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Ninth Circuit Denies Feds' Motion
to Revive Reduced-Spill Plan

by Barry Espenson
Columbia Basin Bulletin - August 13, 2004

The Ninth Circuit Court of Appeals this afternoon denied without comment a federal government motion that had been filed with the intention of reviving a spill reduction plan at four Columbia/Snake river dams.

Federal attorneys last week filed the emergency motion with the appellate court asking that it stay a district court injunction that requires the dam operator, the U.S. Army Corps of Engineers, to implement the spill strategy outlined in NOAA's 2000 biological opinion on federal hydrosystem operations.

The BiOp spells out actions NOAA says are necessary to avoid jeopardizing the survival of salmon and steelhead listed under the Endangered Act.

A stay from the appellate court would have allowed implementation of the reduced-spill plan during the course of an appeal.

The Ninth Circuit denied the stay but left the appeal alive. Yet, the planned deviation from BiOp spill involved a curtailment of spill in August, and the briefing schedule set for the appeal would begin Aug. 31.

"We're now pondering whether we would continue to pursue the appeal. We would lose the August for generation. So it's unlikely we would continue this appeal," said Ed Mosey of the Bonneville Power Administration.

The idea was to reduce the amount of spill provided for fish passage and use the water instead to generate additional saleable energy. Federal officials put forward a strategy they said would provide mitigation action elsewhere to improve survival, and make up for the fish lost as a result of the spill curtailment.

Mosey said the federal agencies involved felt they had strong evidence that the net effect would be an overall gain in fish survival.

The plaintiffs in the lawsuit were jubilant.

"By upholding Judge (James A.) Redden's decision, the Ninth Circuit is affirming what we've known all along -- gambling the future of wild salmon to save a few cents a month on our electric bills is not a tradeoff people in the Northwest want to make," said Todd True, staff attorney, Earthjustice. "We all look for ways to save money, but being penny wise and pound foolish hurts everyone. It's time for the administration to obey the law."

Earthjustice attorneys who gained a preliminary injunction late last month forcing dam operators to continue spilling Columbia River water in August for fish on Monday ( August 9) told the Ninth Circuit Court of Appeals that their reasoning, and the reason of the judge who granted the injunction, was sound.

U.S. Justice Department attorneys said, however, that details of a proposed spill curtailment plan were "misconstrued" by both the judge and groups that oppose the altered hydro strategy.

BPA and the Corps over the past several months developed the plan, and implemented intended "offset" actions intended to improve fish survivals. The overall plan won the approval of NOAA Fisheries, the federal agency charged with protecting and recovering salmon stocks listed under the Endangered Species Act.

The Aug. 4 emergency motion filed by the federal government said Redden did not give the agencies, and NOAA Fisheries in particular, the technical deference required by the law to evaluate the spill reduction's effects and that the judge made his decision based on "inaccurate assumptions" and "mere speculation." The injunction represents an abuse of the judge's discretion, according to the federal attorneys.

The plaintiffs -- 19 fishing and conservation groups represented by Earthjustice -- countered Monday, filing a motion in opposition to the stay and defended the district court's use of discretion, saying Redden considered the appropriate scientific information before imposing the injunction.

"Appellants arbitrarily concluded that their plan to curtail spill and offset the impact of that loss with additional flows would provide equivalent protection and avoid jeopardy.," according to the groups opposition to the federal stay request. "Agencies that depart from the requirements of a biological opinion assume a heavy burden to show that their preferred action will still comply with the ESA, see Bennett v. Spear, 520 U.S. 154, 169-70 (1997), a burden Appellants cannot meet."

In a Tuesday response, U.S. Justice Department attorneys told the Ninth Circuit that conservation groups "fundamentally misconstrue the requirements and status of the 2000 BiOp, the Action Agencies' implementation of the RPA, and the basis for both NMFS' and the Corps' conclusions that the spill decision would provide equal or greater biological benefits to the threatened SRF chinook salmon than the presumed spill operations under the RPA."

The motion filed by Earthjustice calls spill a "bedrock salmon protection measure" that should not be sacrificed. NOAA Fisheries 2000 BiOp says spill is a "highest priority" and outlines spill regimes at the dams for the summer months. Redden, in his injunction order, subscribed to Earthjustice's point.

The injunction was sought within the context of a lawsuit in which Redden declared the 2000 BiOp's no-jeopardy conclusion arbitrary and capricious. That BiOp remains in place while NOAA constructs a new BiOp under court remand. The conservation groups have said that, at the very least, the 2000 BiOp mitigations should be implemented. The federal response says that the BiOp contemplates, and the ESA allows, RPA (reasonable and prudent alternative) modifications such as the reduced-spill proposal.

The plan proposed this year would have eliminated BiOp spill at Bonneville and The Dalles dams Aug. 1-31 and from Aug. 26-31 at Ice Harbor and John Day

Redden's injunction order said the spill plan was arbitrary and capricious because it threatened pull the listed Snake River fall chinook's status back toward extinction jeopardy.

