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Government Files Final Rebuttal in Salmon Appeal by Associated Press The Seattle Times, June 21, 2005

LEWISTON, Idaho -- The big spill started yesterday as cool water poured through spillways in four dams on the Snake and Columbia rivers to aid young chinook salmon in their journey to the Pacific Ocean.

At the same time, the federal government filed a final rebuttal in an appeal of the lawsuit that resulted in the spill.

The Justice Department wants the 9th U.S. Circuit Court of Appeals to overturn an order issued June 10 by U.S. District Judge James A. Redden of Portland, who directed the Army Corps of Engineers to open the spillways at the request of the National Wildlife Federation and other salmon advocates.

Three federal agencies filed an appeal June 15 to stop the release of water that could otherwise be used for hydropower generation.

The National Wildlife Federation responded with a brief supporting Redden's ruling on the basis of the Endangered Species Act, and the appeals court could issue a ruling this week.

According to the government's rebuttal, court filings by salmon advocates were "riddled with inaccurate factual generalities," drawing down reservoirs in a low water year is a risky and untested experiment and such decisions should be left to professionals.

"Judicial experimentation with endangered species is particularly inappropriate when the responsible federal agency has concluded that a different management policy -- here, transportation of fish past the dams on the river system -- is currently the most sound approach to ensuring species survival," the rebuttal brief said.

The agencies have argued that in years as dry as 2005 has been, science shows better results are achieved when salmon are collected and barged to the ocean than when the fish must find their own way around dams and through hydroelectric turbines.

Battles over depleted salmon and steelhead runs have raged for decades in the Pacific Northwest, pitting power companies and water users against environmentalists and commercial and recreational fishing advocates.

Last year, the federal government issued a salmon and dam management plan for the Columbia River Basin, including the Snake River. Unlike an earlier plan, the document said dams on the rivers would not put protected fish in jeopardy.

The plan was based on an investment assumption of $6 billion to retrofit the dams with weirs designed to help juvenile fish get past the concrete and earthen structures.

The National Oceanic and Atmospheric Administration also asserted that dams could be considered part of the natural environment and that only the harm caused by their operation -- not their existence -- should be considered in determining whether they put fish in further danger of extinction.

Redden disagreed, ruling in May that the new plan was "arbitrary and capricious" but also rejecting a request by environmentalists for a 10 percent increase in water flows down the Snake and upper Columbia rivers.