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Legal Action Kicks into Gear Over Feds' Reduced Spill Decision by Barry Espenson Columbia Basin Bulletin - July 9, 2004

A U.S. Army Corps of Engineers decision this week to reduce summer spill as a means of fish passage at Columbia/Snake river hydroelectric projects in August is being followed, as promised, by a flurry of legal activity aimed at reversing the decision.

A coalition of conservation and fishing groups was scheduled file the necessary paperwork today (July 9) to potentially gain a court injunction preventing implementation of the federal spill reduction plan. The judge has said he will issue a decision by the end of July, before the spill plan is implemented.

The Confederated Tribes of the Umatilla Indian Reservation on Thursday pledged to file a separate lawsuit to stop the plan.

An existing lawsuit -- the National Wildlife Federation, et al v the National Marine Fisheries Service (NOAA) -- would be used by the groups trying to stop a plan that the plaintiffs say worsens an already flawed Biological Opinion for the federal hydropower system. A coalition of fishing and conservation groups last year successfully challenged NOAA's 2000 BiOp, winning a court-ordered remand of the document to shore up deficiencies noted by U.S. District Court Judge James A. Redden. That remand is due for completion by the end of November.

"We will be filing a supplemental complaint asking the court to add the Corps of Engineers as a defendant" in the NWF lawsuit, Earthjustice attorney Steve Mashuda said Thursday. That would then allow the groups to see an injunction against the Corps of Engineers via the NWF lawsuit.

According to Mashuda, Justice Department Fred Disheroon and Earthjustice attorney Todd True held a status conference with Judge Redden Thursday afternoon to discuss a briefing schedule on the injunction request. A hearing on the issue is scheduled July 28. The judge agreed to have a decision by July 30.

"We'll get a decision one way or another before the spill measures are supposed to go into effect," Disheroon said this morning. The plaintiffs' request for a preliminary injunction, and any supporting motions, must be filed by July 16, according to the schedule set up Friday. A response from the Justice Department, and motions supporting it, are due by July 22. The plaintiffs would then be allowed a response, which is due July 26.

The effort could be throttled if Redden denies the request to have the Corps added to the lawsuit as a defendant. But the judge, in attorneys' steering committee meetings for the NWF lawsuit, has indicated he is interested in the issue so objections may be futile. Any of the parties to the lawsuit could file an objection.

"The expectation is that there would not be any objections… unless there's really something egregious" in the supplemental complaint, Disheroon said. A final decision will be made after the document is filed.

"We reserve the right to pose any legal defense we might have available," Disheroon said. The tight briefing schedule on the injunction request was set up to assure a timely decision.

The lawsuit includes a host of participants.

Listed as plaintiffs are the National Wildlife Federation, Idaho Wildlife Federation, Washington Wildlife Federation, Sierra Club, Trout Unlimited, Pacific Coast Federation of Fishermen's Associations, Institute for Fisheries Resources, Idaho Rivers United, Idaho Steelhead and Salmon United, the Northwest Sport Fishing Industry Association, Friends of the Earth, Salmon for All, Columbia Riverkeeper, American Rivers, Federation of Fly Fishers and Northwest Energy Coalition.

The groups are represented by Earthjustice, while NOAA Fisheries is represented by the U.S. Justice Department.

Listed as intervenor defendants are the state of Idaho, Northwest Irrigation Utilities, Public Power Council, Washington State Farm Bureau Federation, Franklin County Farm Bureau Federation, Grant County Farm Bureau Federation and Inland Ports and Navigation Group.

"Amici" include the states of Montana, Oregon and Washington, the Umatilla, Warm Springs Tribes, Yakama and Nez Perce tribes and the Northwest Power and Conservation Council.

All could presumably also participate in this month's briefing on the injunction request.

"The federal government is attempting to sidestep the law by double counting actions and funds that are already required of them," True said of the plan's "offset" package. "The administration has ignored both science and the voice of reason throughout this process, leaving us little choice but to turn to the courts. We are going to hold the federal government accountable to their own law."

"To kill listed and non-listed fish in order to save the average ratepayer a maximum of 0.33 cents per month is ridiculous. Not only are the proposed offsets inadequate, these are things that BPA should be doing in addition to meeting spill and flow requirements, not in lieu of them," said John Kober, NW conservation director for the National Wildlife Federation.

The Confederated Tribes of the Umatilla Indian Reservation on Thursday said they would file a lawsuit as soon as possible to stop the federal government from implementing its planned spill-reduction plan.

"The tribes are suing the federal government to stop them from implementing spill curtailment that is going to kill more fish than the hydro system already kills," said Rick George, manager of the CTUIR Environmental Planning/Rights Protection Program.

"It's against federal law, against the federal salmon recovery policy and violates tribal treaty rights. This plan will put salmon recovery in reverse."

George said the tribes will file their own lawsuit "as soon as we can pull it all together. We were only waiting for the federal decision, which we received on Tuesday."

"We're preparing our case and coordinating with expert witnesses who will tell the court that the proposal by the feds will kill fish, not save fish. We're trying to stop something that is only a month away. They only gave us a month and they did that purposefully."

The long-debated, and long developing summer spill reduction plan is expected to gain an economic windfall of from $18 million to $28 million by sending the water through hydro turbines that is normally spilled for fish. The extra power that is generated is sold by BPA. The federal power marketing agency says those surplus power sales will allow it to reduce rates. Power user groups have strongly supported any plan that could cut rates a long as it had no negative effect on fish. Fish managers and advocates have been skeptical, however, about the biological balance sheet used by the federal agencies.

BPA and the Corps, which operates the dams, developed the spill reduction plan with input from NOAA Fisheries. The final version aims to offset potential harmful effects to both listed and nonlisted salmon and steelhead by funding additional habitat and hatchery projects, enhancing July flows in the lower Snake River to improve fish survival, strengthening an existing predator control program and improve rearing conditions for fall chinook in the Hanford Reach.

The plan provides for spill at Bonneville, John Day, The Dalles and Ice Harbor dams throughout July, as called for in NOAA Fisheries 2000 Federal Columbia River Power System biological opinion. Spill is one of the measures that the BiOp says necessary to avoid jeopardizing the survival of ESA listed salmon and steelhead.

The plan would end spill at Ice Harbor and John Day dams in late August after most fish have passed the dams and eliminates spill entirely in August at Bonneville and The Dalles dams.