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Irrigators Say Congressional Act Not Necessary to Breach Dams; Others Disagree by K.C. Mehaffey NW Fishletter, May 1, 2023

"It is doubtful the Action Agencies could demonstrate that breaching, bypassing,
or removing one or more of the Snake River dams is not 'reasonable' under NEPA."
-- U.S. District Judge Michael Simon, May 2016 Order

A legal opinion sent to parties involved in litigation over the Columbia River System Operations environmental impact statement and biological opinion in early April concludes that a judge could order the U.S. Army Corps of Engineers to breach the four lower Snake River dams, and that congressional authorization is not needed.

The legal analysis conducted for the Columbia-Snake River Irrigators Association also finds that Native American tribes with treaties promising the "right of taking fish at all usual and accustomed places" have a strong case to ask a judge for drastic operational changes at hydroelectric dams that negatively impact salmon and steelhead returns.

CSRIA is an intervenor-defendant in National Wildlife Federation et al. v. National Marine Fisheries Service et al. Last summer, U.S. District Judge Michael Simon stayed the case to allow parties time to develop a long-term solution to restore healthy and harvestable salmon runs. In the stay agreement, federal agencies agreed to "exploring lower Snake River habitat restoration opportunities, including but not limited to migration corridor restoration through breaching the four lower Snake River dams."

CSRIA Board Representative Darryll Olsen said he asked CSRIA's attorney, James Buchal, to look into Simon's scope of authority and offer his legal opinion about whether statutes authorizing construction and operation of the Snake River dams limit the U.S. Army Corps of Engineers from drawing down water behind the dams to levels that could drastically reduce or destroy existing navigation and power production.

"There is substantial backing, both statutorily and in case law, for Judge Simon to use his discretion," Olsen said.

In his legal memo, Buchal wrote, "[S]takeholders of the Columbia and Snake River dams who assert that the project authorizations are likely to constrain Judge Simon in his response to the Columbia River System Operations EIS and associated BiOp will almost certainly be disappointed."

The opinion notes that since the 1991 listings of Snake River salmon under the Endangered Species Act, the Federal Columbia River Power System has lost about 1,200 megawatts of generation due to operations required to protect fish. "Congress has made no effective objection . . . and the Ninth Circuit has upheld such interference," the opinion states.

Todd True, Earthjustice's attorney who represents environmental plaintiffs in the case, declined to comment directly on CSRIA's legal opinion, but told NW Fishletter, "We think that federal judges -- federal courts -- have very broad equitable powers to grant relief where there's a violation of law and where there's a risk of irreparable harm." He said Earthjustice has certainly thought about the limits of those powers as they relate to a judge ordering the removal of the Snake River dams, but said he does not have a legal strategy or analysis to share.

Some other parties involved in the lawsuit, National Wildlife Federation et al. v. National Marine Fisheries Service et al. -- including the Corps -- disagree.

"The U.S. Army Corps of Engineers' view is that potential modifications of completed water resource projects that will result in major structural or operational changes from the project's authorization, or that will seriously affect authorized purposes, requires congressional authorization and appropriations," Corps spokesman Tom Conning wrote in an email. "Since breaching one or more of the lower Snake River dams in Washington would result in major structural changes and seriously affect authorized project purposes, that action is considered a significant modification, which would require Congressional authorization," he added.

The Corps evaluated the question of original authorities and modifications over time in a 2018 overview that discusses steps the agency would take prior to seeking congressional authorization.

Scott Simms, CEO and executive director of the Public Power Council, and Heather Stebbings, executive director of the Pacific Northwest Waterways Association, questioned CSRIA's opinion.

In an email, Stebbings said CSRIA's attorney ignored important U.S. circuit court decisions. She said the 9th U.S. Circuit Court of Appeals found that "Congress's decision to build the four dams on the lower Snake River was a matter of policy, and Congress alone in its legislative function must determine if the dams are to remain."

She said the 8th U.S. Circuit Court of Appeals similarly wrote that "environmental and wildlife statutes 'do not apply where they would render an agency unable to fulfill a non-discretionary statutory purpose or require it to exceed its statutory authority.'"

CSRIA contradicts those opinions, Stebbings said, adding, "The opinion is legally flawed and does not warrant a substantive response."

Simms told NW Fishletter, "I have to applaud the absurd creativity of some of the special interests who constantly throw spaghetti at the wall as they try to undermine the value and certainty of the lower Snake River dams. Washington Sen. Patty Murray made it crystal clear that Congress has the authority over these dams in the August 2022 Murray-Inslee report -- one of the more public statements on the issue from Congress recently -- but there also is a substantial federal record on this congressional jurisdiction issue."

Although contained in one sentence, a final recommendation from Washington Gov. Jay Inslee and Sen. Patty Murray (D-Wash.) clearly expresses their opinion on the authority of breaching the four dams: "[C]rucially, the ultimate decision to breach the Lower Snake River Dams lies with the Congress, which must authorize and appropriate on this matter."

