ELR Citation: ELR 21148
No(s). 95-70480 (9th Cir. May 10, 1999)

The court denies a petition to review the Bonneville Power Administration's (BPA's) record of decision (ROD) regarding the operations of the Federal Columbia River Power System (FCRPS). The National Marine Fisheries Service (NMFS) concluded that under the Endangered Species Act (ESA), continued operation of the FCRPS jeopardized the continued existence of threatened and endangered salmon. Consequently, the NMFS suggested reasonable and prudent alternatives to operation. The BPA's ROD adopted both the NMFS' jeopardy finding and the reasonable alternatives.

The court first holds that the BPA's adoption of the NMFS' jeopardy finding and the reasonable alternatives was not arbitrary and capricious. The record reflects a scientific uncertainty and differing scientific views concerning continued operation resolved in part by expert choices and in part by commitments for further study. The BPA determined that the NMFS' overall approach, which emphasized further research and monitoring, was reasonable and responsible. The court next holds that the BPA appropriately balanced its obligations to protect salmon under the ESA against the Northwest Power Act's directive to assure the Pacific Northwest of an adequate, efficient, economical, and reliable power supply. The court then holds that issuance of a final environmental impact statement (EIS) moots the claim that the BPA violated the National Environmental Policy Act by failing to prepare an EIS before issuing the ROD.

[A prior decision in this litigation is published at 26 ELR 20709. Briefs and Pleadings in this litigation are published at ELR BRIEFS & PLEADS. 66247.]

Counsel for Petitioners
James L. Buchal
Murphy & Buchal
1135 Crown Plaza
1500 SW First Ave., Portland OR 97201
(503) 227-1011

Counsel for Respondent
Ellen D. Katz
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Leavy and Wardlaw, JJ.