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20-year legal tug-of-war between federal managers on the Snake River and conservation and tribal interests may be put on hold until next summer

UPDATED: Thu., Oct. 21, 2021

Settlement talks over protecting endangered wild salmon could be in the works after conservation and tribal groups embroiled in a federal lawsuit with government regulators announced they were seeking a pause to litigation efforts on Thursday.  (Pete Zimowsky)
Settlement talks over protecting endangered wild salmon could be in the works after conservation and tribal groups embroiled in a federal lawsuit with government regulators announced they were seeking a pause to litigation efforts on Thursday. (Pete Zimowsky)

A 20-year legal tug-of-war between federal managers on the Columbia and Snake rivers and conservation and tribal interests may be put on hold until next summer.

The 11 conservation, fishing and tribal groups involved in the ongoing lawsuit alleging that federal fishery and water managers have failed to adequately protect endangered wild salmon , requested a stay on Thursday to pause legal proceedings. The United States government, the State of Oregon and the Nez Perce Tribe also signed the request, which was filed in the United States District Court in Portland. The original case, National Wildlife Federation v. National Marine Fisheries Service, was first filed in 2001.

If the stay is granted, all court proceedings would be paused until July 31. The request includes an agreement on how eight dams in the Columbia River system will operate in 2022. Broadly the agreement will increase spill over the dams which can help juvenile fish survive.

The agreement received support from the highest levels of the departments of Interior and Energy, Thursday.

“The Columbia River System is an invaluable natural resource that is critical to many stakeholders in the Basin. Today’s filing represents an important opportunity to prioritize the resolution of more than 20 years of litigation and identify creative solutions that improve conditions for salmon for years to come,” said Secretary of Interior Deb Haaland in a statement. “While it is important to balance the region’s economy and power generation, it is also time to improve conditions for Tribes that have relied on these important species since time immemorial.”

“Hydroelectric power plays an incredible role in integrating renewable resources and providing carbon-free power, a great example of the affordable and clean energy sources that are available in all pockets of this country,” said Secretary of Energy Jennifer M. Granholm. “By joining forces with our interagency partners and key stakeholders in the Northwest, DOE will ensure that the reduction of carbon emissions remains a priority, alongside supporting a strong economy and affordable power for families and businesses, as we partner in the Northwest to meet the full range of the region’s goals.”

Salmon – and the Snake River – have been in the news after Idaho Rep. Mike Simpson announced a plan to breach the four Lower Snake River dams in hopes of saving endangered salmon and steelhead populations earlier this year. That proposal was opposed by some environmental groups, farmers and advocates of clean power. Simpson’s proposal, which depended on being included in President Joe Biden’s infrastructure bill, did not move forward.

The ongoing plight of salmon, combined with a national awareness of “tribal justice issues” led to Thursday’s agreement, said Justin Hayes, the executive director of the Idaho Conservation League which is one of the 11 plaintiffs.

“Quite frankly Congressman Simpson announcing his proposal in February really opened the region’s eyes up to what has to be done to save salmon but also what has to be done so the region can take that step forward and make other communities whole,” he said.

Washington Gov. Jay Inslee and Sen. Patty Murray will announce their own salmon and dam plan soon.

“Washington is pleased to see the parties talking about how to reach a durable solution,” said Inslee spokesperson Mike Faulk. “The work happening around the future of the dams in various forums can and should complement each other. It’s encouraging to see movement on this complex and historically contentious issue.”

Despite the issue’s long, contentious history, Joseph Bogaard, the executive director of Save Our Wild Salmon called the request to pause litigation “unprecedented.”

“The (Biden) administration, in being party to this motion, is committing itself to sit down outside of litigation and work with the parties … to craft a long-term solution,” he said.

The Nez Perce Tribe, which is one of the plaintiffs and has argued the loss of salmon is a violation of their constitutionally granted treaty rights, announced its support of the request in a news release Thursday.

“Salmon and steelhead are at a crisis. Short-term measures are not the answer. We all know that. But this temporary compromise, which provides incremental benefits for fish, will have been a critical turning point if it enables a comprehensive resolution that prevents the extinction of salmon and steelhead populations – which is clearly on the horizon,” said Nez Perce tribal Chairman, Samuel N. Penney in a news release. “Visionary action to save our salmon and honor our treaties is urgently needed. We need the United States Government to comprehend the situation and act. The science is clear: salmon and steelhead need a free-flowing, climate-resilient Lower Snake River, not a series of slow, easily-warmed reservoirs. The Nez Perce Tribe and its people intend to ensure that salmon do not go extinct on our watch.”

Although the first paperwork in the National Wildlife Federation v. National Marine Fisheries Service case was filed in 2001, its roots go to at least 1991 when Snake River sockeye salmon were listed under the federal Endangered Species Act.

After the construction of four Lower Snake River dams between 1962 and 1975, chinook and steelhead numbers started declining. The protection and billions of dollars provided by the 1991 Endangered Species Act listing of sockeye salmon has failed to stem the hemorrhaging.

That is what much of the ongoing court case has centered around, whether federal managers abided by the stringent conservation rules and restrictions mandated by an ESA listing. Since the 1990s, federal managers have drafted and published six biological opinions, a federally mandated assessment of how proposed actions may or may not impact a listed species.

Three different federal judges have tossed out those biological opinions, arguing among other things, that the opinions failed to consider dam removal.

In 2020, the Army Corps of Engineers, the Bureau of Reclamation and the Bonneville Power Administration, published a new biological opinion, after being ordered to do so by U.S. Judge Michael Simon in Portland. The 2020 Columbia River System Operations Environmental Impact Statement called for more water to be spilled over dams in the Columbia River Basin. However, the 2020 opinion rejected breaching the dams as an alternative.

At that time Earthjustice, and the 11 plaintiffs, challenged that opinion. That challenge will be paused if the stay is granted.

Northwest River Partners, an advocacy group for hydroelectric power based in Vancouver, Washington, praised the decision to pause litigation. However, executive director Kurt Miller defended the importance of hydropower and questioned whether the dams are the primary cause of declining salmon populations, noting that there has been a coastwide decline in Chinook salmon attributed to global warming and acidifying oceans.

“These resources provide the region with the lowest carbon footprint of any electric grid in the nation and the most affordable clean energy in the U.S.,” Miller said in the statement.

This story is developing

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