Idaho, Montana, Utilities, Ports File Opposition To Proposed Salmon Recovery MOU, Stay Mediated By Biden Administration

Idaho and Montana – along with the region’s public power utilities and inland ports in Idaho, among others, are opposed to the Biden Administration’s Memorandum of Understanding on Columbia Basin salmon recovery and have filed their displeasure in federal court, saying they were entirely left out of making the deal.

In mid-December, the Biden Administration, Columbia River treaty tribes and the states of Oregon and Washington agreed in an MOU to work to restore wild salmon populations in the Columbia and Snake river basins and to stay (delay) ongoing litigation for five years, with an option for the stay to extend out as long as 10 years.

The MOU and the stay request was filed in the U.S. District Court of Oregon Dec. 14. Signatories to the MOU and stay are the federal government and what the government calls the six sovereigns. They are Oregon and Washington, along with Columbia River tribes – Nez Perce Tribe, Confederated Tribes and Bands of the Yakama Nation, Confederated Tribes of the Umatilla Indian Reservation, and the Confederated Tribes of the Warm Springs Reservation.

In its opposition to the motion for a stay, the Public Power Council pointed out that there are actually 14 sovereigns in the Columbia River basin, including other tribes and the states of Montana and Idaho. So more than half the region’s sovereigns were left out of negotiations that would have a huge impact on dams, river transportation, agriculture and local economies, said PPC.

In a Dec. 15, 2023 press release, Idaho Gov. Brad Little and the state’s Lieutenant Gov. Scott Bedke called the agreement “on dam breaching” a “missed opportunity.”

“Instead of working together to find common ground, the signatories to the agreement pandered to their political supporters and paid no attention to the REAL impacts dam removal would have on Idahoans,” the Governor and Lt. Governor wrote.

“As Idaho state leaders, we are united in our strong opposition to removing the dams because it would eliminate a clean source of energy (hydropower) that powers the entire region, harm agriculture, and fundamentally change our economy for the worse.

“Sustaining healthy salmon and steelhead populations is important. But make no mistake, that is not what this deal does.

“The deal that was released to the parties with only weeks to examine is an aspirational document that spends Pacific Northwest ratepayer money with little to no accountability for outcomes in fish populations or energy production,” they wrote. “Perhaps what’s worse, the deal contemplates eliminating thousands of megawatts of clean energy while the region is facing an 8,000-megawatt energy deficit in the next decade.”

Although the agreement doesn’t directly propose breaching the four lower Snake River dams, it does lay out a plan to prepare the region through investments in habitat for salmon and steelhead, for reintroduction of the fish in areas blocked by dams and in infrastructure to get ready for a changed river and economies in eastern Washington and Idaho in the event the dams are removed (Congress would need to approve their removal).

While not fully endorsing removing the dams, Senator Patty Murray (D-WA) in a statement in mid-December supporting the MOU and its release to the public, said that “I will not let extinction happen on my watch and am determined to take major and comprehensive action to save our salmon.”

Thirteen species of Columbia/Snake river salmon and steelhead have been listed under the Endangered Species Act since the 1990s.

“The agreement announced today builds off the conclusions we reached in the Murray-Inslee process, outlining what will make real headway to save our salmon—while acknowledging the reality that breaching the Lower Snake River Dams is not realistic until we can fully replace the benefits they currently provide,” she said, acknowledging that the four dams may need to be breached. “Getting to this point will require doing much more to speed the transition to clean and renewable energy and making large-scale investments in our regional infrastructure, including our water infrastructure, to support agricultural producers.”

Murray’s full Dec. 18 statement is here.

In August 2022, Sen. Murray and Washington Gov. Jay Inslee released joint findings and recommendations at the conclusion of an extensive, months-long joint federal-state process that evaluated the feasibility of breaching the Lower Snake River Dams as a way of protecting endangered salmon and steelhead species. Murray and Inslee concluded that breach is not feasible at this time as more needs to be done to replace the benefits of the dams–particularly investments in clean energy—but that it is imperative to prioritize major salmon recovery projects that can be undertaken in the near term while other benefits of the dams are matched by medium and long-term regional investments.

Many of the issues are the outcome of lawsuits that have plagued operations at Columbia and Snake river dams. The National Wildlife Federation has challenged the federal Columbia River power system salmon and steelhead Biological Opinions eight times since 2001. The latest court challenge in 2020 was joined by the state of Oregon and others. That lawsuit has been on pause for over two years while parties sought a settlement. On Nov. 1, 2023, the parties, plaintiffs and defendants again asked the federal court to pause the lawsuit until Dec. 15.

