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Salmon Fight Moves into Courtroom; Now Activists may Sue by Robert McClure Seattle Post-Intelligencer, January 11, 2001

After years of speeches, meetings, and hand-wringing over dwindling Northwest salmon stocks, a new chapter opens today as environmentalists threaten the first lawsuit against someone for harming the imperiled fish.

Three days after obtaining the right to sue to protect threatened West Coast salmon using the Endangered Species Act, Washington Trout and other groups are expected to warn Puget Sound Energy not to siphon too much water from Washington rivers. They contend the utility harmed salmon nests on the Baker River Thanksgiving week, among other transgressions.

The case is likely to be the first of many such suits. Legally, some of these cases will be open-and-shut affairs. But others, say attorneys preparing to file them, will likely venture into uncharted legal territory.

"We're in a new era," said attorney Rob Caldwell of the Center for Environmental Law & Policy (CELP) in Seattle. "I think the next couple of years are going to flesh out some interesting cases. . . . I'm sure we'll be in the U.S. Supreme Court."

The new Endangered Species Act restrictions that went into effect Monday cover huge chunks of ground stretching from southern California to Canada and into Idaho.

Across that landscape, an array of actions could potentially run afoul of the law: Removing plants or rocks the salmon need for cover; putting up dams or other barriers that keep fish from going where they need to go; building bridges or roads that foul streams; allowing cattle to trample salmon nests.

Lawyers and others who have studied the situation say no one can tick off a complete list of what might get you in trouble.

"There's not a lot of case law, not a lot of guidance," said Martin Baker of the city of Seattle's Salmon Team.

Salmon thrive in clear, cold water. In theory, anything that makes a stream or bay inhospitable to the fish could be a target, but proving such a case is another matter.

The Endangered Species Act makes it illegal to "harm" the fish. Plaintiffs must prove "actual death or injury."

Courts have held local governments liable for killing fish by taking water from rivers. They have determined cutting trees where endangered woodpeckers nest is a no-no. They have forbidden driving on beaches where threatened turtles nest. Those are things that clearly kill or harm endangered creatures.

Similarly, with salmon, "If you have a situation where there's a dewatered stream or a fish passage is blocked, that's a pretty easy case to prove," said Patti Goldman of the Earthjustice Legal Defense Fund.

But what if you cut shade trees, allowing the sun to make a stream too warm for spawning? Or a city allows construction along salmon-bearing streams, which can remove the pollution-filtering capacity of the natural stream bank? What about building a seawall that robs salmon of food and shelter?

"You're not going to have an easy time . . . making a case and having the court rule for you unless you prove the harm exists," Goldman said. "You need to have some pretty credible science."

Complicating the situation is the fact that fish live in water.

"When it comes to a bird, you cut his nest down (and) you can say you've destroyed his habitat," said Anne Hayes, a lawyer with the Pacific Legal Foundation, which is usually at odds with environmental groups. "When it comes to a fish, it's hard to take a picture . . . and say the habitat is harmed. I think it's a tough nut to crack."

On the other hand, Hayes said, federal courts in California, Oregon and Washington are covered by rulings that are friendly to lawsuits brought by citizens seeking to enforce the Endangered Species Act.

"Certain courts have said that even though you can't show us a dead fish or a dead bird or whatever, the biological evidence is clear enough that these modifications (of land) will result in injury to these species or make them unable to reproduce," Hayes said.

Today Caldwell is expected to announce that CELP, Washington Trout and others intend to sue Puget Sound Energy, which allegedly emptied water out of the Baker River during Thanksgiving week, exposing salmon eggs.

They also accuse the utility of taking so much water from the White and Skagit rivers for electricity production that salmon were harmed.

The environmentalists must put Puget Energy on notice that they consider its actions illegal. After waiting 60 days for potential negotiations, they could then sue.

It was unclear yesterday whether the environmentalists intend to sue over the past actions, or merely put the company on notice that it would be hauled into court in the future.

The company denies it did anything wrong.

"There has been unseasonably record low rainfall this winter," said Dorothy Bracken, a spokeswoman for the utility. "It's that phenomenon that has been causing the condition of low flows in rivers, even rivers that don't have hydroelectric dams."

More such legal challenges are sure to follow. Washington Agriculture Director Jim Jesernig recently predicted that the new rules would lead to "litigation Armageddon," but lawyers who actually file the cases say they doubt that.

For one thing, these cases will require so much proof, and will be so specific that bringing them will be very labor-intensive, Goldman said.

And, said Michael Rossotto, legal director of the Washington Environmental Council, environmental groups generally will try to work with cities, businesses and others before filing suit.

"It's not like we're all foaming at the mouth trying to get into court," Rossotto said. "We'd much rather deal with these issues outside the courtroom."

Also, the mere ability to file a lawsuit will give activists added clout in negotiations with potential legal targets.

For example, irrigators who often make the Walla Walla River run dry in late summer recently agreed to negotiate with environmentalists and the U.S. Fish and Wildlife Service over future water use rather than face a lawsuit, Goldman said.

As a practical matter, big companies, local governments, farmers and developers are most likely to face lawsuits. Even they largely will escape the process server if they are at least trying to protect salmon, said Caldwell of CELP.

"The party that's unwilling to take the steps to protect the salmon -- those are the ones we're looking for and we're digging for specific facts to prove they are causing harm to the salmon," Caldwell said.

Government officials seem resigned to this strategy.

"The suits will come and we will need to protect ourselves," said Baker, Seattle's salmon facilitator. But he added that the city is trying to understand how to protect salmon as they migrate through the city and city-owned watersheds high in the Cascades.

"We've been doing this stuff for a long time regardless of (the Endangered Species Act)," Baker said.

Lawyer Will Stelle, who was regional director of the National Marine Fisheries Service until last fall, said the suits will fall into three categories:

• Citizens trying to stop a development, landfill or other building project may sue under the law, claiming salmon would be hurt by the project.

• Environmentalists and business groups will carefully select cases that they think will have the greatest impact legally.

• Federal agencies will file suits to enforce the law, again carefully selecting strategic cases.

The last category may not represent many lawsuits, though, Stelle said. That will depend on how aggressively the Bush administration chooses to enforce the law.

Stelle, who represents local governments and some timber industry clients, echoed the fears of many about an onslaught of lawsuits.

"It is very difficult to manage or control what the shape of the litigation is and how it plays out," he said.