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Groups Collect Another Payout in Hydropower Battle

by Mateusz Pekowski
Capital Press, March 29, 2012

Groups collect nearly $2 million from federal agencies, may get more

The federal government has agreed to pay environmental groups roughly $1 million in attorney fees in a court battle over Northwest hydropower dams.

The deal brings the environmentalists' total compensation in the lawsuit to nearly $2 million, and further payments are possible.

The National Wildlife Federation and other groups have been litigating over the federal government's management of hydroelectric facilities along the Columbia river and its tributaries since 2001.

The federal government must issue "biological opinions" that include provisions for operating 14 hydropower dams without jeopardizing threatened and endangered fish.

The plaintiffs have convinced a federal judge to find that biological opinions issued by the government in 2000, 2004 and 2008 violated the Endangered Species Act.

Environmental groups were previously able to obtain $950,000 in attorney fees for their successful litigation against the 2000 plan.

They have now settled for $940,000 in compensation for their victory against the 2004 plan and related appeals.

The fees paid to plaintiffs have been cost effective, said Todd True, an attorney for the Earthjustice environmental law firm.

The lawsuit has resulted in more water being spilled from dams, increasing river flows and spurring the recovery of federally protected salmon and steelhead, he said.

"It wouldn't have happened without the litigation," True said.

The plaintiffs have yet to seek compensation for attorney fees for their successful challenge to the 2008 biological opinion, he said.

The groups are seeking about $765,000 in fees for a previous court-ordered amendment to the 2008 plan. Plaintiffs and the federal government have agreed to delay proceedings regarding request.

"The litigation isn't over. It is highly, highly likely they will get more fees," said Karen Budd-Falen, an attorney representing farm groups that voluntarily intervened as defendants in the case. "I think it will be a source of attorney fees in the future."

Budd-Falen disagrees the fees have been an effective use of federal dollars because much of the environmentalists' legal success has been based on procedural, not substantive, issues.

Environmentalists and other plaintiffs are able to recover attorney fees when they prevail in lawsuits against federal actions that aren't substantially justified.

Budd-Falen and other natural resource attorneys have called for reforms to the Equal Access to Justice Act, the statute that provides for such compensation.

"I firmly believe if the source of attorney fees for procedural litigation was shut off, you would see significantly less litigation," she said.

The notion that environmentalists sue the government for monetary gain is "ridiculous" because such groups would rather see agencies not take actions to harm the environment, said True.

Litigation about the dams is at a standstill as the parties await a new biological opinion due January 2014 from the government, said Terry Flores, executive director of Northwest River Partners, a group representing irrigators, utilities and ports.

The 9th U.S. Circuit Court of Appeals is reviewing the case, but the parties are negotiating and may drop those appeals, she said. True confirmed that negotiations are under way and that appellate litigation isn't active.

Even so, litigation is likely to resume in full force unless the government accedes to environmentalist demands and removes several dams along the Snake River, said Flores.

"I don't think there's a salmon plan out there that they'd be happy with," she said.

True said it's "not a correct assumption" that environmentalists will oppose every proposal that doesn't involve dam removal.

The groups want the government to make long-term changes in its management of the hydropower system along the main river stems, because habitat restoration measures in tributaries aren't sufficient, he said.

Mateusz Pekowski
Groups Collect Another Payout in Hydropower Battle
Capital Press, March 29, 2012

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