No. 95-70480

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALCOA v. BONNEVILLE POWER ADMINISTRATION

Petition for Rehearing, and Suggestion for Rehearing en banc

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TABLE OF CONTENTS

Preliminary Statement

Summary of Argument

Argument

            I.     This Court Should Not Permit the Administration to
Manipulate Administrative Decisions and Evade Meaningful
Judicial Review
 
           II.     BPA's Decision to Kill Fish and Waste Money Is Not a
Reasonable Interpretation of its Authority Under the Relevant
Statutes
 
            III.     BPA's Decision Is Contrary to Law:  7(a)(2) of the ESA Cannot
Reasonably Be Construed To Forbid Agency Action that Improves
Salmon Survival, Merely Because the Consulting Agency Cannot
Offset Continued Overfishing
 
            IV.     BPA's Decision to Acquiesce in Junk Science Is Arbitrary,
Capricious and Contrary to Law
 
Conclusion

Preliminary Statement

        Pursuant to Rules 35 and 40 of the Federal Rules of Appellate Procedure, petitioners urge this Court to grant rehearing, or rehearing en banc, of the panel decisions of January 7 and May 10, 1999, because:

(a) The panel decisions conflict with decisions of this Court and the Supreme Court:

1. The January 7th decision conflicts with this Court's decision in Portland Audubon Soc'y v. Endangered Species Committee, 984 F.2d 1534, 1548 (9th Cir. 1993), providing that agencies must document political interference in Endangered Species Act (ESA) decisionmaking.

2. The May 10th decision conflicts with this Court's decision in ALCOA v. BPA, 903 F.2d 585, 598 (1998), and other cases, providing that the Bonneville Power Administration (BPA) must provide a coherent explanation of how it struck "a reasonable accommodation of conflicting policies that were committed to the agency's care by the statute".

3. The May 10th decision conflicts with this Court's decision in Sierra Club v. Marsh, 816 F.2d 1376 (9th Cir. 1987), setting forth the analytical approach agencies must employ in assessing whether actions jeopardize the continued existence of listed species, under which agencies are to assess the effect of their action, not unrelated Federal actions, and ascertain whether their action would "reduce appreciably the likelihood of both the survival and recovery of listed species", 50 C.F.R.  402.02 (defining "effects of the action"). See Marsh, 816 F.2d at 1387-88 & nn.15-16.

4. The May 10th decision conflicts with the Supreme Court's declaration in Bennett v. Spear, 117 S. Ct. 1154, 1178 (1998), that courts should enforce the ESA’s "best science" requirement both to protect listed species and "to avoid needless economic dislocation by agency officials zealously but unintelligently pursuing their environmental objectives".

(b) The proceeding involves several questions of exceptional importance to the citizens of the Pacific Northwest, the fate of endangered Snake River salmon, and the rule of law:

1. Can the Administration control the BPA’s ESA decisionmaking through direct political intervention, and be excused from providing any administrative record concerning such intervention?

2. Can the BPA, charged by law both to sell electricity at the lowest possible rates and protect Columbia Basin fish and wildlife, adopt a program that it expressly finds will needlessly kill endangered fish and waste money?

3. Are Federal fish and wildlife agencies free to declare that any Federal action, even one that improves the survival of salmon, "jeopardizes the continued existence of" the salmon because the action does not single-handedly recover salmon populations by offsetting other Federal actions?

4. May BPA employ science it expressly finds defective in lieu of the "best scientific and commercial data" required by the ESA, on the ground that it is reasonable to defer to the asserted expertise of the National Marine Fisheries Service (NMFS)?

Summary of Argument

        While administrative decisions enjoy a presumption of regularity, the purpose of judicial review is to protect citizens when review of the administrative record destroys that presumption. This Court is charged by the Northwest Power Act (NPA) to protect customers of BPA, through such judicial review of the administrative record, from unlawful action of BPA. Petitioners seek rehearing because the panel erred on a matter of immense importance by affirming, without benefit of the true administrative record, a decision BPA expressly found would kill Snake River salmon supposed to be protected by the ESA, and waste enormous amounts of money collected from petitioners and other ratepayers.

Argument

I. This Court Should Not Permit the Administration to Manipulate Administrative Decisions and Evade Meaningful Judicial Review.

