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Plaintiffs: 'Substantial Progress' Needed for CRSO EIS Litigation Stay by K.C. Mehaffey NW Fishletter, November 7, 2022

Any litigation party can move to lift the stay for good cause, including lack of sufficient progress on
the federal commitments or on the development of comprehensive solutions toward salmon recovery.

In a two-page report filed in U.S. District Court for the District of Oregon Nov. 2, the Federal Mediation and Conciliation Service (FMCS) outlined progress made in developing a long-term strategy for rebuilding native fish populations in the Columbia Basin.

Submitting status reports on meaningful progress is one of many commitments federal agencies made as part of joint motion with plaintiffs to stay litigation actions in National Wildlife Federation et al. v. National Marine Fisheries Service et al. through Aug. 31, 2023.

The stay was granted Aug. 5 by U.S. District Judge Michael Simon, and included commitments by the federal government to explore breaching the four lower Snake River dams, seek funding for transmission and power resources to offset future changes in the Columbia River hydropower system, and develop a plan to support and fund the second phase of salmon reintroduction above Grand Coulee and Chief Joseph dams.

The agreement also says that any litigation party can move to lift the stay for good cause, including lack of sufficient progress on the federal commitments or on the development of comprehensive solutions toward salmon recovery.

In the progress report, FMCS said that progress is moving "as anticipated" and that the parties are dedicating the necessary time and resources to achieve the milestones outlined in the stay agreement.

One of the milestones--the issuance of a final NOAA Fisheries report on rebuilding salmon in the Columbia Basin--was completed Sept. 30.

However, with deadlines looming on some of the federal government's other commitments, concerns about meeting those milestones remain.

"The Plaintiffs wish to emphasize that substantial progress will need to occur within the next month, given the rapidly approaching December Commitment deadlines," the Nov. 2 filing by the moving parties states.

Of the remaining federal commitments, four include deadlines, according to the stay agreement. They include:

• By Oct. 31, federal agencies will evaluate the 2022 spill season and adopt reasonable changes proposed by plaintiffs for the 2023 spill season. Agencies will also explore long-term solutions for fish recovery through dam operations. The status report did not mention this deadline had passed, nor did it indicate if the commitment had been fulfilled.

• By Dec. 1, federal agencies will collaborate with affected tribes, states and regional stakeholders to produce a schedule of administration actions and critical milestones needed.

• By Dec. 1, the administration will identify short-term funding, operational and other actions that can be implemented in 2023 based on funding available from departments and agencies.

• By Dec. 30, the administration will summarize its plan to support and provide funding for a second phase of reintroducing salmon above Grand Coulee and Chief Joseph dams.

"FMCS has consulted with Sovereigns, States, the United States Government, and Stakeholders to develop a process that is intended to be collaborative, inclusive, and transparent," the report states.

Not everyone involved in the lawsuit agreed to the commitments made by the federal government in the stay agreement, which was negotiated by the 12 conservation and fishing groups that are plaintiffs in the case; the federal agencies that are defendants; and the State of Oregon, the Nez Perce Tribe, and the Coeur d'Alene Tribe, as intervenor-plaintiffs.

Other intervenor-defendants--including the State of Idaho and the Public Power Council--did not object to the stay, but filed responses noting they did not agree with some of the commitments made by federal agencies.

After the motion for the stay was filed, PPC said it had serious concerns about the commitments made by federal agencies and about the process that excluded key stakeholders. In late September, PPC threatened to withdraw from the FMCS process if proposals to use some of the Bonneville Power Administration's surplus revenues in 2022 to help rebuild salmon runs are pursued.

In a Nov. 3 email to NW Fishletter about the progress report, PPC Executive Director Scott Simms wrote, "PPC has long supported a regionally designed enduring solution over endless litigation. While we understand that FMCS has a goal of designing a process that is collaborative, inclusive and transparent, we believe they have made some progress but still have a long way to go in fulfilling that goal. We remain at the ready to engage constructively and to offer ideas on how more balance can be instilled among the many interests involved in this process. At the same time, as a defendant intervenor, we are considering and preserving all our options."