Up until quite recently, NMFS' attention to Savage Rapids Dam occurred pursuant to  7 of the ESA, for NMFS representatives assumed that the U.S. Bureau of Reclamation had jurisdiction over the Dam. (Meyer Tr. 20) In fact, the Bureau had funded improvements at the Dam, which would have been enough for NMFS and the Bureau to conclude that inter-agency consultations leading to an incidental take statement under  7, rather than a permit application pursuant to  10, would have ensured compliance with the ESA.

The Bureau went so far as to design improved fish passage facilities at the Dam before suddenly asserting that it was without jurisdiction over the project, an event which struck the NMFS representatives as "odd". (Meyer Tr. 20) It appears that the Bureau, like everyone else, did not have the money to build fish passage improvements (Meyer Tr. 21), and shortly after the listing, the Bureau "was in the process of, shall I say, washing their hands of the project" (Smith Tr. 89).

Unfortunately, Mr. Smith experienced a failure to recall just who had decided not to pursue the Bureau or why; he did recall "arguing that we should pursue the Bureau . . . more aggressively". (Smith Tr. 92) Further discovery may confirm that NMFS decided that the Federal government need not pay the large costs required to achieve its dam removal objectives, when NMFS could simply assert the authority to impose dam removal on the District.

Mr. Smith is the lead biologist for Southern Oregon within the Habitat Division at NMFS. (See DX57, at 2) A year before the listing, he was already recommending that the Service issue an opinion "that concludes anything less than dam removal would constitute jeopardy to one or more proposed species . . . This basically tells everybody that we'll be requiring removal in the event of listings whether final listings occur next year or in 20 years". (DX1, at 2 (6/26/96)) This was not just a personal opinion, but the "likely" "position of the Habitat Division". (Smith Tr. 7) These conclusions, unsupportable by the best scientific and commercial evidence, were never adopted by NMFS. (Morris Tr. 11)

NMFS also opposed the workings of the Savage Rapids Dam Task Force. Mr. Smith, Mr. Garth Griffin,13 Mr. Ed Meyer, Mr. Steve Rainey and others sought "blow the task force out of the water . . ." and thought any compromise on fish passage issues would be "chopped liver". (See, e.g., DX1 (6/26/96)) Mr. Rainey expressed the view that the Task Force's passage improvements were "bogus", and sought to "put[] a wrap on this process and get[] to the business of removing the dam". (Id.)

By the time of the listing decision, Mr. Smith had concluded that there "is not a biologist or fish passage engineer at NMFS who would agree that incidental take could be adequately minimized by constructing a new ladder and installing new screens, and I certainly hope that Will [Stelle] did not give Brady Adams any hint that we would be agreeable to dam retention . . ." (DX57, at 2) He issued a memorandum to Mr. Stelle dated May 6, 1998 (the very day of the listing decision) concerning Savage Rapids Dam and the District (DX26), but could not recall the substance of contemporaneous discussions (See Smith Tr. 88 (cannot even recall if there were discussions)).

The meeting between Mr. Stelle and Mr. Brady Adams to which Mr. Smith referred was one in which the Chairman of the Savage Rapids Dam Task Force presented the Task Force's findings to Mr. Stelle. (Becklin Decl. at 21) Mr. Stelle promised to provide a "prompt technical evaluation" of the Task Force's recommendations. (Id.) NMFS never did, even Mr. Becklin sent a second copy of the Task Force report when NMFS claimed never to have received the first one. (Id.)

On May 13, 1997, just one week after the listing decision, and long before any rule against take, Ms. Elizabeth Gaar, the head of the Habitat Division, echoed Mr. Smith's comments to Will Stelle and asked him to consider commencing an enforcement action against the District. (DX57, at 2 ("P.S. think enforcement action, this one has live bodies [sic], we could gear up . . .") On May 15th, a NMFS lawyer advised Mr. Smith that "the best thing to do is process the [incidental take permit] quickly enough to complete before the [taking] rule becomes effective". (DX36; Smith Tr. 125) Mr. Smith acknowledged that "no one ever came out and told the District that they better get the permit process done before the rule became effective". (Id.)

