[3] More Briefs, Barbs Exchanged Over Fish Passage Center

With oral arguments scheduled for Sept. 12 in the 9th U.S. Circuit Court of Appeals over the future of the controversial Fish Passage Center, a final flurry of briefs was exchanged in early August to prepare the court for the coming battle.

The Yakama Nation accused the Bonneville Power Administration of character assassination by insinuating that a memo by FPC head Michele DeHart was written expressly for the litigation. It was the latest blow in a battle that began last fall when an Idaho Senator added language to a Congressional appropriations bill that called for BPA to end funding for the FPC.

Friends of the center soon headed to the appeals court, where they have petitioned to have the $1.3 million restored. The court granted a March 17 emergency stay of the FPC's defunding after the environmental groups and the Yakama Nation separately filed motions to keep the center alive.

The National Environmental Defense Center, Public Employees for Environmental Responsibility, and the Northwest Sportfishing Industry Association argue that the power-marketing agency had no right to end the FPC's funding.

BPA has agreed to fund the Center through November. However, it says it had an obligation to follow Congressional report language added by Sen. Larry Craig (R- Idaho) that defunded the FPC and called for BPA to distribute its data gathering and analysis duties to other entities.

But plaintiffs say that the report language is not legally binding, and by refusing to fund the Center, BPA's action was not consistent with its own fish and wildlife program developed by the Northwest Power and Conservation Council.

The Council joined the fray as an intervenor, weighing in with two briefs. It agreed with BPA's assertion that in the "overwhelming majority of measures" in the fish and wildlife program, BPA followed the program's provisions guiding hydro system mitigation.

But the Council also said BPA wasn't required to fund every single measure in the program as long as it fulfilled its "substantive obligation" to act "in a manner consistent with" the Council's program. An appraisal, it said, was for the Niners to decide.

The NEDC brief says BPA's defunding action was not consistent with the program, while BPA says the NEDC doesn't even have standing because the court lacks the authority to make it hire back the FPC.

BPA argues that it was well within the administrator's "broad contracting discretion" to choose other entities to implement the measure in the fish and wildlife program that called for the collection of fish passage data and related functions. BPA seems to admit that the report language was not legally binding.

The Yakamas say that BPA and the Council should be deferring to the expertise of state fishery agencies and tribes, but Bonneville countered that its interpretation of the Northwest Power Act was already acknowledged by the court.

In a long footnote of its first brief, the Council's attorneys said the states and tribes had already been given deference in the recommendations that went into the program, but the law does not say they are owed deference during the implementation of the program. Rather, the brief says BPA and the Council owe deference to the program when making implementation and funding decisions.

The Yakamas bluntly state that BPA should have given substantial deference to the tribes' proposed version of an FPC entity, which was virtually identical to the existing FPC."

Another lawsuit FPC personnel have filed against BPA in federal district court has been fully briefed, but the judge in the proceeding withdrew the schedule for oral arguments, originally slated for June, and has not rescheduled.

In a declaration filed in the district court proceeding, FPC director Michele DeHart said that "people in the region" have "suggested" that she had been "personally targeted" by Sen. Craig and BPA, and that the possibility of continued retaliation was a real deterrent for any agency or tribes to consider her for future employment. "This sends a chilling threat to other scientists in the region whose findings are counter to powerful hydropower industry interests." -B. R.

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