He said the federal agency analysis shows that returns of listed fish will be fewer as a result of the spill curtailment and that the plan's "offset" mitigation plan was inadequate.

The release of 100,000 acre feet of water from the Snake River's Brownlee Dam in July to supplement flows for migrating young salmon was disallowed by Redden as a spill reduction offset because he said most of the flows were already presumed in NOAA's BiOp survival calculations.

The federal government's stay request says Redden's assumptions are wrong and that the July flow was "new water" and of biological benefit. The stay request said the potential hardships to the public posed by the injunction outweighs potential harm to the fish.

Federal analysis indicates that the planned spill curtailment would reduce survival of this year's early-timed run by from 110 to 279 juveniles as compared to a survival gain of from 710 to 740 juveniles as a result of the July flow augmentation. BPA estimates that $1 million worth of power generating opportunity is lost each day because the water is being sent through spill gates instead of turbines.

The conservation groups say "evidence is more than sufficient to support the district court's finding that 'a significant portion of the 100,000 acre feet of water from Brownlee Reservoir is not "new" or additional water . . . ." beyond that already taken into account in the jeopardy analysis for the RPA (the BiOp's "reasonable and prudent alternative").

The opposition to the stay filed by Earthjustice said Redden properly said that the spill curtailment decision was made in a "deficit situation." The judge noted that the RPA for the BiOp he had declared illegal was not being implemented on schedule and "steady progress" was not being made toward achieving desired survival improvements.

"As the district court recognized, this evidence is further confirmation that any change in RPA implementation must be much more than neutral in order to avoid harm and an increased risk of jeopardy," according to Earthjustice's motion.

"The failure to articulate a rational connection between the factors that led to a no-jeopardy finding for the RPA in the 2000 FCRPS BiOp and the requirements of that RPA (on the one hand) and the decision to curtail spill (on the other) is alone sufficient grounds to find the agencies' spill decision arbitrary," according to the conservation groups' opposition to the stay of the injunction.

Federal attorneys responded by saying BPA, the Corps and the Bureau of Reclamation indeed are "continuing to make consistent progress toward attaining the RPA's hydro performance standards."

The conservation groups cite survival data for juvenile Snake River fall chinook that they say are worse than pre-2000 levels. The federal agencies point to the fact that adult returns are much higher in recent years.

"Here, where NWF failed to make any showing that the spill decision would have any negative impact on the overall health of the SRF chinook ESU, NWF clearly failed to meet the burden required for the issuance of a preliminary injunction," according to the federal response to the Ninth Circuit.

"The Agencies' progress in implementing the RPA, as well as the current information regarding the condition of the SRF chinook, supports the conclusion that the Agencies did not act arbitrarily or capriciously when they utilized the flexibility expressly provided in the RPA to modify, for this year only, the summer spill component of this RPA," according to federal attorneys.

Portland attorney James Buchal, in a separate appeal to the Ninth Circuit, said that Redden improperly excluded his clients from the remand lawsuit. He also stayed the Columbia/Snake River Irrigators Association and Eastern Oregon Irrigators Association's own challenge of the BiOp until the remand is complete, thus preventing them from pursuing claims that the BiOp's prescription, such as spill, is harming them economically.

The irrigators' lawsuit filed last year says the BiOp creates false standards for measuring hydro system impacts and places unrealistic conditions on what is defined as the "risk of extinction" for ESA-listed fish runs. The irrigators say that normal dam operations do not jeopardize the survival of listed salmon and steelhead, and that specialized operations for fish such as flow augmentation and spill, cause great economic harm. The injunction, is an added insult, Buchal says.

He asked the court to reverse several district court decisions, including Redden's March 24 refusal to consolidate the lawsuits and his June 3 imposition of the stay of the irrigators' lawsuit.

He also wants the injunction order vacated and Redden disqualified from the case. Buchal had attempted to have Redden disqualified in February, claiming the judge had "assumed the mantle of a salmon advocate.." Ancer Haggerty, chief judge for Oregon's U.S. District Court, denied the request.

".the Court has assumed the role of 'dam master' and usurped the authority of respondents," according to Buchal's filing with the Ninth Circuit.

"Mandamus is an appropriate remedy for "clear error", which here extends to refusing to consolidate two challenges to the same federal action, failure to grant the motion to disqualify, extraordinary and improper interference into ongoing agency decisionmaking through a "Steering Committee", improper grant of a stay to avoid interference with an inalterable plan to require greater "mitigation", and the granting of extraordinary relief in the NWF case notwithstanding the absence of subject matter jurisdiction and in defiance of specialized agency expertise," according to the irrigators' request.

The plaintiffs in the remand filed opposition to Buchal's motion.

Barry Espenson
Ninth Circuit Denies Feds' Motion to Revive Reduced-Spill Plan
Columbia Basin Bulletin, August 13, 2004

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