Judge Agrees To Extend Stay On Columbia/Snake Salmon Recovery Case For Another Year As Parties Seek ‘Comprehensive Solutions’

U.S. District Court Judge Michael H. Simon this morning agreed to a request by the Biden Administration and plaintiffs to extend for another year the stay in the litigation challenging the federal government’s environmental impact statement and biological opinion for Columbia/Snake river salmon and steelhead. The parties want more time to identify “comprehensive” solutions to basin salmon recovery.

A stay, says this morning’s filing by the federal government and plaintiffs, would give parties time to “continue working toward solutions that have the potential to resolve all claims in this litigation.” Simon granted the order soon after it was filed with no comment.

Accompanying this morning’s filing is an “exhibit” listing “United States Commitments,” including “The Administration commits to exploring lower Snake River habitat restoration opportunities, including but not limited to migration corridor restoration through breaching the four lower Snake River dams.”

In October, Simon approved the pause in litigation until July 31 while parties to the lawsuit searched for a comprehensive solution to recover 13 species of Columbia and Snake river salmon and steelhead listed under the Endangered Species Act.

Since then, the Biden Administration has been active in trying to put together a collaborative process to develop recovery strategies, including the use of the Federal Mediation and Conciliation Services www.fmcs.gov.

The Administration and plaintiffs asked Simon to stay the case through August 31, 2023.

“During the litigation stay, the United States prepared for and started engaging with other Tribes, States, and stakeholders on timely, basin-wide, durable comprehensive solutions that have the potential for resolving this litigation,” said the filing by Todd Kim, Assistant Attorney General, Romney Philpott, Senior Attorney, and Michael Eitel, Senior Trial Attorney, all with the U.S. Department of Justice, Environment & Natural Resources Division.

“As part of these efforts, the United States committed to developing strategies through inclusive regional collaborative processes that restore native fish and their affected habitats, honor the United States’ commitments to Tribal Nations, deliver affordable clean power, and satisfy other interests served by the Columbia River System projects.

“The United States also secured the services of the Federal Mediation and Conciliation Service to facilitate meaningful engagement on comprehensive solutions by the United States, Tribes, States, and Stakeholders. The Moving Parties have committed to engage with each other and other Tribes, States, and stakeholders within the FMCS process. They agree and expect that the first task following a continued litigation stay is for the Administration, in the forums managed by FMCS, to expeditiously collaborate with affected Tribes, States, and regional stakeholders and to produce by no later than December 1, 2022, a schedule of Administration actions and critical milestones that the Administration intends to pursue.”

Based on expectations “that the participants in the FMCS process meaningfully collaborate and that sufficient progress is made on identifying and implementing comprehensive basin-wide solutions, the Moving Parties believe that a continued stay of the litigation is warranted. This stay will allow the Moving Parties and others to continue working toward solutions that have the potential to resolve all claims in this litigation.

“In requesting a stay, the Moving Parties agree that the FMCS process and the participants need to make substantial progress on identifying and implementing comprehensive basin-wide solutions. Every 90 days during the extended stay, the Moving Parties therefore agree to file with the Court and serve on the parties and amicus a progress report of steps and actions taken during the FMCS process. The Moving Parties also agree that any party can move to lift the litigation stay for good cause, which can include the lack of sufficient progress on identifying and timely implementing comprehensive basin-wide solutions, whether due to the action or inaction of the Administration, the Plaintiffs, or any other party.”

The “Moving Parties” are the National Wildlife Federation et al., the State of Oregon, the Nez Perce Tribe, the Coeur d’Alene Tribe, the Spokane Tribe, and the United States.

In the United States Commitments exhibit, the Biden Administration says it is “committed to supporting development of a durable long-term strategy to restore salmon and other native fish populations to healthy and abundant levels, honoring Federal commitments to Tribal Nations, delivering affordable and reliable clean power, and meeting the many resilience needs of stakeholders across the region.

