The State of Washington notified U.S. District Judge Michael Simon on April 19 that it does not intend to participate as intervenor-defendant in a long-running lawsuit over Columbia River System Operations, and asked instead to become an unaligned amicus curiae, or friend of the court.
Simon granted the motion April 21.
The change signifies the state's plan to back away from litigation while more actively pursuing collaboration, a Washington state official told NW Fishletter.
"Washington's focus is on helping identify a collaborative basinwide solution that achieves healthy, harvestable Columbia Basin salmon and steelhead populations while ensuring reasonable certainty for other river users. That focus contributed to the state's decision to be an unaligned amicus party. And right now, the best opportunity for regional collaboration is at the Columbia Basin Collaborative," Michael Garrity, the Washington Department of Fish and Wildlife's Energy, Water, and Major Projects Division manager said in an email.
Washington's motion was among numerous filings from April 16 to April 19 showing which parties are still involved in the case formerly known as National Wildlife Federation et al. v. National Marine Fisheries et al., and recently renamed American Rivers et al. v. National Marine Fisheries et al.
The filings follow Simon's April 2 scheduling order, which includes deadlines to file briefs and motions stretching into August 2022. April 19 was the deadline for intervenors or amicus curiae who previously participated in the case to notify the court whether and how they intend to continue to participate, and for any new parties to file motions to intervene.
Until early this year, the lawsuit had been paused after federal agencies, tribes and states negotiated a flexible spill agreement directing hydroelectric operations at the eight lower Snake and Columbia river dams until a new Columbia River System Operations EIS was released in 2020.
In January, 10 environmental groups filed an eighth supplemental complaint claiming the 2020 EIS, record of decision and biological opinion violate the Endangered Species Act and other federal laws. Oregon, the Spokane Tribe of Indians and the Coeur d'Alene Tribe each filed separate complaints as intervenor-plaintiffs and filed notices of intent to continue participating.
Washington has been a significant party in the case, and in negotiations that resulted in the flexible spill agreement between the states, tribes and federal agencies.
"This case has been maintained through numerous remands, each displacing prior actions and decisions, followed by amended petitions/complaints. The effect of that procedure has been that intervenors and/or amici have been carried forward from one case to another absent some affirmative action re-aligning their status or participation," Washington wrote in its motion to withdraw as an intervenor-defendant.
"Going forward, Washington will continue participating in regional collaboration and discussions geared to address further refinement of FCRPS operations," the motion continue. "While the State recognizes the substantial work undertaken, and the progress that has been made to evolve FCRPS operations, and the associated environmental review, the State looks forward to continued collaboration to further improve operations as part of a comprehensive plan addressing the needs of listed salmon and Southern Resident Killer Whales."
Montana and Idaho filed notices that they intend to continue as intervenor-defendants. Idaho's notice says the state does not intend to participate in facets of the litigation addressing claims raised by the Spokane or Coeur d'Alene tribes, or the cross claims by Columbia-Snake River Irrigators Association, "though it reserves the right to respond where necessary to protect Idaho's interest in not restoring fish species to currently blocked Idaho rivers so long as the restored populations remain listed as threatened or endangered under the Endangered Species Act."
Columbia-Snake River Irrigators Association intends to continue as an intervenor-defendant and also as a cross-claimant, "pursuing its cross claim against the Federal defendants as well as defending against relief that may be sought by Plaintiffs," its filing states. The cross-claim alleges that the EIS analysis fails to adequately address irrigation impacts and mitigation under the alternative analyzing removal of the four lower Snake River dams.
Darryll Olsen, CSRIA board representative, said Washington's changed status from intervenor-defendant to unaligned amicus is notable. He said the state presumably wishes to objectively respond to any injunctive relief sought by plaintiffs.
That's currently scheduled to happen July 16, which is the deadline for motions for a preliminary injunction filed by any of the plaintiffs, and all supporting papers from any party or amicus curiae. Unaligned amici may file briefs addressing preliminary injunction motions until Sept. 15.
"July 16 is going to be a very influential date," Olsen said, noting that's when plaintiffs will be laying out their case for any injunctive relief, such as spill, drawdowns or dam breaching.
Northwest RiverPartners also notified the court it intends to continue as intervenor-defendant.
"We decided to maintain our intervenor status so that we can be informed and receive legal updates on the proceedings and understand what's going on, but we do not plan to be an active litigant in the process," Kurt Miller, RiverPartners' executive director said. Miller said Washington state notified parties, including RiverPartners, of plans to withdraw as intervenor-defendant in the case in order to be more effective as an intermediary. "It was nice to have Washington state actively defending the hydropower system and its operation, but at the same time they may be able to do some good as someone who is seeing both sides of the issue," he said.
Miller also pointed out that the court's schedule indicates the issues will be considered thoroughly. "I think a lot of people have been thinking this would be over and done pretty quickly. The schedule is pretty clear they're going to take time," he said. "This is a brand new EIS. It's the first time since 2002 that the pros and cons of breaching the four lower Snake River dams have been examined. With that much information, I think it does warrant a full examination. In some ways, it's a positive sign that the judge is willing to examine all the information, instead of just jumping to conclusions."
The Kootenai Tribe of Idaho, Confederated Salish and Kootenai Tribes, and Inland Ports and Navigation Group also notified the court they plan to continue as intervenor-defendants.
Public Power Council did not file a notice, indicating it will not be participating in this round of litigation. PPC Executive Director Scott Simms confirmed in an email to NW Fishletter, "While we actively monitor the ongoing litigation and coordinate with other aligned regional interests, PPC functions with limited resources and our PPC Executive Committee has continued to provide annual guidance on the highest value initiatives they'd like us to pursue given their needs at this time. Although we are not presently involved in the litigation, PPC and its members have a strong environmental interest and are committed to mitigating the impacts of the FCRPS operations. We firmly believe that mitigation must be scientifically based, cost-effective, and have a clear nexus with the operations of the hydro system." PPC became an intervenor-defendant at the inception of the case in the early 2000s, Simms said.
Several other parties notified the court of their intent to continue as amici. They include the Northwest Power and Conservation Council, Confederated Tribes of the Colville Reservation, Confederated Tribes of the Umatilla Indian Reservation, Nez Perce Tribe, Confederated Tribes of the Warm Springs Reservation of Oregon, Confederated Tribes and Bands of the Yakama Nation, and James Waddell.
Four of the tribes—the Colvilles, Umatillas, Warm Springs and Yakamas—stated in their notices that they are parties to the 2008 Fish Accord, which was extended in 2018 and reaffirmed and amended in 2020. The filings state that under terms of the accords, the tribes agreed not to take a position against the federal agencies in this case regarding ESA, Northwest Power Act, NEPA and Clean Water Act compliance issues while the accord is in effect. However, the filings note, the 2020 accord amendment allows the tribes to withdraw from the accord, which could lead them to seek a change in their status in the case, the tribes said.
The notice by the Colville Tribes states, "Colville and the Action Agencies share a desire to negotiate a potential long-term successor agreement. Negotiations were initiated early in 2021 and remain ongoing."