        This case arises from a petition for review of BPA's March 10, 1995 Record of Decision (ROD) on operation of the Federal Columbia River Power System (FCRPS) in 1995 and future years. (ER53.) BPA styled its ROD as acquiescence in a biological opinion by the NMFS that BPA found, in substance, to be arbitrary, capricious, and lacking a basis in science. The Justice Department performed its customary after-the-fact assembly of documents asserted to represent an "administrative record." Nevertheless, petitioners were able to identify traces of the Administration's political intervention in that record: the Administration appointed a special Cabinet-level "Pacific Salmon Task Force" (see ER18, at 2) to influence BPA’s decision. The Task Force met and discussed, among other things, scientific criticism by petitioners concerning the biological opinion (ER17). Future meetings were planned. (ER21, at 23,826)

        The "record" contains no further documentation of the Task Force's activities in the critical three-month period leading up to the biological opinion and ROD adopting it. BPA refused to disclose such documentation, asserting that the single employee in Portland, Oregon tasked to find the papers could not do so. And BPA refused to provide any documentation concerning what happened when its Administrator and other officials were summoned to Washington, D.C. to receive direction from the Administration—according to numerous newspaper accounts. (See, e.g., Exhibits 5-7 to Buchal Declaration, July 31, 1998.) BPA even proved unable to find a copy of what appeared to constitute its most coherent and trenchant criticism of the biological opinion. In a January 7, 1999 decision on the eve of oral argument, the panel declined to order BPA to produce any of these materials, denying petitioners' motion to complete and supplement the record.

        As this Court has previously emphasized in the ESA context,

"Section 706 of the APA provides that judicial review of agency action shall be based 'upon the whole record'. 'The whole record' includes everything that was before the agency pertaining to the merits of its decision. An incomplete record must be viewed as a 'fictional account of the actual decisionmaking process' . . . . If the record is not complete, then the requirement that the agency decision be supported by 'the record' becomes almost meaningless." Portland Audubon Soc'y v. Endangered Species Committee, 984 F.2d 1534, 1548 (9th Cir. 1993).

        Rather than respond to petitioners' showing of substantial irregularity in the decisionmaking process, and require the agency to show that this irregularity was "harmless," id., the panel simply denied petitioners' motion without explanation. (Order, Jan. 7, 1999, at 1.) The panel's decision permitted the Administration to subvert review of agency decisionmaking by dictating the outcome of an ESA decision of immense importance, hiding the intervention, and "proffering a fictional account of the actual decisionmaking process."

II. BPA's Decision to Kill Fish and Waste Money Is Not a Reasonable Interpretation of its Authority Under the Relevant Statutes.

        Congress sought, by operating dams on the Columbia and Snake Rivers, to assure an "adequate, efficient, economical and reliable power supply" for the Pacific Northwest. 16 U.S.C. 839. BPA directs operations at the dams for power purposes, and is charged to sell the resulting electricity at the "lowest possible rates", 16 U.S.C.  825s, for the "widest possible use", 16 U.S.C.  832a(b). BPA is also charged, pursuant to  7(a)(2) of the ESA, 16 U.S.C. 1536(a)(2), to ensure that its discretionary operational decisions do not jeopardize the continued existence of Snake River salmon. Here, BPA proposed an operational plan for the dams that would improve the survival of Snake River salmon, then acquiesced in a NMFS plan that BPA found would reduce survival compared to BPA’s plan.

        NMFS has no duties with respect to supplying electric power. NMFS is charged to protect salmon as endangered wild animals while promoting their commercial harvest (16 U.S.C.  1801(b)(3)). Thus NMFS takes the position that the ESA cannot be effectively enforced insofar as salmon harvest is concerned, see PNGC v. Brown, 38 F.3d 1058, 1068 (9th Cir. 1994) (accepting this position), and seeks to offset the continuing and devastating effects of overfishing through ESA-based regulation of every other federal agency in the Pacific Northwest.

        NMFS repeatedly and expressly found that there is no set of dam operations BPA could undertake that could alone recover salmon. (ER51 at 87, 90, 128.) NMFS equivocated on the point, but seemed to believe that the existence of the dams constituted a "major limiting factor" in salmon recovery. (Compare ER51 at 89, 90, 91 and id. at 3-5 ("[n]o single or primary factor could be identified as the primary cause for decline").) However, in a paper leaked after the decisions challenged here, but based on data available before the decisions, NMFS' scientists concluded that the dams were "most likely not" a limiting factor in salmon recovery. (Exhibit 11 to Buchal Declaration, July 31, 1998, at 20.) The panel denied petitioners' motion to supplement the record with this and similar documents.

