SEATTLE (CN) — Utility company Electron Hydro told a panel of Ninth Circuit judges Thursday morning that a federal judge erred in ordering a portion of a dam operated by Electron on the Puyallup River near Tacoma removed because it harms fish protected by the Endangered Species Act.
In December 2020, Electron Hydro attempted to replace a central portion of a dam on the Puyallup River. A temporary bypass channel was lined with field turf, rubber and other materials. Then it ruptured, spilling the contents into the river.
Electron Hydro was ordered to clean up the river before continuing any construction on the dam. Where the temporary bypass channel once stood, Electron Hydro erected a temporary rock dam which remains in place to this day.
The Puyallup Tribe sued Electron Hydro in 2020, claiming the company had polluted the river with toxic materials when the temporary bypass ruptured, harming endangered salmon and trout in the river.
Senior U.S. District Judge John Coughenour, a Ronald Reagan appointee, sided with the tribe this past February and ordered Electron Hydro to remove the rock dam portion of the spillway by Sept. 15. Since the case is an Endangered Species Act case, Coughenour wrote, the tribe needs only to prove that irreparable injury has occurred.
On appeal before the Ninth Circuit on Thursday, Electron attorney Svend Brandt-Erichsen told the panel that the case should be remanded because issues of material fact exist between the two sides’ experts in the case and because Coughenour applied the wrong legal standard.
“The district court’s holding that simply impeding fish passage is take under the Endangered Species Act is wrong as a matter of law. The district court also wrongly picked between competing evidence at the summary judgment stage. And having found liability, the district court abused its discretion in granting the expansive relief sought by the tribe,” Brandt-Erichsen told the three-judge panel.
U.S. Circuit Judge Daniel Bress, a Trump appointee, asked Brandt-Erichsen what the disputes of fact are.
“The issues are both direct and indirect harm to the fish. Whether the fish are harmed because of the spillway or distracted by the spillway and don’t find their way upstream,” he replied.
Brandt-Erichsen said the tribe’s argument that the rock dam distracts fish from a fish ladder they use to get upstream to breeding grounds is theoretical, and that Electron Hydro’s expert found no evidence of dead fish in the river.
That expert, Dr. Jaffrey Barrett, observed the river over months of time, Brandt-Erichsen said, and found that fish were not being injured by interacting with the spillway and that fish were still finding the fish ladder to continue upstream.
The remedy Electron Hydro seeks is to simply remove gravel above the river on the right hand side so that waterflow returns back to that side of the dam, or to construct a cofferdam that would be used to block off flow to the spillway diversion.
Janette Brimmer, counsel for the Puyallup Tribe, said Judge Coughenour was extremely careful in ruling, even going as far as to visit the site.
Bremmer said the remedy Electron Hydro seeks was correctly rejected by Coughenour.
“It involves building an even larger cofferdam than they built in 2021. It adds significant gravel rock, sand and other material to the river itself that will go in the middle of the river in order to redirect flows,” Bremmer said.
Bremmer said the proposed remedy would involve heavy equipment and could fail, leading to the fish being harmed again.
The tribe did not need to prove any evidence of dead fish, Bremmer said, because dead fish is not a strict requirement to show harm.
The tribe’s experts “gave multiple reasons why dead and injured fish in a situation like this are not going to be observable and are not going to be present,” Bremmer said, including the fact that dead fish sink to the bottom of the river or are eaten by other animals that live on the river.
She said that even Electron Hydro’s expert testified that the rock dam is creating false attraction flows that distract fish from the ladder, and that fish go where the flow goes.
Senior U.S. Circuit Judge Mary Margaret McKeown, a Bill Clinton appointee, asked Bremmer what would happen if the panel found a genuine issue of material fact.
Bremmer replied the case would likely go to trial.
U.S. Circuit Judge Michael Hawkins, also a Clinton appointee, rounded out the panel.