Mr. Smith, despite his predispositions against the Dam, or perhaps because of them, became the lead actor in the  10 permitting process. The lead fish passage engineer was Mr. Ed Meyer. It was the first  10 permit application either of them had ever handled. (Meyer Tr. 12; Smith Tr. 131) Perhaps that is why NMFS apparently never even sent the District a permit application, as NMFS' Habitat Conservation Planning Handbook requires (Handbook at 6-1), until January 1998, when it finally provided the District a copy of the Handbook (the Handbook contains a permit application buried in the back as Appendix 9). (See Smith Tr. 133) But NMFS' focus was never on permitting, it was on dam removal.

Thus NMFS sent Mr. Morris and Mr. Smith to the July 22nd Board meeting to tell the Board that if it elected to retain the Dam, "the remaining unavoidable take at the site would require off-site mitigation". (Morris Tr. 28; Smith 107-08) Mr. Morris and Mr. Smith met with Ms. Gaar before the meeting to confirm "that that was the appropriate approach to take". (Smith Tr. 108) Mr. Roy Hemmingway, representing Governor Kitzhaber, advised the Board that the Governor would support any decision made by the Board, whether dam removal or dam retention. (Becklin Decl. at 18)

The handout at the meeting suggested that one public district had been required to pay $61 million to retain its dam. (See DX32) Mr. Morris acknowledged that NMFS had never before demanded "compensation" for unavoidable take, and could offer no explanation other than that such "compensation" was a "requirement under the statute". (See generally Morris Tr. 24-34)14 Mr. Morris told Mr. Stelle before the meeting that "[w]e hope that our discussion of potential liabilities will influence their decision". (DX56)15 NMFS' efforts were initially unsuccessful, and the Board voted to retain the Dam. But two weeks later, after one Board member died and another changed votes, the Board voted to remove the Dam. (Becklin Decl. at 19)

Following the Board's reversal, Mr. Smith wrote:

(At his deposition, Mr. Smith denied any attempt to influence the Board. (Smith Tr. 108-09))

Mr. Morris testified that by the time of the July 22nd meeting, "the Service had never indicated to the District that it would require removal of the dam". (Morris Tr. 39) He also affirmed that NMFS' September 5th letter (DX5) contained no such requirement. (Morris Tr. 46-47; see also Smith Tr. 119)

On October 14th, Mr. Smith spoke to a District representative, but apparently did not express any urgency as to the permitting process. (Smith Tr. 126) On October 27th, the District's attorney wrote to NMFS soliciting NMFS' advice as to "measures that [the District] may implement to protect the coho salmon while Savage Rapids Dam is still in place". (DX6, at 2) (Mr. Morris' Declaration asserts, contrary to fact, that the October 27th letter did not address a requirement to address so called "interim" measures.16 (Morris Decl.  )) NMFS did not respond to the October 27th letter until December 31st, and could offer no explanation for this delay. (Smith Tr. 128)

One possible explanation is that NMFS did not really care because the District's vote to remove the Dam gave the District what it wanted. The District's attorney spoke with NMFS on November 18th, and the focus was on dam removal; "NMFS' employees never mentioned that any interim measures would be required for diversions to be allowed in the spring of 1998". (Garner Decl.  3)

Another possible explanation is suggested by the fact that NMFS was engaged at that time in a project to monitor adult coho passage at Savage Rapids Dam so extensive that Mr. Smith had never "heard of another project where we have engaged in that level of effort to monitor adult passage". (Smith Tr. 122) The District believes that discovery would show that, rather than focusing on improving fish passage,17 NMFS was preparing an enforcement action that was only withdrawn when someone finally realized that there was nothing to enjoin: no court could stop the Rogue River from flowing down the ladders, and their mere existence would not constitute "take".

The District's attorney avers that NMFS told him that "although they had evidence that coho salmon were being taken at Savage Rapids Dam, they would not enforce the [ESA] so long as [the District] was making sufficient progress on dam removal". (Garner Decl.  2) They also admitted that "coho salmon could be adequately protected without the removal of Savage Rapids Dam". (Id.)

