[2] Niners' Panel Hears Spill Appeal In Seattle
Bonneville Power Administration customers marched out of a Seattle courtroom July 13 in glum moods after a three-judge panel from the 9th U.S. Circuit Court of Appeals heard arguments in the government's attempt to overturn a court order to spill $67-million worth of water over lower Snake River dams for the rest of the summer.
"I think we've got a 25 percent chance of getting it overturned," said John Saven, executive director of Northwest Requirements Utilities, an intervenor in the litigation as a member of the BPA customers group. Bob Lohn, regional administrator at NMFS, said he was encouraged by the panel's pertinent questioning and its sense of urgency to get to a decision soon.
Arguing before the panel, federal attorney Ellen Durkee called federal District Court Judge James Redden's order an "abuse of discretion" because it was accompanied by "no meaningful analysis" to show any benefits from the spill strategy, which puts far fewer migrating juvenile salmon in barges, the federal agencies' preferred strategy.
Durkee tried to explain that the "spread-the-risk" strategy used by the feds--splitting juvenile spring chinook between barges and inriver migration routes more evenly--doesn't mean the feds think it was the best thing to do for fall chinook.
She said while there is little survival data for fall chinook compared with spring chinook, the feds still prefer to barge the fall fish because returns are up and the strategy has been used for years with no major fish disasters. Durkee told the panel that Judge Redden should have deferred to NMFS' judgment.
Attorney Sam Kalen, arguing for the BPA customers, said Redden's June 10 order called for a new "undefined obligation," but didn't explain what that obligation was or how it was generated from the Administrative Procedures Act or the Endangered Species Act. Nor did Redden explain whether the feds had committed a procedural or a substantive violation of the ESA.
There was some questioning by the Niners panel about whether the jeopardy analysis used by the feds was now invalid, since Redden had ruled the 2004 BiOp illegal last May.
Judge A. Wallace Tashima asked Earthjustice attorney Todd True, who represented plaintiff environmental and fishing groups, how "you go forward" without a jeopardy analysis. Tashima noted that few fish were now getting transported--less than 10 percent, according to defendants. Another panel member noted that the agencies said transportation was good enough, but recent declarations by plaintiffs said it wasn't. How did that jibe with the district court's feeling that the risk should be spread between the different migration strategies?
True said that by the end of the season, about half the fish would be barged, and the other half would have passed inriver, since an early migration has meant one-half of the run has already passed the dams in question.
The "expert" state fish managers say the very same spread-the-risk policy used in the spring is needed for fall chinook, True said.
Judge Tashima said there was a basic contradiction in the record over whether spill resulted in higher fish survival than being transported. Why shouldn't the agencies, which say barging is just as good as inriver migration, if not better, be deferred to, the judge asked.
True said the district court was "balancing" the evidence, and the agencies shouldn't receive deference because the government had "its thumb on the scales--twice."
Judge Sidney Thomas noted that it was an unusual situation, involving as it did plaintiff declarations without any evidence to show the benefit of the spill strategy. True argued that much of the evidence weighed by Redden came from the federal agencies themselves. He characterized the government's strategy as citing the high return rates of recent years as an excuse to say "we don't want to rock the boat." But the court said the fish returns aren't that good, said True, who added that Redden also used a science advisor to help him.
He said there was no reason that declarations from plaintiff experts like retired USFWS biologist Fred Olney should receive less deference than those from government agencies.
True said rather than being a "grand experiment," as portrayed by defendants, the added summer spill is what the states and other agencies have been requesting for years. It wasn't used before, True said, because the government stalled with excuses, first using the instability of the electric grid, then that fact that removable spillway weirs haven't yet been installed at all the dams.
Federal attorney Durkee responded by noting that the previous BiOps all had the same summer operations in mind, so changing them now because the current jeopardy analysis may be invalid is no excuse. She also noted that a true spread-the-risk policy doesn't just balance across the season as True said, but every day of the fishes' migration should include the policy.
Panel Judge Richard Paez asked the feds why they hadn't sought vacating the injunction right away, if it harmed the fish. Durkee explained, in response to another question by Paez, that federal agencies had started a logical sequence of research on fall chinook in 1999 that called for three weeks of spill this summer at two dams as part of ongoing research. However, other issues, like increasing water temperatures in the summer, have hindered progress.
With fall chinook populations trending dramatically upward since 1995, Durkee said government agencies have stuck with the barging strategy since there have been no big disasters in the meantime. She said the science behind the population trends is not bad, as portrayed by True. "The fish deserve more than they are getting out of this process," she said. -B. R.
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