States, tribes get partial victory in Columbia River Basin salmon battle

PORTLAND, Ore. (CN) — In a win for a coalition of conservation groups, tribes and the states of Washington and Oregon, a federal judge on Wednesday partially granted their request for a preliminary injunction in a long-running lawsuit regarding the recovery of salmon in the Columbia Basin.

"For decades, the battle for the life of threatened and endangered salmon and steelhead has not been fought at the end of a hook and line, nor in the woven threads of a fishing net, nor even based on the appetites of sea lions, avian predators, or killer whales. Instead, the greatest battle has been waged in the courts," U.S. District Judge Michael Simon, a Barack Obama appointee, wrote in a 47-page opinion.

The lawsuit over fish conditions began in 2001 and had reached an agreement until the Trump administration in June abruptly withdrew from the Biden-era 2023 Resilient Columbia Basin Agreement, which promised to spend $1 billion to protect endangered steelhead and salmon.

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.”

Columbia Riverkeeper, one of the conservation group plaintiffs, celebrated the ruling.

"The hydropower interests that convinced Trump to break the Resilient Columbia Basin Agreement got what they wanted," Miles Johnson, legal director for Columbia Riverkeeper, said in a statement. "Because of their actions, today's ruling is necessary to protect fish and fishing in the Columbia River — and it will not disrupt energy production or reliability in the Northwest."

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

On Wednesday, Simon found that the plaintiffs were likely to succeed on their challenge to a 2020 biological opinion completed during Trump's first term that concluded that the Federal Columbia River Power System was unlikely to jeopardize salmon.

"The jeopardy analysis in the 2020 [biological opinion] is a 'novel' approach that is 'completely at odds with [National Marine Fisheries Service's] prior scientific approaches, [thus] it merits little deference,'" Simon wrote.

The coalition of plaintiffs successfully argued that the biological opinion, at its core, attempted to manipulate the variables to achieve a "no jeopardy" finding.

Simon also agreed with the plaintiffs' argument that the National Marine Fisheries Service "essentially gave lip service to climate change" by merely noting it exists without considering the significant increase in mortality to the life cycle of salmonids into consideration.

The judge found that the coalition of states, tribes and conservation groups were likely to be harmed without court intervention, and noted that the defendants' proposed action is largely a continuation of previous Federal Columbia River Power System operations found to be violating environmental law.

"Given the current record, it is reasonable to conclude that the listed species' prognosis is as bad as — or worse than — it has ever been," Simon wrote.

The dam operations, as acknowledged by the federal defendants in the 2020 biological opinion, will kill a substantial amount of the 14 endangered and threatened populations of salmonids at issue in the case.

"For some populations, the rate of slaughter is likely to be so high as to result in generational decline," Simon wrote. "Thus, as the court has held before, the proposed action is likely to 'strongly contribute to the endangerment of the listed species and irreparable injury will occur if changes are not made.'"

Simon found that the interests of the endangered species outweigh the economic and social interests raised by the federal defendants — which include concerns relating to power system reliability, flood risk, transportation, irrigation and water access, which Simon noted were mitigated by existing protocols and a tailored injunction.

"This case has a long history of failed [biological opinions], court intervention and monitoring, and federal defendants' attempts to 'manipulate' variables and engage in 'sleight of hand' conduct to avoid making hard decisions and face the consequences of its actions," Simon wrote. "It appears that the 2020 BiOp and 2020 FEIS follow this disappointing history of
government avoidance and manipulation instead of sincere efforts at solving the problem and
genuinely remediating the harm."

Simon ordered the federal defendants to use the 2025 operating reservoir levels and increase the spill — which helps juvenile fish pass over the dam rather than through turbines.

However, Simon declined to order the defendants to undertake specific dam infrastructure repair and maintenance projects and declined to impose additional conservation measures requested by the coalition.

"The court’s ruling today is the first step in providing much needed relief for salmon and steelhead on the Columbia and Snake Rivers in time for the spring migration season. These fish are on the brink of extinction, and the hydropower system plays a crucial role in their critical decline," Oregon Attorney General Dan Rayfield said in a statement.

The federal defendants did not respond to a request for comment before press time.