill strategy to improve adult migration at Little Goose Dam. The customers argued that the order inadequately spelled out the remedy for the alleged ESA violation. The panel said this issue should also be considered and remanded the injunction back to the District Court.
BPA says the added spill from June 25 to July 25 cost $35.8 million and that, combined with increasing power rates, was likely to raise the agency's earlier estimate that the injunction would cost $67 million through the end of August.
"It's a disappointing decision," said PNGC vice president Scott Corwin, "especially in light of the serious questions about the science in Judge Redden's order."
Environmental groups were ecstatic about the ruling. A July 27 Earthjustice press release said the legal battle was part of an "overall effort to breach the four lower Snake dams and restore salmon abundance throughout the Northwest." Environmentalists trotted out fishing guide Bob Rees, from the NW Guides and Anglers Association, who said people need to realize that every salmon caught by a recreational or commercial fisherman provided a $200 cash infusion in the regional economy.
But pessimists were pencilling out the costs of adding more fish through the new spill effort. Even if environmental groups were correct in their assertion that the implemented spill and flow augmentation (not implemented by the court) would improve fish survival by 50 percent, only about 500 chinook might be added to the returning adult run from the numbers of smolts that have migrated since summer spill started, at a cost of $300,000 for every fall chinook that makes it back to Lower Granite Dam as an adult. About half of the Snake fall run is harvested by ocean and inriver mixed stock fisheries before the fish reach Idaho.
By Aug. 3, the University of Washington had estimated that 97 percent (plus or minus 6 percent) of the wild pit-tagged fall chinook had passed the dam. Less than 1,000 smolts a day are passing Lower Granite at this time. Before the spill started, about 3 million juveniles had passed the dam; since then less than 300,000 smolts have gone by.
By late last week, representatives of all sides in the spill fight and earlier BiOp litigation, along with the four Northwest states, tribes and utilities, had concluded a two-day meeting in Spokane to discuss a plan for operating the dams for the next 10 years.
The plan calls for dedicating the savings from using removable spillway weirs at dams to pay for more fish improvements. The weirs, now under development, may improve fish survival while spilling less water.
"The court has spoken and we are complying," said Steve Wright, BPA administrator. "But it makes our work with the four Northwest states and other parties on an agreement for hydro operations and fish protection all the more important." -Bill Rudolph
The following links were mentioned in this story:
Smolt Passage Predictions based on PIT Tag Detections for Snake River Stocks
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