Northwest Resource Information Center, Inc. v. Northwest Power Planning Council
| Citation | 35 F.3d 1371 |
| Decision Date | 09 September 1994 |
| Docket Number | 92-70191,No. 2,No. 1,93-70059 and 93-70064,93-70055,Nos. 92-70190,2,1,s. 92-70190 |
| Parties | , 24 Envtl. L. Rep. 21,516 NORTHWEST RESOURCE INFORMATION CENTER, INC.; Trout Unlimited; Oregon Natural Resources Council, Inc.; Idaho Steelhead and Salmon Unlimited; The Wilderness Society; Petitioners, and Puget Sound Power & Light Company; Northwest Irrigation Utilities, Inc. ("NIU"); Columbia/Snake River Irrigators Association, Inc. ("CSRIA"); Port of Lewiston, Port of Clarkston and Port of Whitman County ("PPA"); United States of America; Pacific Northwest Generating Company ("PNGC"); Pacificorp; Washington Water Power Company ("WWP"); Public Power Council; Public Utility Districtof Grant County; Direct Service Industrial Customers Aluminum Co. of America, Atochem North America, Columbia Falls Aluminum Company, Georgia-Pacific Corp., Kaiser Aluminum & Chemical Corp., Intalco Aluminum Corp., et al.; Oregon Trout, Inc.; Public Utility Districtof Douglas County; Public Utility Districtof Chelan County; State of Idaho, Petitioners-Intervenors, v. NORTHWEST POWER PLANNING COUNCIL, Respondent. CONFEDERATED TRIBES & BANDS OF THE YAKIMA INDIAN NATION; Petitioner, and Puget Sound Power & Light Company; Northwest Irrigation Utilities, Inc. ("NIU"); Columbia/Snake River Irrigators Association, Inc. ("CSRIA"); Port of Lewiston, Port of Clarkston and Port of Whitman County ("PPA"); United States of America; Pacific Northwest Generating Company ("PNGC"); Pacificorp; Washington Water Power Company ("WWP"); Public Power Council; Public Utility Districtof Grant County; Direct Service Industrial Customers (Aluminum Co. of America, Atochem North America, Columbia Falls Aluminum Company, Georgia-Pacific Corp., Kaiser Aluminum & Chemical Corp., Intalco Aluminum Corp., et al.); Oregon Trout, Inc.; Public Utility Districtof Douglas County; Public Utility Districtof Chelan County; State of Idaho, Petitioners-Intervenors, v. NORTHWEST POWER PLANNING COUNCIL, Respondent. CONFEDERATED TRIBES & BANDS OF the YAKIMA INDIAN NATION, Petitioner, and United States of America, State of Idaho, In |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Adam J. Berger, Seattle, WA, for petitioners, NW RIC.
Tim Weaver, Yakima, WA, for petitioners, Yakima Indian Nation.
Paul M. Murphy, Portland, OR, for petitioner, DSI, et al.
D. Robert Lohn, Portland, OR, for respondents-intervenors.
Petition to Review a Decision of the Bonneville Power Administration.
Before: TANG, and WIGGINS, Circuit Judges, and THELTON E. HENDERSON, * District Judge.
Salmon and hydropower are the two great natural resources of the Columbia River Basin. At odds for most of this century, congressional action in 1980 injected a needed resolve into the conflict, inciting a sense of optimism. Since that time, optimism has largely given way to the dynamics of a classic struggle between environmental and energy interests. The climax of this particular struggle may well be our review of the parties' efforts constituting what has been touted as the world's largest program of biological restoration. 1
The Northwest Resources Information Center, Inc., and other environmental interests (collectively "NRIC"), the Confederated Tribes and Bands of the Yakima Indian Nation (the "Yakima Nation"), and the Aluminum Company of America and other companies purchasing power from the Bonneville Power Administration (the "Direct Service Industries" or "DSIs") challenge the Pacific Northwest Electric Power and Conservation Planning Council's final amendments to the Columbia River Basin Fish and Wildlife Program (the "Program" or "Strategy for Salmon"). These cases have been consolidated for decision on the petitions for review. 2
The flows of the Columbia River Basin 3 are the linchpin of the Pacific Northwest's economy. More than one hundred and fifty dams are integrated to form the world's largest hydropower system, generating over forty percent of the nation's hydropower. The generation of kilowatts, however, is not the only reason for the Basin's importance; the Basin is the habitat for what were once the world's largest salmon runs. 4
Unfortunately, "[l]ike most of the American West, the Columbia River Basin has been developed, not managed as an ecosystem." John M. Volkman & Willis E. McConnaha, Through a Glass, Darkly: Columbia River Salmon, the Endangered Species Act, and Adaptive Management, 23 Envtl.L. 1249, 1250 (1993) [hereinafter Through a Glass ]. Adverse impacts have resulted from deforestation, over-fishing, irrigation practices, mining, grazing, urbanization, and hydropower operations and development.
