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Feds: Judge Wrong to Order Spill by Eric Barker Lewiston Tribune, June 16, 2005

Justice Department files motion contesting ruling, wants emergency stay

Justice Department attorneys accused a federal judge Wednesday of overstepping his authority and abusing his discretion when he ordered water to be spilled at Snake and Columbia river dams this summer.

Attorneys for the U.S. Justice Department filed a motion to the 9th Circuit Court of Appeals contesting U.S. District Court Judge James Redden's order last Friday that water be spilled at the dams beginning Monday.

They also asked the appellate court to issue an emergency stay that could stop the spill as early as Tuesday.

"By issuing its mandatory order the court has for the first time injected itself into the day to day management of an extremely complicated system of dams," reads the motion. "Courts lack the expertise to undertake this task and should not be in the business of running dams."

The appeal was filed on behalf of the U.S. Army Corps of Engineers, National Marine Fisheries Service and the U.S. Bureau of Reclamation. It follows Friday's ruling by Redden that the agencies must spill water over the dams to help threatened fall chinook instead of running it through power-producing turbines.

Redden's order would mean most of the juvenile fall chinook bound for the Pacific Ocean would make the journey in the rivers instead of on barges.

Environmental groups and Indian tribes convinced Redden the government's salmon and dam management plan for the two rivers, known as a biological opinion, is flawed. The judge ruled the biological opinion arbitrary and capricious last month and Friday sided with the plaintiffs who said juvenile fall chinook need immediate help if they are to survive this summer.

However, Redden denied their request that Lower Granite Dam be lowered 10 feet and additional water from the Upper Snake River be used to flush fish downstream.

The government's salmon recovery plan does call for water to be spilled at the dams to help migrating fish. But in years when flows in the Snake and Columbia rivers fall below certain levels the plan calls for as many fish as possible to be collected and barged to the ocean. River levels are expected to be at or below those levels most of the summer.

The documents filed Wednesday go on to say Redden failed to explain how fall chinook would be harmed if water were not spilled and criticize his decision, which runs contrary to the judgment of salmon experts at the National Marine Fisheries Service.

"The undisputed record (of) evidence shows that returns of fall chinook have increased over the last several years under the transportation program."

The motion also states Redden should have given more weight to Bonneville Power Administration customers, who will have to pay higher rates because of the spill. According to a declaration from Paul Norman, senior vice president of the Power Business Line of BPA, the spill could cost the agency $67 million.

The motion goes on to argue in favor of the government's contention that it is only responsible for the effect dam operations have on listed fish and not the harm caused by the existence of the dams. The attorneys also argue the government is not required to recover listed species when it issues biological opinions, but only to conserve them.

Redden ruled the government is obligated to plan for recovery and faulted the federal agencies for saying dams are a part of the natural environment and only the harm dams cause by their operation need to be mitigated.

A response from the environmental groups and Indian tribes is due by Friday. Based on the court schedule, the soonest the stay could be granted is Tuesday, one day after the spill is scheduled to begin.