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NW Fishletter #379, March 5, 2018

[1] Court's Spill Order To Be Scrutinized At 9th Circuit

The 9th U.S. Circuit Court of Appeals will hear arguments on March 20 on whether to uphold an April 2017 ruling by U.S. District Judge Michael Simon ordering a substantial increase in 2018 spring spill to help push juvenile fish past eight Snake and Columbia river dams.

The dispute--National Wildlife Federation et al. v. National Marine Fisheries Service et al. [17-35462]--could be decided before the spill order goes into effect from April 3 through June 20 on the Snake River dams, and from April 10 through June 15 on the lower Columbia River dams.

While the irreparable harm issue is at the heart of legal arguments, both sides cite prior court-ordered spills, prior agency actions and the current condition of listed salmon and steelhead in their arguments.

In briefs filed by both sides in January, appellants--the National Marine Fisheries Service, U.S. Army Corp of Engineers and BuRec--repeatedly refer to the spill order as an "experiment" with unknown and unproven benefits, which they claim is not a high enough standard to impose an injunction.

Appellees--a group of 11 environmental and recreation advocates led by National Wildlife Federation--point to the district court's finding that some of the listed species remain in a "precarious," "imperiled" and "perilous" state, and that dams are the largest human-caused reason for juvenile deaths.

The briefs focus largely on environmental issues and legal precedent, and not other impacts, although appellant-intervenor Northwest RiverPartners states that the spill "experiment" would "significantly increase carbon emissions (by 840,000 tons) and cost an estimated $40 million on average."

RiverPartners joined government agencies, and intervenors Idaho, Kootenai Tribe of Idaho and Confederated Salish and Kootenai Tribes, and the Inland Ports and Navigation Group to appeal Simon's spill order, as defendants in the lower court case. The National Wildlife Federation, along with several conservation and recreation groups, Oregon and the Nez Perce Tribe, seek to defend it, as appellees and plaintiffs.

Here's what appellants argued in reply briefs filed Jan. 31 about why the spill order should be overturned:

Government agencies juxtapose the situation in the early 1990s, when "species' status was degraded and continued to steadily decline," with what's happened since: an "unprecedented package" of fish recovery efforts, "backed by the Fish Accords--historic agreements among the federal agencies, five Tribes, and three States that effected a suite of actions at a cost of almost $1 billion for the 10-year duration of the BiOp and a $40 million-plus agreement for estuary habitat improvements between federal agencies and the state of Washington."

The agencies claim that relevant facts, and the condition of the species, have changed since U.S. District Judge James Redden's 2005 order to spill more water over one Columbia and four Snake river dams, a decision later upheld by the 9th Circuit.

Specifically, a 2011 status review--which plaintiffs used to argue that listing status remains unchanged--also found that the risk trend for all the species at issue is stable or improving.

RiverPartners added that "the most recent five-year status review shows that most listed stocks are increasing in abundance, productivity, or both," and that all but one of the listed species "is at least triple the numbers estimated in the 1980s or 1990s."

It says that Simon's finding that spill could offer immediate benefit, and is "worth trying," demonstrates that the spill order is experimental. "Injunctions are generally issued to stop experiments, not require them," they write.

They further argue that the plaintiffs must also prove that without the spill, their recreational or aesthetic interests face imminent and irreparable harm.

The Kootenai Tribe adds that a court injunction would automatically be justified for a species that is endangered. "In essence, appellees are advocating that whenever a reviewing court determines that a species is in a precarious, imperiled or perilous state, whatever those terms mean, the irreparable harm factor for an injunction under the ESA is per se satisfied," its brief states.

The State of Idaho calls the order "judicial micromanagement," citing "significant technical debate" over the benefits of spill and spill levels. The state's brief says that, because the district court found the 2014 BiOp complied with critical habitat measures, the ESA entitles the federal agencies to choose an appropriate alternative, and they're not "required to pick the best alternative, or the one that would most effectively protect the species or habitat."

Federal agencies add that the district court's finding of irreparable harm is based on a premise that--compared with the plaintiffs' preferred action to spill more water--the agencies' current actions are harming salmon. Instead, they say, the court must find that the government's actions, in and of themselves, are causing irreparable harm before imposing an injunction. "Injunctions are extraordinary remedies to be granted only where the action being enjoined is itself causing immediate, irreparable harm," the agencies' brief states. "Injunctions are not properly granted merely to conduct research, or on the basis that some other, potentially beneficial action might exist."

Appellees, who filed briefs Jan. 9 and Jan. 12, have a different take on the spill order that was approved Jan. 8 in district court.

In its brief, NWF says, "Over the course of more than 20 years, increasing the amount of water spilled at each dam has proven to be the most effective measure available that can be employed immediately to reduce the harm to, and increase the survival of, ESA-listed salmon and steelhead."

The conservation groups note that this is not the first, but the fifth time the district court has mandated increased spill to avoid "irreparable harm" to juvenile salmon and steelhead after rejecting BiOps. "Like previous orders, it correctly concludes that dam operations under the failed 2014 BiOp, will cause irreparable harm to ESA-listed salmon and steelhead, and correctly concludes that an injunction ... will reduce the harm to these species that would otherwise occur."

NWF also says the agencies and other appellants are making the same arguments that failed before Redden in 2005--that additional spill is risky and untested, and could harm salmon from gas bubble trauma. "These arguments are no more persuasive on the current record than they were in 2005," they write.

The State of Oregon also points to a history of BiOps that failed to comply with the ESA, and subsequent court orders to spill water over dams. The state says the issue boils down to whether listed species "are irreparably harmed by ongoing status quo operation of the FCRPS and whether the district court abused its discretion by ordering additional spill to aid the species."

Irreparable harm was shown by the court's determination that the 2014 BiOp was "greatly flawed and does not provide sufficient protection for the species," its brief stated. Because of that, "The listed fish remain at precariously low abundance levels and continue to suffer ongoing harm from FCRPS operations."

Oregon also argues that the district court acted "well within its discretion," calling the increased flow "a necessary remedy to offset some of the harm caused by [the Federal Columbia River Power System]."

The Nez Perce Tribe, in its amicus brief, focuses mostly on the dams' "enormous real-world impact on salmon and steelhead" when describing why it supports affirming Simon's decision.

The Nez Perce brief questions a NOAA Fisheries' characterization of the Snake River spring/summer Chinook returns in 2010-2012 as "very high," quoting a declaration before district court by the tribe's fisheries manager David Johnson: "Although they [Snake River spring/summer Chinook] have indeed been listed for a long time relative to our working careers, these salmon returns, to a basin with the size and quantity of good, quality habitat of the Snake River basin, should not be regarded as anything but a biologically and ecologically extraordinary circumstance."

It concluded, "Their degraded condition should not become a new normal in which relatively larger increases in returns are heralded as good." -K.C. Mehaffey

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Publisher/Editor-in-Chief: Mark Ohrenschall, Editor: K.C. Mehaffey
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