[2] Fish Passage Center Gets Last-Minute Reprieve
A few hours after staffers at Portland's Fish Passage Center finished their farewell luncheon on March 17, the 9th U.S. Circuit Court of Appeals granted a motion for an emergency stay. The court action called for the Bonneville Power Administration to fund the beleaguered center until the resolution of a petition by environmental and fishing groups that calls for judicial review of BPA's de-funding decision.
The petition, filed Feb. 16 by the Northwest Sportfishing Industry Association, Northwest Environmental Defense Center and Public Employees for Environmental Responsibility, had pretty much been forgotten in the publicity of a last-minute motion for a stay that the groups filed in U.S. District Court in Oregon on March 16.
In the District Court proceeding, Judge Ancer Haggerty declined to issue a stay of the Center's de-funding, noting that his court was probably not the right place to hear the argument over the BPA contractual issue.
The groups had claimed that Idaho Sen. Larry Craig "unlawfully retaliated" against the Fish Passage Center because FPC data were used by BiOp plaintiffs in the ongoing litigation of federal dam operations on the Columbia and Snake rivers.
Craig, unhappy with the plaintiffs' use of FPC analyses in the litigation that culminated with increasing spill in the dam operations for helping fish, added language to a water and appropriations bill in September requiring BPA to quit paying for operation of the 11-person staff. The language was retained after the Senate and House hashed out spending differences in October, and BPA has since farmed out FPC duties to other entities, anticipating the closing of the center.
In their filing with the Niners back in January, NEDA and PEER argued that BPA actions to replace the Fish Passage Center violated provisions of the Northwest Power Act, and that the Committee report language added by Craig does not carry the force of law.
But report language added to spending bills by senior members of the Senate Appropriations Committee usually commands respect, said one long-time Northwest politico who declined to be identified. Though some federal agencies have sometimes disregarded such language, BPA has always followed it. He said the issue could attract the attention of other members of the Appropriations Committee if they think such report language is ruled 'non-binding" by a federal appeals court.
For the time being, Sen. Craig is staying out of the fracas. Craig staffer Dan Whiting said his boss had nothing to say at this time.
But Fish Passage Center director Michele DeHart took a few potshots at the Idaho Senator and his staff in a declaration filed with the district court action. DeHart said neither she nor her staff were given "the opportunity to know or respond to any issue or accusations alleged by Senator Craig or BPA."
DeHart also said some statements made by Craig in a Nov. 10, 2005 press release were false when he said that salmon recovery programs were better off with the elimination of the FPC, since policy decisions would be based on reliable data and science would be "free from bias and agendas."
"Despite the fact that Senator Craig's statements regarding the FPC and its staff were false, BPA has adopted them and has refused to renew the contract to continue the work of the FPC," said DeHart's declaration.
DeHart said she had not heard of any specific issues raised by Craig or his staff regarding FPC work or analysis before he inserted the de-funding language in the conference report [in October] on the energy and water appropriations bill after House and Senate members met to finalize the spending measure.
Craig had inserted language to de-fund the FPC back in July in the Senate's version of the bill. In September, DeHart e-mailed Craig's staff to set up a time for discussing the issues and one of his staffers had a "substantive" discussion with her later that month (see NW Fishletter 206). But DeHart's declaration says, "To my knowledge, they had not brought any concerns to the Oversight Board or directly to me."
She also said that "people in the region" have "suggested" that she had been "personally targeted" by Sen. Craig and BPA and that the possibility of continued retaliation was a real deterrent for any agency or tribes to consider her for future employment. "This sends a chilling threat to other scientists in the region whose findings are counter to powerful hydropower industry interests."
Plaintiff groups were ecstatic after the Niners voted to stay the FPC's demise. "The importance of the Center's continued fish expertise outweighed the BPA's arguments that it is above the law," said Stephanie Parent of the Pacific Environmental Advocacy Center (PEAC) in a press release. PEAC filed for the stay in the Ninth Circuit.
Mike Hansen, spokesman for BPA, said the administration has amended its contract to extend FPC funding through April 19. FPC staffers who were moving under the aegis of the Pacific States Marine Fish Commission will still maintain the data warehousing function in their old digs, as they would under the new contract, said BPA Fish and Wildlife division head Bill Maslen, so his agency will not be paying for any duplicative work. But the data analysis function that BPA had awarded to Battelle Northwest is essentially on hold. -B. R.
The following links were mentioned in this story:
NW Fishletter 206, Dec. 9, 2005
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