An insider's perspective on Northwest Resource Information Center v. Northwest Power Planning Council.

This is an insider's perspective. I was an insider on the Northwest Resource Information Center v. Northwest Power Planning Council (NRIC) case,(1) but I am not an insider on the workings of the Northwest Power Planning Council. I started working on salmon issues only two years ago. There are many people here today who have been observing the Council and the Northwest Power Act(2) far longer than I have. That is one of the reasons why I am going to be talking about what led up to the Ninth Circuit's decision, rather than speculating on where we might go from here.

There are several questions I want to address. Why did we bring this case? In fact, what case did we intend to bring? What case did we actually bring? And what case did the court decide? These are not all the same question, and they do not have the same answer. I hope the evolution of the case, as I see it, will give you a little more insight on what the court decided and also the thought processes underlying public interest environmental litigation in general.

Moving to the first question--actually there are two questions: Why did we bring this case, and what did we hope to accomplish? First, we brought the suit out of general political frustration. Twelve years ago, fishery advocates in the Columbia Basin thought they had solved their problem through legislation, as Lorraine Bodi indicated.(3) They thought that they had brought salvation to the salmon and avoided the Endangered Species Act (ESA)(4) listing. They went through intense efforts for both the original Fish and Wildlife Program and the latest amendments to it, attempting to get a program which would satisfy the mandates of the Northwest Power Act. Instead, they ended up with ESA listings of salmon in the Snake River Basin. So we wanted to find out whether the Northwest Power Act had any teeth, if there was any substance to it. Or whether we should just forget the whole experiment and move on. The lawsuit was an expression of our desire to find out what the law really meant.

In addition, we feared having the ESA dominate the planning for the Basin. Why did we fear an ESA-run hydroelectric system? First of all, there is little public input in a lot of ESA processes. The section 7 consultation process(5) is largely closed to the public, or at least it was prior to Judge Marsh's recent decision.6 There is no deference owed the opinions of the state and tribal managers or the other fishery advocates in the ESA process. And there are also no checks on the political weight of the action agencies in the process--the Bonneville Power Administration or the Corps of Engineers--as they go into consultation with National Marine Fisheries Service (NMFS). This all contrasts to the very public process and the apparent deference that is required under the Northwest Power Act.7

Second, the ESA is politically vulnerable. You all have read in the newspapers, presumably, of the massive assaults being undertaken on the ESA in Congress and in other forums by the "Wise Use" movement and other advocates of economic development. As a lobbying matter, we wanted to find another law under which to save the salmon.

Third, the Northwest Power Act has specific requirements that the ESA lacks. The Northwest Power Act says that the Council's program must provide sufficient flows for fish at and between the projects to enhance the migration and survival of the fish.(8) The ESA has no specific direction to look at the hydroelectric system. It would be hard to look at listed Snake River Salmon and not review hydrosystem operations very intensely, but it might be possible.

Finally, we recognized that NMFS would look at the Council's program both in undertaking its section 7 consultations on the hydrosystem and in doing recovery planning for the Snake River salmon. Therefore, it was more important than ever to have an adequate Council program in place.

So, what were the goals of the litigation? One was to secure adequate in-river flows for the fish as specifically required by the Act.9 In other words, we wanted to compel the creation of an adequate Fish and Wildlife Program. We also wanted to get good law as to what the Act required, what the intent of the Act was, and what its provisions meant. We hoped to create a solid foundation for future lawsuits to compel federal agency implementation of the Act and the Fish and Wildlife Program.

With these motivations and goals in mind, what case did we intend to bring? Well, my original memoranda on this case focused on the substantive advocacy of the flow measures in the "Strategy for Salmon." The case was supposed to go something like this: the Council set inadequate flow targets; it failed to meet even those targets it did set; and it relied on truck and barge transportation which are alternatives to providing sufficient in-river flows. We had a specific mandatory requirement in the statutory language for sufficient flows, and we had a Council program that apparently set target flows of 85,000 cubic feet per second in the Snake River and 200,000 cubic feet per second in the Columbia River. These flows were much lower than the flows recommended by the fishery managers--the states, the tribes, the federal fishery agencies--and the federal water management agencies in fact failed to meet these flows in a significant number of years.

All of our other plans were secondary to the primary focus on flow levels. That includes claims regarding the failure to set biological objectives and the failure to defer to the recommendations of the state and tribal fish agencies regarding flow levels. One of the reasons we initially stayed away from the latter claim was because we are not a state, tribal, or federal fish agency and hence were in a much weaker position to assert that requirements under the Act be met than were the fishery managers themselves. Our hope was that one or more of the states or tribes would get involved, as turned out to be the case when the Yakama Indian Nation joined the case. Finally, we intended to focus on transportation again, and claim that the transportation program on which the Council's program relied was not adequate to meet the requirements of the Act.

The actual case we brought was actually a fair bit different. And it was different for three reasons. First, we finally started looking more into the legislative history of the Act, the history of the Council's implementation of the Act, and the voluminous administrative record underlying the 1992 Strategy for Salmon. The Council's 1992 rulemaking was actually two bookshelves long. What we discovered in that record was that there was a greater unanimity among the fishery managers than we anticipated in terms of what they thought the program needed in terms of biological objectives and flow measures. We also discovered a clearer record than we thought existed of the twelve-year failure by the Council to defer to the recommendations of the agencies and tribes. We thought we could use that to our advantage.

Second, our natural lawyer-like conservatism finally caught up to us. You are far more likely to convince a court in litigation that something like this is a procedural violation than a substantive violation. It is far easier to get a court to conclude that an agency has failed to explain or to consider than to get the court to say the agency got the facts wrong. Even so, you still have to convince the court that a probable substantive violation has occurred; otherwise, the court will not bother finding the procedural violation. But you give the court an easier choice if you can supply a procedural hook on which to remand the case back to an agency.

