Aluminum Co. of America v. Administrator, Bonneville Power Admin.

• Decision Date: 10 May 1999
• Docket Number: No. 95-70480,95-70480
• Citation: 175 F.3d 1156
• Parties: ALUMINUM COMPANY OF AMERICA; Columbia Aluminum Corporation; Columbia Falls Aluminum Company; Elf Atochem North America, Inc.; Intalco Aluminum Corporation; Kaiser Aluminum & Chemical Corporation; Northwest Aluminum Company; Reynolds Metals Company; and Vanalco, Inc., Petitioners, v. ADMINISTRATOR, BONNEVILLE POWER ADMINISTRATION, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1156

175 F.3d 1156

ALUMINUM COMPANY OF AMERICA; Columbia Aluminum Corporation;

Columbia Falls Aluminum Company; Elf Atochem North

America, Inc.; Intalco Aluminum Corporation; Kaiser

Aluminum & Chemical Corporation; Northwest Aluminum

Company; Reynolds Metals Company; and Vanalco, Inc., Petitioners, v. ADMINISTRATOR, BONNEVILLE POWER ADMINISTRATION, Respondent.

No. 95-70480.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 11, 1999.

Filed May 10, 1999.

James L. Buchal, Murphy & Buchal, Portland, Oregon, for the petitioners.

Ellen D. Katz, United States Department of Justice, Environment and Natural Resources Division, Washington, D.C., for the respondent.

Petition to Review a Decision of the Bonneville Power Administration.

Before: LEAVY, McKEOWN, and WARDLAW, Circuit Judges.

McKEOWN, Circuit Judge.

This proceeding is the latest in a series of cases involving the continuing conflict between salmon and hydropower, "the two great natural resources of the Columbia River Basin." Northwest Resource Info. Ctr., Inc. v. Northwest Power Planning Council, 35 F.3d 1371, 1375 (9th Cir.1994). Salmon, as anadromous fish, hatch in freshwater tributaries, and then travel as juveniles or "smolts" to the ocean, where they reach maturity. As adults, salmon return to their natal streams and lakes to spawn and die. In traveling to and from the Pacific Ocean, the salmon species at issue here ¹ must pass through or around ² dams and reservoirs that are part of the world's largest hydropower system, the Federal Columbia River Power System (the "FCRPS"). The U.S. Army Corps of Engineers (the "Corps") and the U.S. Bureau of Reclamation (the "Bureau") operate the FCRPS. In turn, the Bonneville Power Administration (the "BPA") markets the hydroelectric power generated by the FCRPS.

In 1995, the National Marine Fisheries Service ("NMFS") declared that the then proposed FCRPS operations plan would jeopardize the continued existence of the salmon at issue and recommended measures to avoid such jeopardy. On March 10, 1995, the BPA issued a Record of Decision adopting NMFS's suggestions (the "1995 ROD"). In June 1995, several companies that purchase power from the BPA, known as direct service industrial customers (collectively, the "DSIs"), petitioned for review of the 1995 ROD, claiming among other things that the BPA acted arbitrarily, capriciously, or contrary to law in adopting the remedial measures proposed by NMFS. The DSIs also contend that the BPA inappropriately failed to prepare an environmental impact statement. We have jurisdiction pursuant to 16 U.S.C. § 839f(e)(5), and we deny the petition.

I. Background

A. Endangered Species and the Statutory Framework

The events giving rise to this dispute began with NMFS's identification in 1991 of Snake River sockeye as an endangered species and NMFS's listing in 1992 of Snake River spring/summer and fall chinook as threatened species. ³ As a result, these salmon species came under the protection of the Endangered Species Act, section 7 of which mandates, in part, that:

Each Federal agency shall, in consultation with and with the assistance of the Secretary [of the Interior or Commerce], insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary to be critical....

16 U.S.C. § 1536(a)(2). This subsection further provides:

In fulfilling the requirements of this paragraph each agency shall use the best scientific and commercial data available.

Id. With regard to salmon, the Secretary of Commerce has delegated its authority to NMFS. See 50 C.F.R. § 402.01(b); American Rivers v. National Marine Fisheries Serv., 126 F.3d 1118, 1122 n. 7 (9th Cir.1997).

