SNAKE RIVER SALMON LITIGATION PAUSED BY JUDGE MICHAEL SIMON OF THE U.S. DISTRICT COURT IN OREGON

On Thursday, February 8, 2024, Judge Michael Simon of the U.S. District Court in Oregon approved a five year stay in an Endangered Species Act lawsuit initiated by the National Wildlife Federation on the Snake River Salmon population decline to afford the federal government, Northwestern tribes, environmental groups, Washington state, and Oregon state time to test an agreement worth $1 billion that would resolve the dispute without breaching the four Snake River Dams. Judge Simon’s order included a provision that could extend the stay an additional five years after the initial stay expires in 2028. This stay opens the door for the Biden Administration to explore it is $1 billion dollar proposal to fund efforts aimed at fish restoration and tribal clean energy products, provide updated federal hydropower operations, and provide alternative services for transportation, recreation, and irrigation provided by Ice Harbor, Lower Monumental, Little Goose, and Lower Granite Dam.

Action Items Included in the Biden Administration Proposal:

• The U.S. Energy Department would work with the Nez Perce Tribe, the Confederated Tribes of the Yakama Nation, the Confederated Tribes of the Umatilla Indian Reservation, and the Confederated Tribes and Bands of the Warm Springs Reservation of Oregon to build one to two gigawatts of renewable energy infrastructure aiming to offset lost energy if dams are breached,
• Over a ten-year period, the Bonneville Power Administration would fund $300 million for fish restoration projects and upgrades to hatcheries with states and tribes maintain some control over these monies,
• Conduct operational adjustments to some of the dams, and
• Fund studies on transportation alternatives if the lower Snake River Dams were breached.

Farmers, shippers and utilities are fiercely opposed to breaching the lower Snake River Dams as they are concerned about the loss of shipping routes via barge, a renewable energy source, and a sustainable water source. The lower Snake River Dams provide routes to transport 10% of the nation’s wheat exports, the ability to generate 1,000 megawatts of energy annually, and provides irrigation for thousands of farmland acres. The Pacific Northwest Waterways Association (PNWA) and the Washington Association of Wheat Growers have expressed criticism of the proposed agreement stating that there was not adequate consultation and entities were left out of discussions. Filed court documents submitted by the PNWA-linked Inland Ports and Navigation Group and the Public Power Council objecting to some of the federal government commitments defined by the proposal were deemed by Judge Simon to be irrelevant to the motion to stay. Judge Simon addressed the Public Power Council’s challenge of the length of the pause by stating it would provide plaintiffs to provide opportunity to seek permanent solutions outside of litigation.

In a House Energy and Commerce Meeting on January 31, 2024, the Council on Environmental Quality Chair Brenda Mallory stressed that the administration is not providing a judgement on the removal of the dams but taking advantage of the ten-year period to conduct studies to support Congress in their decision on the dams. She solidified that only Congress could authorize the breaching of the dams.