U.S. Court Of Appeals for the Ninth Circuit Hears Oral Arguments on Challenge to the Council's 2014 Fish and Wildlife Program

Council argues it met the Northwest Power Act's requirements for developing the program, including that the Council base the program largely on recommendations from the region’s fish and wildlife agencies and tribes

Photo by Tony Grover

On May 11, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit heard oral arguments in Seattle from the attorneys representing the Northwest Resource Information Center, Inc. and the Council. 

The Council, an interstate agency of Idaho, Montana, Oregon, and Washington, is required by the Northwest Power Act to develop a program to protect and enhance fish and wildlife adversely affected by hydroelectric dams on the Columbia River and its tributaries while assuring the region an economical and reliable power supply. 

The Council adopted the most recent version of its Columbia River Basin Fish and Wildlife Program in 2014. The NRIC filed a petition in the Ninth Circuit challenging the program, asserting that the Council's decision on program measures and objectives was both contrary to the requirements of the Act and arbitrary and capricious, and seeking a remand of the program from the Court to the Council. The NRIC, the Council, and a number of intervenors in support of the Council’s decision filed briefs with the Ninth Circuit in 2016. Oral argument before a panel of judges just assigned to the case was the last step prior to a decision from the Court. 

Representing NRIC, Earthjustice attorney Todd True argued that the Council wrongly equated Endangered Species Act compliance with its legal requirements under the Act and that "...apart from the Council's improper conflation of its legal duties under the Power Act with the requirements of ESA, the Council also failed to provide a rational account of why the measures in the 2014 Program are adequate to actually meet the requirements of the Power Act itself...." In this regard, True argued that the Council must find that the measures adopted into the program collectively meet the Act’s requirement to protect and enhance fish and wildlife affected by the hydrosystem, and adopt additional biological objectives on which to base such a finding. 

John Shurts, the Council's general counsel, argued that the Council developed and approved the 2014 program in accordance with the Power Act, noting that the statute is particularly clear that the Council must develop the program largely on the basis of recommendations of the federal and state fish and wildlife agencies and the region's Indian tribes.

Shurts also noted that in 1994, the Ninth Circuit vacated the Council's decision to adopt the fish and wildlife program precisely because the Council did not properly rely on the program amendment recommendations, particularly those of the agencies and tribes, and that the Council has worked carefully ever since to comply with that ruling, including in its decision to adopt the measures and objectives in the 2014 Program.

Shurts also noted that the Council did not equate Endangered Species Act compliance with the requirements of the Power Act; the Council explained clearly that while the substantive requirements of the two acts are different, certain measures recommended to the Council under the Power Act and included in the program are also reviewed by federal agencies for compliance with the ESA. 

Judge M. Margaret McKeown presided over the panel. Judge McKeown is based in San Diego and was appointed by President Clinton. The other judges are Carlos Bea from Northern California and N. Randy Smith of Idaho, both appointed by President George W. Bush.

A decision from the court is not expected for several months.

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