Editorial: Courts are a bad place for a spotted frog solution

Apr 17, 2016

Bend Bulletin

Editorial: Courts are a bad place for a spotted frog solution U.S. District Judge Ann Aiken’s recent, well-reasoned opinion and order in the Oregon spotted frog case makes it more clear than ever that the courts can be a really bad place to set public policy. The frog’s needs cannot and should not be considered in a vacuum.

As you may remember, the lawsuit from two environmental groups is aimed at the water management of the U.S. Bureau of Reclamation and the Central Oregon, North Unit and Tumalo irrigation districts. Water from the Deschutes River is diverted and used to fill reservoirs. The stored water is then released in the warmer months for irrigation.

That creates dramatic changes in flows in the Deschutes River. Flows in the Upper Deschutes can decline to a relative trickle of only 20 cubic feet per second in the winter.

WaterWatch of Oregon and the Center for Biological Diversity argue that unnatural disruption hurts and kills the Oregon spotted frog. The frog is listed as a threatened species.

Aiken’s recent opinion and order was in response to a request for a preliminary injunction made by the environmental groups to alter the use of the reservoirs so that the river flow would be completely natural or maintained at least at 770 cubic feet per second. She denied the injunction.

It’s her reasoning that is so informative. She is not saying the Oregon spotted frog is not harmed. She is not saying it is harmed. She wrote: “Here, the record does not clearly support the finding that plaintiffs requested relief would significantly improve conditions for the spotted frog.”

Biologists and other experts disagree about what effect the proposed solutions would achieve. “It is not the court’s role to pick and choose among expert opinions,” Aiken continued, quoting another decision that found that a federal court lacks the scientific and technical expertise to determine how water projects “should be operated on a real-time, day-to-day basis.”

She also agreed with the defendants that the proposed relief would disrupt the collaborative efforts to find solutions. Moreover, it would “create certain hardship for farmers and ranchers, increase the flood risk for the city of Tumalo, eliminate the use of stored water for at least one irrigation district and potentially conflict with state water law.” It could even threaten other threatened species such as bull trout or steelhead.

We have yet to speak to anyone who thinks a low winter flow of 20 cubic feet per second in the Deschutes River is good enough. And we can understand why environmental groups would be frustrated by the slow, stumbling march to increase that flow and improve frog habitat. But what the court case has succeeded in doing is to make it more clear that the courts are a bad place to find a solution that works.

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