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Niners Reject Spill Appeal, Feds Ask for Dismissal by Bill Rudolph NW Fishletter, September 7, 2004

The 9th U.S. Circuit Court of Appeals on Aug. 13 rejected a last-minute motion by federal attorneys to stay an order nixing the summer spill program, who gave up their appeal altogether by the end of the month.

The decision has polarized all sides of the fish arena more than ever and comes at a time when regional entities had hoped to hammer out a five-year budget for the Bonneville Power Administration's fish and wildlife program. Privately, some BPA customers say they will fight any spending increases for the state and tribal fish agencies that fought the spill proposal. PNGC Power vice president Scott Corwin called for next year's F&W budget to bump $5 million in lower priority proposals aside to pay for this year's offsets.

After the Niners Aug. 13 ruling, Justice Department spokesman Blaine Reithmeier told NW Fishletter that the appellate division was working on an appeal brief for the court with an Aug. 31 deadline, but there was an obvious change of heart after that, since they filed a motion Aug. 30 to dismiss their appeal. "Retreating with tail between legs, it seems," said one attorney familiar with the case.

"The appeal effort appeared to be futile," said BPA spokesman Ed Mosey, who would not say whether the region should expect to see the reduced spill program in the new draft hydro BiOp that will be released sometime this week. There has been some speculation that the feds may have turned tail because the new BiOp will contain elements of a reduced summer spill program.

But environmental attorneys were crowing about the win. "By upholding Judge Redden's decision, the Ninth Circuit is affirming what we've known all along--gambling the future of wild salmon to save a few cents a month on our electric bills is not a tradeoff people in the Northwest want to make," said Todd True, the Earthjustice attorney who led the fight to kill the proposal. True characterized the effort by federal agencies as being "penny-wise and pound-foolish."

In remarks made after Redden nixed the spill proposal on July 28, True mis-characterized the proposal as one of reduced water releases, rather than reduced spill. "The Corps' request to the Ninth Circuit to overturn Judge Redden's decision would allow the agency to withhold water needed to flush juvenile salmon out to sea," he said after the feds' announced they would appeal.

The proposal actually called for more flows in the lower Snake, which did occur. BPA paid $4 million for the flows.

The misconception was reinforced after the 9th Circuit's decision in the latest press release from environmental and fishing groups, which characterized the ruling as requiring the Corps of Engineers "to continue releasing water at dams . . . for the benefit of migrating salmon."

"Reducing water releases would have been another link in the Bush administration's chain of attempts to eliminate protections of our endangered Northwest salmon," said Kathleen Casey, field director of the Sierra Club.

The theme was echoed in comments from some commercial and sports fishing groups who fought the spill plan. "If these past events are any indication, the new plan may kill more salmon than it protects, and in the process, put our jobs, our recreation and our livelihoods in further jeopardy," according to a flyer announcing a rally Sept. 8 to protest the upcoming BiOp.