When formal consultation is required under section 7, NMFS, as the "consulting agency," must provide "a written statement ... detailing how the agency action affects the species or its critical habitat" to the federal agency at issue (also referred to as the "action agency"). 16 U.S.C. § 1536(b)(3)(A); see 50 C.F .R. § 402.14 (formal consultation is required if an action might affect a listed species or critical habitat). This written statement is referred to as a Biological Opinion ("BiOp"). If the BiOp concludes that jeopardy or adverse modification exists, NMFS must suggest reasonable and prudent alternatives ("RPAs") that it believes would not violate section 7(a)(2) and that can be implemented by the action agency. 16 U.S.C. § 1536(b)(3)(A). In addition, if NMFS concludes that no jeopardy exists or that RPAs would avoid jeopardy and that the incidental taking of endangered or threatened species will not violate section 7(a)(2), NMFS must issue an Incidental Take Statement specifying the conditions under which incidental taking may occur. 16 U.S.C. § 1536(b)(4).

B. Litigation Over Earlier Biological Opinions

The competing environmental and economic interests associated with FCRPS operations have spawned years of litigation. The present action follows a series of decisions and BiOps dealing with salmon and FCRPS operations. In 1992, in an effort to assist the downstream migration of juvenile salmon, 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. This approach engendered considerable debate as to its efficacy and economics.

Following the 1992 decision to increase water flows, several power purchasers, including the DSIs, unsuccessfully challenged two related "no jeopardy" BiOps issued by NMFS. Pacific N.W. Generating Co-op. v. Brown, 38 F.3d 1058 (9th Cir.1994). The DSIs argued that the 1992 BiOps failed to consider the impact of harvesting on the listed species and were not based on the best scientific and commercial evidence. Id. at 1061. While that case was pending, NMFS issued another "no jeopardy" BiOp concerning FCRPS operations for 1993 (the "1993 BiOp"). The district court disapproved of NMFS's 1993 BiOp in Idaho 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, however, NMFS had issued another "no jeopardy" BiOp regarding FCRPS operations for the years 1994 through 1998 (the "1994 BiOp"). The 1994 BiOp contained the same errors the district court had identified in the 1993 BiOp. As a result of the district court's decision in Idaho, NMFS reinitiated consultation and subsequently issued a BiOp for 1995 and future years (the "1995 BiOp"). The 1995 BiOp superseded the 1994 BiOp and is the BiOp at issue here.

C. The 1995 Biological Opinion and the BPA's 1995 Record of Decision

In contrast to the previous 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. Before reaching this conclusion, NMFS participated in a series of discussions with two groups formed to assist the federal consulting and action agencies in complying with the district court's judgment in Idaho: (i) the Biological Requirements Work Group ("BRWG"), and (ii) the Actions Work Group ("AWG"). ⁴ These groups were composed for the most part of the parties to Idaho, including the BPA. The BRWG and AWG began meeting shortly after the Idaho court issued its decision in the spring of 1994 and continued discussions throughout the summer and fall.

In January 1995, following a coordinated effort, NMFS and the U.S. Fish and Wildlife Service (the "FWS") issued separate draft BiOps concerning FCRPS operations, and solicited comments. In February 1995, the BPA, along with several other entities, submitted written comments and participated in meetings regarding the draft BiOps. This joint effort culminated in March 1995 with NMFS's issuance of its final 1995 BiOp, in which it recommended a multi-part RPA for avoiding jeopardy. The RPA consisted of immediate and intermediate/long term actions, including plans for further study.

The Corps and the Bureau formally adopted the 1995 BiOp shortly after its issuance. At the same time, the BPA issued the 1995 ROD, documenting its "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 ⁵] and the measures in the incidental take statements." The DSIs now petition for review of the BPA's 1995 ROD.

II. Scope and Standard of Review

The DSIs advance arguments targeted at both NMFS's actions in preparing the 1995 BiOp and the BPA's decision to adopt NMFS's "jeopardy" finding and RPA. The former claims, at least as they challenge the analysis of NMFS, which is not a party to this action, are beyond the scope of our review on a petition under 16 U.S.C. § 839f(e)(5). On similar procedural facts, we previously held that attacks on the consulting agency's actions "misse[d] the mark." Pyramid Lake Paiute Tribe of Indians v. United States Dep't of the Navy, 898 F.2d 1410, 1415 (9th Cir.1990). In Pyramid Lake, an Indian tribe challenged a BiOp adopted by the Department of the Navy but issued by the FWS, which was not a party to the action. We refused to consider whether the FWS had in any way violated the Endangered Species Act, stating:

The Tribe argues at length that the FWS's biological opinions which contain the "no jeopardy" findings are based on faulty analysis.... The Tribe's argument misses the mark, however, because the FWS is not a party to this action. The FWS's actions, or lack thereof, in preparing its opinions are relevant on appeal only to the extent that they demonstrate whether the Navy's reliance on the reports is "arbitrary and capricious."

Id.

The DSIs' other challenge, involving the BPA's 1995 ROD, presents...