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Federal Attorneys File Briefs
Against Spill Injunction

by CBB Staff
Columbia Basin Bulletin - July 23, 2004

Federal attorneys on Thursday said that fishing and conservation groups have neither a legal nor biological basis for asking that a U.S. District Court stop implementation of hydrosystem spill reduction plan or declare invalid a NOAA Fisheries endorsement of that plan.

Utility, farm and other water user groups joined the federal government in opposing conservation group's request.

The U.S. Department of Justice late this week filed its opposition to a motion filed July 17 requesting a preliminary injunction against the Corps of Engineers, which would implement the spill plan, and NOAA. The federal fisheries agency, as Endangered Species Act administrator, provided findings that said the altered spill regime would not negatively impact threatened Snake River fall chinook salmon.

Federal scientists stand by their plan, saying the injunction request's arguments "rest largely on mischaracterizations or overstatements concerning the requirements of the 2000 BiOp, incorrect assessments of the current status of the SRF chinook, the proffered judgments of various commenters and plaintiffs' non-biological 'expert' and speculation about what the IPC may have done this year in the absence of the agreement with BPA, as well as improper attacks on the 2000 BiOp itself."

The legal exchange is being made in the context of a lawsuit filed in 2001 challenging NOAA's 2000 biological opinion on operations of the Federal Columbia River Power System. A coalition of fishing and conservation groups led by the National Wildlife Federation won a favorable decision from U.S. District Court Judge James A. Redden in May 2003 on part of their claims. The BiOp remains in place while NOAA works to correct the deficiencies Redden noted in the document.

The groups' have sought to bring the Corps into the lawsuit as a defendant expressly so its authority to implement the spill reduction plan can be challenged.

The spill reduction plan was developed over the winter, spring and early summer, by the Bonneville Power Administration with input from NOAA. The plan would shorten the duration of spill planned under the BiOp to benefit listed juvenile salmon migrating downstream. Specifically calls for eliminating all planned August Spill at Bonneville and The Dalles dams and ending spill on Aug. 26 (instead of Aug. 31) at Ice Harbor and John Day dams.

Some increased mortality is anticipated as a result of the spill change, but the federal agencies calculate that a planned offset would more than counterbalance the impact on the listed Snake River fall chinook. BPA, which markets the power generated in the hydrosystem, has entered into an agreement with the IPC (Idaho Power Company) for the release of 100,000 acre feet of water during July to augment flows for migrating fish. Since more of the juvenile migrants are in-river in July than August, the survival gains achieved through the augmentation are expected to outweigh lost benefits from the spill reduction.

In their request for an injunction, the conservation groups said that the biological calculations erred both in underestimated potential impacts and inappropriately crediting benefits to the extra flows. They said the IPC flows had already been anticipated in the BiOp jeopardy analysis and this amounted to "double" counting." They claimed the spill shift posed "immediate and serious risk of irreparable harm" to the listed fish.

The federal opposition memo says their analysis of the spill's impact is valid, and actually conservative in estimating that the plan will at worst leave the Snake River stock's status unchanged. And the Justice Department said that the groups give no evidence themselves to show irreparable harm.

A declaration from NOAA regional chief Bob Lohn in support of the federal motion said his agency's analysis is "based on affirmations by BPA and IPC that the proposed Brownlee releases would be over and above what IPC would otherwise release in July 2004.

According to Lohn's declaration his staff analyzed the extra flows potential benefits across a range of six scenarios.

"Based on my understanding of the expected effects (and uncertainties therein) of the proposed modification of the 2004 FCRPS operations, I concluded that, in the context of the expected 2004 conditions and over the full range of the XIX scenarios, the modification package would provide no net reduction in survival and recovery of SRF chinook under the worst case scenario, and a net benefit to SRF chinnook under the other scenarios," according to Lohn's declaration.

"Because most juvenile SRF chinook are transported I further concluded that the projected reduction in survival of juvenile SRF chinook, even in the absence of an offset, was not likely to significantly impact survival and recovery of the ESU as a whole," Lohn said. The Snake River fall chinook stock is one of 12 "evolutionarily significant units" of Columbia salmon or steelhead listed under the ESA.

