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Stay Extension Gives Snake River Dam Mediation Another 60 Days by Matthew Weaver Capital Press, September 1, 2023

Whatever is ultimately proposed "will be really bad for agriculture,
electricity users and transportation. That's my full expectation"
-- Kurt Miller, executive director of Northwest RiverPartners

A stay in long-running litigation over the Snake River dams has been extended for 60 days to allow federal mediation to continue, but ag and electrical utility stakeholders say they're losing faith in the process.

A coalition of environmental and fishing groups, led by the Earthjustice law firm, in 2020 sued over the U.S. Army Corps of Engineers, Bureau of Reclamation and Bonneville Power Administration dam operations plan.

The White House Council on Environmental Quality and Federal Mediation and Conciliation Service are continuing mediation during a stay of the litigation. The stay was scheduled to end Aug. 31, but will now end Oct. 31.

In the motion to extend the stay, filed in U.S. District Court for the District of Oregon, the plaintiffs state that the mediation process has involved "primarily confidential caucuses that include a subset of litigation parties."

"The discussions have been positive, and progress has been made, but the private caucus participants need more time to continue the discussions and expand them to involve the other parties and amicus in this case," the motion states.

For example, the motion states, federal defendants and the Confederated Tribes of the Colville Reservation, the Coeur d'Alene Tribe and the Spokane Tribe of Indians continue confidential discussions on a proposed agreement that could resolve two complaints-in-intervention and two petitions for review filed in the Ninth Circuit.

"These three tribes and the federal defendants believe they are close to concluding negotiations, after which time they intend to coordinate with the other litigation parties and amicus on any proposed agreement," the motion states.

What stakeholders say

"We're comfortable with extending for a couple of months, but we continue to have concerns with the process and our access to discussions of importance," Heather Stebbings, policy adviser for the Pacific Northwest Waterways Association, told the Capital Press.

She hopes those concerns will be addressed in the next 60 days.

"We're certainly reaching out to the U.S. government and the entities involved in the litigation to try to get more access," she said. "The only way we're going to get meaningful work done on salmon restoration and continuing to keep our economy thriving out here in the region is to work together."

"It's really hard to have faith that this is going to go at all well for our constituencies, for our stakeholders," said Kurt Miller, executive director of Northwest RiverPartners, a not-for-profit organization representing such members as community-owned utilities, ports, and businesses. "Because there's a reason they have been secretive; there's a reason that only the plaintiffs and the U.S. government have been talking. It's likely because they know we won't like what they're talking about."

Amanda Goodin, Earthjustice supervising senior attorney, said she is bound by confidentiality requirements in the mediation.

"I don't know what will happen at the end of the 60 days, and even if I did, those pesky confidentiality requirements," Goodin told the Capital Press.

"We've been advocating for a comprehensive solution that restores salmon in the Columbia Basin for a long time, and we're going to continue to advocate for that," Goodin added. "It is definitely our hope that we can get there, because we need it now more than ever. Our salmon are in terrible trouble, and if we don't act with urgency, we're going to lose them, and that's not acceptable."

Shut out of process

Inland Ports and Navigation Group, a subset of the waterways association; Northwest RiverPartners; and the Public Power Council issued a joint statement saying they did not oppose the extension, but hoped the Biden administration would use the time extension to discuss shared goals of salmon recovery within a context of maintaining "grid reliability."

All three organizations are intervenor defendants in the litigation. All have been shut out of the process, Miller said.

When he expresses concerns, mediators and plaintiffs say they understand he's frustrated, he said.

"It doesn't matter if they acknowledge my frustration or my pain, if they don't do anything to change it," he said.

"Our organizations collectively represent millions of electricity customers, farmers, river-dependent ports, transportation, and export sectors across the region who to date have not had a true seat at the table in negotiations carried out pursuant to the ongoing mediation," the joint statement reads. "... we feel strongly that major decisions about the region's continuing ability to provide reliable, safe, low-carbon electricity and transportation should not be decided when directly and significantly impacted parties such as our organizations are not present in the room."

It's noted in the motion that IPNG did not oppose the extension, but does not endorse positions or statements in the motion "due to disappointment in being left out of river-system related negotiations."

U.S. Agriculture Secretary Tom Vilsack in August said that agriculture is "well-represented" in the mediation, and USDA would continue to work to ensure that whatever decisions are made do not negatively impact agriculture.

"(Farmers) need to know that we are making sure, as we always do ... that the ag position and concerns are being expressed," Vilsack said. "Rest assured, we are making sure that agriculture is well-represented in the inter-agency process."

A USDA spokesperson directed inquiries about the extension to the White House Council on Environmental Quality.

"The U.S. Government is involved in court-approved mediation with Tribes, States, and other parties to develop a long-term, durable path forward that restores healthy and abundant salmon and other native fish to the Columbia River Basin, honors long-standing commitments to Tribal Nations, delivers affordable and reliable clean energy, and meets the many resilience needs of the region," a council spokesperson said.

'A comprehensive solution'

"We believe a comprehensive solution can meet the needs of the fish, and meet the needs of the communities in the Basin, too, and we do believe that input from the people who are impacted is really important," Goodin said. "I'm not the one who controls the various processes, but I will say there have been and there will be a whole lot of avenues to get critical input from communities throughout the Basin."

The joint statement reads that the extension should be an opportunity for "truly comprehensive and productive negotiations" among all major stakeholders, "not used simply as a means to craft steep concessions to plaintiffs that will saddle even greater costs and burdens on ratepayers and river users, while not adequately accounting for their interests and values or ensuring that the full suite of critically important purposes of the Columbia River System are met."

Miller said he expects whatever is ultimately proposed "will be really bad for agriculture, electricity users and transportation. That's my full expectation ... I don't have any confidence in this, this is a failed process and they're going to have to prove otherwise."

Related Sites:
Joint Motion to Extend Stay US District Court, 8/31/23
Idaho Dept. of Fish & Game v. NAT. MARINE FISHERIES US District Court Oregon, 3/28/94