In the meantime, a recall drive led to the ouster of the District's Board member who had led the charge to remove the Dam, and the replacement of him and other board members with members less willing to issue an unconditional commitment to remove the Dam. (Becklin Decl. at 19-20) The fall elections at the District were the subject of discussion with NMFS counsel, in communications Mr. Morris acknowledged were not made for the purpose of seeking legal advice (Morris Tr. 50), but the Justice Department refused to permit questioning on this subject (Id. at 51).

In any event, when NMFS finally responded with its the December 31st letter, NMFS offered no guidance to the District on the sort of interim measures that might be implemented. Nor had it yet asserted the position that the District would be required to remove the Dam in order to obtain an incidental take permit. (Morris Tr. 54-55)

By early January, Mr. Smith had already enlisted Ms. Carol Teraoka of the Enforcement Division to "build a case" against the District. (Smith Tr. 137-38; DX40, at 3) No one told the District that NMFS had its Enforcement Division working on enforcement proceedings. (Smith Tr. 138-39)

At around this time, there were internal discussions within NMFS as to whether the District could ever obtain an incidental take permit without committing to remove the Dam. (Smith Tr. 142-43) The final decision was apparently "made by committee". According to Mr. Morris, no written record exists of the "committee's" recommendations. Mr. Morris asserted that "committee" members included NMFS' lawyers, Mr. Morris, and Mr. Smith. (Morris Tr. 59-61) Mr. Meyer "may have" participated but can recall nothing. (Meyer Tr. 113)

Mr. Morris visited Ms. Gaar to obtain approval of this decision, but could recall almost "nothing specific" about the meeting. (Morris Tr. 60-62). His explanation of NMFS' conclusion:

Mr. Morris and Ms. Gaar did not consider whether or not the District could afford to remove the Dam. (Morris Tr. 64) The decision was also made "without any quantitative assessment whatsoever [of] the comparative incidental take [with] dam removal or dam retention"—"[t]he assessment was qualitative at that stage". (Morris Tr. 69-70)

Lacking any guidance from NMFS as to appropriate interim measures, the District had in December engaged HARZA Engineering Company as fish passage engineering consultants, assisted by S.P. Cramer & Associates as biological experts on Rogue River salmonids.18

On January 7th or 8th, Steve Cramer contacted Mr. Smith and invited him and Mr. Meyer to "participate in a site visit with the objective of identifying interim measures for reducing take". (DX40, at 3; 2d Cramer Decl.  3-4) Privately, Mr. Smith told his colleagues that "I am not sure if we should help GPID with this since they are making no attempt to address [dam removal]". (DX40, at 3) Mr. Smith then told Mr. Cramer that he would not go to the Dam site and help the District. (2d Cramer Decl.  4-5; accord Smith Tr. 133)

On January 29, 1998, the District submitted a comprehensive response to NMFS' December 31st letter, reflecting the input of its professional engineering and biological consultants. (DX8). The letter contained the District's first cut at "interim" measures to reduce incidental take. (Cf. Morris Decl.  15 (Morris denies any list of measures provided); Morris Tr. 55-56 (acknowledges inaccuracy)) According to Mr. Morris, the District's proposal was never discussed with Ms. Gaar or Mr. Stelle, but only with his subordinate Mr. Smith. (Morris Tr. 56-57)

The documents produced to date contain no detailed review of this proposal by NMFS whatsoever. As the District's consultant explains,

Mr. Costello opines that, "ordinarily, NMFS would review a technical plan and provide constructive feedback on it." (Id.  4; see also Becklin Decl. at 23)

On February 12th, NMFS sent the District a letter that for the first time declared that the District had to provide a method and time frame for dam removal in order to get a  10 permit. (Morris Tr. 62) Mr. Morris stated under cross examination that the assertion in his Declaration that NMFS "had repeatedly advised" the District of this position (Morris Decl.  10) was not true (see Morris Tr. 90-91).) 19 On the other hand, the District's attorney had the impression that NMFS would insist on dam removal even before the February 12th letter. (Garner Decl.  5)