Judge Michael H. Simon of the U.S. District Court in Oregon first stayed the litigation in 2021 for one year and then extended the stay another year to allow White House-mediated discussions on potential solutions. In early September 2023, Simon extended the stay for 60 more days to Oct. 31 to allow the litigants –fisheries advocates, states, tribes and federal agencies – to continue to hammer out a lasting agreement on how to operate a hydro system while recovering threatened and endangered salmon and steelhead.

Simon described next steps in his court when he issued a scheduling order Dec. 13, saying:

SCHEDULING ORDER – On October 31, 2023, Plaintiffs, Intervenor-Plaintiff State of Oregon, the Federal Defendants, and Amicus Nez Perce Tribe filed a “Notice Re Stay Expiration and Further Proceedings.” In that Notice, these parties stated that “by December 15, 2023, they intend to either present a joint motion to the Court (if the package of actions and commitments is approved) or a joint schedule for further proceedings.” The Court intends promptly to review whatever is filed by December 15, 2023, and will then allow any other party to be heard not later than December 29, 2023. If any opposition is filed by December 29, 2023, the moving parties may reply by January 12, 2024. The Court suspends all other deadlines.

The settlement document and a motion to delay proceedings for five years was filed by the moving parties (plaintiffs and defendants) by Dec. 15.

See the settlement documents here.

By Simon’s Dec. 29 deadline for other parties to file in opposition, the states of Idaho and Montana, the Public Power Council, Northwest RiverPartners and the Inland Ports and Navigation Group had filed, all opposing the stay.

In general, the parties oppose breaching the dams and losing the carbon-free energy they produce, as well as the barge transportation (mostly for grains) the dams enable. Utilities oppose paying the price through Bonneville Power Administration rates for expanded fish and wildlife projects, along with the cost of preparing local economies for dam breaching. All oppose the stay because it will allow the agreeing parties to begin the work laid out in the MOU without further input from parties not signatories to the MOU.

The Public Power Council, an organization of Northwest public utilities and BPA customers, even suggested that since the National Wildlife Federation has agreed to the MOU that it is taking another path other than litigation and that its lawsuit should be dismissed, not stayed.

“It seems clear that Plaintiffs no longer wish to challenge the September 2020 decisions pending before the Court, and Federal Defendants have effectively adopted new decisions supplanting them in any event,” the PPC wrote. “As a result, the claims challenging those decisions that are now more than three years old are effectively moot and should be dismissed.”

Commitments by the Biden Administration in the MOU include:

1- $300 million investment over ten years by BPA to restore native fish and their habitats throughout the Columbia River basin.

2- Support for one to three gigawatts of Tribally-sponsored clean energy projects to build energy infrastructure.

3- Increased Flexibility: The Administration is committing to adjustments to the operations of the Federal hydro-electric system of dams to deliver a net-benefit for salmon and steelhead in the Columbia River basin, while maintaining grid reliability and upholding health and safety requirements.

4- The Administration will undertake or help fund studies of how the transportation, irrigation, and recreation services provided by the four Lower Snake River dams could be replaced, to help inform Congress should it consider authorizing dam breach in the future.

Here is what others are saying in their opposition:

Public Power Council

BPA’s existing Fish and Wildlife Program already fulfills its duties under the Northwest Power Act to protect, mitigate, and enhance fish and wildlife affected by development and operation of the Columbia River system of dams, the PPC said in its court filing.

Importantly, it said, the NWPA provides that the Northwest Power and Conservation Council, a body established under that statute composed of two members from each of all four states affected by CRS operations, develops this program to guide Bonneville’s implementation of fish and wildlife mitigation projects,” the PPC wrote.

“The NWPPC is not a party to or even referenced in either the MOU or U.S. Government Commitments Document, however, and thus, these documents can only be seen as an attempted end run around NWPA’s carefully prescribed procedures requiring a robust fish and wildlife program balanced against the other vital purposes of the CRS in the development of which all affected states can fully participate.”

PPC’s remarks went on to say that BPA has an obligation to set the lowest possible electricity rates. “There is no indication whatsoever in the funding commitments Bonneville has undertaken in the Motion’s supporting documents that it gave any consideration whatsoever to its duty in this respect,” the PPC wrote. “To the contrary, given the profligate amounts of new funding to which BPA has committed itself in the USG Commitments …, it appears as if low rates may have been the farthest thing from its mind.”

“Finally, and in some ways most troubling because it affects the entirety of BPA’s undertakings in adopting the actions and commitments in the MOU and its supporting documents is that it did so all under the auspices of confidential mediation discussions, often with only selected participants, meaning that there was no meaningful due process or opportunity for customer participation, and with no agency rationale ever offered, rendering BPA’s decision to adopt the actions and commitments virtually arbitrary and capricious on their face under the Administrative Procedure Act.”

Idaho

Idaho opposes the motion to stay because doing so “would effectively lock Idaho out of court.” Staying the litigation, it continued, would prejudice Idaho’s interest in having its claims heard.

