(CN) — A Northern California man’s protest against the unlawful "taking" of endangered salmon by the U.S. Army Corps of Engineers lives another day, as a judge ruled against both dismissal and a stay in the matter on Friday.
The defendants sought to either dismiss or stay the case that accused them of creating a hazardous habitat for Central California Coast steelhead, coho, and Chinook salmon, saying that the case should be deemed moot, considering recent action taken by the Corps to come into compliance with Endangered Species Act requirements.
The Coyote Valley Dam, an earthen dam built 70 years ago, is currently managed by the Corps and lies above the city of Ukiah, where it prevents large-scale flooding of the city. According to Sean K. White, a Ukiah resident and fisheries biologist who first brought his claims this past October, the dam is also dangerously affecting endangered salmon species in Lake Mendocino and the East Fork Russian River.
White alleged that the Army Corps, its chief and commanding general Scott Spellmon, as well as the National Marine Fisheries Service and Secretary of Commerce Gina Raimondo, violated the Endangered Species Act by jeopardizing salmon populations with the dam’s flood control operations. White and attorney Phillip Williams asked for a judgment declaring that defendants were violating the Endangered Species Act, as well an injunction preventing the Corps from releasing any more water from the dam.
A 2008 biological opinion — a report required by the Endangered Species Act that details potential dangers and possible remedies for threatened species — detailed the particular risk to salmon from sediment stirred up by water released by the dam, which could, according to the complaint, result in “abrading and clogging gills, and indirectly cause reduced feeding, avoidance reactions, destruction of food supplies, reduced egg and alevin survival, and changed rearing habitat.”
An accompanying incidental take statement provided recommendations for minimizing risk and lowering water turbidity levels that White claims the Corps barely and belatedly fulfilled.
The Corps said that it already had intentions to reinitiate consultation for a new biological opinion with the National Marine Fisheries Service in February 2023, with results to come in 2024.
U.S. District Judge Jacqueline Scott Corley declined to both dismiss or stay the case following Thursday’s oral arguments.
"The last formal consultation regarding the Coyote Valley Dam lasted four years; and the current process — according to defendants’ own witnesses — is expected to be similarly complex," Corley wrote in a ruling published Friday. "Thus, there is no guarantee defendants will complete consultation by March 2024. So, what happens in the meantime?”
The agencies also argued against an injunction, pointing to its statutory responsibilities for flood control and water conservation. But Corley rejected the request. “By defendants’ own admission, it is uncertain whether any potential injunction would create an irreconcilable conflict with a nondiscretionary agency duty. That an injunction may not ultimately be viable does not mean the underlying claim is moot.”
The judge also denied a stay in proceedings, saying that the defendants could not show that they would experience any undue hardship that would necessitate a stay.
The Army Corps and the fisheries service could not be immediately reached for comment.
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