Jan 082015

A federal judge has rejected a request for a preliminary injunction that would prevent dredging of the lower Snake River (Idaho Rivers United v. U.S. Army Corps of Engineers, 14-1800 JLR, W.D. Wa.; order below).

"Because the court has found that plaintiffs have failed to demonstrate three of the required elements necessary for issuance of a preliminary injunction (that there is a likelihood of irreparable harm in the absence of an injunction, that the balance of equities favors an injunction, and that an injunction would be in the public interest), the court DENIES plaintiffs’ motion for a preliminary injunction," U.S. District Judge James L. Robart said in his Jan. 7 order. He had already issued a decision from the bench on Jan. 5.

Dredging is scheduled to begin next week.

Robart's order addressed only "the propriety of granting the extraordinary relief of a preliminary injunction with respect to the Corps’ 'immediate need' proposed dredging of portions of the lower Snake River." The groups' complaint also challenged the Corps’ long-term plan for addressing sediment accumulation in the Snake River from Lewiston, Idaho, to its confluence with the Columbia River.

The order contained a discussion of the standard for issuing an injunction under NEPA, in light of the Supreme Court's narrowing of that standard in Winter v. Natural Res. Def. Council, 555 U.S. 7 (2008) -- to a "likelihood of irreparable harm" instead of merely a "possibility."

At issue in the dispute was/is the likelihood of harm to the Pacific lamprey, a "culturally significant resource" for local tribes.

"Plaintiffs alternatively argue that the National Marine Fisheries Service’s conclusion that 'take' of listed salmonids will result from the Corps’ proposed dredging translates into a finding of irreparable harm to the species per se."

However, the judge said that position was insupportable "because they have failed to challenge the NMFS’s biological opinion at all. Having failed to undertake this challenge, the court rejects their argument that they are irreparably harmed as a result of a permitted take of salmonids."

Plaintiffs in the case are Idaho Rivers United, Washington Wildlife Federation, Pacific Coast Federation of Fishermen’s Associations, Institute for Fisheries Resources, Sierra Club, Friends of the Clearwater, and Nez Perce Tribe.

The court granted unopposed motions to intervene on behalf of the Inland Ports and Navigation Group and the Columbia Snake River Irrigators Association.

More coverage of the decision and the issue from Capital Press. Click the Idaho Rivers United link above for a press release on the complaint.