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NW Fishletter #252, September 25, 2008

[7] Lone Ratepayer Challenges BPA Fish Accords

Charles Pace, an economist who runs a consulting firm in Challis, Idaho, has filed a petition asking the 9th U.S. Circuit Court of Appeals to review the 10-year, $900-million fish & wildlife memoranda of agreement (MOA) that BPA signed in May.

"Essentially I am a ratepayer and I don't believe that is a reasonably prudent commitment of ratepayer funds," Pace told NW Fishletter.

A BPA attorney said the agency had not yet seen Pace's brief and could not comment on its merits. The state of Idaho and the Yakama, Umatilla and Warm Springs tribes, all MOA signers, have filed to intervene, citing their interests in the agreements.

The "Fish Accords," were agreed to by four Columbia Basin tribes, the Columbia River Inter-Tribal Fish Commission and the states of Montana and Idaho [08-73381]. The deal offers funding for new habitat and hatchery projects for the tribes and states in exchange for their support of the new Biological Opinion on operations of the Federal Columbia River Power System.

Environmental groups, the Nez Perce Tribe and the State of Oregon were not parties to the MOAs, and have gone forward with a challenge to the new BiOp, filed after the original was remanded by Federal District Court Judge Redden.

Pace, who runs Regional Services, filed the case pro se, or without an attorney representing him. The court offered him guidance and an informal brief format to make it easier for him to present his case "without worrying about the rules."

As a consultant to the Spokane Tribe, Pace was on the Policy Working Group, a committee convened to carry out the collaborative that Redden ordered as part of the BiOp remand. The Spokane Tribe did not sign the MOA and has recently pulled out of the coalition of tribes and states that did. But Pace said his petition was filed as a ratepayer and not on behalf of the Spokane Tribe or any other client.

"I'm all alone," Pace said.

He was unable to persuade the Salmon River Electric Cooperative (SREC), which serves his business, to join the filing.

"The phone is not ringing off the wall with entities that would like to join," Pace acknowledged, but he was "a little surprised" the filing garnered interventions from some of the MOA signatories.

Although some BPA customers and other constituents expressed concern about the rate impacts of the MOAs, none have actively opposed them since it appears they will be subject to the scrutiny of the Independent Scientific Review Panel. However, they have questioned BPA's legal obligation to fund offsite mitigation since the Power Act says fish and wildlife spending should be directly tied to losses attributable to hydro operations.

In comments he sent in June to the SREC in connection with BPA's proposed amendments to the Power Council's Fish and Wildlife Program, Pace said the MOAs "will divert ratepayer funds in order to obtain 'forbearance'" in the litigation, even though they "do not resolve the substantive issues before the court or affect the rights of petitioners, respondents or other parties participating in the litigation."

He noted BPA and CRITFC are not parties in the BiOp litigation, but filed only friend-of-the court briefs offering their perspectives.

"It makes no sense for Bonneville to commit to use ratepayers' funds to remove those perspectives from the district court's view absent tangible results" for ratepayers, he wrote.

BPA's decision to sign the MOAs is "particularly troublesome given Bonneville's schedule and timeline for concluding its rate proceeding and entering power contracts" to implement the Tiered Rate Methodology, he added. "The existing schedule/timeline for rate development clearly defeats the purpose of the TRM and undermines the ability of utilities in the region to plan responsibly for the future."

Pace said in his petition that he will argue the MOAs violate the Administrative Procedure Act in that they are arbitrary or capricious, an abuse of discretion or otherwise not in compliance with the Northwest Power Act, the Endangered Species Act or the National Environmental Policy Act. The brief was due Sept. 15. -Ben Tansey

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