BPA vs. NMFS

NINTH CIRCUIT UPHOLDS BONNEVILLE POWER ADMINISTRATION’S RELIANCE ON NMFS’ JEOPARDY OPINION (June, 1999)

Submitted by Steven L. Shropshire
as edited by Laura Schroeder

Aluminum Company of America v. Bonneville Power Administration, ___ F.3d ___; 1999 WL 286085; __ Daily Journal D.A.R. ___ (9th Cir. May 10, 1999).

Submitted to and published in Western Water Law & Policy Reporter, Argent Communications Group, P.O. Box 1425, Foresthill, CA 95631

On May 10, 1999, the Ninth Circuit Court of Appeals denied a petition to review a decision of the Bonneville Power Administration (“BPA”) adopting a National Marine Fisheries Service (“NMFS”) “jeopardy” finding with regard to operation of the Federal Columbia River Power System (“FCRPS”). The petitioners urged the Ninth Circuit to set aside the BPA record of decision (“ROD”), arguing among other things, that BPA acted arbitrarily, capriciously, or contrary to law in adopting the remedial measures proposed by NMFS. The Ninth Circuit disagreed, finding that BPA’s reliance on NMFS’s “jeopardy” conclusion was warranted because BPA is not required to conduct an independent jeopardy analysis where the analysis would not consider any evidence or arguments already considered by NMFS.

Background

The FCRPS is the world’s largest hydropower system. Many of the FCRPS dams and reservoirs are located within portions of the Columbia River Basin which have been designated as critical habitat for threatened and endangered salmon species. The U.S. Army Corps of Engineers (“Corps”) and the U.S. Bureau of Reclamation (“Bureau”) operate the FCRPS. BPA markets the hydroelectric power generated by the FCRPS. The petitioners in this case consist of several companies that purchase power from the BPA, known as direct service industrial customers (collectively, the “DSIs”).

In 1991 and 1992, NMFS listed three Columbia Basin salmon species as either threatened or endangered. Since that time, NMFS has issued a series of Biological Opinions (“BiOps”) in its role as the “consulting agency” for salmon under section 7 of the Endangered Species Act. This has generated a series of lawsuits over the BiOps addressing salmon and FCRPS operations.

In 1992, the Corps and the Bureau increased water flows through the system to augment the velocity of the river and create water spills at the dams in an effort to assist salmon migration. NMFS issued two “no jeopardy” BiOps related to this action which the DSIs challenged in Pacific N.W. Generating Coop. v. Brown, 38 F.3d 1058 (9th Cir. 1994).

While that case was pending, NMFS issued another “no jeopardy” BiOp regarding FCRPS operations for 1993. The district court disapproved of NMFS’s 1993 BiOp inIdaho Dep’t of Fish & Game v. National Marine Fisheries Serv., 850 F.Supp 886 (D.Or. 1994), vacated as moot, 56 F.3d 1071 (9th Cir. 1995).

In the meantime, NMFS issued another “no jeopardy” BiOp regarding FCRPS operations for the years 1994 through 1998. However, because the same errors appeared in the 1994 BiOp which the Idaho court had identified in the 1993 BiOp, NMFS reinitiated consultation. This consultation resulted in a new NMFS BiOp issued in March 1995 for 1995 and future years. The 1995 BiOp superseded the 1994 BiOp.

In contrast to prior BiOps, the 1995 BiOp concluded that the operation of the FCRPS jeopardizes the continued existence of the listed salmon and adversely modifies their critical habitat. This BiOp recommended multi-part reasonable and prudent alternatives (“RPAs”) for avoiding jeopardy. The RPAs include immediate and intermediate/long term actions such as increasing flow, employing spills and reducing fish transportation. The RPAs also include plans for further study.

Shortly after NMFS issued the 1995 BiOp, BPA issued a record of decision which is the subject of the petition in this case. This ROD documents the BPA’s decision to “participate with [the Corps] and [the Bureau] to operate the Federal Columbia River Power System … for 1995 and future years consistent with these alternatives [suggested by NMFS and the FWS] and the measures in the incidental take statements.”

The Decision

As a threshold matter, the Ninth Circuit addressed the proper scope of review, holding that the DSIs’ challenges to NMFS’s actions in preparing the 1995 BiOp were beyond the court’s scope of review on a petition under 16 U.S.C. 21 § 839f(e)(5). NMFS, acting as a consulting agency rather than an action agency, was not a party to the action. Therefore, the court held, scientific analysis behind the NMFS “jeopardy” finding was not subject to review.

The court next addressed the DSIs’ challenge to BPA’s reliance on NMFS’s“jeopardy” finding. The DSIs argued that the 1995 ROD should be set aside on the grounds that BPA should have conducted an independent analysis of FCRPS operations prior to issuing the 1995 ROD. The court disagreed, holding that such an approach would be contrary to its established standards of review. Under the Administrative Procedure Act the court has authority to set aside agency action found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. Under this standard, the court stated that it would not scrutinize BPA’s adoption of NMFS’s “jeopardy” finding more critically than it would an action agency’s reliance on a consulting agency’s “no jeopardy” opinion.

Specifically, the DSIs argued that the 1995 ROD is not based on scientific findings which met the Endangered Species Act’s requirement that a section 7 consultation be based on the “best scientific and commercial data available.” The DSIs alleged that the 1995 ROD’s adoption of the NMFS “jeopardy” finding is not supported by appropriate data and is based on a flawed standard. Among other things, the DSIs challenged the proposal to increase flow and reduce fish transportation around FCRPS dams. The court rejected this argument, finding that it amounted to “an effort to rehash the multi-year scientific debate that culminated in the adoption of the 1995 BiOp.” In light of the scientific uncertainty surrounding salmon recovery and the 1995 ROD’s commitment to further study, the court concluded that BPA did not act arbitrarily, capriciously, or contrary to law in adopting NMFS’s “jeopardy” finding.

The DSIs also challenged the 1995 ROD on the ground that it violates the Northwest Power Act. The DSIs asserted that BPA failed to balance appropriately its obligations under the Endangered Species Act against the Northwest Power Act’s directive to “assure the Pacific Northwest of an adequate, efficient, economical, and reliable power supply.” The court disposed of this challenge by finding that the Northwest Power Act’s goal of providing economical power does not supplant BPA’s obligation to comply with environmental mandates.

Analysis

This decision evidences trend in the Ninth Circuit toward increased deference to agency scientific decisions. The court’s reluctance to review actions based on such decisions reinforces the importance of early stakeholder participation in the section 7 consultation process. (SLS)

References: