Judge eyes interim dam changes in revived Columbia Basin salmon fight

PORTLAND, Ore. (CN) —  Changes to dam operations on the Columbia and Snake Rivers may soon be underway after a federal judge on Friday indicated a tentative intent to aid in the recovery of salmon in the Columbia Basin.

The lawsuit over fish conditions began in 2001 and had reached an agreement until the Trump administration in June abruptly withdrew from a Biden-era agreement promising to spend $1 billion to protect endangered steelhead and salmon.

“About 2 1/2 years ago, I thought it had settled, but apparently not,” said U.S. District Judge Michael Simon, eliciting a chuckle from the packed courtroom. The Barack Obama appointee opened the hearing with a quote from Yogi Berra: “It’s déjà vu all over again.”

A coalition of conservation groups, tribes and the states of Washington and Oregon revived the decades-old lawsuit following the Trump administration’s withdrawal from 2023’s Resilient Columbia Basin Agreement.

The agreement was the result of a deal struck with Oregon, Washington, the Confederated Tribes and Bands of the Yakama Nation, the Confederated Tribes of the Umatilla Indian Reservation, the Nez Perce Tribe, the Confederated Tribes of the Warm Springs Reservation of Oregon and the National Wildlife Federation, after they had proposed the Columbia Basin Restoration Initiative.

Under the agreement, the government committed to immediate measures to protect salmon, along with a decadelong plan to manage hydropower operations while meeting rising energy needs.

The agreement followed decades of litigation and prompted the plaintiffs to ask the court to pause proceedings. However, President Donald Trump directed federal agencies to withdraw from the agreement in an executive order titled “Stopping Radical Environmentalism to Generate Power for the Columbia River Basin.”

Trump accused the agreement of placing too much value on the treatment of fish and concerns about climate change over the “nation’s interests in reliable energy resources and the needs of American citizens.”

Simon lifted the stay in September, and the coalition of plaintiffs argued for stopgap measures to mitigate the extinction risk to endangered fish.

“This is not a situation that can wait,” argued Amanda Goodin, Earthjustice attorney representing the conservation groups.

Pointing to dwindling steelhead populations, the conservation groups accuse the federal government of relying on faulty new modeling to “throw out the most effective tool we have to protect these fish” rather than encourage restoration.

In seeking a preliminary injunction, the plaintiffs proposed an order that would require operational changes to the Columbia Basin hydropower system as fish migrate through dams and reservoirs in the Columbia and Snake Rivers. Among the requests are increasing “spill,” which helps juvenile fish pass over the dam rather than through turbines, and lowering reservoir elevations, which decreases the time fish spend migrating through them.

Simon questioned the state about whether their requested relief, which includes infrastructure repairs at various hydropower dams, is appropriate at this stage of the case or if relief of that scale is more fit for a final ruling.

“Not that I want to jump ahead to the end, but are we going to ever have a final trial?” Simon asked.

The plaintiffs argued that the repairs are vital to fish restoration.

“When it suits defendant’s needs, it gets the work done, and it just hasn’t suited their needs,” said Deanna Change, attorney with the Oregon Department of Justice.

Attorney Dave Cummings, representing the Nez Perce Tribe, argued that the relief sought by the plaintiffs are necessary immediate next steps — and in some cases, are actions once proposed by the federal defendants.

“It’s not just déjà vu all over again, it’s déjà vu all over again, only worse,” Cumming said.

The changes to hydropower operations would impact eight dams: Ice Harbor, Lower Monumental, Little Goose, Lower Granite, Bonneville, The Dalles, John Day and McNary.

Noting the long-running nature of the case, John Heidinger with the Washington Attorney General’s Office, dropped the afternoon’s third Berra reference: “It ain’t over till it’s over.”

“As we continue to argue, the conditions are getting worse and worse,” Heidinger said.

But the federal government disagreed with that sentiment and argued that the harms of the proposed order greatly outweigh any potential benefit.

Specifically, the federal defendants claimed that the plaintiffs were attempting to override the government’s discretion and seize control of the dams, which it argued would compromise operational safety and possibly raise utility rates.

But Simon noted that the plaintiffs weren’t asking the court to shut down hydroelectric operations in the Columbia Basin.

“Forcing hydropower to operate at minimum operation is getting close to shutting it down,” an attorney for the federal government argued.

The government admitted its position wasn’t too far from what the plaintiffs were seeking, prompting Simon to again question the parties about trying to reach some sort of agreement.

The government argued that lowering reservoir elevations decreases water depth and would force some dams to operate outside of normal operating range, which would not only impact dam operations but also harm fish passage.

Idaho appeared in support of the federal defendants, arguing that the plaintiffs’ proposed order would limit its fisheries managers from working on habitat restoration projects with the federal government.

Indicating he was likely to at least partially grant the plaintiffs’ motion for a preliminary injunction, Simon instructed both sides to confer on the proposed preliminary injunction order and submit a revised version in two weeks, using color coding to indicate which portions they agreed on and suggesting their respective alternatives to points in contention.

“I don’t want to cause more unintended consequences,” Simon said. The parties have until Feb. 20 to submit the revised order, and Simon indicated he would issue a final order on Feb. 23.

The federal judge concluded the hearing with one last Berra reference: “If you don’t know where you’re going, when you get there you will be lost.”