Although precise estimates of the impacts of these activities are currently unknown, it is generally accepted that the Basin's hydropower system is "a major factor in the decline of some salmon and steelhead runs to a point of near extinction." 126 Cong.Rec. H10687 (1980) (letter from Comptroller General). The U.S. General Accounting Office ("GAO") described the impact of the hydropower system on anadromous fish 5 in its September 4, 1979, report to Representative John D. Dingell, Chairman of the House Subcommittee on Energy and Power, as follows
Smolts surviving passage through the turbines of one dam enter the large, slow-moving reservoir of water formed by the next dam. The river no longer has the strong, swift current needed to carry the smolts rapidly downstream and out to sea. It now takes young fish more than twice as long to migrate downstream as it did before the dams were built. The slower the downstream migration, the more smolts are lost to predators. Others lose the desire to migrate and become permanent residents of the river, further reducing the breeding stock that finally reaches the ocean. It is the cumulative effect of hydro facilities which is so destructive. Each facility poses a separate and sometimes different set of problems for migrating smolts, and each contributes to a cumulative deterioration of the downstream migration. Depending on flows, juvenile losses from all causes average an estimated 15 to 20 percent at each main-stem dam and reservoir complex. Mortalities as high as 30 percent per project have been recorded under particularly adverse conditions.
These problems occur in normal or good water years. In low or below normal water years, the problems are compounded and mortality rates for downstream migrants increase. Juvenile losses increase because of competition for available water supplies.
H.R.Rep. No. 96-976, pt. I, 96th Cong., 2d Sess., at 46, 1980 U.S.Code Cong. & Ad.News at pp. 5989, 6044 (1980); see Public Util. Dist. 1 of Chelan County, Wash., 34 FERC p 63,044 (1986) (); 126 Cong.Rec. H2062 (1980) (Rep. Bonker) ("Each dam on the upper [Columbia R]iver can destroy 10 to 15 percent of the fish that pass over it enroute to the sea.").
As a result of human activities, anadromous fish runs in the Columbia River Basin have dwindled from an estimated ten to sixteen million fish annually, before European settlement in the Northwest, to about two-and-one-half million today. Robert C. Lothrop, The Misplaced Role of Cost-Benefit Analysis in Columbia Basin Fishery Mitigation, 16 Envtl.L. 517, 522 (1986) [hereinafter Misplaced Role of Cost-Benefit Analysis ]. Of this annual loss, eighty percent is attributable to hydropower development and operation. Endangered and Threatened Species; Proposed Endangered Status for Snake River Sockeye Salmon, 56 Fed.Reg. 14,055, 14,058 (1991).
There was early recognition by some that highlight the importance of the Basin's salmon runs. In the 1850's, Northwest tribes ceded to the United States a total of sixty-four million acres of land in exchange for certain rights and for the exclusive use of land reservations. The tribes were careful, however, to reserve the right to continue, as they always had, to take fish at their usual fishing grounds. 6 Environmental factors affecting In the wake of devastating losses of salmon and steelhead in the mid-1970s, 8 Congress enacted the Fish and Wildlife Coordination Act in 1976. 16 U.S.C. Secs. 661-666c. The Coordination Act provided that fish and wildlife have "equal consideration" in the planning and development of hydropower projects. 9 In 1978, however, Federal fishery agencies considered invoking the protection of the Endangered Species Act ("ESA"), 16 U.S.C. Secs. 1531-44, for Snake River runs. Despite the mandate of the Coordination Act, it was not until the threat of action under the ESA that the depletion of anadromous fish in the Columbia River Basin was considered to be more than merely an issue that would resolve itself over time. Also in 1978, Congress was preparing to revise Northwest electric policies in light of forecasts predicting serious power shortages during critical water years expected in the 1980's. H.R.Rep. No. 96-976, pt. II, 96th Cong., 2d Sess., at 31 (1980); see Forelaws on Bd. v. Johnson, 743 F.2d 677, 679 (9th Cir.1984). Recognizing the tremendous, detrimental impact of dams on the fish runs, Congress acknowledged "that no longer [should] fish and wildlife be given a secondary status." 126 Cong.Rec. H10681 (1980) (Rep. Dingell). In 1980, Congress enacted the Northwest...
