From the Columbia Basin Newsletter---
1. APPEALS COURT UPHOLDS SPILL RULING WITH PARTIAL REMAND
Posted on Friday, July 29, 2005 (PST)
The Ninth Circuit Court of Appeals Tuesday ruled that a lower court’s order to spill water for fish passage during late summer at five federal Columbia Basin mainstem dams did not abuse the court’s discretion and was “well-grounded in governing statute.”
At the same, the three-judge panel “remanded” back to federal district Judge James Redden for consideration the question of whether the spill order requires modification, or “narrow tailoring.”
The appeals court said that there are “issues that have arisen after the issuance of the preliminary injunction that may require modification of the district court order.
“Although we conclude that the district court did not abuse its discretion in
granting the preliminary injunction, we remand the question of whether
modification or ‘narrow tailoring’ of the order is required to the district court for
its consideration . . .”
In addition, the BPA Customer Group, a defendant-intervener, had argued that the district court’s order should be vacated because the remedy (summer spill) did not properly match the alleged violation of the Endangered Species Act.
The customer group and others have argued that in ordering summer spill as injunctive relief, Redden did not explain how requiring spill at dams where fish are normally collected for transportation specifically remedies the alleged flaws in the federal salmon recovery plan.
“The district court did not explicitly address this issue in its preliminary injunction
order. In light of our decision to remand for consideration of modifications to the
preliminary injunction, we also remand this question to the district court for its
consideration . . .,” said the appeals court. “We urge the parties and the district court to resolve these remanded issues as expeditiously as possible.”
Judge Redden on Thursday held a conference with the parties in the case and accepted a schedule to address concerns about his spill order. Parties who want to modify the spill injunction must file their request, and supporting scientific documentation, by Aug. 10. Those who oppose such requests must file their information by Aug. 17. The judge indicated he would rule shortly thereafter.
The appeals panel Tuesday unanimously concluded “that the district court did not abuse its discretion in granting a preliminary injunction. It had rejected the biological opinion upon which the summer operations were premised, and it had concluded that continuation of the status quo could result in irreparable harm to a threatened species. Those are precisely the circumstances in which . . . the issuance of an injunction is appropriate.”
In addition, the appeals court said the lower court “had more than sufficient basis upon which to conclude that summer spills would provide the best and safest alternative to the planned operations contemplated in the 2004 BiOp that was rejected by the court.”
The appeals court ruling on summer spill is yet another step in litigation over the federal government's strategy for assuring that operations of the hydrosystem don't jeopardize the survival of 13 species of salmon and steelhead listed under the Endangered Species Act.
“As part of the modern cycle of life in the Columbia River System,” said the court, “each year brings litigation to the federal courts of the Northwest over the operation of the Federal Columbia River Power System.”
A NOAA Fisheries "biological opinion" issued on Nov. 30, 2004, declared that planned Columbia/Snake river hydro operations for power generation and to improve fish survivals did not pose jeopardy. Fishing and conservation groups promptly sued. NOAA Fisheries, and the U.S. Army Corps of Engineers and Bureau of Reclamation, which operate the federal dams, are the defendants in the lawsuit.
A May 26 order by Redden invalidated the NOAA BiOp, saying "NOAA unlawfully restricted the basis of its jeopardy analysis and adverse modification of habitat determination to an estimate of the impacts they deemed derived from so-called 'discretionary' aspects of the proposed action."
Redden has yet to either remand or vacate the BiOp, stating his order was not final, and therefore not yet appealable. He has scheduled a status conference in September where parties to the litigation will discuss the next step.
On June 10, Redden issued a preliminary injunction ordering the Corps to "provide spill from June 20, 2005, through August 31, 2005, of all water in excess of that required for station service, on a 24-hour basis, at the Lower Granite, Little Goose, Lower Monumental, and Ice Harbor Dams on the lower Snake River," and of all flows above 50,000 cubic feet per second at the Columbia's McNary Dam from July 1 through Aug. 31.
BPA estimates that such spill will cost about $67 million in foregone revenues and amount to a 4 percent to 5 percent increase in the wholesale electricity rate.
The fishing and conservation groups, in requesting the injunction, said the additional spill was needed to avoid "irreparable harm" to the listed fish species.
Federal defendants, Idaho and the BPA Customer Group, immediately requested in the Ninth Circuit a stay of the lower court ruling, but were denied. Appeals of the injunction were filed June 16. Oral arguments on the merits of the appeal were heard July 13 in Seattle.
Federal attorneys argued that Redden, in issuing the injunction, abused his power and did not properly defer to agencies’ expertise or consider the record of evidence.
They said the injunction should be removed because it is based on Redden's flawed legal assessment that NOAA's jeopardy analysis is invalid.
"The injunction requires the Corps to provide large amounts of summer spill at the dams, which will significantly reduce the number of fish transported in barges, leaving a large portion to migrate under the adverse in-river conditions in this low-water year. In so doing, the court has substituted, at best, an experiment without the means of evaluating the effects of spill on summer migration for the considered scientific judgment of NMFS as to what will work best to ensure salmon survival for this summer," according to the federal brief filed with the appeals court.
The 2004 BiOp developed by NOAA calls for the cessation of spill in summer at McNary, Little Goose, Lower Monumental and Lower Granite dams to allow the Corps to maximize collection of migrating Snake River juvenile fall chinook. The young fish are then transported downriver aboard barges and, at times, tanker trucks.