Third, and this relates to the second point, we started grappling with the realities of arguing this case in the first instance before the Ninth Circuit. Under the Northwest Power Act, challenges to the Strategy for Salmon go immediately to the appellate court.(10) You do not have a district court to wade through the record and reduce it down to a level at which an appellate court would be comfortable. We thought an appellate court would be more likely than a district judge to just defer to the Council in the face of its massive administrative record. We needed to simplify the case so that an appellate court would be comfortable with it.

What did these considerations mean for our claims? First the absence of biological objectives in the Strategy for Salmon became our primary argument. Our copetitioners, the Yakama Indian Nation, argued heavily on the failure-to-defer issue. Second, the degree of deference due to the Council became a major issue. We argued, and the Ninth Circuit eventually adopted our position, that deference was due to the fish and wildlife agencies more than to the Council. This was an argument solidly grounded in the Act's language and in the legislative history. Congress did not intend the Council to have expertise in fish and wildlife issues. Expertise was supposed to come from the state and tribal agencies.

Third, we devoted more than half of our opening brief to discussing the history of the Council's implementation of the Act, rather than simply the administrative record in this case. What we wanted to do was to describe past Council failure to defer to the state wildlife agencies; we sought to create a dichotomous split for the court to see: on the one hand, the position of the fishery agencies and tribes; on the other hand, the position of the power interests. We wanted to show the court that the Council did not choose among a continuum of possibilities, but instead chose the power interest perspective, and consistently had for the past twelve years.

What happened to the inadequate flows and transportation? Those became defensive claims. The Council came back in its brief and claimed it did the best it could; it simply could not get more water for salmon flows. We argued that that was not quite right, but also claimed that the Council set target flows, then failed to meet even its own program measures. We claimed that the Council should set higher, adequate target flows if it was going to fail to meet them, and at least use the high flows as a basis to plan for the future. In other words, we suggested those flows should be a driving force in the Council's revised power plan. We also contended that the Council could not continue to rely on transportation over the long term; its program had to include long-term measures that would achieve adequate flows as necessary to meet sound biological objectives.

By the time we got to oral argument, our thinking had progressed even further. This was in large part in reaction to what we perceived to be the Council's strategy in arguing the case. The Council's brief included massive string cites to the administrative record; our difficulty was how to respond to the massive string cites. The answer that the tribes developed was that the Council had failed to explain in writing, as part of the program, its rejection of their recommendations, and that argument proved crucial to the court. That rendered all of those massive string cites irrelevant. The court did not have to go back and sort through the administrative record. All the court had to look at was the program itself.

The next thing we did was to emphasize that the questions we were presenting to the court were matters of statutory interpretation, not matters of sorting through the administrative record. This countered the second prong presented by the Council's litigation strategy, which was to claim there simply was "no law to apply." In other words, the Council argued that its Fish and Wildlife Program was completely subject to its discretion. Our argument also minimized the importance of the Council's extensive administrative record cites.

We come now to the case the court actually decided. The most surprising aspect of the court's decision for me is that we won the case. After oral argument, Tim Weaver, the Yakama's attorney, was the only one who walked out of that courtroom believing we had a chance to win. I personally was hoping for an unpublished disposition of the case. But the court concluded that there should be heavy deference to fishery managers, and that conclusion enabled the court to remand the case back to the Council without substituting its judgment on any factual issues. The court merely held that deference was owed to the fishery managers, rather than to the Council. (11) The court never actually found that the Council failed to defer; it simply ruled that the Council failed to explain why it rejected agency and tribal recommendations.(12) I think what convinced the court that there had been a failure to defer was the established pattern of deference to the power interests over the previous twelve years, not just on the administrative record of the 1992 amendments.

The court also concluded that the Council failed to establish statutorily-required biological objectives in its program.(13) The Council in fact explicitly abandoned the concept of biological objectives.14 That made it very difficult for the Council to claim that it had set biological objectives. Biological objectives were necessary for the court to ascertain whether the flows the Council set fulfilled the statutory mandate. Without these measuring criteria, the court had to remand the case back to the agency.

To conclude, I urge you to read the final paragraph of the court's opinion because I think that sums up everything that the court was thinking about in terms of the pattern of deference, the twelve-year failure to comply with the requirements of the Act, and the success we had in juxtaposing the environmental, state, and tribal position to the power-interest status quo.

* Project Attorney, Sierra Club Legal Defense Fund; J.D. 1989, Yale Law School. Mr. Berger argued the Northwest Resource Information Center's position before the Ninth Circuit. (1) 35 F.3d 1371 (9th Cir. 1994). (2) pacific Northwest Electric Power Planning and Conservation Act, 16 U.S.C. [subsections] 837, 838(i), 838(k), 839-839h (1988 & Supp. V 1993) (commonly referred to as the Northwest Power Act). (3) Lorraine Bodi, The History and Legislative Background of the Northwest Power Act, 25 Envtl. L. 365, 366 (1995). (4) Endangered Species Act of 1973, 16 U.S.C. [subsections] 1531-1544 (1988 & Supp. V 1993). (5) 16 U.S.C. [section] 1536 (1988). (6) Idaho Dept. of Fish & Game v. National Marine Fisheries Serv., 850 F. Supp. 886 (D. Or. 1994). (7) 16 U.S.C. [section] 839b(h) (1988). (8) 16 U.S.C. [section] 839b(h)(6)(E)(ii). (9) Id. (10) 16 U.S.C. [section] 839f(e)(5). (11) Northwest Resource Information Center v. Northwest Power Planning Council, 35 F.3d 1371, 1388 (9th Cir. 1994). (12) Id. at 1384. (13) Id. at 1392. (14) Id.