To make matters even more confused, the United States now claims, through re-direct of Mr. Morris and a discovery response, that it is not "NMFS' position today that the Dam must come out in order for the District to obtain an incidental take permit". (Morris Tr. 132; Response to RFA Nos. 18-19) Given the extensive testimony about just such a decision, and the fact that everyone else involved understood that such a decision had been made (Garner Decl.  5; Costello Decl.  4-5); 2d Cramer Decl.  11-12; Smith Tr. 95), this position is not grounded in fact.

In any event, it was, in the view of the District's consultants, "highly unusual for the NMFS to provide no more feedback other than that the [District] was non-responsive to the NMFS preferred alternative of dam removal". (Costello Decl.  5) Indeed, it was "unprecedented" and "atypical" of the normal working relationship with NMFS. (Id.)

Mr. Becklin sought to meet with NMFS on repeated occasions to discuss the issues relating to the District and the Dam, but NMFS refused to meet with Mr. Becklin or any other member of the Board of Directors. (Becklin Decl. at 22)

In the meantime, Mr. Hemmingway was apparently advising NMFS to "keep the heat on [the District], since we [NMFS] were more insulated than the state from litigation by the irrigation district". (DX47, at 3 (2/17/98 e-mail by Ms. Gaar)20 Indeed, Mr. Hemmingway apparently contacted a lawyer in NMFS to urge shutting down the District as well; after learning the contents of that conversation (which remain a mystery to the District), Mr. Smith concluded that "the only argument we'll be able to use in support of not shutting down the project this spring is the insanity defense" (DX47, at 1).

By February 17th, Mr. Smith had concluded "[t]here is only one option left, and we all know what it is"—an action to shut down the District. The District was never informed of this view, and continued its efforts to negotiate an incidental take permit with NMFS.

On February 20th, the District sent NMFS a letter outlining proposed "interim" measures to reduce take. Contrary to the testimony of Mr. Morris, the improvements were not limited to "seal improvements" and an "angled screen". (Morris Decl.  18; Morris Tr. 80 (those were the "most significant" ones))

On February 24th, NMFS for the first time ever finally proposed to the District what it thought might constitute adequate "interim" measures. (DX12) The first measure was to reduce the amount of water withdrawn from 800 cfs to 155 cfs, in order to reduce approach velocities at the North end screens. This would require externally powered pumps. At the time it made this recommendation, NMFS did not know whether it was possible to install such pumps prior to the start of the irrigation season. (Morris Tr. 84-85; Meyer Tr. 19)

NMFS also suggested re-wrapping the screens with slightly smaller mesh. This would cost tens of thousands of dollars and was not practicable. (2d Cramer Decl.  13) At the time it made the suggestion to re-wrap the screens, NMFS had no idea of the incremental benefit that would result, the cost of doing so, or the risk of system failure (from screen blowout) that might result. (Morris Tr. 83)

NMFS considered these measures "practicable" because, according to NMFS: "They would allow the Irrigation District to continue getting its water, and they would meet its obligations to minimize the take of listed coho on an interim basis." (Morris Tr. 86) NMFS did not consider "anything else" in determining that the measures were practicable. (Morris Tr. 87)

On March 3rd, the District advised NMFS that it was not practicable to shut down the turbines because its engineering consultants has advised that "installation of electric pumps and plumbing them into the water distribution system could not be accomplished in less than 4-6 months under the most idealistic 'fast track' circumstances" and that "these types of projects typically have a duration of one year or more". (DX11)

The District sought guidance as to the construction of the south screen from NMFS, but NMFS refused to provide it. Indeed, on April 8th, NMFS sent the District a letter explaining that it preferred a 30 day review period,21 and would only agree to expedite review so that the screens might be installed faster if the District would also commit to installing the north screens by May 1st. (DX13; Morris Tr. 103-04) Any competent engineer would have known that the job could not possibly be completed in three weeks. Mr. Meyer, the engineer, was unable to testify whether he knew the condition was impossible, or just didn't think about it. (Meyer Tr. 29)

