The Ninth Circuit Neuters the Council

In 1992, environmentalists, state fishery agencies and tribes got the Council to issue a "Strategy for Salmon", adding literally hundreds of millions of dollars of costs to electric power bills. Yet they remained unsatisfied with the Council's fish and wildlife program. Wisely, the Council had declined to insist on directing the federal agencies to not generate power in the winter, saving even more water to be dumped down the river in the spring.

Thus several tribes and groups of environmentalists sued the Council (and not dam operators), charging that the Council had failed to give "due weight" to their recommendations in fashioning a fish and wildlife program. The case was called Northwest Resource Information Center v. Northwest Power Planning Council.

It was clear from the record before the Council that the program sought by the fishery interests was in fact impossible to implement, because there was not enough water to meet the flow targets. Indeed, at the oral argument of the case, one judge questioned Tim Weaver, the attorney for the Yakima Indian Nation, as to how the Council was supposed to get all this water. He responded that it was not his problem to figure out how to get the water.

Professor Michael Blum, who has crusaded against the dams for years from his pulpit at the Northwestern School of Law of Lewis & Clark College, walked out of the oral argument before the Ninth Circuit thinking his allies had lost. Luckily for him, the Court did not do the hard work of focusing on the facts before it, and instead used his many law review articles to form a warped and outdated view of the facts.

In an opinion that received a huge degree of media coverage, the Ninth Circuit spent page after page proclaiming the virtues of the flow-based fishery agency program, and excoriating the Council for declining to adopt the program. The opinion by the late Judge Tang (joined by Judges Wiggins and Henderson57), is one of the more remarkable pieces of judicial overreaching ever to emanate from the Ninth Circuit.

The Court's opinion begins with a highly-biased factual summary, reaching back to a 1979 report of the General Accounting Office, which the the Court quotes at length, for evidence of the adverse effects of dams.58 Ignoring the decades of research discussed above, the Court summarily concludes that 15-20%, or even 30% of juvenile salmon are lost per project. Many facts are not cited to any source at all. On other occasions, the Court points to sources that it grossly misapprehends.59

After the decision came out, the lead environmentalist attorney would brag before a forum at Lewis and Clark law school that his and the tribes’ strategy of painting a simple political picture of a Council controlled by power interests had overcome the facts—the long "string-cites" in the Council's briefs.60 The Court did not just use the "facts" about salmon and dams from the law review articles. It adopted the political rhetoric of the articles as well, accusing the Council of “sacrificing the Act’s fish and wildlife goals for . . . the lowest common denominator acceptable to power interests and DSIs”.61

This was dead wrong. The Council lobbied hard for bypass systems that solved most problems at the dams and had started a huge flow augmentation program—the 3.5 million acre-foot “water budget”, which was expanded to perhaps 8 million acre-feet in the very decision challenged. The Council had gone against the wishes of the power interests every time they raised flow targets on the river.

Power interests and other river users believed that the flow augmentation schemes were a waste of energy and money, and consistently opposed them. Sometimes, they swallowed hard and said nothing. They never made much of effort to win the hearts and minds of the Council or its Staff. Academics and environmentalists did.

Led by Professor Blum, the Ninth Circuit judges reinterpreted the Act as requiring all sorts of bold new initiatives asserted to help salmon—even the every measures the fishery advocates disavowed before Congress at the time (like increased spill). John Volkman, the lead lawyer for the Council, later remarked: “I was surprised that the Court pretty much adopted Mike [Blum]’s entire opus—I do not think the opinion misses a single point.”62

We later learned that Ninth Circuit judges and their clerks had attended classes taught by Professor Blum, presumably indoctrinating them in his views about salmon law. When we tried to find out which judges and clerks had attended the classes, and what they had been taught, the law school said it had lost the records. Judge Marsh has also educated the Ninth Circuit judges, giving a speech on salmon issues to them at a gathering in Troutdale, Oregon even as appeals of his own decisions were pending before the Ninth Circuit.

In any event, after its outdated and biased recitation of the facts, the Court turned to the legislative history of the Northwest Power Act. Normally, one interprets a statute by reading it, and focusing on the meaning of the statutory language. Here, however, the statutory language could not get the Court anywhere near where it wanted to go. The provision of law upon which the environmentalists and tribes relied was  4(h) of the Act, which told the Council how to create a fish and wildlife protection program.

