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Judge Denies Irrigators' Motion for Hearing on 2015 Spill/Transportation, Spread The Risk by Staff Columbia Basin Bulletin, December 1, 2017

Irrigators in eastern Washington will not get a court hearing to show how the choice of spill over transportation in 2015 resulted in a loss of adult fish returning to the Snake River.

The Columbia-Snake River Irrigators Association had alleged that the choice in 2015 to continue spilling water for juvenile fish instead of putting them on barges resulted in the loss of 65 percent of wild spring chinook adults that would have returned in 2016 and 2017, and that the choice violated the 2014 Biological Opinion's mandate to spread the risk.

Some 13 percent of juvenile salmon and steelhead were barged during the low flow and high water temperature year, the CSRIA alleged, the lowest percent transported since 1993.

The CSRIA petitioned September 29 the U.S. District Court in Portland to convene an evidentiary hearing to air their assertions in court before Judge Michael H. Simon. That information, they said in their petition, is not being considered by NOAA Fisheries and the U.S. Army Corps of Engineers as they plan additional court-ordered spring spill operations at Snake and lower Columbia river dams that are to begin April 3.

(See CBB, October 6, 2017, "Irrigators Seek Hearing In Federal Court On Spill/Transportation Protocol In Low Water 2015")

In May 2016, Simon remanded the 2014 BiOp and set a 5-year schedule for federal agencies -- the Corps, U.S. Bureau of Reclamation and NOAA Fisheries -- to complete a National Environmental Policy Act process and redo the BiOp by 2021. The request for injunctive relief for more spill was enjoined to this case in January 2017 by the National Wildlife Federation and the State of Oregon, with the support of the Nez Perce Tribe. The groups asked the court to begin ordering spill to maximum total dissolved gas levels beginning April 3 this year and to continue for each year of the BiOp remand. Simon gave the federal agencies one year to design a spill plan, putting off the beginning of additional spring spill until April 2018.

The federal agencies and Northwest River Partners have taken Simon's spill decision to the Ninth Circuit Court of Appeals and are asking the Appeals Court to decide by April 3, 2018.

The plaintiffs in the irrigators' case, as well as most of the defendants, objected to what they called "relitigating" Simon's spill decision and Simon agreed in his November 21 order denying CSRIA's motion for an evidentiary hearing.

In his denial, Simon said that CSRIA was making the same argument that it made in opposing additional spring spill.

"The Court did not find this argument persuasive and granted the injunction over CSRIA's objection. CSRIA also argues that the government has ignored its obligation to ‘spread the risk' and has improperly reduced smolt transportation. In so arguing, CSRIA uses the exact same chart that it included in its brief in opposition to the original injunction motion," Simon wrote.

Simon went on to say that "CSRIA's motion is nothing more than a disguised motion for reconsideration. … Any assertion by CSRIA that its current motion is not a motion to again debate the merits of additional spill is belied by the motion itself."

Besides, Simon acknowledged, his decision to allow more spring spill is now being appealed before the Ninth Circuit Court and so he no longer has jurisdiction to reconsider his own opinion.

Related Pages:
Irrigators Petition Trump Transition for 'God Squad' Intervention in Salmon BiOp Remand by Staff, Columbia Basin Bulletin, 12/2/16
Agencies Give Notice of Possible Appeal of Court Ruling Providing Earlier Spill for Fish by Staff, Columbia Basin Bulletin, 6/9/17
Irrigators Petition Trump Transition for 'God Squad' Intervention in Salmon BiOp Remand by Staff, Columbia Basin Bulletin, 12/2/16
Snake River Sockeye: Lowest Return Since 2007, Captive Broodstock Program Increases Spawners by Staff, Columbia Basin Bulletin, 9/11/15