the film forum library tutorial contact

Irrigators Warn Congressional Act Not Necessary to Breach Dams by K.C. Mehaffey Clearing Up, April 14, 2023

A legal opinion sent to parties involved in litigation over the Columbia River System Operations environmental impact statement and biological opinion 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 April 7 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. [01-640]. 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 told Clearing Up.

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 MW 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.

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 (Clearing Up No. 2070).

"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 (Clearing Up No. 2045).

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:
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