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Commentaries and editorials

Federal Agencies Give Notice of Possible Appeal
of Court Ruling Providing Earlier Spill for Fish

by Staff
Columbia Basin Bulletin, June 9, 2017

Little Goose Dam, one of the supposed culprits contributing to the decline of Steelhead and Salmon in the Snake River. Defendants gave notice in the U.S. District Court of Oregon that they are appealing to the Ninth Circuit Court of Appeals an April 3rd order to provide earlier spill for juvenile fish passage beginning next spring at lower Snake and Columbia river dams.

However, the move to appeal the decision is more of a pre-emptive strategy awaiting the outcome of study designs and spill protocols for each of the eight dams.

“The US has filed this appeal as a protective measure to preserve our rights, but a final decision to pursue the appeal has not yet been made,” said Michael Milstein, spokesperson for NOAA Fisheries West Coast Region.

Conservation groups, the state of Oregon and the Nez Perce Tribe had asked the court January 9 to order Columbia River operating agencies to begin spill each year by April 3, one to two weeks earlier than is currently required, at eight federal dams to possibly improve survival rates for juvenile salmon and steelhead through the hydroelectric system.

The groups filed for injunctive relief in the U.S. District Court of Oregon for spill to begin immediately, enjoining the same case in which Judge Michael H. Simon had remanded the Columbia River hydropower system’s 2014 biological opinion for salmon and steelhead in May 2016.

However, Simon’s amended opinion gave the federal agencies an additional year to develop spill plans at each of the dams, with spill beginning April 3, 2018. The order also requires the U.S. Army Corps of Engineers to operate bypass and PIT-tag juvenile detection systems at the dams beginning March 1, 2018 (that now occurs in mid-March to early April) and for the Corps to provide timely reviews of future capital investments valued at over $1 million at the dams in order to avoid a “significant risk of bias in the NEPA process,” according to the order.

Some of the defendants -- NOAA Fisheries, the Corps and the U.S. Bureau of Reclamation -- filed Friday, June 2, notifying Simon’s Court that they are appealing that order: Northwest River Partners, Inland Ports and Navigation Group and the states of Montana and Idaho, joined the federal agencies in the appeal this week.

The defendants’ June 2 notification to the District Court is short and simple:

“PLEASE TAKE NOTICE that Federal Defendants, the National Marine Fisheries Service (also known as NOAA Fisheries), the U.S. Army Corps of Engineers, and the U.S. Bureau of Reclamation, hereby appeal to the United States Court of Appeals for the Ninth Circuit from this Court’s April 3, 2017 Amended Opinion and Order (ECF 2194) and subsequent orders (Order, ECF 2201; Order, ECF 2205).”
As a pre-emptive strategic move in court, the appeal could be revoked if consensus is achieved between defendants and plaintiffs in completing the study designs and spill protocols at each of the dams

“This allows the parties to protect their ability to appeal the court’s order on a 2018 spill test should they want to, while the court ordered process to design a spill test and attempt to reach consensus proceeds,” according to Terry Flores, executive director of Northwest River Partners. She added that this is sometimes referred to as a “protective” appeal.

“It’s unfortunate the parties are resisting the notion that is widely accepted in the scientific community that spill is good for fish,” said Todd True, of Earthjustice and lead attorney for the plaintiffs. “Our focus is on getting the court’s injunctive order implemented.”

The court-ordered spill will continue until NOAA Fisheries completes its next biological opinion of the federal Columbia River power system, which is to be done by court order December 31, 2018.

Simon ordered the Corps and NOAA Fisheries to design a study this year that could be used in 2018 when earlier spill is initiated that would help determine if the additional spill provides benefits for juvenile salmon passage. In addition, he ordered the Corps to design spill patterns at the dams to ensure dam and transportation safety.

Since Simon’s order plaintiffs and defendants have agreed to a schedule for periodic status conferences. In a May 1 court filing, parties agreed to consider protocols for spill at each dam, consider an adaptive management system and work together to develop a spill implementation plan.

They’ll do this by identifying a team of technical representatives to “collaboratively plan and carry out tasks such as modeling and analyses of a range of spill levels and spill patterns as they agree is necessary to afford a basis for identifying 2018 spring fish passage spill levels and spill patterns at each of the eight lower Columbia River and lower Snake River dams,” while working with the interagency Technical Management Team and others to complete the tasks.

The team will take into account spill and gas caps, dam or safety issues, the potential effects of spill levels and patterns on juvenile and adult salmon and steelhead survival, and other factors identified by the Court’s Opinion and Order, according to the joint filing.

They will document the work and will advise the Court that “there are agreed-to spring fish passage spill operations that may be incorporated into a proposed injunction order, or advise the Court of any outstanding disagreements that may necessitate the Court’s involvement to resolve. If necessary, the Court may then set such procedures as it concludes are appropriate to resolve these issues,” the filing says.

The parties will file with the court a joint status report June 15, 2017, with a draft available seven days ahead of time. Follow up in-person conferences will occur in early August and late September.

Related Sites:
Spill Advocates, Federal Agencies Agree To Status Conference Schedule, Protocol In Salmon BiOp Case
Federal Court Again Rejects Columbia Basin Salmon/Steelhead Recovery Plan; Orders New BiOp By 2018 by Staff, Columbia Basin Bulletin 5/6/17

Related Pages:
Federal Agencies Give Notice of Possible Appeal of Court Ruling Providing Earlier Spill for Fish by Staff, Columbia Basin Bulletin, 4/7/17
Court Orders More Spill, Allows Spending at Lower Snake River Dams by Laura Berg, NW Fishletter, 4/3/17
Judge Orders Increased Spill at Eight Pacific Northwest Dams Starting in 2018 by Elizabeth Ingram, HydroWorld, 3/29/17
Judge Orders More Water Over Dams to Help NW Salmon by Eric Tegethoff, Public News Service, 3/29/17
Judge: More Water Must Be Released from Columbia, Snake Dams by Associated Press, The Register-Guard, 3/27/17


Staff
Federal Agencies Give Notice of Possible Appeal of Court Ruling Providing Earlier Spill for Fish
Columbia Basin Bulletin, June 9, 2017

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