“The Administration recognizes that business as usual will not achieve the goals of restoring salmon populations and ecosystem functions and that, despite hard work, ingenuity, great expense, and commitment across all levels of Federal, State, Tribal, and local governments and a wide range of stakeholders, many fish populations in the Columbia River Basin—salmon, steelhead, and others—have not recovered, some continue to decline, and many areas remain inaccessible to them. In the face of climate change, urgent action is needed to restore salmon and other native fish populations to healthy and abundant levels. The Administration is committed to rapidly engaging on comprehensive, durable solutions in the Columbia River Basin.”

The Administration pledged these commitments:

–Commits NOAA and the USFWS to review comments on the draft salmon rebuilding report from Tribal and State fishery managers and scientists and finalize the report on or before September 30, 2022, or within 30 days of the close of the comment period if reasonable requests for an extension of the comment period from Tribal or State fishery managers and scientists are received and granted. The Administration recognizes time is of the essence to have a final science-based report for policymakers and agrees to proceed accordingly.

–Commits to thoroughly examining and supporting all legislative proposals to advance salmon restoration in the Columbia River and examining all legislative proposals that undermine such restoration.

–Commits to exploring lower Snake River habitat restoration opportunities, including but not limited to migration corridor restoration through breaching the four lower Snake River dams.

–Commits to collaborating with sovereigns and other stakeholders and to immediately exploring appropriated or otherwise available short- and long-term funding opportunities and actions identified by Plaintiffs and other regional stakeholders—including addressing unmitigated Tribal needs, avoiding future issues with respect to creating inequities, and actions supporting salmon and other fisheries and fish and wildlife programs and infrastructure that can be implemented in 2023 and subsequent years. The Administration understands that this commitment will require ensuring adequate funds are available for agreed upon short- and long-term measures. By December 1, 2022, the Administration agrees to identify those short-term funding, operational, and other actions that can be implemented in 2023 based on actual and projected funding available from sources across the federal Departments and Agencies.

–Commits to examining all current funding opportunities in 2023 and seeking additional funding for new power and transmission resources to offset future changes to the CRS (Columbia River System) as well as other emerging energy needs. The Administration understands that “future changes to the CRS” contemplates a broad set of future changes related to spills and other operational changes in addition to potentially breaching the four lower Snake River dams.

–Specific to reintroduction, the Administration commits to developing and implementing a plan to explore providing full support for and funding of Phase II reintroduction actions as well as other reintroduction efforts in the Upper Columbia River. The Administration commits to summarizing the status of the plan and progress on its implementation for these actions by December 30, 2022.

–Commits to extending the current agreed upon operations in the October 2021 Term Sheet for Stay until August 31, 2023. By October 31, 2022, the Administration commits to evaluating and, as appropriate, adopting any reasonable operational changes proposed by Plaintiffs based on lessons learned from implementation of 2022 spill operations. The Administration further commits to exploring with Plaintiffs and other sovereigns post 2023 operations as part of a long-term comprehensive solution.

–Commits to collaborating with affected Tribes, States, and regional stakeholders in the FMCS process and, by December 1, 2022, producing a schedule of Administration actions and critical milestones to meet the Administration’s principles and commitments described herein and which the Administration intends to pursue.

Also this morning, the state of Idaho filed a motion saying it did not oppose an order to extend the stay but said, “While the State of Idaho recognizes that breaching of these dams will be examined as part of this process, Idaho is opposed to any actions that lead to the breaching of the lower four Snake River Dams.”

The Confederated Tribes of the Umatilla Indian Reservation, the Confederated Tribes of the Warm Springs Reservation of Oregon, the Confederated Tribes and Bands of the Yakama Nation, the Confederated Tribes of the Colville Reservation, the State of Washington, and the Northwest Power and Conservation Council supported the motion.

Along with the state of Idaho, The Kootenai Tribe of Idaho, the Confederated Salish and Kootenai Tribes, the State of Montana, the Inland Ports and Navigation Group, and the Public Power Council did not oppose the motion to stay.

The Columbia-Snake River Irrigators Association, and Northwest RiverPartners did not indicate a position of support for or opposition to the motion.

