Bruce Lovelin and I worked around the clock to prepare the legal papers to support an injunction against the releases. Mr. Owsley provided a sworn statement which later nearly got him fired from his job at the fish hatchery. Dennis Harper and Jimmy Dodge testified that the reservoir releases were not only killing kokanee, but also destroying the spawning beds for resident bass by exposing them and drying them out. They also explained how, in earlier years, the Corps of Engineers had released bursts of water from the Reservoir in the winter to break the ice, saving large numbers of elk and white-tailed deer which would otherwise try and cross the Reservoir, fall through, and drown. The National Marine Fisheries Service objected to this, saying that the water had to be saved for salmon, which killed substantial numbers of elk and white-tailed deer.9
The manager of the Dworshak State Park testified that he personally believed there was a significant adverse effect on fish and wildlife in and around the Reservoir. He explained that the lack of water had virtually halted recreational use at the Park, the campgrounds were empty, and he was required to lay off Park workers.10
Neither the Orofino community nor the Columbia River Alliance could afford to hire a fish biologist to testify concerning the National Marine Fisheries Services claims of benefit for the salmon. Luckily, the Columbia River Alliance had an economist on retainer who understood the Services use and misuse of salmon statistics, Dr. Darryll Olsen of the Pacific Northwest Project. He analyzed the materials accompanying the Services press release, which claimed that by increasing river flows from 37 to 43 thousand cubic feet per second, a 40% improvement in survival would result.
The government relied heavily upon the only study ever to find a significant relationship between flow and travel time for subyearling chinook salmon, in this case endangered Snake River fall chinook salmon. This 1993 study, by Thomas Berggren and Margaret Filardo, has been the subject of heavy criticism and is contrary to at least five other studies. In reviewing the literature as a whole, the Northwest Power Planning Councils Independent Science Group, recently offered the face-saving gesture toward Berggren and Filardo that the relationship they purported to identify might appear at very low flows with essentially no current.11
Dr. Olsen testified that the Service was misrepresenting its own Biological Opinion by equating changes in detections (the data in the Biological Opinion) with changes in survival (the claims in the press release)a trick soon to be repeated by the U.S. Fish and Wildlife Service. He pointed out that there was no way, as a matter of simple mathematics, that a slight change in flow could lead to a huge change in survival; he also pointed out that the National Marine Fisheries Service had access to sophisticated computer models that would predict only a 4% change in survivalgiving every benefit of the doubt to the flow theorists.12
Having prepared the necessary papers and affidavits, Bruce and I turned them over to Nick and caught the plane back to Portland. The Idaho U.S. Attorneys Office managed to delay the action by refusing to accept service of the papers at their Moscow, Idaho office. Then the courts clerk raised questions about a bonding issue addressed in the papers, which the clerk had apparently not read.
By the time Nick overcame these hurdles, and Judge Lodge finally heard the matter, on July 29, 1994, the reservoir releases were in their last day. The Corps of Engineers' witness testified that the releases could not possibly be halted before midnight, and the Judge indicated that there was no point in resolving the issues. The next day the newspapers reported that the Corps has decided to end the releases early, an impossibility according to the sworn testimony of its representatives. Months later, the Judge issued a written order denying the motion to stop the releases based upon testimony that the Corps of Engineers was going to terminate the drawdown in question immediately, [so that] the motion for a preliminary injunction terminating the drawdown is unnecessary.13
9 See generally Declarations of Dennis Harper and James Dodge, July 19, 1994, filed in Civ. No. 94-0330-N-EJL (D. Idaho).
10 Declaration of Mike McElhatton, July 21, 1994, filed in Civ. No. 94-0330-N-EJL (D. Idaho).
11 ISG, Return to the River 209.
12 Declaration Darryll Olsen, July 20, 1994, filed in Civ. No. 94-0030-N-EJL (D. Idaho).
13 Order, Dec. 22, 1994, Civ. No. 94-0330-N-EJL (D. Idaho).
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