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Commentaries and editorials

Judge Grants Snake River Dam
Litigation Stay Through 2028

by Matthew Weaver
Capital Press, February 9, 2024

Many tribes involved in the agreement are being "very aggressive"
in calling for shorter timetables than in the commitments

Lower Monumental Dam. It is one of four dams on the lower Snake River targeted by special interests to be breached. (U.S. Army Corps of Engineers) U.S. District Judge Michael Simon has approved a memorandum of understanding negotiated by the Biden administration and litigants in a lawsuit over Snake River dam operations.

The agreement stays the lawsuit until Dec. 13, 2028, with the possibility of another five-year extension.

"The orderly course of justice is best served by staying this litigation," Simon wrote in his Feb. 8 order. "The issues in this case are complex and have been litigated for decades. The moving parties have reached a consensus to attempt to resolve these issues, perhaps permanently, without the need for further litigation."

Simon's decision wasn't a surprise, said Anthony Pena, government relations manager for the Pacific Northwest Waterways Association, which advocates for navigation, energy, trade and economic development throughout the region.

In what Pena calls "the creative crafting of the Department of Justice," Simon basically approved the memorandum of understanding (MOU) between the government and the plaintiffs to stay the litigation without looking closer at the proposed plan that they developed.

"Ultimately, all the court has to look at is the MOU, they don't have to look at the (U.S. government) commitments because that's not technically what's in front of them," he said. "It's weird legal stuff. ... They filed it in this way so that it could be approved easier."

Tribes and other parties not involved in the MOU could still file a lawsuit. In addition, those involved in the lawsuit could file more lawsuits unrelated to the specific Columbia River Systems Operation environmental impact statement, Pena said.

"There's nothing stopping any of these parties from filing a lawsuit on a different sort of avenue," he said. "People are saying this is buying 10 years of certainty, and we don't have to worry about lawsuits -- that's not true. It's false. That's just something they're just saying. They're not telling the whole story. It's such a narrow legal certainty that it's kind of laughable."

"This is great news allowing our collaborative work to advance Columbia River restoration to move forward," Earthjustice Senior Attorney Amanda Goodin said in a press release. "We have agreed to pause our litigation for five and up to 10 years to work in partnership to restore the Columbia Basin. With salmon on the brink of extinction, this new approach is desperately needed. We're grateful to the Biden administration for helping us chart this new path forward."

Judge: Stakeholder arguments 'irrelevant'

Stakeholders felt they were ignored throughout the federal mediation process between the administration and the plaintiffs.

The association's Inland Ports and Navigation Group submitted comments arguing against the commitments developed by the federal government. They argued that the proposed spill operations in the U.S. government's commitments will endanger the safety of navigation operators, and that the court should order modeling before allowing the proposed spill operations.

The Public Power Council and Northwest RiverPartners argued that the commitments violate various laws and factors for a stay support denying the motion.

Simon said the arguments are "irrelevant to the motion to stay."

"The court is not reviewing, approving, disproving, adopting, affirming, enforcing, voiding, or otherwise opining on the MOU or the USG commitments," Simon wrote. "The court is simply considering whether a stay of this litigation is warranted under the factors relevant to evaluating a motion to stay."

"While the judge's ruling is disappointing news, it isn't unexpected," said Leslie Druffel, co-chair of IPNG.

"Obviously we're disappointed the judge didn't hear our arguments and decide to delay the implementation of those commitments," Pena echoed. "We knew it was going to be an uphill battle to get the courts to side with us and agree."

Next steps

Ultimately, implementing the commitments is Congress's responsibility, as well as state and regional players, Pena said.

PNWA will continue to voice concerns, with the commitments and "the process as a whole," Pena said.

Many tribes involved in the agreement are being "very aggressive" in calling for shorter timetables than in the commitments, Pena said.

The organization will monitor legislation and President Biden's budget, expected to be announced in March, he added.

"We'll be ... monitoring it and making sure there isn't any funny business going on," Pena said.

Closer to dam breaching?

Pena believes the White House Council on Environmental Quality and NOAA are already "inching" toward setting up for dam breaching. He called Simon's decision a "half-step" in that direction.

"They're sure as hell going to try, and they're going to try some funny business behind the scenes," he said. "If they can't get it through Congress, our concern is that they try it through any other means."

Related Pages:
Vilsack on Snake River Dams: Ag 'Well-Represented' in Mediation by Matthew Weaver, Capital Press, 8/1/23

Matthew Weaver
Judge Grants Snake River Dam Litigation Stay Through 2028
Capital Press, February 9, 2024

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