–Bill Crampton, billcrampton@bendcable.com

Also see:

–CBB, July 15, 2022, WHITE HOUSE ISSUES REPORTS ON BASIN SALMON RECOVERY, COSTS; ‘BUSINESS AS USUAL’ NOT RESTORING ESA-LISTED SALMON, STEELHEAD https://columbiabasinbulletin.org/white-house-issues-reports-on-basin-salmon-recovery-costs-business-as-usual-not-restoring-esa-listed-salmon-steelhead/

— CBB, June 30, 2022, FEDERAL MEDIATORS FOR COLUMBIA BASIN SALMON RECOVERY HOPE FOR EXTENSION OF LITIGATION PAUSE; WOULD GIVE MORE TIME FOR COMPREHENSIVE PLAN https://columbiabasinbulletin.org/federal-mediators-for-columbia-basin-salmon-recovery-hope-for-extension-of-litigation-pause-would-give-more-time-for-comprehensive-plan/

–CBB, March 31, 2022, WHITE HOUSE PLANS ON BEING INVOLVED WITH COLUMBIA BASIN SALMON RECOVERY AS BIOP LITIGATION TALKS CONTINUE; COLLABORATIVE APPROVES A CHARTER https://columbiabasinbulletin.org/white-house-plans-on-being-involved-with-columbia-basin-salmon-recovery-as-biop-litigation-talks-continue-collaborative-approves-a-charter/

— CBB, October 27, 2021, “Federal Judge Approves Pause In Salmon/Steelhead EIS/BiOp Case; Parties ‘In Good Faith Discussions To Resolve Litigation,’” https://columbiabasinbulletin.org/federal-judge-approves-pause-in-salmon-steelhead-eis-biop-case-parties-in-good-faith-discussions-to-resolve-litigation/

— CBB, October 22, 2021, “Parties Put Salmon/Steelhead BiOp Litigation On Hold, Commit To Working Together To Find ‘Comprehensive, Long-Term Solution,’” https://columbiabasinbulletin.org/parties-put-salmon-steelhead-biop-litigation-on-hold-commit-to-working-together-to-find-comprehensive-long-term-solution/

— CBB, June 11, 2021, “Columbia Basin Collaborative Second Workshop Focuses On Year-Long Process To Achieve Salmon Recovery Recommendations,” https://columbiabasinbulletin.org/columbia-basin-collaborative-second-workshop-focuses-on-year-long-process-to-achieve-salmon-recovery-recommendations/

— CBB, January 29, 2021, “Columbia Basin Collaborative Schedules Organizational Workshop To Discuss ‘Proposed Process Approach’, Goal to Create ‘Salmon Ethic’” https://www.www.www.columbiabasinbulletin.org/columbia-basin-collaborative-schedules-organizational-workshop-to-discuss-proposed-process-approach-goal-to-create-salmon-ethic/

— CBB, Dec. 11, 2020, OREGON FILES INTENT TO CHALLENGE FEDS’ NEW EIS/BIOP FOR BASIN SALMON/STEELHEAD IN CASE REGIONAL COLLABORATION GOES NOWHERE, https://www.www.www.columbiabasinbulletin.org/oregon-files-intent-to-challenge-feds-new-eis-biop-for-basin-salmon-steelhead-in-case-regional-collaboration-goes-nowhere/

— CBB, Oct. 23, 2020, CONSERVATION/FISHING GROUPS ISSUE NOTICE OF INTENT TO SUE OVER FEDERAL AGENCIES’ NEW PLAN FOR OPERATING COLUMBIA/SNAKE DAMS WITHOUT JEOPARDIZING SALMON, STEELHEAD, https://www.www.www.columbiabasinbulletin.org/conservation-fishing-groups-issue-notice-of-intent-to-sue-over-federal-agencies-new-plan-for-operating-columbia-snake-dams-without-jeopardizing-salmon-steelhead/

— CBB, Oct. 15, 2020, NW STATES AGREE TO ‘DEFINE A FUTURE COLLABORATIVE FRAMEWORK’ FOR ACHIEVING ABUNDANCE GOALS FOR COLUMBIA BASIN SALMON/STEELHEAD, https://www.www.www.columbiabasinbulletin.org/nw-states-agree-to-define-a-future-collaborative-framework-for-achieving-abundance-goals-for-columbia-basin-salmon-steelhead/

For more stories go to https://columbiabasinbulletin.org/category/litigation/

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