Northwest Environmental Def. v. Bonneville Power

Decision Date24 January 2007
Docket NumberNo. 06-71182.,No. 06-70430.,06-70430.,06-71182.
Citation477 F.3d 668
PartiesNORTHWEST ENVIRONMENTAL DEFENSE CENTER, Public Employees for Environmental Responsibility; Northwest Sportfishing Industry Association, Petitioners, Northwest Power and Conservation Council, Intervenor, v. BONNEVILLE POWER ADMINISTRATION, Respondent. Confederated Tribes and Bands of the Yakama Indian Nation, Petitioner, v. Bonneville Power Administration, Respondent.
CourtU.S. Court of Appeals — Ninth Circuit

Tim Weaver, Law Office of Tim Weaver, Yakima, WA, for petitioner Confederated Tribes and Bands of the Yakama Nation.

David J. Adler, Special Assistant United States Attorney and Stephen J. Odell, Assistant United States Attorney, Portland, OR, for respondent Bonneville Power Administration.

John Shurts, Northwest Power and Conservation Council, Portland, OR, for intervenor Northwest Power and Conservation Council.

David J. Cummings, Nez Perce Tribe Office of Legal Counsel, Lapwai, ID, for amicus Nez Perce Tribe.

Howard G. Arnett, Karnopp Petersen, LLP, Bend, OR, for amicus Confederated Tribes of the Warm Springs Reservation of Oregon.

Christopher B. Leahy, Fredericks, Pelcyger & Hester, LLC, Louisville, CO, for amicus Confederated Tribes of the Umatilla Reservation.

On Petition for Review of a Final Action of the Bonneville Power Administration.

Before MICHAEL DALY HAWKINS, BARRY G. SILVERMAN, and RONALD M. GOULD, Circuit Judges.

GOULD, Circuit Judge.

Salmon and steelhead1 are two of the great natural resources of the Columbia River. Their continued existence has been threatened by the construction of dams to capture a third great natural resource of the Columbia River, its water power. As these dams were constructed, the number of salmon and steelhead migrating up the Columbia River to reproduce at its headwaters dropped. At one time, an estimated ten to sixteen million adult fish returned to the Columbia River basin each year. Today, only about one million fish return for spawning that is essential to the species' survival in the Columbia River system.

In response to declining salmon and steelhead runs, Congress passed the Northwest Power Planning and Conservation Act of 1980. The Act created the Northwest Power and Conservation Council, an interstate compact agency, and directs the Council to prepare programs to protect and enhance the fish and wildlife of the Columbia River basin while also assuring the Pacific Northwest an adequate, efficient, economical, and reliable power supply. The Act also instructs the Bonneville Power Administration, the federal agency that operates the dams on the Columbia River, to use its authority in a manner consistent with the programs developed by the Council.

In 1982, the Council called for the creation of what would eventually become the Fish Passage Center. The Fish Passage Center provides technical assistance and information to fish and wildlife agencies, Indian tribes, and the general public on matters related to juvenile and adult salmon and steelhead passage through the Columbia River and its tributaries. Since 1987, the Bonneville Power Administration has funded the Fish Passage Center, and the Fish Passage Center has gathered, analyzed, and publicly-disseminated data regarding fish passage. The Bonneville Power Administration has used this information, in consultation with fisheries and Indian tribes and in conjunction with its control over water flow past the dams, to help improve the survival rates of fish migrating up and down the Columbia River.

In light of language in two 2005 congressional committee reports, however, the Bonneville Power Administration decided to transfer the functions performed by the Fish Passage Center to Battelle Pacific Northwest Laboratory and Pacific States Marine Fisheries Commission. In this consolidated case, Northwest Environmental Defense Center, Public Employees for Environmental Responsibility, Northwest Sportsfishing Industry Association, and the Confederated Tribes and Bands of the Yakama Nation (collectively, "petitioners") petition for review of the Bonneville Power Administration's action transferring the functions of the Fish Passage Center to Battelle Pacific Northwest Laboratory and Pacific States Marine Fisheries Commission and creating a new model Fish Passage Center ("new model").

I
A

Created by the Bonneville Project Act of 1937, 16 U.S.C. §§ 832-832m, the Bonneville Power Administration ("BPA") is a federal agency within the Department of Energy. BPA sells and transmits wholesale electricity from thirty-one federal hydroelectric plants, one non-federal nuclear power plant in Hanford, Washington, and other non-federal power plants in the Columbia River basin. About BPA Home, http://www.bpa.gov/corporate/About_BPA/ (last visited Jan. 17, 2007). BPA's customers include federal agencies, public and private utility companies, and direct service industrial customers. See Kaiser Aluminum & Chem. Corp. v. BPA, 261 F.3d 843, 845 (9th Cir.2001). BPA does not receive annual appropriations, as is the case with most federal agencies. Rather, the revenue that BPA obtains from its sales and transmission of electricity is deposited in the Bonneville Power Administration fund ("BPA fund"). 16 U.S.C. § 838i(a). BPA then uses the fund to finance its operations. Id. § 838i(b).