The defendants argued that transporting migrating fall chinook reflects NMFS' s determination, based on the current state of knowledge, that transportation at the collector projects is preferable to spill during the summer. The Corps has been maximizing the transportation of juvenile Snake River fall chinook since 1982.
"The court manifestly abused its discretion by failing to make requisite findings to support the injunction. The court points to no specific findings or evidence in the record to justify the experiment it has ordered, nor does it even address any of the numerous declarations and evidence put forward by NMFS and the Corps demonstrating the harms and risks associated with this experiment," the federal brief said.
Plaintiffs, on the other hand, told the appeals court that there is ample scientific and legal evidence to back Judge Redden's decision.
In its 36-page opinion, the Ninth Circuit judges make clear several times they were not judging the merits of Redden’s ruling invalidating the 2004 BiOp. Nor do they state whether they agree with the contents of Redden’s summer spill order.
“A district court’s order with respect to preliminary injunctive relief is subject to limited appellate review, and we will reverse only if the district court abused its discretion or based its decision on an erroneous legal standard or on clearly erroneous finding of fact.
“Mere disagreement with the district court’s conclusions is not sufficient
reason for us to reverse the district court’s decision regarding a preliminary
injunction.”
Regarding whether Redden applied the correct legal standard, the appeals court noted that both Congress and the Supreme Court have made clear that in ESA cases, the balance of hardships “always tips sharply in favor of endangered or threatened species.”
Therefore, said the court, “We must at the onset reject the argument of the
federal appellants that the district court erred as a matter of law by failing to
conduct a traditional preliminary injunction analysis and, in particular, by failing to weigh economic harm to the public in reaching its conclusion. As the Supreme Court has instructed, such an analysis does not apply to ESA cases because Congress has already struck the balance. Therefore, we conclude that the district court did not apply an incorrect legal standard in this case.”
Regarding findings of fact, the court noted that though “the facts and
scientific analysis underlying the district court’s decision are hotly contested by the parties, our review in the preliminary injunction context is very deferential.
“On appellate review in this context, we consider a finding of fact to be clearly erroneous if it is implausible in light of the record, viewed in its entirety, or if the record contains no evidence to support it.
“Having reviewed the extensive, albeit incomplete, record provided to us by the parties in this expedited proceeding, we find no reversible error in the factual findings made by the district court.”
One of the factual findings made by the district court, noted the appeals court, was that the federal operation of the Columbia and Snake River dams “strongly contribute to the endangerment of the listed species and irreparable injury will result if changes are not made.”
Federal appellants contested this finding, arguing that the data show that returns of fall chinook salmon have increased. Redden concluded otherwise in his invalidation of the 2004 BiOp, saying that the “predicted survival improvement for fall chinook juveniles has not materialized.”
The appeals court said the “government’s own recent data show that between 78-92 percent of juvenile salmon migrating in the fall are killed by operation of the dams even with use of mitigating measures, with a mean estimated kill of 86 percent of the migrating salmon.”
The plaintiffs, led by the National Wildlife Federation, “strongly argue that the government’s assertion of recovery is based on a single, scientifically flawed, study. NWF also claims, through expert testimony, that the increased returns were due to large releases of hatchery fish, rather than successful fish transport over dams, and that the mortality rate for migrating juvenile salmon is actually increasing. The federal agencies dispute this, and offer counter-testimony. The record is replete with differing opinions by various experts.
“One of the few undisputed points, however, is that the fall chinook
salmon remain a species listed under the ESA as ‘“likely to become endangered in the foreseeable future.”’
The court said its task in reviewing a district court’s preliminary injunction decision is
not to resolve these controversies.
“Clear error is not demonstrated by pointing to conflicting evidence in the record.”
Rather, “as long as findings are plausible in light of the record” a reviewing court may not reverse “even if convinced it would have reached a different result.”
Viewing the record as a whole, said the court, “with our deferential standard of review, we cannot say that the district court’s factual finding concerning irreparable harm was clearly erroneous.”
Regarding whether Redden abused his discretion in granting the injunction, the appeals court said that “the district court’s preliminary injunction order was
premised on its finding that the agencies had violated both the substantive and procedural requirements of ESA. Thus, the question before the district court was what interim remedy was appropriate to redress the ESA violations.”
Injunctive relief, says the appeals court, is necessary to ensure compliance with the substantive and procedural provisions of the ESA.
“Given this legal backdrop, we conclude that the district court did not abuse
its discretion in granting a preliminary injunction.”
The district court’s conclusions, said the appeals court, “were well grounded in the
governing statute; the agency had altered its own interpretation of the statute
significantly; and the record supported the district court’s reasoning in declaring
the 2004 BiOp to be invalid. Further, the operations involved in this case have
had a long history. The district court has monitored the situation carefully over
the past few years and has found that the status quo will not lead to recovery of the
listed species.
“Thus, although we do not reach the merits of the summary
judgment order, the record supports the district court’s analysis that the plaintiffs
are likely to prevail on the merits of their claim that the 2004 BiOp violates
Section 7 of the ESA and is arbitrary and capricious under the Administrative
Procedures Act.”
For the complete text of the opinion go to
http://www.ca9.uscourts.gov/ca9/newopini...pdf?openelement FINAL UPDATED PROPOSED ACTION FOR FCRPS BIOP
2004 BIOLOGICAL OPINION FOR FCRPS
FEDERAL CAUCUS MATERIALS ON DRAFT NEW BIOP
The Columbia Basin Bulletin, 60968 Onyx St. Bend, OR, 97702, (541)312-8860 fax: (541)388-0126 e-mail: info@cbbulletin.com
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