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Appeals Court Keeps Fish Center Afloat

by David Kravets, Associated Press
San Jose Mercury News, January 24, 2007

SAN FRANCISCO - A federal appeals court ordered the government Wednesday to continue funding an agency that counts young salmon and other fish in the Columbia River Basin and recommends water flows at hydroelectric power stations to protect endangered fish.

The 9th U.S. Circuit Court of Appeals' ruling in favor of environmentalists and Indian nations found that the Bonneville Power Administration did not have Congressional authorization to discontinue funding the Portland, Ore.-based Fish Passage Center.

The center's $1.3 million budget expired last year, but the appeals court at the time tentatively blocked the power agency from cutting funding for the 11-employee center pending Wednesday's decision.

The Confederated Tribes and Bands of the Yakima Indian Nation, Northwest Environmental Defense Center, the Public Employees for Environmental Responsibility and the Northwest Sportfishing Industry Association sued to challenge a move by Sen. Larry Craig, R-Idaho, directing Bonneville to eliminate the center's budget and use a private contractor.

Scientists from the Fish Passage Center monitor 20 dams and fish traps, collect data on Chinook, steelhead, coho, shad, sockeye, pink salmon and lamprey. They monitor river conditions, including temperatures, and use the information to make flow and spill requests to the power administration and operators of the dams to improve the survival rates of migrating fish.

Craig intervened in 2005 after U.S. District Judge James Redden of Oregon took control of hydroelectric dam operations along the Columbia and Snake rivers after concluding the Bush administration failed to protect endangered salmon.

Data from the Fish Passage Center figured in Redden's order to spill more water over the dams to help young salmon reach the ocean, rather than running the water through turbines to generate electricity.

Craig inserted a provision in a spending bill directing BPA to find another organization to count fish. The spillage cost an estimated $60 million in lost hydroelectric generation.

The appeals court agreed with the plaintiffs that Craig's provision did not have the force of law, because the senator inserted it into a legislative report, not in a bill.

"Giving binding effect to passages in legislative reports may thus give binding legal effect to the unchecked will of a lone person, and that is not what our Constitution envisions," Judge Ronald M. Gould wrote for the unanimous three-judge panel, based in San Francisco.

Created in 1982, the Fish Passage Center is funded by the BPA, which markets power produced by the dams. The funding is provided under the Northwest Power Act, which requires some of the profits from dam operations to benefit fish and wildlife.

The case is Northwest Environmental Defense Center v. Bonneville Power Administration, 06-70430.

David Kravets has been covering state and federal courts for more than a decade for Associated Press
Appeals Court Keeps Fish Center Afloat
San Jose Mercury News, January 24, 2007

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