DC Court of appeals will not hear hoopa trout suit 010511 Klamath dams

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http://www.siskiyoudaily.com/news/x2135347027/D-C-Court-of-Appeals-will-not-hear-Hoopa-trout-suit

D.C. Court of Appeals will not hear Hoopa trout suit

by David Smith, Siskiyou Daily News 1/5/11

Washington, D.C. — With much recent focus on salmon, one species of fish made its way to the national stage without much notice, where the United States Court of Appeals for the District of Columbia Circuit denied a request to hear the Hoopa Valley Tribe’s appeal of a Federal Energy Regulatory Commission (FERC) decision on the Klamath River.

The case deals with the tribe’s request that FERC implement interim conditions on the Klamath Hydroelectric Project, which includes four dams slated for possible removal under the Klamath Hydroelectric Settlement Agreement (KHSA), in order to protect Klamath trout populations.

According to the briefs submitted on behalf of FERC and the Hoopa Tribe, the license for the Klamath project expired in March of 2006, with the subsequent relicensing delayed by the dam removal negotiations.

FERC has a number of mitigations that would go with a new license, should the dams stay in place, including minimum flow conditions and “ramping” requirements proscribed by the United States Department of the Interior (DOI) at JC Boyle Dam, which is located in Oregon.

The Hoopa brief states that the tribe sought to have the DOI requirements implemented in the interim period until the dams are relicensed, which is the expected outcome if the dams are not removed.

When FERC denied the request to implement interim measures, and a later request to hold a rehearing on the issue, the tribe filed suit, alleging that FERC had erred in its assessment of the Klamath project’s impacts on the trout fishery and that the agency had required an unreasonable preponderence of evidence from the tribe, asking the court to compel FERC to revisit the issue.

While FERC stated that the project has created some adverse impacts on Klamath trout, “‘[b]ecause the project is not having an unanticipated, serious impact on the trout fishery, it was an appropriate exercise of our discretion to deny the Tribe’s request to reopen the license to impose interim conditions.’”

PacifiCorp, the owner of the dams, also submitted briefs in support of FERC’s arguments.
Ultimately, the court agreed with FERC’s assessment, stating that FERC had used sufficient factual evidence to conclude that the trout fishery had not suffered “unanticipated, serious impacts” from the Klamath project.

The court also disagreed with the tribe’s arguments that FERC had required proof of irreversible environmental damage as a prerequisite to implementing interim conditions, explaining that the agency had only suggested that proof of such damage “would be sufficient to justify interim conditions to protect the trout fishery.”

Disagreeing with the tribe’s arguments that FERC had erred, the court denied the petition for review of the agency’s actions on Dec. 28.

While new conditions are expected in the event of relicensing, their implementation has been indefinitely delayed by the processes underway for the KHSA.

– David Smith can be reached at dsmith@siskiyoudaily.com