[3] Feds Say FPC Lawsuit In Wrong Court With Wrong Targets

The federal government filed a motion April 14 in U.S. District Court to dismiss a lawsuit by Fish Passage Center personnel. The suit accuses the Bonneville Power Administration and its administrator Steve Wright of abusing the First and Fifth Amendment rights of FPC staff, and engaging in a conspiracy to prevent the FPC from gathering and analyzing the impacts of dams and water flows on fish survival.

The suit, filed by six FPC staffers, alleges that after the FPC produced a fish-survival analysis that environmental groups used to support boosting spill last summer at federal dams, BPA retaliated by cutting off its future funding.

But the government said BPA was only following a Congressional committee's report language that called for defunding the center's 2006 operations, a directive that Idaho Sen. Larry Craig (R) inserted. And while "report language doesn't have the force of law, other than a federal statute," the feds said, "it is considered 'the most authoritative' statement of Congress' intent."

The motion points out that the debate over the legality of the issue is already proceeding in the 9th U.S. Circuit Court of Appeals. By allowing additional litigation to continue at the district court level, the feds argue, the final rulings could be inconsistent. Besides, they said, the district court lacks the jurisdiction to deal with the BPA contract issue and the Northwest Power Act.

The original complaint also accuses BPA administrator Steve Wright of conspiring with Sen. Craig and his staff, "as well as other members or supporters of [the] hydroelectric industry, to prevent plaintiffs from associating and communicating with persons and organizations who supported conservation of water resources and protection of fish in the Columbia and Snake River Systems."

But the feds' motion points out that the Ninth Circuit has issued a stay of the defunding process, and that BPA will be paying for FPC operations through November.

The motion argues that this leaves only "emotional distress damages" for any alleged First Amendment and due-process violations by the BPA administrator, who they say should not be individually liable anyway. Nor do the plaintiffs cite any facts to support their conspiracy theory linking Wright and Craig, say the feds.

U.S. District Court judge Ancer Haggerty has already nodded their way. After refusing last month to approve a temporary restraining order that would have kept the FPC open, the judge voiced concern that the lawsuit may be in the wrong court and that it would be hard to prove the retaliation allegation.

The six FPC employees, including FPC director Michele DeHart, filed declarations in their complaint. In her filing, DeHart said that "people in the region" have "suggested" that she had been "personally targeted" by 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."

Another declaration by FPC hydrologist David Benner alleges that a BPA employee had told him BPA might not have terminated the FPC contract if it had not conducted the 2005 analysis of summer spill. "He expressed the opinion that BPA officials were particularly interested in ensuring that Michele DeHart lost her job."

The feds' motion argues that BPA Administrator Wright is entitled to qualified immunity, a precedent that allows government officials "performing discretionary functions," to be shielded from liability for civil damages as long as their conduct doesn't violate established constitutional rights. They argued that the doctrine of official immunity uses an objective standard of "reasonableness so claims of improper motive are irrelevant to the defense."

On April 19, BPA spokesman Mike Hansen told NW Fishletter that no damages had occurred, so the charges are moot. He said neither BPA nor Administrator Wright instigated the defunding. He said Wright was acting in his official capacity to carry out the Congressional language, and should not be subjected to claims that threaten him personally. -B. R.

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