To continue reading
Request your trial
-
Am. Rivers v. Fed. Energy Regulatory Comm
...at issue would pass muster under a substantial evidence review. See 16 U.S.C. S 825l(b); Northwest Resource Info. Ctr., Inc. v. Northwest Power Planning Council, 35 F.3d 1371, 1385 (9th Cir. 1994) (recognizing that "for a court to fulfill its function under the appropriate standard of revie......
-
Northwest Environmental Defense Center v. Bonneville Power Admin., 2
...Power Act (NPA), 16 U.S.C. §§ 839-839h, which "marked an important shift in federal policy." Northwest Resource Information Center v. Northwest Power Planning, 35 F.3d 1371, 1377 (9th Cir.1994). "Continually declining fish runs had revealed the failures of previous legislative efforts requi......
-
Golden Northwest Alum. v. Bonneville Power Admin.
...§ 839b(h)(11)(A)(I); see also Nw. Envtl. Def. Ctr. v. BPA, 477 F.3d 668, 672-76 (9th Cir.2007); Nw. Res. Info. Ctr., Inc. v. Nw. Power Planning Council, 35 F.3d 1371, 1377-78 (9th Cir.1994); Nat'l Wildlife Fed'n v. FERC, 801 F.2d 1505, 1513-14 (9th The NWPA requires BPA to take into account......
-
Northwest Environmental Def. v. Bonneville Power
...BPA, 342 F.3d 924 (9th Cir.2003); Nw. Envtl. Def. Ctr. v. BPA, 117 F.3d 1520 (9th Cir.1997); Nw. Res. Info. Ctr., Inc. v. Nw. Power Planning Council, 35 F.3d 1371 (9th Cir.1994) [hereinafter, NRIC]; Nw. Res. Info. Ctr., Inc. v. Nat'l Marine Fisheries Serv., 25 F.3d 872 (9th Cir.1994). In th......
-
Addressing barriers to watershed protection.
...to some degree of unchecked federal agency discretion. (670) Eg., Northwest Resource Info. Ctr. v. Northwest Power Planning Council 35 F.3d 1371 (9th Cir. 1994) (successfully challenging fish and wildlife plan for failure to provide adequate instream flows and otherwise to protect salmon), ......
-
CHAPTER 1 EVOLUTION OF FEDERAL PUBLIC LAND AND RESOURCES LAW
...(9th Cir. 1985); cert. denied, 478 U.S. 1004 (1986). See also Northwest Resource Info. Center, Inc. v. Northwest Power Planning Council, 35 F.3d 1371, 1377 (9th Cir. 1994), cert. denied, 116 S. Ct. 50 (1995). See generally 3 PNRL at § 21C.06[2][a]. [250] 16 U.S.C. § 839b(h)(1)(A) (1994). [2......
-
Idaho nibbles at Montana: carving out a third exception for tribal jurisdiction over environmental and natural resource management.
...South Dakota v. Bourland, 39 F.3d 868, 870 (8th Cir. 1994) (188) Northwest Res. Info. Ctr., Inc. v. Northwest Power Planning Council, 35 F.3d 1371, 1375-78 (9th Cir. 1994) (describing the effects of Columbia River dams on the Basin's anadromous fishery resources); Maison v. Confederated Tri......
-
Fulfilling the executive's trust responsibility toward the native nations on environmental issues: a partial critique of the Clinton administration's promises and performances.
...(Sept. 1994) (unpublished manuscript) (on file with author); Northwest Resource Info. Ctr., Inc. v. Northwest Power Planning Council, 35 F.3d 1371, 1375-83 (9th Cir. 1994). (137) Northwest Resource Info. Ctr., 35 F.3d at 1376. (138) Columbia River Inter-Tribal Fish Comm'n, Wy-Kan-Ush-Mi, Wa......