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NW Fishletter #380, April 2, 2018

[1] 9th Circuit Upholds Spill Order

The 9th U.S. Circuit Court of Appeals has upheld a lower court's order to spill more water over eight federal dams, beginning April 3. A panel of judges determined that U.S. District Judge Michael Simon did not abuse his discretion in agreeing to order spill at levels up to the spill cap from April through mid-June this year.

In the published opinion, issued April 2, the court affirmed that Simon correctly considered the irreparable harm to ESA-listed salmon and steelhead.

The court heard oral arguments in an expedited hearing on March 20, and issued its decision one day before the court-ordered spill will begin.

In the opinion, written by Chief Judge Sidney Thomas, the appeals court systematically rejected all of the arguments that federal defendants and intervenor-defendant Northwest River-Partners made in appealing the spill order in National Wildlife Federation et al. v. National Marine Fisheries Service et al. [01-640]. "One of the ESA's central purposes is to conserve species," Thomas wrote.

He found that the lower court was not required to find "extinction-level" harm to the species in order to determine irreparable harm, and that it could find harm from FCRPS dam operations as a whole, instead of only the spill-related components.

Thomas also said the district court did not rely on the fact that species are listed, but had ample evidence that the species remain in a "precarious" and "perilous" state.

In addition, he found that the injunction was not overly broad, and that there is ample evidence that a limited injunction requiring increased spill will benefit salmon and steelhead.

Plaintiffs were thrilled by the ruling. In a news release, Tom France, regional executive director for the National Wildlife Federation, noted that the ruling is just the most recent in many court orders to ensure federal agencies protect and restore wild salmon. "All these decisions have been clear--the status quo isn't working and the fish deserve better. The time is now for federal agencies to follow the law."

Terry Flores, executive director of NW RiverPartners, called the ruling "a huge disappointment, although not entirely unexpected."

"This was the same panel that backed up Judge Redden's 2005 summer spill order, so we all knew it was an uphill battle," she said in an email to NW Fishletter. "Yet, for the panel to agree with the district court that the species and the plaintiffs are suffering 'irreparable harm' warranting injunctive relief nine years into a 10-year BiOp and with a new BiOp nine months away--simply strains credulity. It also suggests that if ever there was a situation where Congress needs to step in to help, this is it".

The ruling means the spill surcharge approved as part of BPA's fiscal-year 2018 rate case will likely move forward. The surcharge would be set to recover "lost revenues" due to the extra spill if they exceed $5 million, based on a retrospective analysis.

"Given the recent appellate court decision, we are now evaluating how costs of the court-ordered increase in spill impact Bonneville's ratepayers and the region," BPA spokesman David Wilson said in emailed comments. -K.C. M.

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