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NW Fishletter #380, April 2, 2018

[2] Judges Question Both Sides In 9th Circuit Spill Hearing

Judges for the 9th U.S. Circuit Court of Appeals asked lawyers some pointed questions during a hearing March 20, before upholding a court-ordered spring spill on April 2 at eight FCRPS dams from set for early April to mid-June.

The three-judge panel--Judges Sidney Thomas, Wallace Tashima and Richard Paez--posed questions as each side presented its case on whether the extra spill should proceed as ordered by U.S. District Judge Michael Simon, in National Wildlife Federation et al. v. National Marine Fisheries Service et al. [01-640]. Arguments took less than an hour, and came two weeks before the first four dams are scheduled to begin the new spill regime.

Ellen Durkee, attorney for NMFS, U.S. Army Corps of Engineers and BuRec, told the court the spill will force "very substantial changes in operation, with uncertain benefits from it," She argued that it is not the court's proper role to take control of administrative matters or conduct experiments just because it could produce better results for fish.

"The district court committed legal errors and abused its discretion in granting plaintiff's request for an interim injunction requiring increased spill and earlier monitoring during the final year of implementation of a 10-year biological opinion that has substantially improved conditions for salmon," she said.

Todd True, lawyer for plaintiffs National Wildlife Federation and several other conservation groups, argued that without the extra spill, fish will face irreparable harm. He said that legally, Simon has discretion to find a likelihood of irreparable harm, and that he did not abuse that discretion in finding extra spill would reduce that harm.

"So this is not by any sense an experiment," True said. "What the district court did is find that spill to spill gas cap levels would reduce harm, period."

He also argued that the bar is not high for meeting irreparable harm for a species in jeopardy. "Where the ESA has been violated, as it has here, it should not be an onerous task to show harm to protect the species," he said.

The arguments are basically the same ones each side filed in briefs with the court in recent months. But this time, attorneys faced questioning from a panel of judges.

"What is this interim injunction? It's a different animal than I think we're used to seeing. It's not a preliminary injunction, so how do we review it?" Thomas, the chief judge, asked Carson Whitehead, attorney for the State of Oregon--also a plaintiff in the case.

"Isn't it tantamount to a final injunction for the 10-year period--remand period?" asked Tashima, who later added, "The problem with this case, it goes on at 10-year increments that could go on forever. So there'll never be a final judgment. That means ... nothing's ever final in this case."

Whitehead responded that the court has retained jurisdiction because federal agencies issued a BiOp that violates the ESA. The case will be final, he said, when the federal government issues a lawful BiOp. And, he replied, while the interim injunction is "its own creature," standards of review are the same as in a preliminary injunction order.

Paez questioned Durkee when she argued the district court made a "perfunctory analysis" and "relied on very conclusionary statements" to find irreparable harm. He asked, "Don't you have to place that statement in context of the entire litigation?" He continued, "How can you dismiss it as a summary conclusory statement? I mean, there was a basis for it."

Durkee replied that the district court didn't look at the current record, but relied on a record from almost 10 years ago. "It never makes any reference to the record as it exists now, and it never considers the significant improvement in juvenile survival under the current operations," she answered.

Paez also had questions for True, who had argued it's appropriate for the court to order the spill, even if it only reduces the harm that would occur under continued operations without the extra spill. "The district court expressed some uncertainty about how much benefit would be derived," Paez commented, questioning whether it's sufficient, with an adequate factual record, that there would be a benefit to fish.

True responded that, yes, when a species is in jeopardy, a court can order an injunction to reduce harm to the species, even without knowing precisely how many more juvenile fish will survive. However, he added, the record does offer information about the magnitude of benefit. True cited a Comparative Survival Study, done each year by the Fish Passage Center. The ongoing study, he said, basically demonstrates the increase in spill will "reduce by about a third the number of years when we get returns that are below the level needed for survival, and it will increase by about a half the number of years when we get returns that are at least at the bare minimum level needed for survival." True added that CSS is a very extensive study. "It is not a hypothesis. It's based on data, year after year after year, showing that juvenile salmon survive better if they pass dams by spill."

In her closing arguments, Durkee gave a different take on CSS. "The court had earlier said that is not the best scientific data, so now it's gone to being the best scientific data, and they're claiming certain and substantial benefits from this," she said, adding, "I really implore the court to look at what all the scientists have said about that and how you can actually say that. It's not enough to have one scientist say that." Durkee added that recovery measures already in place are showing substantial improvements, and metrics show there's a very low risk of extinction over the next 24 years.

She also appealed to the court by stressing that, despite unknown benefits of the spill order, there will be real consequences, in lost hydropower and in figuring out dams operations under this spill order. "The Corps has never operated these dams in the way that they're being asked to now. They're not sure how this is going to go," she said. Past spills have given operators an amount of water to spill. In this order, she said, they're asked to spill exactly enough water to reach the limits for total dissolved gas allowed under water-quality regulations without exceeding those limits along 500 miles of river.

Jason Morgan, attorney for intervenor-defendant Northwest RiverPartners, argued separately that the plaintiffs have not shown they, themselves, will be irreparably harmed, regardless of whether fish are harmed. He also noted that while seeking to uphold the injunction in the 9th Circuit, the plaintiffs have asked the district court to keep the 2014 BiOp in place through 2021. "These two things don't really work together," he told the court.

Before the hearing ended, Tashima asked Durkee if the government's reasons for seeking an expedited appeal hearing are still relevant, and if the agencies are seeking a decision before the April 3 spill program begins.

Durkee responded, "Yes," to both, and added that the Corps has been preparing to go forward with the spill, "but I can assure you, they can go back to doing it the way they have been doing it without as much difficulty as they will have doing this," she replied. "The spill continues to June 15, and each day this goes on is problematic for us."

Tashima clarified, "the sooner the better, for you," while Thomas concluded, "We'll see what we can do." -K.C. Mehaffey

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