As a self-financing power marketing agency, BPA must set its prices high enough to cover its costs. Indus. Customers of Nw. Utilities v. BPA, 408 F.3d 638, 641 (9th Cir.2005); Ass'n of Public Agency Customers, Inc. v. BPA, 126 F.3d 1158, 1164 (9th Cir.1997) [hereinafter APAC]. BPA must also sell power to consumers "at the lowest possible rates." 16 U.S.C. § 838g. At the same time, BPA must be environmentally conscious, supporting energy conservation and protecting the fish and wildlife of the Columbia River basin. APAC, 126 F.3d at 1164; see, e.g., 16 U.S.C. § 839b(h)(10)-(11) (providing that BPA must use the BPA fund and its statutory authority in a manner that protects and enhances fish and wildlife).

In 1980, to assist BPA in balancing its responsibilities to provide low-cost energy while protecting fish and wildlife, Congress passed the Pacific Northwest Power Planning and Conservation Act ("Northwest Power Act" or "Act"), Pub.L. No. 96-501, 94 Stat. 2697 (1980) (codified at 16 U.S.C. §§ 839-839h). The Act authorized state governments to form what is now called the Northwest Power and Conservation Council ("Council"), an interstate compact agency2 comprised of members from Idaho, Montana, Oregon, and Washington. 16 U.S.C. § 839b(a)(2)(B); see Seattle Master Builders Ass'n v. Pac. Nw. Elec. Power & Conservation Council, 786 F.2d 1359, 1366 (9th Cir.1986) (upholding the constitutionality of the Council). Each state has agreed to participate in the Council, see Idaho Code § 61-1201; Mont.Code Ann. § 90-4-401; Or.Rev.Stat. § 469.803; Wash. Rev.Code Ann. § 43.52A.010, and has enacted legislation authorizing its governor to appoint two members to the Council, see Idaho Code § 61-1202; Mont. Code Ann. § 90-4-402; Or.Rev.Stat. § 469.805; Wash. Rev.Code Ann. § 43.52A.030.

The Act charges the Council with two tasks fundamental to this case: (1) preparing and periodically reviewing a regional conservation and electric power plan to aid BPA in acquiring and developing power resources ("Power Plan" or "Plan") and (2) preparing and periodically reviewing a program to protect, mitigate, and enhance fish and wildlife ("Fish and Wildlife Program" or "Program"). 16 U.S.C. § 839b(a)(1).

The current composition of the Council reflects the varied constituencies it serves. The Council is chaired by an expert in natural resource economics. Many Council members are former business persons or practicing attorneys. Indian tribes and fishing enthusiasts are also represented on the Council. Four of the eight current Council members have served as state senators or state representatives in the Pacific Northwest.3

The Council submits each project proposed for funding under its Fish and Wildlife Program for review by the Independent Scientific Review Panel, an eleven-member panel of independent scientists appointed by the Council from the recommendations of the National Academy of Scientists. See id. § 839b(h)(10)(D). The Act obliges BPA to consult with state fish and wildlife agencies and Indian tribes in carrying out its responsibilities under the Act. See id. § 839b(h)(11)(B). In short, the Act "establishes an innovative system of cooperative federalism under which the states, within limits provided in the Act, can represent their shared interests in the maintenance and development of a power supply in the Pacific Northwest and in related environmental concerns." Seattle Master Builders, 786 F.2d at 1366.

B

Section 839b(h)(10)(A) of the Act explains how the views of the Council guide BPA's actions. It provides:

The Administrator [of BPA] shall use the Bonneville Power Administration fund and the authorities available to the Administrator under this chapter and other laws administered by the Administrator to protect, mitigate, and enhance fish and wildlife to the extent affected by the development and operation of any hydroelectric project of the Columbia River and its tributaries in a manner consistent with the plan, if in existence, the program adopted by the Council under this subsection, and the purposes of this chapter.

16 U.S.C. § 839b(h)(10)(A). In other words, the Act requires BPA's fish and wildlife protection, mitigation, and enhancement actions to be consistent with (1) the Council's Power Plan; (2) the Council's Fish and Wildlife Program; and (3) the purposes of the Act.4 Section 839b(h)(10)(A) is thus...

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