Pacific Northwest Generating Co-op. v. Brown, s. 93-35531
| Decision Date | 28 September 1994 |
| Docket Number | 93-35532 and 93-35536,Nos. 93-35531,s. 93-35531 |
| Citation | 38 F.3d 1058 |
| Parties | PACIFIC NORTHWEST GENERATING COOPERATIVE, Plaintiff-Appellant, v. Ronald H. BROWN, in his official capacity as Secretary of Commerce; National Marine Fisheries Service; Pacific Fishery Management Council; North Pacific Fishery Management Council; U.S. Fish & Wildlife Service, Defendants-Appellees, State of Oregon, Defendant-Intervenor-Appellee. ALUMINUM COMPANY OF AMERICA, Columbia Aluminum Corporation; ELF Atochem North America; Columbia Falls Aluminum Company; Intalco Aluminum Corporations; et al., Plaintiffs-Appellants, v. Ronald H. BROWN, in his official capacity as Secretary of Commerce; United States Department of Commerce; National Marine Fisheries Service; Pacific Fishery Management Council; North Pacific Fishery Management Council; et al., Defendants-Appellees. State of Oregon, Defendant-Intervenor-Appellee. PUBLIC POWER COUNCIL, Plaintiff-Appellant, v. Barbara H. FRANKLIN; United States Department of Commerce; National Marine Fisheries Service; Pacific Fishery Management Council; North Pacific Fishery Management Council, et al., Defendants-Appellees. State of Oregon, Defendant-Intervenor-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
R. Erick Johnson and R. Daniel Lindahl, Bullivant, Houser, Bailey, Pendergrass & Hoffman, Portland, OR, for plaintiff-appellant Pacific Northwest Generating Co-op.
Jeffrey W. Ring and James L. Buchal, Heller, Ehrman, White & McAuliffe, Portland, OR, for plaintiff-appellant Aluminum Co.
Gregory J. Miner and Cynthia Lombardi, Bogle & Gates, Portland, OR, for plaintiff-appellant Public Power Council.
Jack C. Wong and Thomas C. Lee, Asst. U.S. Attys., Portland, OR, and Martin W. Matzen, Charles R. Schockey, Fred R. Disheroon, and J. Carol Williams, U.S. Dept. of Justice, Environmental and Natural Resources Div., Washington, DC, for defendant-appellee Brown.
Stephanie Striffler, Asst. Atty. Gen., Salem, OR, for defendant-intervenor-appellee.
Appeal from the United States District Court for the District of Oregon.
Before: BROWNING, KOZINSKI, and NOONAN, Circuit Judges.
Salmon and waterpower, the two great natural resources of the Columbia River Basin, have been in tension with each other for over half a century as they have been put to use by human hands and mouths. In our case the principal consumers of the power attempt to align themselves on the side of the salmon--an irrelevant paradox, a fatal contradiction or a new beginning with possibilities for ill or good?
The Aluminum Company of America and other companies purchasing power from the Bonneville Power Administration (the Direct Service Industries), the Pacific Northwest Generating Cooperative, and the Public Power Council (collectively the plaintiffs) brought actions against Robert H. Brown, Secretary of Commerce, and a variety of other federal defendants including the Bonneville Power Administration (the defendants). The actions challenged the defendants' response to the listing of three salmon populations on the Snake River as endangered or threatened. The cases were consolidated for decision by the district court, 822 F.Supp. 1479 (D.Or.1993), and we have consolidated them for decision on the appeals by the plaintiffs from the judgment of the district court.
The district judge, highly knowledgeable in these matters from his judicial experience, made an excellent statement of the relevant facts, the relevant statutes, the proceedings, and the care with which this complex multi-state river management operation must be approached. 822 F.Supp. at 1483-92. We depend upon this statement together with the admitted allegations and stipulated facts in presenting a summary of the most significant points:
1. Government regulation of the Columbia River Basin, of which the Snake River forms a part, is extensive; the Endangered Species Act of 1973 adds another layer of law to an area already heavily laden with regulation.