Specifically, the Council was charged to develop a program based on “recommendations, supporting documents and information obtained through public comment and participation, and consultation with the [federal and the region’s state fish and wildlife] agencies, tribes and customers . . .”63 The Council was also charged to

“determine whether each recommendation received is consistent with the purposes of this Act. In the event such recommendations are inconsistent with each other, the Council, in consultation with appropriate entities, shall resolve such inconsistency in the program giving due weight to the recommendations, expertise, and legal rights and responsibilities of the federal and the region’s state fish and wildlife agencies and appropriate Indian tribes. If the Council does not adopt any recommendations of the fish and wildlife agencies and Indian tribes as part of the program . . . it shall explain in writing, as part of the program, the basis for its finding that the adoption of the program would be [inconsistent with other provisions of the Act]”.64

The environmentalists and the tribes focused on the words “due weight”, which they interpreted to mean that the Council should adopt the recommendations from fish interests notwithstanding objections by power interests that the recommendations would do nothing for fish, and cost a great deal of money.

The Ninth Circuit found that the Council had not adequately explained its decisions on the flow-based proposals of the fishery interests. That aspect of the opinion was correct; from our perspective, the Council had not explained why it had adopted a flow-based program absent any credible scientific evidence that the program would have any measurable effect on salmon.

But then the Court went on to give the Council some additional advice about how to do its job, and engaged in a remarkable effort to demonstrate that the words "due weight" in the statute really meant a "high degree of deference". The Court made it unmistakably clear that, in its view, the Council ought to do nothing more than give the state fishery agencies and tribes what they wanted, repeating the phrase "a high degree of deference" over and over again in the opinion.

To reach this result, the Court focused heavily on statements by Representative John Dingell and his House Commerce Committee as the authoritative background for the bill. But power interests had opposed Dingell’s Commerce Committee bill precisely because it suggested that the Council would have little discretion to reject recommendations proposed by fishery managers.65 The Act had originated in the Senate; Dingell’s House Commerce Committee had added fishery provisions objectionable to power interests and then, to save the legislation, an Ad Hoc Committee of fishery and power interests had together drafted revised fish and wildlife provisions.

The House Interior Committee then adopted those revised provisions, and wrote its own report explaining them.66 Indeed, it was only after the Northwest Power Act left the Commerce Committee that the Act was modified to provide the Council with clear authority to reject or modify fishery agency recommendations.67 A former member of the Council recounts that “[w]hen the Act passed, a lobbyist for the state of Oregon called his governor and announced, ‘The good news is, we got what we wanted. The bad news is, so did everybody else.’”68

But what the power interest groups got from Congress, the Ninth Circuit could take away. Citing Representative Dingell and the Commerce Committee for the meaning of the Northwest Power Act, after it was removed from Dingell’s jurisdiction, was as gross a misuse of legislative history as one sees in the law books. It is would be like looking to 1964 statements by Jesse Helms to interpret the meaning of the Civil Rights Act. In effect, the Ninth Circuit was interpreting an earlier bill that never passed, and ignoring what Congress (and the President) had actually agreed upon.

The DSIs had also sued the Council, because the Council had not made any effort to comply with the Act’s requirement that its program “utilize, where equally effective alternative means of achieving the same biological objective exist, the alternative with the minimum economic cost”.69 The Court agreed with the DSIs and other petitioners that the Council had failed adequately to define biological objectives.

But the Council had also failed to assess the cost of any of its measures. Indeed, the only economic analysis in the hundreds of pages of the Strategy for Salmon was a single paragraph asserting that adoption of the Program as a whole would "only" cause electricity rates to go up 4%. The Council made no attempt to determine what benefits, if any, would accrue from this Region-wide rate increase.

The Court found nothing wrong with this, and recognized that the record was inadequate to determine whether the Council had, in fact, chosen alternatives “with the minimum economic cost”. Relying again on the Commerce Committee and Dingell legislative history, the Court emphasized that “a fish and wildlife measure cannot be rejected [by the Council] solely because it will result in power losses and economic costs”.70 (It was only after the bill left the Commerce Committee that the word “economical” was added to the Council’s duty to provide an “adequate, efficient, economical and reliable power supply”.) After we all read the opinion, we wondered why have a Council at all, if Congress really intended it to rubber-stamp harvest agency recommendations without regard to their cost?

