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Ruling Favors Fish by William McCall, Associated Press Corvalis Gazette-Times, July 28, 2004

Judge says BPA must provide for Snake River fall chinook run

PORTLAND -- U.S. District Judge James Redden on Wednesday ruled in favor of opponents of a reduction in the annual summer spill from Columbia and Snake River dams, issuing a preliminary injunction against the U.S. Army Corps of Engineers.

Redden said a 2000 biological opinion clearly showed Snake River fall chinook were in jeopardy unless the Bonneville Power Administration allowed more water over the dams in the summers to help juvenile fish migrate to the ocean.

BPA had planned to reduce spills at four dams, including Bonneville Dam, the last barrier to the seasonal journey of juvenile salmon swimming down the Columbia River to the Pacific Ocean.

The federal power marketing agency said it was trying to minimize the disruption to the fish while maintaining hydroelectric production for the West.

But opponents of the spill reduction, including Oregon Democratic Gov. Ted Kulongoski, environmental groups, fishermen and Northwest Indian tribes, said the potential damage to salmon recovery efforts outweighed the short-term economic benefit of maintaining power production.

Todd True, an attorney for the National Wildlife Federation, told Redden the government has exaggerated the value of measures intended to offset the spill reduction, such as releasing more water from the Brownlee Reservoir on the portion of the Snake River that forms the Oregon-Idaho border.

True said many of the assumptions made by Bonneville, the National Oceanic and Atmospheric Administration Fisheries and the Army Corps of Engineers "don't match reality."

And he reminded Redden that the judge had already ruled the last government studies supporting the Northwest salmon recovery program, known collectively as a "biological opinion," were flawed and needed revision.

But Fred Disheroon, a U.S. Justice Department attorney representing the federal agencies, told Redden that courts have no business interfering in routine operations such as modifying summer spill plans.

The courts, Disheroon said, can intervene in federal agency operations only when major policy decisions or legal issues are involved, or there is the risk of serious harm to the public interest.

"I characterize this as an operational decision," Disheroon said of the spill plan. "I think that's all it is. They (opponents) are simply trying to second-guess or substitute their judgment for the agencies."

The BPA typically spills water over dams during spring and summer to help young salmon bypass power turbines. But the agency says it can reduce spills enough to save $18 million to $28 million in Western power production without seriously affecting salmon runs.

The governors of the other three Northwest states served directly by Bonneville — Idaho, Montana and Washington state — all support the summer spill plan.