Lacking cooperation from NMFS, the District proceeded to order and install the screens. (Becklin Decl. at 25-26) ODFW supports trying out the new south side facilities (see Evenson Tr. 29), but NMFS has so far not responded to the District's invitation to inspect them. The District's consultants believe that the new facilities will work. (See Costello Decl.  8-9)

Mr. Morris initially denied that there were any further meetings concerning the District with Ms. Gaar and Mr. Stelle until the dambusters gathered to plot public relations strategy on March 30th. (Morris Tr. 96-97) A document produced after his deposition indicates that a further meeting was held on March 9th, and documentation associated with this meeting has apparently been withheld from document production. (Smith Tr. 172-74) At around this time, Mr. Smith was complaining to Mr. Cramer that the District had filed a writ of mandamus proceeding in Oregon State Court concerning its water rights, and that NMFS viewed this action improperly interfering with Dam removal. (See 2d Cramer Decl.  16)

Later in his deposition, Mr. Morris gave highly confused testimony about NMFS' decision to commence an enforcement action, the bottom line of which was that he could recall nothing about the relevant meetings. (Morris Tr. 118-121) He did acknowledge that in the course of determining to commence enforcement proceedings, NMFS gave no consideration at all to

The extent of crop losses likely to be suffered by the District's patrons;

Increased water costs likely to be paid by those who could obtain alternate sources of water;

Property losses that would be suffered by residents of the District; and

Adverse effects on non-listed fish and wildlife that would come from drying out wetlands and tributaries of the Rogue within the District boundaries. (Morris Tr. 123-24)

By sometime in March, Mr. Morris thought it was "fair to say" that "probably nothing" could have forestalled this action. (Morris Tr. 122-23) NMFS did not, however, inform the District of this fact. In March, Mr. Meyer was gathering scientific studies of the impact of irrigation screens in other facilities on salmonids. (Meyer Tr. 31) Others at NMFS were gathering declarations from witnesses, many of which were completed and executed in March. ODFW instructed its employees who executed declarations to keep that fact a secret. (Budziak Tr. 45-46)

On March 20th , after efforts by Congressman Smith's office finally resulted in NMFS agreeing to meet with the District (Becklin Decl. at 22), a meeting was held among Mr. Smith, Mr. Meyer, Mr. Becklin, Mr. Cramer and Mr. Postlewait, a HARZA engineer assisting the District. Mr. Smith opined that even if "aliens came down from space" and installed perfect fish passage facilities at Savage Rapids Dam, NMFS would still insist on dam removal. (Postlewait Decl.  3)

By March 30th, NMFS was plotting its public relations strategy for the lawsuit (Smith Tr. 19 ; Morris Tr. 92-93) The District was unaware of NMFS' decision to commence enforcement proceedings because of a "general practice" to keep them secret (Smith Tr. 195-96) from the very agencies with which NMFS is supposed to be cooperating.

On April 22nd, NMFS issued its press release, quoting Mr. Stelle as asserting that the Dam was the "worst fish killer" on the Rogue and that the District's patrons were "hobby farmers". (See Smith Tr. 193) Mr. Morris stated that NMFS had no information on hand as to the nature of the District's irrigation patrons. (Morris Tr. 95) Mr. Smith acknowledged that the only information he had was that "[t]he largest users are mostly or completely dependent on their crops" (Smith Tr. 192-93; DX61).

