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Northwest Resource Info. Ctr. v. Northwest Power Planning Council

ELR Citation: 24 ELR 21516
Nos. Nos. 92-70190 et al., 35 F.3d 1371/39 ERC 1486/(9th Cir., 09/09/1994)

The court holds that the Pacific Northwest Electric Power and Conservation Planning Council (Council) violated the Northwest Power Act (NPA) §839b(h)(7) and the Administrative Procedure Act by failing to explain, in its final amendments to its fish and wildlife program for the Columbia River Basin, a statutory basis for rejecting fishery managers' recommendations on stream flow requirements necessary to protect salmon species and by failing toevaluate proposed program measures against sound biological objectives. The coalition of state and tribal fish and wildlife agencies (fishery managers) that the NPA required the Council to consult with recommended minimum weekly spring flows of 220,000 cubic feet per second (kcfs) at the Dalles Dam on the Columbia River, subject to cutbacks and increases depending on stream flow conditions. The Council, however, rejected this recommendation and proposed a volumetric approach applicable only during the peak downstream migration season. After years of study and various amendments, the Council adopted final plan amendments, called the Strategy for Salmon, which guarantee a flow equivalent to 85 kcfs in the Snake River and 200 kcfs in the Columbia River, closely mirroring the recommendations of the power interests and direct service industries.

The court first holds that the Council violated §839b(h)(7)'s requirement that if the Council rejects the fishery managers' recommendations, it explain in writing, as part of the program, why adoption of the recommendations would be inconsistent with that subsection or would be less effective than the adopted recommendations for the protection, mitigation, and enhancement of fish and wildlife. The Strategy for Salmon fails to explain the Council's reasons for rejecting the recommendations, and citations to explanations in the administrative record are insufficient to satisfy the NPA's unambiguous mandate. The court remands this issue to the Council with instructions that it comply with §839b(h)(7). The court next holds that §839b(h)(7) and its legislative history require the Council to accord a high degree of deference to the fishery managers' interpretations of the fish and wildlife provisions and their recommendations for program measures. Congress intended that the Council not simply tap the fishery managers' experience and expertise in fish and wildlife, but rely heavily on it.

The court holds that §839b(h)(6), which requires the Council to include program measures in the Strategy for Salmon that adhere to each criterion set forth in that subsection, establishes substantive criteria, not a mere agenda. The court holds that the Council's rejection of the fishery managers' consensus as to increased flows and biological objectives does not appear to square well with the first criterion, which requires that measures complement the existing and future activities of the federal and regional fish and wildlife agencies and appropriate Native American tribes. The court next holds that the Council's failure to comply with §839b(h)(7)'s written statutory explanation requirement prevents it from determining whether the Council complied with the second criterion's requirement that measures be based on, and supported by, the best available scientific knowledge. The court next holds that the Council violated §839b(h)(6)'s third criterion, which requires the Council to evaluate alternative measures for effectiveness in achieving sound biological objectives. The Council relied on policy statements rather than specific biological objectives, and its post hoc adoption of the population-doubling goal, rebuilding targets, and performance standards as biological objectives ignores the purposes and requirements of that criterion. The court instructs the Council, on remand, to consider measures in light of specific biological objectives, giving the fishery managers' recommendations due weight. The court next notes that measures that would allow the extinction of one of the salmon species on which Native Americans rely could violate the fourth criterion's requirement that measures be consistent with the legal rights of appropriate Native American tribes in the region. The court next holds that the Council's failure to comply with §839b(h)(7) also prevents it from determining whether the Council complied with §839b(h)(6)'s last criterion, which requires measures to provide improved survival of anadromous fish and flows of sufficient quality and quantity between hydropower facilities to improve production, migration, and survival of such fish as necessary to meet sound biological objectives. The court notes, however, that the Council's rejection of the fishery managers' consensus in favor of the power interests' recommendations leaves the court skeptical. Further, a National Marine Fisheries Service biological opinion that the Council cited to support the Strategy for Salmon, and the Council staff's analysis undermine, rather than bolster, the Council's assertion that the Strategy for Salmon is consistent with the NPA's fish and wildlife provisions.

Addressing challenges to the final amendments by companies that purchase the hydroelectric power at issue, the court holds that the NPA does not require the Council to perform a critical cost-benefit analysis of each program measure. The court also holds that the NPA's requirement that predetermined biological objectives be met in the most cost-effective way does not allow cost considerations to preclude the biologically sound restoration of anadromous fish in the Columbia River Basin as long as an adequate, efficient, economical, and reliable power supply is assured. The court holds that the companies failed to demonstrate that the economic impact of the program is unreasonable or that the Council's actions were arbitrary and capricious.

Counsel for Petitioners
Adam J. Berger
Sierra Club Legal Defense Fund
705 Second Ave., Ste. 203, Seattle WA 98104
(206) 343-7340

Counsel for Respondents
D. Robert Lohn
Northwest Power Planning Council
851 SW 6th Ave., Ste. 1100, Portland OR 97204
(503) 222-5161

Before Wiggins and Henderson,* JJ.