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Federal Appeals Court Keeps Fish Center Alive by David Kravets, AP legal affairs writer Corvallis Gazette-Times, March 20, 2006

SAN FRANCISCO - A federal appeals court ordered the government late Friday to continue funding an agency that counts young salmon crossing dams in the West.

The 9th U.S. Circuit Court of Appeals did not rule on the merits of two challenges environmentalists brought against a move to discontinue funding the Portland-based Fish Passage Center, whose $1.3 million budget was to expire Sunday. Instead, the court said funding for the center's 11 employees should be continued until the litigation is resolved.

The lawsuits, by the Confederated Tribes and Bands of the Yakama Indian Nation, Northwest Environmental Defense Center, the Public Employees for Environmental Responsibility and the Northwest Sportfishing Industry Association, challenged a legislative move by Sen. Larry Craig, R-Idaho, directing the Bonneville Power Administration to eliminate the center's budget.

Craig's move came after U.S. District Judge James Redden of Oregon took control of dam operations along the Columbia and Snake rivers after concluding the Bush administration offered an inadequate plan for protecting salmon listed under the Endangered Species Act.

Earlier Friday in Portland a federal judge denied a request by researchers to keep open the center open. The researchers said they were victims of political retaliation by the BPA and Craig.

U.S. District Judge Ancer Haggerty ruled that decisions on funding and government contracts are up to Congress, not the courts. He also said he doubted the researchers could prove the retaliation claim.

The appeals court rulings and Haggerty's decision are separate and they challenge Craig's decision under two different legal theories.

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 lawsuits the court ruled on Friday argue that Craig's provision does not have the force of law, because Craig inserted it into the conference report, not the bill itself.

Created in 1984, 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 and Confederated Tribes and Bands of the Yakama Indian Nation, 06-71182.