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Legal Challenges Loom in Wake of Salmon Ruling by Rocky Barker The Idaho Statesman, June 5, 2005

Appeal could forestall spills as talks continue

Both sides are preparing to go back to court in the wake of a federal judge's decision Friday that orders federal agencies to spill $67 million in water over dams on the Columbia and Snake rivers.

Federal agencies and regional power customers filed motions Monday saying they intend to appeal U.S. District Judge James Redden's ruling against the Bush administration's salmon and dam plans for the Columbia and Snake rivers. They hope to appeal his injunction before June 21 when they are forced to spill water over the dams away from hydropower turbines under Redden's order.

The chief attorney for anglers, environmentalists and Indian tribes who had won their suit on downriver dam operations said he plans to file a new legal challenge to the Upper Snake River dam plan that is a cornerstone of the Nez Perce Agreement.

These legal maneuvers have left in limbo an effort by the four Northwest governors to seek a salmon solution. The maneuvers also have raised the possibility that the Nez Perce Agreement, approved by the state, Congress, President Bush and the Nez Perce Tribe, could fall apart.

Yet even as Redden's decision has polarized the region, there remain formal talks that could bring some of the parties to the table, especially in Idaho.

Confidential talks between Idaho Power Co., environmentalists, water users, tribes and state and federal agencies are seeking to address the utility's relicensing of its three-dam Hells Canyon Project on the Snake River. Many of the same issues were discussed in the five-year talks that led to the Nez Perce Agreement, which resolved the tribe's water rights claims in the Snake River and gave state farmers, ranchers, loggers and others protection from the Endangered Species Act while increasing protections for salmon.

"They are progressing and they are beneficial, and every time we meet brings us closer to resolution," said Dennis Lopez, an Idaho Power spokesman.

From these discussions and talks in 2003 between water users and salmon advocates moderated by Idaho Republican Sen. Mike Crapo, there is the chance to expand on the success of the Nez Perce Agreement, said Norm Semanko, executive director of the Idaho Water Users Association.

"But our position hasn't changed," Semanko said. "As long as they are in court trying to take our water, we can't talk."

Idaho Rivers United, an environmental group that is among the plaintiffs in the Columbia and Snake lawsuits, has repeatedly said Idaho would not have to give up more water than it already has agreed to in the Nez Perce Agreement to aid migrating salmon -- 487,000 acre-feet from southern Idaho -- maybe even less if four dams in Washington were breached. But it would need some assurances that Lower Snake dam breaching remained on the table in any talks on the Upper Snake dams, said Bill Sedivy, Idaho Rivers United Executive director.

Crapo said he's not sure the time is ripe yet, but he remains ready to moderate such talks.

"I believe it is more clear than ever that we will continue to fight it out politically and legally until we get together and work it out at the table," Crapo said.

When Redden ordered spilling water at the Lower Snake and Columbia dams, he rejected ordering more water from Idaho or drawing down reservoirs behind the dams that would have stopped all barge traffic from Lewiston to Portland. That left Idaho water users off the hook until Sedivy and other salmon advocates file their challenge as their attorney Todd True said he would Friday.

Sedivy said he's ready to talk with Crapo and Semanko to see if there is a potential for progress on the issues.

The spill, estimated to cost Bonneville Power Administration electric customers $67 million, would show up in the power bills of the 20 percent of Idahoans who are rural cooperative members or live in Idaho Falls. This rate increase could happen by the end of the year or in 2006. It would have little or no effect on Idaho Power customers.

But if the federal appeal is successful, the 9th Circuit Court of Appeals could stay Redden's ruling and there would be no rate impact.

When Redden ruled, the states of Idaho, Montana, Washington and Oregon were in talks on developing a new governmental framework for recovering salmon in the region. Redden's decision, and the federal appeal, have put the discussions on the back burner, said David Hensley, Idaho Gov. Dirk Kempthorne's counsel.

Idaho Republican Sen. Larry Craig said he supports the federal appeal of Redden's decision, which he said showed Redden "must have been asleep for the last five years."

"Most reasonable people recognize a great deal of improvement has occurred," Craig said.

In the short term, an appeal is the only way to prevent the costly spill. But in the long term, Craig said he was willing to go to Congress to address Redden's order if necessary.

"All of us are for the salmon," he said, "but we're not going to turn the lights out, shut the rivers down or breach dams."