The direct service industries and another industry group, the Pacific Northwest Generating Cooperative, filed a Petition for Rehearing urging the Ninth Circuit to reconsider its "due weight" ruling. The industry groups explained that Congress had empowered the Council to balance fish and power considerations, and that requiring a "high degree of deference" to one side of the balance would inevitably lead to unbalanced results. The DSIs also took issue with the factual "holdings" of the opinion. We pointed out, in a lengthy factual appendix, that nearly all of the Court's factual assumptions were simply wrong. The Ninth Circuit denied the Petition for Rehearing without opinion.

The Pacific Northwest Generating Cooperative petitioned for the Supreme Court review. The DSIs, preferring to keep their powder dry for another fight, did not. The Supreme Court ultimately rejected the petition for review, giving no reasons, as is customary.

Courts are still somewhat reluctant to admit to second-guessing administrative decisions. There are too many Supreme Court cases telling them not to do this. So they issue opinions that tell agencies what to do, and disguising the real message in complaints about the agency's explanation of what it did. Here, the Ninth Circuit even went so far as to adopt the clever trick of quoting Judge Marsh, lauded as “experienced in these particular matters”, in his call for a “major overhaul” of the hydropower system.  The Ninth Circuit did not see fit to disclose, consistent with ordinary rules of legal citation, that Judge Marsh’s opinion was under appeal (it was not vacated until later).71

The media do not get tangled up in the niceties of judicial review of agency action. They simply reported that the Ninth Circuit, like Judge Marsh, had ordered a "major overhaul" of the system. Others more accurately describe what happened as the Court “rebuking” the Council.72

But courts are not supposed to be in the business of offering “rebukes” to government agencies. They are supposed to provide directives about how those agencies must conform themselves to the law established by the Legislative Branch. Their whole institutional legitimacy depends on the idea that they are interpreting the law, not running amok as self-appointed czars of natural resource development. In my view, the United States Court of Appeals for the Ninth Circuit has lost legitimacy through its misguided, results-oriented approach to interpreting the environmental laws.

57 Judge Thelton Henderson would later achieve fame by enjoining the implementation of the California Civil Rights Initiative, believing that the United States Constitution forbid Californians from declaring that their state government should not practice discrimination, even for a “benign” purpose.

58 Northwest Resources Information Center v. Northwest Power Planning Council, 35 F.3d 1371, 1376 (9th Cir. 1994). I first heard of this report when it showed up in a brief filed by the State of Oregon. No library in Portland had it, so I called to ask the State's attorney for it. She didn't have it either. She had just cited it without reviewing it.

59 For example, the opinion claims that “the Supreme Court told the tribes: ‘The paper [the treaty] secures your fish.’” NRIC v. NWPPC, 35 F.3d at  1376 n.6. In fact, the quotation is from recorded remarks in the 1850s attributed to territorial Governor Stevens. The opinion also suggests that three statutes “recognize a relationship between smolt travel time and survival in state statutes protecting minimum instream flows”. NRIC v. NWPPC, 35 F3d. at 1382 n.24. The statutes make no mention of smolt travel time, and, in any event, there is no relationship between smolt travel time and survival that can be influenced by flow augmentation.

60 See A. Berger, “An Insider’s Perspective on NRIC v. NWPPC”, 25 Env’tl Law 369, 372-373 (1995).

61 NRIC v. NWPPC, 35 F.3d at 1395.

62 J. Volkman, “Steering by Dicta”, 25 Env’tl Law 385 (1995).

63 Section 4(h)(5) of the Act, 16 U.S.C.  839b(h)(5).

64 Section 4(h)(7) of the Act, 16 U.S.C.  839b(h)(7) (emphasis added).

65 See generally, M. Early & E. Krogh, Balancing Power Costs and Fisheries Values Under the Northwest Power Act, 13 U. Puget Sound L. Rev. 281, 303 (1990).

66 H. Rep. No. 96-976, pt. II, 96th Cong., 2d Sess. (1980).

67 See generally M. Early & E. Krogh, Balancing Power Costs and Fisheries Values Under the Northwest Power Act, 13 U. Puget Sound L. Rev. 281, 306 (1990).

68 K Lee, “Rebuilding Confidence: Salmon, Science and Law in the Columbia Basin”, 21 Envt’l Law 745, 772 n.100 (1991).

69 16 U.S.C.  839b(h)(6)(C).

70 NRIC v. NWPPC, 35 F.3d at 1394.

71 NRIC v. NWPPC, 35 F3d at 1390-91.

72 K Petersen, River of Life, Channel of Death 5.

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