Bush Administration Asks Court
by Associated Press
SEATTLE -- The Bush administration asked a federal appeals court Wednesday to stop water from being purposely spilled over five Northwest hydroelectric dams, overruling a lower court's order that the release was necessary to help young salmon migrate to the Pacific Ocean.
The U.S. Army Corps of Engineers was forced to allow substantial flows to bypass energy generating turbines after a June 20 order by U.S. District Judge James Redden of Portland. Redden ruled that the salmon were imperiled when swimming through those dams' turbines as they headed to the sea hundreds of miles away.
"What the court has ordered is an untested experiment," Justice Department attorney Ellen Durkee argued to a three-judge panel of the 9th U.S. Circuit Court of Appeals, which is being asked to overturn Redden. Durkee said Redden is "micromanaging the Columbia power system."
The appeals court appeared divided on whether it would uphold Redden and did not indicate when it would rule.
The Bonneville Power Administration, which sells the electricity generated by the dams, estimated that spilling the water rather than running it through turbines will cost $67 million in lost revenue, which could be saddled on utility customers in the Northwest.
Appeals court Judge Richard Paez said Redden might not have been "micromanaging" and instead properly "determined that the status quo was harmful." Judge A. Wallace Tashima, however, suggested that Redden erred by not backing the National Marine Fisheries Service, which concluded that increasing water flows was not the best method to protect the threatened salmon.
"Why couldn't the court defer to the actions of the agency?" Tashima asked. "Is it your position that the court owes no deference to the agency?"
Todd True, a lawyer with Earthjustice Legal Defense Fund, replied: "That is correct."
Tashima quickly retorted that such a position was not supported by previous court decisions.
At the request of salmon advocates, fishermen and Indian tribes, Redden ruled that, "As currently operated, I find that the dams strongly contributed to the endangerment of the listed species, and irreparable injury will result if changes are not made." His order began being carried out June 20 and is to last through Aug. 31.
Durkee said the administration has a salmon recovery plan in place that is jeopardized by Redden's ruling. For more than a decade, the government has been diverting fish captured in holding tanks at the dams, where they are then trucked or barged to the Columbia River in Oregon.
She said since the water flows were increased, 90 percent fewer fish have been transported downstream. "This isn't the answer," she said.
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