Judge mulls decision in ‘complicated’ fish passage lawsuit

A packed courtroom was still and quiet when U.S. District Judge Mustafa Kasubhai took the bench, a stark contrast to the elements of the wild waters that brought the case before him. 

On Monday, Kasubhai heard more than four hours of oral arguments from attorneys who represent four conservation groups that allege Eugene Water and Electric Board is in violation of the Endangered Species Act.

The groups — Cascadia Wildlands, Native Fish Society, Oregon Wild, and Willamette Riverkeeper — filed a complaint in March regarding the lowermost dam in EWEB’s Carmen-Smith Hydropower Project on the McKenzie River. They say the Trail Bridge Dam and its inadequate fish passage is harming chinook salmon and bull trout listed under the act. 

But much of the conversation wasn’t about fish. Rather, it largely centered on whether the case belongs in Kasubhai’s courtroom in the Eugene division of U.S. District Court. It’s a question that prompted him to take the matter under advisement, weighing two arguments rooted in distinctly different interpretations of environmental law.

EWEB’s attorneys argued that only the U.S. Courts of Appeals, not a district court, can rule on challenges specific to the license that regulates the Carmen-Smith Hydropower Project. 

The project is unique from a regulatory standpoint, because the dam is not owned and operated by the federal government. Instead, as a publicly owned utility, EWEB is regulated through a license issued by the Federal Energy Regulatory Commission, which serves as the oversight body in place of direct federal management.

Attorney Dabney Carr, representing EWEB, echoed arguments the utility filed in its motion to dismiss, asserting that conservation groups should challenge fish passage requirements through FERC, typically an administrative process. 

In response, attorneys Haley Nicholson and Hannah Goldblatt defended their clients, arguing that the lawsuit is among the only meaningful paths to seek a preliminary injunction for species they described as being in a “highly precarious state.”

Conservation groups already filed for a preliminary injunction, seeking relief for chinook salmon ahead of the upcoming spawning season, typically in September and October.

During the hearing, Goldblatt presented exhibits showing the current temporary trap-and-haul system, which holds only one fish at a time in a small canister. When a salmon enters the trap, it’s moved through a tube and into a transport truck.

The groups are requesting a new trap that can hold up to 12 fish at a time. They described it as a simple metal pen, separate from the dam’s infrastructure, that could be installed in time for this season’s run.

Carr sharply criticized the recommendation, noting it came from consultation outside the agencies familiar with the dam’s operations, something that prompted a response from an engaged judge.

“People bring suits because experts and agencies don’t always do what they are supposed to be doing, so litigation is what is necessary to get people to move,” Kasubhai said. 

He asked both sides about the impact of wildfires on fish passage and whether the current trap-and-haul system is effective, given that salmon runs often coincide with peak wildfire season in Oregon.

The McKenzie River runs along Highway 126, which was closed during the 2023 Lookout Fire and again in 2024 due to the Boulder Creek Fire. EWEB cited those closures as a key reason it has struggled to access and operate its existing fish trap.

Conservation groups argued that a larger trap would help address those challenges. While still hands-on, they said it would require less in-person presence than the current setup — a matter of trapping around a dozen fish at once instead of one at a time. They said that’s especially important this year, as salmon runs are expected to be larger than in recent seasons.

This led to a discussion about the effectiveness of trap-and-haul as a method of fish passage — one reason conservation groups previously advocated for fish ladders and continue to support them as a long-term solution.

But before issuing any orders, now or in the future, Kasubhai must first decide whether he has the authority to do so. If he decides he doesn’t have such authority, he won’t rule on the preliminary injunction, he said.

Given the short timeline tied to the injunction, conservation groups’ requested an opinion from Kasubhai by late July.

“The biggest question as we all know is tackling jurisdiction,” the judge said before leaving the bench. “It’s a complicated issue.”