Aug. 31, 2023
By Orion Donovan Smith
After nearly two years of negotiating, the Biden administration and a coalition of Northwest tribes, environmental groups and other parties agreed Thursday to continue talks that could lead to breaching the Lower Snake River dams in an effort to help endangered salmon recover.
The two sides asked a federal court in Oregon for a 60-day extension of a stay in litigation that was set to expire at the end of the day. The relatively short extension suggests the two sides may be nearing a breakthrough after more than two decades of legal battles over the operations of federally managed dams in the Columbia Basin and their impact on salmon and steelhead runs.
“Salmon are in crisis, and we owe it to them to focus on durable solutions – including restoring the Lower Snake River – that work for the fish, honor our Treaty, and build a stronger, more resilient Northwest,” Shannon Wheeler, chairman of the Nez Perce Tribe, said in a statement.
The latest chapter in the legal saga began when the Nez Perce Tribe, along with the state of Oregon and a coalition of conservation groups led by Earthjustice, sued the Trump administration over a 2020 plan released by federal agencies for managing dams and protecting salmon.
The Spokane and Coeur d’Alene tribes are also among the litigants that agreed to continue negotiating. The federal agencies sued by the fish advocates are the U.S. Army Corps of Engineers, Bureau of Reclamation, Bonneville Power Administration, Fish and Wildlife Service and the National Marine Fisheries Service.
After President Joe Biden took office, a federal judge in Portland granted a joint request by the two sides in October 2021 to pause litigation and let them try to reach a settlement in the long-running dispute. In August 2022, the parties agreed to extend the stay for a year.
In a statement Thursday, the White House Council on Environmental Quality said the government had agreed to continue talks “to develop a long-term, durable path forward that restores healthy and abundant salmon and other native fish to the Columbia River Basin, honors long-standing commitments to Tribal Nations, delivers affordable and reliable clean energy, and meets the many resilience needs of the region.”
The salmon and steelhead that migrate from the Pacific Ocean to spawn in the Columbia Basin have declined in numbers in the decades since the federal government built dams to harness the rivers’ power, but the dams’ defenders argue that technological advances let enough fish pass the dams that breaching them is unnecessary. The dams also provide benefits by generating electricity, irrigating Eastern Washington farmland and letting barges travel between the Pacific and Lewiston, Idaho.
Advocates of dam breaching, meanwhile, argue the dams have such a dramatic impact on fish – including long-term effects on salmon that manage to get past the dams – that restoring the Snake River’s natural flow is necessary to ensure their survival.
Earthjustice, a nonprofit legal advocacy group, wrote in a brief news release, “Salmon of the Columbia River Basin – and the people, wildlife, and ecosystems that rely upon them – require urgent action to prevent extinction.”
Over the past two decades, federal judges have ordered changes to how the federal government operates the dams, including by spilling more water over the dams to let fish pass more easily at the expense of generating electricity.
Amanda Goodin, the lead attorney on the case at Earthjustice, said a settlement with the federal government may offer broader changes.
“You can achieve some things in court, but a comprehensive solution that addresses a wide range of needs in the basin is not really one of them,” Goodin said.
The stay in litigation doesn’t mean there can’t be other lawsuits over the dams’ impact on salmon. On July 21, a coalition of conservation and fishing groups filed a 60-day notice of intent to sue the Army Corps of Engineers – which operates the four Lower Snake River dams – “for causing hot water conditions that kill and injure Snake River sockeye salmon in violation of the Endangered Species Act.”
The groups behind that forthcoming lawsuit – Columbia Riverkeeper, the Idaho Conservation League, the Northwest Sportfishing Industry Association and Idaho Rivers United – say they intend to ask a judge to order the breaching of the dams. Miles Johnson, legal director at Columbia Riverkeeper, said Thursday that it was too early to say whether an extension to the litigation pause would affect their plans.
Rep. Cathy McMorris Rodgers, a Spokane Republican and staunch defender of the dams, responded to the notice of intent to sue by pointing to a statement by the Biden administration that dam breaching would require an act of Congress.
“Dam-breaching advocates don’t care about the facts,” McMorris Rodgers said. “If they did, they would see how fundamentally flawed their new lawsuit is. Only Congress has the authority to change the way these federally-managed dams operate.”
The extended pause in litigation, which a judge is likely to approve, could result in a settlement that would also be subject to legal challenges.