Consistent with all this history, NMFS has yet to offer any response to the District formal permit application, which was delivered to NMFS on April 24th, nearly three weeks ago. (Costello Decl.  )

NMFS acknowledges that it has never before listed any species when its population was "at an all time high as measured". (Smith Tr. 81) NMFS acknowledges that never before has it commenced enforcement proceedings so soon after a "take" prohibition became effective. (Morris Tr. 107) NMFS acknowledges that no one else has even filed an application for an incidental take permit to take Rogue River coho (Morris Tr. 108-09). NMFS acknowledges that there are literally "thousands" of irrigation diversions in river basins containing listed species, as to which it has "done nothing". (Morris Tr. 108)

NMFS acknowledges that the plan the District presented on January 29th called for a final decision on dam removal on December 15, 1998, a little over a year after the prohibition on take became effective (Morris Tr. 115) No one has ever been required to decide to take a dam out that fast; the Federal government has so far allowed itself seven years after the first Snake River listing to make decisions on dam removal. (Morris Tr. 115-16; Response to RFA No. 13).

On May 6, 1998, three ODFW representatives visited Savage Rapids Dam and reviewed recent fish passage improvements. When it came to predicting the effects of improvements, each was a careful scientist that would insist on testing and measurements before hazarding estimates; it is regrettable that the same standards have not prevailed in predicting losses from existing facilities. In any event, the improvements they saw included:

A new screening facility at the south end of the Dam. (Evenson Tr. 7-8; Budziak Tr. 16)

New fencing to keep adults from jumping out of the south ladder (Evenson Tr. 8; Satterthwaite Tr. 30-31; Budziak Tr. 19-20)

A plan to use stoplogs for better flow control in the south ladder (Evenson Tr. 9; Satterthwaite Tr. 31; Budziak Tr. 21)

A plan to use stoplogs to prevent water from falling on rock outcrops in the middle of the river (Evenson Tr. 9-10; Satterthwaite Tr. 31-32; Budziak Tr. 21)

The removal of the two 90 degree turns in the bypass pipe (Evenson Tr. 10-11; Budziak Tr. 21)

Additional immediate improvements that have been made this spring are detailed in the Declaration of Dennis Becklin. (See generally Becklin Decl. at 25-28)

The ODFW representatives acknowledged that the District was making more progress in improving fish passage concerns than at any prior time in their lengthy experience. (Evenson Tr. 11; Budziak Tr. 22; accord Satterthwaite Tr. 28) None had any suggestions for immediate and practicable actions that could improve fish passage outside of taking less water or delaying diversions. (Evenson Tr. 11-12; Satterthwaite Tr. 35-36; Budziak Tr. 22-23)

13 Mr. Griffin is an employee within the office responsible for listing SONC coho. He and Mr. Smith discussed Savage Rapids Dam and the listing, but Mr. Smith can recall nothing. (Smith Tr. 85-86)

14 Mr. Morris acknowledged that he had received no advice as to such a requirement from the attorneys (Morris Tr. 33-34), and that he was unaware "of any articulation" of a compensation requirement in any document anywhere (Morris Tr. 32).

15 Mr. Morris also noted that Mr. Roy Hemmingway had been "very helpful" in reviewing NMFS' response to the District. (DX56)

16 In the context of this dispute, NMFS has used the term "interim" measures to refer to shorter-term measures to improve fish passage at Savage Rapids Dam pending dam removal. The ESA and the implementing regulations do not contain the term, which appears to have been invented to disparage significant improvements in fish passage as falling short of some "final solution".

17 Mr. Smith could not recall why "the leadership of the Habitat Division" had started the extraordinary effort; it was the subject of discussions at weekly meetings from which no notes have yet been produced. (Smith Tr. 122-24)

18 Mr. Meyer testified that he would regard the particular HARZA engineer as a "competent professional" (Meyer Tr. 13); Mr. Evenson said Mr. Cramer was a "competent professional" (Evenson Tr. 29)

19 Mr. Morris' testimony varied during and after the deposition, and the resulting contradictions should lead the Court to question his credibility.

20 At that time, the State was about to lose a contested case hearing before the Oregon Water Resources Commission concerning fish passage issues at Savage Rapids Dam. In the Matter of the Modification of the Extension of Time in which to Complete Construction Work and Make Complete Application of Water, Permit No. 50957.

21 Mr. Evenson testified that he had "been involved with smaller reviews of improvements on smaller diversions than Savage Rapids and it generally takes several months to complete". (Evenson Tr. 30)

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