Environmentalists Oppose Official Spotted Frog Ruling

Mar 29, 2016

Capital Press

Environmentalists Oppose Official Spotted Frog Ruling by Mateusz Perkowski

EUGENE, Ore. — Environmentalists don’t want a federal judge to issue an official written ruling denying their motion to radically change water management in several Central Oregon reservoirs.

During a recent court hearing, U.S. District Judge Ann Aiken told environmental groups they failed to convince her that a preliminary injunction was necessary to protect the threatened Oregon spotted frog.

The plaintiffs — WaterWatch of Oregon and the Center for Biological Diversity — claimed that water flows from the Wickiup, Crane Prairie and Crescent Lake dams must be significantly modified to avoid harming the protected species.

However, the U.S. Bureau of Reclamation and irrigation districts argued the operational changes sought by environmentalists would be disruptive to the frogs, which have adapted to stream flows since the structures were built 70 years ago.

The federal agency and three irrigation districts — Central Oregon, North Unit and Tumalo — are named as defendants in litigation that alleges the reservoirs are managed in violation of the Endangered Species Act.

Rather than appeal the denial of their injunction request, the environmentalists have requested that Aiken postpone filing an official written version of the ruling.

The plaintiffs say that an “appealable final, formal opinion is not required to move the matter forward,” claiming it would instead be “more productive and efficient” to send the case into mediation.

Irrigation districts involved in the case have objected to the request, noting that environmentalists opted to move forward with their injunction motion instead of mediation.

The irrigators agree that mediation is the next appropriate step in the lawsuit but argue that such negotiations aren’t precluded by an official ruling.

A written opinion would “provide useful guidance to the mediator” and “certainly aid in setting reasonable expectations for settlement and future proceedings in this case.”

It’s likely that the plaintiffs want to avoid a written ruling because they don’t want the denial of their injunction to later be cited as legal precedent, said Scott Horngren, an attorney with the Western Resources Legal Center, a nonprofit that helps farmers, ranchers and timber companies in legal disputes.

The irrigation districts, on the other hand, would benefit from an official ruling in future litigation over the frog or other species, Horngren said.

Environmentalists may recognize they were “shooting for the moon” in their preliminary injunction request and now want lesser restrictions imposed on the reservoirs, he said. “They might be willing to settle for less.”

Aside from issue of the ruling, environmentalists also want a “bifurcated” trial, under which the court would first consider whether the irrigators violated the law and only later consider a potential remedy, such as an injunction.

The irrigation districts oppose that proposal because it’s possible the case may be resolved or dismissed without a need for such a proceeding.

The plaintiffs may want the judge to solely consider legal issues without immediately taking into account the impact on irrigators, said Horngren.

The defendants, on the other hand, may want to avoid the ordeal of an expensive trial and fight the environmentalist claims through other legal procedures, he said.

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