Lohn's declaration said the expected impact from the spill reduction would be a reduction of the adult return of from 6 to 37 out of a run that has seen escapement past Lower Granite Dam of from 10,000 to 12,000 adults in the past two years.

The Justice Department argues first that the court should not even consider the preliminary injunction because the 60-day notice of future litigation provided by the plaintiffs in February is not valid.

No right to suit arises under the ESA citizen-suit provision until there is an alleged violation of the ESA, which cannot even begin to arise until an agency takes final agency action. Plaintiffs cannot submit their 60-day notice to alleged violators of the ESA prior to the actual alleged violation," according to the July 22 federal motion. The spill reduction is to begin Aug. 1.

The federal motion also says that neither the Corps implementation decision nor the NOAA "findings" are a reviewable "final agency action" as required by federal law. Neither falls within one of the categories of decisions considered final agency actions -- agency rules, orders, licenses, sanctions or relief.

The federal arguments say the Corps' "statement of decision" is "simply one of the many of decisions that the Corps must make in its daily implementation of the earlier final agency action (a 2001 record of decision regarding the BiOp). The findings are "simply an opinion that the action proposed by the Corps complies with the 2000 BiOp," the motion says.

The federal motion says that the Corps and BPA have a statutory obligation to act in the public interest and that the spill plan does just that by seeking to provide "more benefits for the fish resource as well as provide more power generation capability to the region…."

"Without the partial reduction of summer spill, BPA customers will be harmed by losing this one-time opportunity to immediately capture $18 million to $28 million in savings that would go directly to rate relief at a time when rates are nearly 46 percent over those of three years ago," the federal motion says.

A brief opposing the injunction request filed by the Washington Farm Bureau urged the court to follow precedent and "not step in to 'micro-manage' the Columbia River System." The agency is a defendant-intervenor in the case.

The bureau cited a passage from Judge Malcom Marsh in an Idaho Department of Fish and Game lawsuit in which he denied an injunction request.

"My order limited relief to a reinitiation of consultation and rejected plaintiffs' request for an injunction against transportation in order to avoid judicial micro-management of the Columbia River power system," Marsh wrote in 1994. Migrating fish are collected and transported downstream via barges as a means of trying to improve survival down through the eight-dam system.

Its filing the Farm Bureau also cited a recent U.S. Supreme Court ruling that "protect[s] agencies from undue judicial interference with their lawful discretion, and . . . avoid[s] judicial entanglement in abstract policy disagreements which courts lack both expertise and information to resolve."

The Public Power Council, Pacific Northwest Generating Cooperative, the Inland Ports and Navigation Group and the Northwest Irrigation Utilities submitted a joint memorandum opposing an injunction.

"As part of the plan, the federal agencies are implementing an aggressive and expensive offset package, which more than mitigates for the impacts of the summer spill modification. Consistent with the 2000 BiOp, NOAA Fisheries, the expert federal agency, has reviewed and has approved this plan," the memo says, echoing arguments about the court's lack of jurisdiction because of a invalid 60-day notice, a lack of proof regarding irreparable harm. The memo also defended plans compliance with the BiOp.

"The 2004 Bypass Plan will provide the FCRPS with a positive net revenue impact of between $18.1 – $28.1 million dollars while providing ESA listed salmon with more conservation and recovery benefits than the previous summer spill program. While the 2004 Bypass Plan does not necessarily go far enough, it is a significant step in the right direction toward making salmon recovery and conservation efforts more cost-effective.

"Notwithstanding, Plaintiffs seek to enjoin a portion of the 2004 Bypass Plan by requiring that this Court to micromanage the federal agencies and mandate that the federal agencies continue the previous inefficient spill…. Plaintiffs’ preliminary injunction motion must be denied."

CBB Staff
Federal Attorneys File Briefs Against Spill Injunction
Columbia Basin Bulletin, July 23, 2004

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