Further, it wrote in its opposition to the stay, “the proposed settlement will undoubtedly impact Idaho’s sovereign interests and conflict with State law and contractual rights and obligations.

The Little and Bedke press release said that the inland ports, agriculture commodity groups and local communities that are impacted by the deal are all opposed to the settlement agreement, “and for good reason. Not only were they not included in the process, but they were flatly ignored when they tried to give input.”

“We believe the authors of this deal are genuine in their desire to do what they believe is right for the constituents. Unfortunately, it appears they only listened to a select few constituents in the region while disregarding many.

“A truly inclusive process would have acknowledged that we can provide structural repairs and improvements that benefit fish while simultaneously preserving the region’s critical access to clean hydropower the dams provide.

“A better process would have uncovered river operations that would improve fish passage.

“A better process would have revealed that the region needs MORE energy production on top of our current baseload.

“In fact, a better process still may have even included many of the fish restoration projects contained within the current settlement document.

“But as long as the proponents of the agreement include language that suggests we breach clean hydropower, Idaho has no choice but to stand in opposition. We simply can’t afford to let Idaho communities, farmers, and ratepayers suffer.”

For the Little and Bedke press release, go here.

Inland Ports and Navigation Group

IPNG opposes the stay because it would put in place a ten-year plan (assumes a ten-year stay) of operations starting in spring 2024 without “consulting navigation or taking into account proper safety precautions.”

It “undermines over 40 years of collaboration between navigation and the U.S. Army Corps of Engineers and departs from the spill operations modeling that this Court ordered in 2017.” Not modeling new spill operations would cause safety concerns for users of the river, IPNG added.

“If any modeling has been done, the mariners who are on the Columbia and Snake Rivers every day have not been asked for their expertise on the effects of these spills on navigation safety and fish health,” IPNG said in its filing with the court.

“Side agreements such as this MOU and the USG Commitments removes certain parties from dispute resolution all together,” the group says. “IPNG has been a party to this litigation for over 20 years and holds real interests at stake. The MOU sidesteps those interests and raises the very same concerns that prompted the Court to deny NWF and the State of Oregon’s motion for injunctive relief in 2017. Resolution of this dispute with continued collaboration of all parties—including IPNG—is the most efficient way to find the best methods for spill that is safe for navigation and beneficial for the fish.”

IPNG is made up of public ports in Washington, Idaho, and Oregon, farmers, and members of the towboat, cruise ship, grain, and forest products industries, representing the interests of navigation and commerce on the Columbia Snake River.

Montana

“Like the State of Idaho, the State of Montana was excluded from the confidential settlement negotiations that led to the Memorandum of Understanding (MOU) underpinning the Joint Stay Motion and believes that the MOU and the “United States Government Commitments” document referenced therein leave unanswered important questions about the full ramifications of the agreement negotiated among the MOU parties to the exclusion of other parties to this case, including the sovereign states of Montana and Idaho,” the State of Montana said in its filing with the court. “This is particularly so related to the impacts implementation of the commitments made by the United States may have on Montana’s electric cooperatives and their customers who rely on the Bonneville Power Administration for reliable and affordable electricity, concerns Montana might have been able to address had the United States conducted a meaningfully transparent and inclusive settlement process.

“The State of Montana believes the State of Idaho should have its day in court before any multi-year stay of this litigation is ordered.”

Northwest RiverPartners

NW Riverpartners simply said that “For the reasons expressed in the Public Power Council’s (“PPC”’s) Response to the Joint Motion to Stay Litigation Through 2028, Northwest River Partners hereby opposes the Joint Motion. In addition, as explained in PPC’s opposition, River Partners expressly reserves its rights to bring future challenges to agency actions embedded within the “U.S. Government Commitments” that form the basis for the underlying stay motion.”

For background, see:

— CBB, December 15, 2023, BIDEN ADMINISTRATION, TWO STATES, TREATY TRIBES REACH MOU ON COLUMBIA RIVER BASIN SALMON RECOVERY, LITIGATION PAUSED FOR AT LEAST FIVE YEARS, https://columbiabasinbulletin.org/biden-administration-two-states-treaty-tribes-reach-mou-on-columbia-river-basin-salmon-recovery-litigation-paused-for-at-least-five-years/

— CBB, Dec. 13, 2023, D.C. SUBCOMMITTEE HEARING: NW GOP LAWMAKERS COMPLAIN ABOUT CONFIDENTIAL (LEAKED) DRAFT SALMON SETTLEMENT TALKS, https://columbiabasinbulletin.org/d-c-subcommittee-hearing-nw-gop-lawmakers-complain-about-confidential-leaked-draft-salmon-settlement-talks/

