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Court Orders BPA to Keep Funding Fish Passage Center by Mitch Lies, Staff Writer Capital Press, February 2, 2007

Center monitors Columbia, Snake salmon runs

The 9th Circuit Court of Appeals on Jan. 24 ruled in favor of environmentalists and Indian tribes and ordered the Bonneville Power Administration to continue funding the 24-year-old Fish Passage Center, which monitors salmon runs in the Columbia and Snake rivers.

In a case brought by the Northwest Environmental Defense Center and several Indian tribes, the court ruled BPA did not provide an adequate reason for transferring duties of the center to other entities and acted capriciously and arbitrarily in cutting the center's funding.

The ruling was hailed by Native American tribes.

"This is a great win for the Yakama Nation and all people working hard for science-based salmon restoration," Lavina Washines, chairwoman of Yakama Nation, said in a press release.

"The Fish Passage Center is just the messenger," said Fidelia Andy from the Yakama Nation. "Destroying the messenger because you don't like the scientific message is contrary to salmon-recovery needs."

Dan Whiting, spokesman for Sen. Larry Craig, R-Idaho, who pushed for the center's closure, said the ruling was "clearly another disappointing decision by the 9th Circuit."

Whiting added the ruling "could literally disrupt the appropriations process."

Craig inserted language in a 2005 energy appropriations bill that barred the BPA from funding the center after airing concerns the center was straying from scientific analysis to advocating for salmon over hydropower.

The 9th Circuit Court blocked that move until it had time to rule on the case.

On Jan. 24, the court ruled BPA did not provide any compelling evidence to transfer duties of the center to another entity other than the committee report language in the appropriations bill, and it ruled congressional committee report language does not carry the force of law.

The ruling "says congressional report language doesn't mean anything," Whiting said.

Whiting said it is standard procedure to fund or defund programs based on committee report language within appropriations bills.

Stephania Parent, the plaintiff's attorney, said, however, the case was more complex than Whiting is making it, given that the Northwest Power Act contains a provision requiring the BPA to fund salmon recovery in a manner consistent with the Fish and Wildlife Program adopted by the Northwest Power and Conservation Council.

"The problem here," she said, "is BPA had another statutory duty under the Northwest Power Act."

Whiting said Craig is considering his options and could make another run at disbanding the center.