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'Equitable Treatment' Lawsuit Against BPA Draws Crowd by Barry Espenson Columbia Basin Bulletin - January 25, 2002

The state of Oregon is among the list of official participants in lawsuits filed in November accusing the Bonneville Power Administration of failing to give fish and wildlife "equitable treatment" in planning federal Columbia-Snake river hydrosystem operations.

Lawsuits were brought by a coalition of fishing and conservation groups and by the Nez Perce Tribe and Confederated Tribes of the Umatilla Indian Reservation. Oregon, the Shoshone-Bannock Tribes and the Warm Springs Tribe have since sought and been granted status to intervene on behalf of the petitioners in the lawsuit filed by the Nez Perce and Umatilla tribes. In that same lawsuit, the Public Power Council was granted intervenor status on behalf of BPA and the Pacific Northwest Generating Cooperative and its members gained nonaligned intervenor status.

Most of the parties involved say they believe that the two cases will be consolidated. Both lawsuits were filed in the Ninth Circuit Court of Appeals in San Francisco.

The conservation groups' lawsuit cited hydrosystem operational decisions made BPA, the Corps of Engineers and Bureau of Reclamation during the 2001 salmon migration "to protect its pocketbook at the expense of endangered salmon." The Northwest Power Planning and Conservation Act, enacted by Congress in 1980, requires federal agencies like BPA to provide salmon "equitable treatment" with energy, the groups say.

The 2001 hydro operations carried out during a BPA-declared "drought emergency" included the curtailment of most spill at dams intended to aid fish passage.

Nez Perce and the Umatilla tribes said, in announcing their lawsuit, that the 2001 operations were symptomatic of a continuing disregard for fish.

"Bonneville's decisions last summer to curtail flow and spill are but one example of Bonneville's much larger failure to achieve the balance between fish and wildlife, and power that Congress intended," Samuel N. Penney , chairman of the Nez Perce Tribe, said in November.

The lawsuits challenge an Aug. 8 BPA record of decision outlining the power marketing agency's responsibilities under the Endangered Species Act and other laws following the release of the National Marine Fisheries Service's December 2000 biological opinion on hydrosystem operations.

The state of Oregon and Shoshone-Bannock Tribes' requests to intervene on behalf of the petitioners were granted late last month. The Warm Springs Tribes had been granted petitioner-intervenor status earlier.

Oregon's request cited "unique interests in the subject matter of the petition and the outcome of the review" of BPA's decision document.

"The outcome of this case will impact management of the federal Columbia River Power System, and thus Oregon's interests in fish and wildlife and energy resources of the Columbia Basin. Neither the petitioners nor the federal defendants share precisely the same set of interests or concerns," according to the Oregon motion.

Oregon's lead attorney, Stephanie L. Striffler, said briefs filed in the future would elaborate on "what all the state doesn't like about BPA's actions or non-actions. I would really prefer not get into the details."

PNGC filed a "motion for leave to intervene" on Dec. 5 in both "equitable treatment" lawsuits, citing its strong economic and environmental interests in the case and stating that no other party to the case represents PNGC members' interests. PNGC was granted non-aligned intervenor status. The non-profit corporation purchases wholesale power from BPA for resale to its members -- 15 not-for-profit electric cooperatives in Oregon, Idaho and Washington.

"What's at issue under equal treatment under the Northwest Power Act is this concept of trying to balance" hydrosystem operations to best serve fish and power/economic needs, said Scott Corwin, PNGC manager of government affairs. The petitioners apparently feel the scale is tipped in favor of power. PNGC's members would argue that fish and wildlife costs paid by ratepayers has become the greater weight or hardship, Corwin said.

PNGC sought the non-aligned status because it is not sure yet now BPA will argue its case.

"We want to hold open our options," Corwin said.

The PNGC motion said that "BPA is economically indifferent to spending more than is reasonable, necessary and equitable under applicable law on fish and wildlife mitigation and conservation efforts so long as it can recovery those costs from its customers.

"BPA has an interest in spending more than is reasonable, necessary and equitable under applicable law for such efforts because doing so may placate petitioners and others claiming to protect fish and wildlife by suing and otherwise pressuring BPA," according to the PNGC motion.

Since BPA passes along any costs it incurs, PNGC and its members have an economic interest in assuring that fish and wildlife mitigation and conservation efforts are funded efficiently "for measures of demonstrable efficacy," the PNGC said.

Corwin said that the petitioners, "despite displaying a lot of misleading information about last summer's events, really are suing on the BiOp decision document under the "Equitable Treatment" provision of the Northwest Power Act."

Under equitable treatment the court requires a system-wide balancing of needs, he said.

"It is important that customers be involved to make the case that, if anything, the BiOp and related documents balance too far on the side of fish at the expense of an adequate, efficient, economical, and reliable power supply," Corwin said.

PPC senior counsel Denise Peterson said that the parties involved agreed during a status conference this week on a schedule that begins with filing of an administrative record by BPA in March and the agency's initial briefs due in May and the petitioners briefs July 1. The briefing schedule now being considered would stretch into November, she said.

PPC will not be able to form its arguments until it sees the administrative record and BPA's initial brief, Peterson said.

The Pacific Environmental Advocacy Center of Portland, and Earthjustice Legal Defense Fund of Seattle, represent fishing and conservation groups in their lawsuit. Plaintiffs include Sierra Club, Pacific Coast Federation of Fishermen's Associations, Institute for Fisheries Resources, and Idaho Rivers United.