— CBB, November 30, 2023, Leaked Court Mediation Document Listing Actions and Commitment for basin Salmon recovery draws objections, questions, https://columbiabasinbulletin.org/leaked-court-mediation-document-listing-actions-and-commitments-for-basin-salmon-recovery-draws-objections-questions/

— CBB, November 16, 2023, REPUBLICAN U.S. HOUSE MEMBERS REQUEST ALL CEQ DOCUMENTS RELATED TO MEDIATION, SETTLEMENT DISCUSSIONS ON LOWER SNAKE DAMS, https://columbiabasinbulletin.org/republican-u-s-house-members-request-all-ceq-documents-related-to-mediation-settlement-discussions-on-lower-snake-dams/

— CBB, November 3, 2023, COLUMBIA/SNAKE SALMON RECOVERY LAWSUIT ON HOLD AGAIN AS PARTIES SEEK BUY-IN ON ‘ACTIONS AND COMMITMENTS’ NOT YET MADE PUBLIC, https://columbiabasinbulletin.org/columbia-snake-salmon-recovery-lawsuit-on-hold-again-as-parties-seek-buy-in-on-actions-and-commitments-not-yet-made-public/

— CBB, September 28, 2023, BIDEN ADMINISTRATION MEMO ORDERS FEDERAL AGENCIES TO REVIEW ALL COLUMBIA BASIN SALMON RECOVERY PROGRAMS, IDENTIFY NEEDS, PRIORITIZE ACTIONS, https://columbiabasinbulletin.org/biden-administration-memo-orders-federal-agencies-to-review-all-columbia-basin-salmon-recovery-programs-identify-needs-prioritize-actions/

— CBB, September 23, 2023, BIDEN ADMINISTRATION SAYS BPA TO PROVIDE $200 MILLION OVER 20 YEARS TO ADVANCE SALMON REINTRODUCTION IN UPPER COLUMBIA RIVER BLOCKED AREAS, https://columbiabasinbulletin.org/biden-administration-says-bpa-to-provide-200-million-over-20-years-to-advance-salmon-reintroduction-in-upper-columbia-river-blocked-areas/

— CBB, September 7, 2023, JUDGE APPROVES THIRD EXTENSION ALLOWING PARTIES IN LAWSUIT OVER COLUMBIA RIVER BASIN SALMON RECOVERY TO KEEP TALKING, https://columbiabasinbulletin.org/judge-approves-third-extension-allowing-parties-in-lawsuit-over-columbia-river-basin-salmon-recovery-to-keep-talking/

— CBB, August 31, 2022, INSLEE-MURRAY LOWER SNAKE DAM REPORT: REACTION RANGES FROM ‘PRESUMPTIVE PATH TO BREACHING’ TO DAM REMOVAL NOT GOING TO HAPPEN, https://columbiabasinbulletin.org/inslee-murray-lower-snake-dam-report-reaction-ranges-from-presumptive-path-to-breaching-to-dam-removal-not-going-to-happen/

— CBB, October 6, 2022, NOAA FISHERIES FINALIZES ‘REBUILDING’ REPORT TO INFORM DIALOGUE ON COLUMBIA RIVER BASIN SALMON RESTORATION, https://columbiabasinbulletin.org/noaa-fisheries-finalizes-rebuilding-report-to-inform-dialogue-on-columbia-river-basin-salmon-restoration/

— CBB, Nov. 18, 2021, PHASE 2 REINTRODUCTION OF ANADROMOUS FISH ABOVE GRAND COULEE DAM: TRIBES SEEK SUPPORT FOR FUNDING ($176 MILLION OVER 21 YEARS), IMPLEMENTATION, https://columbiabasinbulletin.org/phase-2-reintroduction-of-anadromous-fish-above-grand-coulee-dam-tribes-seek-support-for-funding-176-million-over-21-years-implementation/

–CBB, August 11, 2022, NOAA TAKING COMMENTS FROM FISHERIES MANAGERS ON SALMON REBUILDING REPORT KEY TO ADMINISTRATION’S COLLABORATIVE RECOVERY EFFORTS, https://columbiabasinbulletin.org/noaa-taking-comments-from-fisheries-managers-on-salmon-rebuilding-report-key-to-administrations-collaborative-recovery-efforts/

–CBB, August 4, 2022, JUDGE AGREES TO EXTEND STAY ON COLUMBIA/SNAKE SALMON RECOVERY CASE FOR ANOTHER YEAR AS PARTIES SEEK ‘COMPREHENSIVE SOLUTIONS’ https://columbiabasinbulletin.org/judge-agrees-to-extend-stay-on-columbia-snake-salmon-recovery-case-for-another-year-as-parties-seek-comprehensive-solutions/

–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/

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Idaho, Montana, Utilities, Ports File Opposition To Proposed Salmon Recovery MOU, Stay Mediated By Biden Administration

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