A long-running court case over salmon declines in the Columbia and Snake rivers has been put on hold for at least five years so the federal government, four Northwestern tribes, environmental groups and the states of Washington and Oregon can test a $1 billion agreement intended to resolve the dispute without having to breach four Snake River dams.
Judge Michael Simon of the U.S. District Court in Oregon on Thursday approved a five-year stay in a 22-year-old Endangered Species Act lawsuit filed by the National Wildlife Federation that has fueled a broader debate over the future of the dams. The pause could be extended for another five years following its 2028 expiration, according to the judge's order.
"The orderly course of justice is best served by staying this litigation," Simon wrote, noting that the proposed agreement is a chance for the parties to resolve the complex dispute outside of the courtroom.
The stay would give the Biden Administration a chance to roll out its $1 billion proposal to fund fish restoration efforts and tribal clean energy projects, update federal hydropower operations, and analyze potential alternatives to the transportation, recreation, and irrigation services provided by four Eastern Washingon dams — Ice Harbor, Lower Monumental, Little Goose and Lower Granite.
Under the proposed agreement, the Energy Department would work with the Nez Perce Tribe, the Confederated Tribes and Bands of the Yakama Nation, the Confederated Tribes of the Umatilla Indian Reservation, and the Confederated Tribes and Bands of the Warm Springs Reservation of Oregon to build one to three gigawatts of renewable energy infrastructure, which is aimed at offsetting some of the energy that would be lost if the dams were to be breached.
The Bonneville Power Administration, meanwhile, would provide $300 million in funding over 10 years for fish restoration projects and hatchery upgrades. States and tribes would have some control over these funds.
The Biden administration's other commitments include making operational adjustments to some of the dams and funding studies to look at alternate systems for transportation, irrigation and recreation if the dams were breached.
Council on Environmental Quality Chair Brenda Mallory, however, emphasized at a Jan. 31 House Energy and Commerce hearing that the administration is not "making a judgment" on dam breaching, which only Congress can authorize.
“I think that we were very clear in the agreement that we believe we need congressional authority to move forward on dam removal,” Mallory told lawmakers. “So I think, as we’ve been saying, the purpose of the agreement was to try to take advantage of this 10-year period to allow the important studies to be developed that would support Congress considering the issue.”
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Salmon runs in the Columbia and Snake River system have declined more than 90% over the last 100 years, according to estimates from the Washington Department of Fish and Wildlife and the Oregon Department of Fish and Game. Federal agencies have spent $17 billion building hatcheries and equipping the dams with additional safety measures like fish ladders and diversion screens, but conditions still appear dire for two at-risk species: spring-summer chinook and sockeye salmon.
Tribes, environmental groups and fishermen who are worried about the fates of the two species, as well as steelhead and spring-summer chinook salmon, have spent years pushing for the dams to be breached. The idea has been fiercely opposed by farmers, shippers and utility companies concerned about losing a shipping route for approximately 10 percent of the nation’s wheat exports, a renewable energy source capable of generating 1,000 megawatts of power each year, and a water source capable of irrigating thousands of acres of farmland.
Some groups representing these interests, including the Washington Association of Wheat Growers and the Pacific Northwest Waterways Association, have criticized the proposed agreement, which they say was crafted without enough consultation with their members. Neil Maunu, PNWA's executive director, argued at the Jan. 31 hearing that his organization and some of the other groups that intervened in the case had some involvement in the beginning of the mediation process, but were mostly left out of later discussions.
"A year or so ago, everything stopped," Maunu told lawmakers. "The mediation stopped, it divulged into private caucuses and those conversations, those negotiations were what laid the groundwork for this [memorandum of understanding]. We and our members were not involved."
While some of the intervenor-defendants, like the PNWA-linked Inland Ports and Navigation Group and the Public Power Council, filed court documents objecting to some of the federal government's commitments under the proposal, Simon wrote that these arguments were "irrelevant to the motion to stay." The court, he said in his order, was not reviewing, approving, or disapproving any aspects of the MOU, but rather, "simply considering whether a stay of this litigation is warranted."
The Public Power Council, a group representing electric utilities, also challenged the length and the "wholly novel" purpose of the pause, though Simon said it would give the plaintiffs a chance to seek out permanent, "non-litigation" solutions to the "underlying disputes that have, thus far, proved intractable in litigation."
Five additional years, he added, is not an "immoderate" amount of extra time to grant the parties "given the extraordinary public importance of this case, the incredibly complex issues, and the fact that litigation has thus far failed to resolve the issues for decades."
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