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9th Circuit Rejects Petition to Toss Council's 2014 Fish & Wildlife Program by Laura Berg NW Fishletter, August 7, 2017

As to the Nez Perce Tribe's proposal to study further the removal of certain dams on the Snake River,
the Council reasonably referenced its earlier analysis of an identical proposal considered as part of the 2010 Power Plan.

The 9th U.S. Circuit Court of Appeals has denied a petition from Northwest Resource Information Center and its Earthjustice attorneys calling for a rewrite of the Northwest Power and Conservation Council's 2014 Columbia River Basin Fish and Wildlife Program.

The six-page unpublished order, issued July 19, made no sweeping statements about the 2014 program, but rather discarded the petitioner's five arguments with little more than a scant paragraph on each [15-71482].

First, the judges disagreed with Idaho-based NRIC claim that the Council mistakenly equated requirements of the Northwest Power Act and the Endangered Species Act.

The ruling said the F&W program had numerous measures distinct from those in the Federal Columbia River Power System BiOp, which is a requirement of the ESA. As examples, they cited the reintroduction of anadromous fish above Grand Coulee Dam and wildlife measures not included in the BiOp.

Also rejected was NRIC's claim that the program inappropriately relied on flow and passage measures from the BiOp. The judges said this was not improper because the regional act specifies that measures should complement other actions of federal and state agencies and tribes.

The ruling states that the petitioner's second contention--that the program lacks quantitative, measureable biological objectives--is not accurate.

"While NRIC may very well be correct that the program would be more effective in protecting wildlife [fish] with further specific quantitative measures . . . that does not mean that the Council's adoption of the program is arbitrary and capricious," the order states.

The assertion about measurable objectives, and the first claim regarding regional act and ESA equivalencies, were the main substance of oral arguments heard by the 9th Circuit in Seattle May 11.

The third claim the ruling rejected involved an argument that the Council improperly left out three important recommended measures--the Nez Perce Tribe's proposal to study dam removal on the lower Snake River; the proposal by the tribe and Oregon for experimental dam spill; and environmental groups' proposal to operate John Day Dam at minimum operating pool elevations.

The judges concluded the Council excluded these three recommendations for valid reasons under the regional act.

As to the Nez Perce Tribe's proposal to study further the removal of certain dams on the Snake River, the Council reasonably referenced its earlier analysis of an identical proposal considered as part of the 2010 Power Plan. This analysis concluded that removing these dams would be economically infeasible, which is a cognizable reason under the Power Act for rejecting a recommendation.

The fifth NRIC argument, asserting that the Columbia Basin Fish Accords improperly influenced the fish and wildlife program, was also rejected as "a harmless misunderstanding" by some Council members that was corrected.

The Council's general counsel, John Shurts, said in an email that the judicial outcome was "excellent--the Ninth Circuit equivalent of basically 'nothing there.'"

Ed Chaney, NRIC director, told NW Fishletter: "[T]he Court held, in effect, that the Council is not required to do more than rubber stamp the agencies' actions in the BiOp.

"Notwithstanding that those actions have repeatedly been rejected by the courts as being insufficient to prevent jeopardizing Snake River salmon with extinction, to say nothing of falling far short of meeting the far greater Power Act standard of restoring salmon to formerly productive levels."

The petitioner and its attorneys have litigation pending against the Council's Seventh Power Plan, which was stayed until the 9th Circuit decided the case on the 2014 fish and wildlife program.

Chaney and Earthjustice attorney Todd True told NW Fishletter via email that they were reviewing their options regarding further actions. Chaney also offered that his organization may focus on federal agencies as, he said, courts have ruled the agencies have "the independent duty to fulfill the salmon restoration mandate of the power act if the council fails to do so.

NRIC and Earthjustice have until Aug. 2 to decide whether to proceed with the case against the regional power plan.