Groups seek settlement talks in spotted frog case

Groups seek settlement talks in spotted frog case
At issue is water management in the Deschutes River Basin
By Taylor W. Anderson
Bend Bulletin

March 24, 2016

Two groups suing to change water management practices in the Deschutes River Basin to protect a threatened frog are asking the federal judge in the cases to set dates for both sides to meet out of court to see whether they can come closer to settling the matter without a trial.

WaterWatch of Oregon and the Center for Biological Diversity, a national group, are asking U.S. District Court Judge Ann Aiken to hold off on filing her formal opinion against their request for immediate and sweeping changes to flow levels in the Upper and Little Deschutes rivers and other Central Oregon streams.

Instead, the two environmental groups are asking Aiken to set dates for mediation proceedings at which both sides would see if they can agree on a path forward short of a trial.

The request, if granted, could create a path to an eventual settlement, though Aiken would also schedule dates for a trial if both sides failed to agree on settlement terms.

“If we resolve it, that’s fantastic, and we’ve never thought otherwise,” said Janette Brimmer, an attorney for WaterWatch. “We can’t just kind of sit and hope.”

The groups’ similar lawsuits filed in federal court in Eugene target the management practices of the Tumalo, Central Oregon and North Unit
irrigation districts, as well as the U.S. Bureau of Reclamation.

The districts draw water from the Deschutes River and tributaries to fill their reservoirs for storage during winter, which keeps streams low. They then release water during spring and summer months for irrigation.

The groups that filed the suits say that usage is killing off the Oregon spotted frog, an amphibian whose Pacific Northwest habitat has been reduced largely to Central Oregon counties. The U.S. Fish and Wildlife Service listed the frog as threatened in August 2014.

Aiken on Tuesday decided not to make the immediate changes to stream flows sought by WaterWatch and the Center for Biological Diversity, citing ongoing conservation efforts by the federal government and irrigation districts.

In making her decision, Aiken cited the hardship that likely would result in the North Unit Irrigation District in Jefferson County, where farmers hold junior water rights and would face water shortages during the growing season. That district relies on Wickiup Reservoir southwest of Bend to ensure its members have water.

Aiken said she preferred both sides come together to find a long-term plan to protect the frog.

“The battle is to do better, rather than just do all-or-nothing litigation,” Aiken said in court Tuesday.

WaterWatch had been involved in work with the federal government and local farmers for a long-term habitat conservation plan to protect the spotted frog, before backing out and filing the lawsuit in January.

The group moved to the courtroom because it felt more winters of very low stream flows would do irreparable harm to the frog. Brimmer said the group wants the long-term protection for the frog, but also short-term, or “stop-gap,” protection.

“What we might agree to in mediation could just be the stop-gap measure,” Brimmer said. “We could have a habitat conservation plan that gets more comprehensive and has all these studies. There is room for that to play out as long as we can (stop) the ongoing harm.”

The groups could have appealed Aiken’s decision to the 9th U.S. Circuit Court of Appeals, but decided to ask the judge to not file her formal opinion and instead set dates for mediation.

“We think (mediation) is the better, more efficient path forward,” Brimmer said. “Whether the final solution is a settlement, which would be great, or if it has to be a trial that’s the way those things work.”

Attorneys representing the irrigation districts and the federal government have two weeks to respond to the latest motion. David Fillipi, an attorney for the irrigation districts, could not be reached for comment.