The recommendation also indicates that Murray -- who chairs the Senate Committee on Appropriations and its Subcommittee on Energy and Water Development -- is not ready to support breaching at this time. "[W]e are adamant that in any circumstance where the Lower Snake River Dams would be breached, the replacement and mitigation of their benefits must be pursued before decommissioning and breaching," the recommendation states. It notes that replacing the clean-energy benefits of the dams will require substantial work and investment, along with energy technologies that have yet to be developed.

U.S. District Judge Michael Simon has not ruled on whether he can order breaching, but his opinions have discussed the question of authority in the case.

In an order granting a stay motion in October 2021, Simon noted that amicus party James Waddell -- who spent 35 years as a civil engineer with the Corps -- opposed the stay, arguing the court should order the Corps to breach the lower Snake River dams.

"No party in this lawsuit, however, has moved for such an order, nor have the parties presented legal argument on whether the Court legally can enter any such order," Simon wrote. "Thus, it is premature to consider this issue."

The judge presented a similar response in May 2016 in his order requiring federal agencies to prepare a new EIS and BiOp that included an analysis of breaching the four lower Snake River dams.

In his opinion, he noted the Nez Perce Tribe argued that federal agencies should assess the feasibility of breaching the dams as a contingency plan for salmon, while federal agencies argued that BiOps are not required to have contingency plans. The federal defendants also argued that dam breaching requires congressional action, and that BiOps can only contain actions that are reasonably certain to occur, so including dam breaching as a contingency would be inappropriate.

"Because the Court has already found the 2014 BiOp to be arbitrary and capricious, the Court declines to address these arguments," Simon wrote.

However, in ordering the agencies to prepare a new EIS that analyzed breaching, he pointed to a Council on Environmental Quality Act publication that stated, "Alternatives that are outside the scope of what Congress has approved or funded must still be evaluated in the EIS if they are reasonable, because the EIS may serve as the basis for modifying the Congressional approval or funding in light of [National Environmental Policy Act's] goals and policies."

In his opinion, Simon noted, "It is doubtful the Action Agencies could demonstrate that breaching, bypassing, or removing one or more of the Snake River dams is not 'reasonable' under NEPA."

Olsen said irrigators believe that Congress will not take any action to either breach or protect the four lower Snake River dams from breaching. He noted that following an analysis of removing the dams, Washington Gov. Jay Inslee and Sen. Patty Murray (D-Wash.) concluded that it is not feasible or responsible to breach the dams until the energy and other benefits of the dams are replaced or mitigated.

"All they effectively did was push it out of the way," Olsen said of the Murray-Inslee report.

CSRIA's memo notes that Northwest lawmakers have introduced legislation three times with language to ensure only Congress could restrict power generation or navigation through the Snake River dams. "By his actions, Rep. [Dan] Newhouse apparently does not believe that Congress retains authority to block dam breaching/drawdowns without supplemental legislation in force," the memo notes.

Olsen said that unless a compromise solution can be agreed to in the Federal Mediation and Conciliation Services process, the issue likely will be decided by Simon.

"Our view is, this has gone along far enough. It's time to put some implementable alternatives on the table," he said.

CSRIA previously proposed a compromise "regional alternative" that involves deep drawdowns at two Snake River dams, while leaving Ice Harbor and Lower Monumental dams in place.

The legal opinion points to federal judicial decisions that could be used to argue that Simon has the authority to order deep drawdowns or breaching. "Judge [James] Redden's 2005 opinion striking down the 2004 BiOp contains an extensive review of much of the relevant legal authority, and makes it clear that the District of Oregon is likely to regard the dam operators as having substantial discretion to re-balance conflicting demands concerning project operations in a way that favors fish," the opinion states.

"In short," it concludes, "Judge Redden held that given conflicting commands to the dam operators, the operators had very, very broad discretion to balance the project purposes. He rejected the argument that project purposes can be characterized as mandatory and non-discretionary."

The legal opinion also examined the success of Pacific Northwest Native American tribes that have successfully argued their right to take fish at all usual and accustomed places carries an implied right that the fish will be protected.

Buchal noted, "As far back as 1980, the [U.S.] District Court for the Western District of Washington declared it 'necessary to recognize an implied environmental right in order to fulfill the purposes of the fishing clause.'"

While the opinion was vacated on appeal in the 9th U.S. Circuit Court of Appeals, the judges made it clear they were not absolving Washington of environmental obligations under the fishing clause.

"Accordingly," the legal opinion states, "the Tribes are likely to be able to advance the position that any and all discretionary authority to operate the projects, even in a way that essentially destroys other project purposes, must be utilized 'to correct the offending dam effects.'"

Olsen said the legal opinion was sent to other parties involved in the litigation, but it is not confidential, as CSRIA sent it to Inslee's office, making it public information. "This is all coming to a head via the court come July or August," he said, adding, "We just don't see anything moving forward in the mediation that's going to be satisfactory in terms of putting an action in place."

Related Pages:
Irrigators Warn Congressional Act Not Necessary to Breach Dams by K.C. Mehaffey, Clearing Up, 4/14/23
Ag Advocates Worry Their Message Has Been Lost During Snake River Dam Mediation by Matthew Weaver, Capital Press, 4/3/23
County Leaders Speak Out Against Simpson's Proposal by Kerri Sandaine, Spokesman-Review, 2/23/21