2. The Columbia River Fisheries Management Plan adopted by the district court on October 7, 1988, governs much of the harvesting of fish challenged by the plaintiffs here. See United States v. Oregon, 699 F.Supp. 1456 (D.Or.1988), aff'd, 913 F.2d 576 (9th Cir.1990), cert. denied, 501 U.S. 1250, 111 S.Ct. 2889, 115 L.Ed.2d 1054 (1991). The signatories to the plan include the United States of America, the Bureau of Indian Affairs, the Fish and Wildlife Service, the State of Idaho, the representatives of the States of Oregon and Washington to the Oregon-Washington Compact, the Nez Perce Tribe, the Confederated Tribes of the Umatilla Indian Reservation, the Confederated Tribes of the Warm Springs Reservation, the Yakima Indian Nation, and, subject to certain limitations, the Shoshone-Bannock Tribe. The Plan reflects the critical need for coordinated and centralized management of fish in the Columbia River Basin to protect the fish and to protect the balance between Indian fisheries governed by treaty and non-treaty fisheries.
3. The endangered or threatened status of the three listed salmon populations is unchallenged. On November 20, 1991 the National Marine Fisheries Service listed Snake River sockeye salmon as an endangered species under the Endangered Species Act. 56 Fed.Reg. 58,619. On April 22, 1992 the National Marine Fisheries Service listed Snake River spring/summer chinook salmon and Snake River fall chinook salmon as threatened species. 57 Fed.Reg. 14,655.
4. In 1992 the Army Corps of Engineers and the Bureau of Reclamation, two of the defendants, increased water flows in the Columbia River system in order to create water spills at the dams and to increase the velocity of the river in order to benefit the migration of juveniles of the listed species by enhancing the speed and success of the smolts' journey downstream. This action diminished the use of the water for power production and raised the cost of power supplied by the Bonneville Power Administration, the marketer of the power.
5. The Direct Service Industries purchase thirty percent of the power supplied by the Bonneville Power Administration. One-quarter of their power may be interrupted by that agency, in which event the industries must either restrict their own output or buy more power from more expensive sources. The industries estimate that in 1992 power interruptions increased their power costs by approximately $3.5 million per month. The Public Power Council, a nonprofit corporation comprised of consumer-owned utilities and cooperatively owned utilities, given by 16 U.S.C. Sec. 832c(b) preference and priority in the purchase of power from the Bonneville Power Administration, buys forty-three percent of that agency's power. The Pacific Northwest Generating Cooperative, a generation and transmission cooperative and power manager for twenty-nine rural electric cooperatives, also purchases power from the Bonneville Power Administration. Like the Direct Service Industries and the Public Power Council the price it pays is affected by the costs of the Bonneville Power Administration.
The Direct Service Industries brought their suit against the following ten federal defendants: the Secretary of Commerce, the United States Department of Commerce, the National Marine Fisheries Service, the Pacific Fishery Management Council, the North Pacific Fishery Management Council, the Fish and Wildlife Service, the Bureau of Land Management, the Army Corps of Engineers, the Forest Service, and the Bonneville Power Administration. The suit alleged violations of the Endangered Species Act and the Administrative Procedure Act. The industries alleged that the National Marine Fisheries Service in its biological opinions of May 1, 1992 and June 12, 1992 had violated Sec. 7 of the Endangered Species Act by failing to consider the "cumulative impact" of all fisheries on the listed species; by not basing its "no jeopardy" findings on the best scientific and commercial evidence; and by issuing "incidental take" statements whereby members of the listed species were harvested, traded, and transported. The plaintiffs further charged that the Secretary of Commerce, the Department of Commerce, the Pacific Fishery Management Council, the North Pacific Fishery Management Council and the Fish and Wildlife Service had failed to insure that harvest regulations were not likely to jeopardize the listed species; that the National Marine Fisheries Service and the North Pacific Fishery Management Council had failed to consult concerning the effect of North Pacific ocean fisheries; and that the National Marine Fisheries Service Pacific Fishery Management Council, North Pacific Fishery Management Council, and the Fish and Wildlife Service had failed to enforce the Endangered Species Act, Secs. 9 and 10.
These plaintiffs further alleged that the Forest Service, the Bureau of Land Management, and the National Marine Fisheries Service in violation of Sec. 7 had failed to engage in adequate consultations concerning the effects of agency actions on the habitat of the listed species; that the Forest Service and Bureau of Land Management had failed to insure that actions on federal lands which they authorized, funded or carried out were not likely to jeopardize the species; and that these defendants, the Army Corps of Engineers and the Bonneville Power Administration had failed to engage in consultations concerning the effects of hatchery operations and to insure that hatchery actions authorized by them did not jeopardize the species. All of the challenged actions were also characterized as violations of the Administrative Procedure Act in being arbitrary, capricious, an abuse of discretion and not in accordance with law.
The Direct Service Industries made a request for comprehensive relief, including a declaratory judgment that all statements allowing...
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