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Aluminum Co. of Am. v. Bonneville Power Admin.

ELR Citation: 26 ELR 20709
Nos. No. 93-70857, 56 F.3d 1075/40 ERC 2009/(9th Cir., 06/01/1995) ESA violation

The court holds moot claims by industrial companies that the Bonneville Power Administration's (BPA's) decision to augment river flows to benefit certain salmon species was arbitrary and capricious, and violated the Endangered Species Act (ESA), the National Environmental Policy Act, and the Pacific Northwest Electric Power Planning and Conservation Act. The BPA consulted with the National Marine Fisheries Service (NMFS) on its 1993 operations plan for the federal Columbia River power system pursuant to ESA §7(a)(2). The NMFS in a 1993 biological opinion (BO) indicated that the plan would jeopardize the salmon unless river flows were augmented. To avoid the NMFS' jeopardy opinion, the BPA's record of decision (ROD) stated that the BPA would modify its operations plan to include flow augmentation measures. The court first holds that the companies' claims are moot. Guided by its decision in Idaho Department of Fish & Game v. National Marine Fisheries Service, 26 ELR 20710 (9th Cir. 1995), the court holds that the operations plan is not capable of repetition yet likely to evade review. The BPA's flow augmentation measures have already occurred, and its current operations plan spans from 1994 to 1998, providing litigants with ample time to obtain judicial review. Review of the BPA's 1993 ROD would be especially inappropriate because the BPA based it on the NMFS' 1993 BO. Not only has the 1993 ROD expired, its factual underpinning—the NMFS' 1993 BO—was superseded by the 1994-1998 BO.

[Related cases are published at 23 ELR 21218, 24 ELR 21117 and 21384, and 26 ELR 20710 and 20713.]

Counsel for Petitioners
James Buchal
Ball, Janik & Novack
101 SW Main St., Ste. 1100, Portland OR 97204
(503) 228-2525

Counsel for Respondent
Ellen J. Durkee
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Hall, O'Scannlain and Rymer, JJ.