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Appeals Court Calls Challenge to Fish Accords Moot Due to Tardiness by Staff Columbian Basin Bulletin, November 14, 2008

The U.S. Court of Appeals for the Ninth Circuit last week dismissed a legal attempt to derail $1 billion in fish and wildlife funding agreements made between Columbia River basin states and tribes and federal agencies.

The appellate court said in a two-paragraph order issued Nov. 5 that a petition requesting a review of the agreements was tardy.

"A review of the record demonstrates that this court lacks jurisdiction over this petition because the August 5, 2008 petition for review was not filed within 90 days from the issuance of the May 2, 2008 Bonneville Power Administration Columbia Basin Fish Accords," a three-judge panel ruled.

The petition filed by Charles E. Pace said that the BPA exceeded its authority and took other legal missteps this spring in making commitments to the states of Idaho and Montana and four basin tribes to spend nearly $1 billion in power ratepayer revenues over the next 10 years on fish and wildlife projects. BPA markets power generated in the federal Columbia/Snake River hydro system and funds fish and wildlife restoration projects in response to Northwest Power Act, Endangered Species Act, tribal treaty and other obligations.

Pace said that the magnitude of the decision warranted a more open public process. The agreements were struck in negotiations between BPA and the individual parties.

"..., because substantial public interests are involved, and the agency's action is repugnant to public laws intended to protect those interests, the nature and scope of relief necessary to accomplish the complete and efficient administration of justice in furtherance of the public's interests is raised," according to a brief filed by Pace in support of his petition.

BPA attorneys responded to the petition by asking that it be dismissed, based largely on the fact that it arrived at the court five days past a deadline prescribed in the Northwest Power Act of 1980.

Pace in turn responded by telling the court that the 90-day clock started on May 9 when details of the accords were published in the Federal Register and thus the petition was filed in a timely manner.

BPA attorneys had argued that published notice of the Fish Accords records of decision was done pursuant to National Environmental Policy Act obligations, not those mandated by the Power Act. That means the May 2 signing of the decisions opened the appeal window, not the May 9 Federal Register notice.

The Ninth Circuit panel agreed.

"All pending motions are denied as moot," the order said.

BPA in early April announced draft agreements with the tribes and states that would guarantee $980 million in funding for fish and wildlife projects over the next 10 years. The long-term funding commitments are intended to address fish affected by federal dams of the Federal Columbia River Power System, with a focus on salmon and steelhead listed under the Endangered Species Act.

In exchange, the tribes and states agreed that federal agency actions outlined in a new FCRPS biological opinion, in concert with accord actions, represents a "reasonable plan that all the parties support to protect and recover fish affected by the FCRPS and meet the legal mandates of the ESA, Northwest Power Act, and CWA for the next ten years," according to a new record of decision signed Nov. 6 by BPA CEO Steve Wright.

The most recent accord -- with the Shoshone-Bannock Tribes of the Fort Hall Indian Reservation - guarantees $61 million in fish and wildlife funding.

Two agreements signed May 2 -- one with the Umatilla, Warm Springs and Yakama tribes and the Columbia River Inter-Tribal Fish Commission and one with the Colville tribes -- would assure about $900 million with about 60 percent of the total for "new" work or existing project expansion and the balance to continue existing projects for the next 10 years. The Idaho agreement signed this spring earmarks $65 million for new and expanded work; an agreement with the state of Montana commits $15 million.

The Power Act stipulates that challenges to a BPA or Northwest Power and Conservation Council actions under the act be addressed in the appeals court. The act called for the creation of the NPCC and its development of a fish and wildlife program to mitigate for the impacts on fish and wildlife from the federal Columbia/Snake river hydro system. The 1980 law charged Bonneville with funding that program.

Pace, a Challis, Idaho-based economic consultant, from 1984 to 1991 served as director of the Shoshone-Bannock providing technical assistance and policy analyses on a variety of issues, including their petition to have Snake River sockeye salmon under the ESA. Since 1991 he has continued to engage in Columbia basin issues as a consultant for tribes and federal, local and federal governments.