Salmon-Barging Suit Revived Appeals Court Backs Environmentalists’ Cause, Which Claims Dam Diversion Endangers The Fish

A federal appeals court on Tuesday revived an environmental challenge to the government’s preservation plan for salmon in the Columbia River Basin, which relies on using barges to carry juvenile fish around dams.

The 9th U.S. Circuit Court of Appeals had ordered dismissal of the lawsuit in April, saying environmental and commercial fishing groups had failed to comply strictly with a law requiring 60 days’ notice before private lawsuits under the Endangered Species Act.

But the court said Tuesday that a recent Supreme Court ruling allowed environmental suits challenging arbitrary government action without 60 days’ notice.

That ruling allows the current suit to proceed, the court said in a 3-0 decision.

The court returned the case to U.S. District Judge Malcolm Marsh of Portland, who has already ruled that the federal salmon plan complied with environmental law. Lawyers on both sides said they expect Marsh to issue a similar ruling and send the case back to the appeals court to consider the substance of the dispute.

“Our concerns about barging are still alive,” said attorney Todd True of the Earthjustice Legal Defense Fund, which represents eight environmental and fishing organizations in the case. “Hopefully, we don’t lock ourselves into a long-term future of taking the fish out of the river and putting them in barges.”

“The know-nothings have been beating on the National Marine Fisheries Service for some time to discontinue barging,” said James Buchal, lawyer for aluminum companies that use electric power from dams in the basin. “None of these cases that these people bring does any benefit for the fish.”

NMFS has listed three species of Snake River salmon as threatened or endangered, requiring the government to protect their habitat and take steps to restore their population.

The current plan, adopted in 1995 and in effect at least until 1999, includes transportation of large numbers of salmon smolts on barges around the dams, then release into the Columbia River below Bonneville Dam to continue their journey to the Pacific.

The federal agency concluded that barging was less hazardous to the young fish than other alternatives, such as passage through the dams.

True, whose clients include American Rivers, the Sierra Club and the Pacific Coast Federation of Fishermen’s Organizations, said many government scientists were now endorsing the restoration of “a more normal pattern of flows that would not be lethal to salmon that stay in the river.”