        BPA objected to a draft biological opinion on legal and biological grounds, noting, among other things, that NMFS' insistence on ensuring salmon recovery through  7 consultations "exceeds what is necessary to avoid jeopardy". (ER38, at 13,066.) With apparent D.C. backing to ignore BPA's criticism, NMFS held BPA's operational plans to jeopardize the continued existence of the salmon and proposed a so-called "reasonable and prudent alternative" (RPA) pursuant to  7(b) of the Act, 16 U.S.C.  1536(b).

        In the ROD, BPA expressly found that "a different set of actions [than the RPA] could more effectively satisfy responsibilities under the ESA". (ER53, at 7.) Those differences included, among other things, lower spill rates (resulting in more fish being collected for transportation around the dams) and less flow augmentation. Indeed, BPA expressly found that the RPA, calling for more spill, less transportation, and more flow augmentation, was "likely to reduce juvenile [salmon] survival." (Id. at 9.)

        The ROD, though assertedly adopted in compliance with the NPA's command "to assure an adequate, efficient, economical and reliable power supply," contains no analysis of the RPA’s effect on the price and reliability of electric power. BPA adopted the RPA without even bothering to estimate its true cost. Rough estimates in the record that were made before the RPA and ROD were finalized revealed what BPA characterized as "tremendous costs." (ER 53, at 7; see also ER50, at 22,453.)

        Instead of making any effort to explain the balance struck between electric power and fish (less of each), BPA declared that "the actions in NMFS' alternative provide benefits to fish that can enable these fish to reach survival levels and maintain the potential for recovery" and "is a reasonable one for avoiding jeopardy to and facilitating recovery of the listed salmon species". (ER53 at 7-8.) The panel declared this explanation reasonable, stating, that in light of the "imperative nature of the ESA", and "[g]iven the factors that it must weigh, the BPA cannot be said to have struck an improper balance between salmon and economical hydropower". Slip op. at 4400. There are two critical errors in this conclusion.

        First, the APA requires BPA to "articulate a satisfactory explanation for its action including a 'rational connection between the facts found and the choice made.'" Motor Vehicle Mfg. Ass'n v. State Farm Mut. Ins. Co., 463 U.S. 29, 43 (1983). BPA offered no explanation of the balance struck, other than assertions that deference to NMFS' proposal was not unreasonable insofar as fish were concerned. But BPA cannot defer to NMFS in striking the balance between fish and power, because NMFS has no duties with respect to power and did not purport to strike that balance. Congress conferred that duty upon BPA.

        Second, all of the statutes governing BPA are "imperative." It is this Court's duty to assess whether BPA struck "a reasonable accommodation of conflicting policies that were committed to the agency's care by the statute[s]." ALCOA v. BPA, 903 F.2d at 598. And this Court is supposed to "reject the BPA's constructions of a statute that are inconsistent with the statutes or that frustrate the policy Congress sought to implement." California Energy Comm'n v. BPA, 909 F.2d 1298, 1309 (9th Cir. 1990). BPA's construction of the ESA and the electricity statutes to permit it to kill fish and waste money plainly frustrates the policies Congress sought to implement in both sets of statutes. If BPA can construe these statutes this loosely, they lack any "intelligible principle" to guide agency decisionmaking, and are unconstitutional. Cf., e.g., American Trucking Ass'ns, Inc. v. EPA, No. 97-1440 (D.C. Cir. May 14, 1999).

III. BPA's Decision Is Contrary to Law:  7(a)(2) of the ESA Cannot Reasonably Be Construed To Forbid Agency Action that Improves Salmon Survival, Merely Because the Consulting Agency Cannot Offset Other Federal Actions.

        The applicable Federal regulations declare that an agency action "jeopardizes the continued existence of" a listed species when the action "reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species . . .." 50 C.F.R.  402.02. The effects of such action are to be evaluated against an "environmental baseline "which "includes the past and present impacts of all Federal, State, or private actions and other human activities in the action area . . .". Id.; see also Marsh, 816 F.2d at 1387 n.15.

        Thus whether BPA's operational choices at the dams "jeopardize the continued existence of" salmon necessarily involves assessing the incremental impact of such dam operations over a baseline that includes, among other things, natural mortality and whatever effects arise from the dams independent of BPA's discretionary choices. See also Sierra Club v. Babbitt, 65 F.3d 1502, 1510 (9th Cir. 1995) ("Congress did not for intend  7 to apply retroactively"). BPA has no discretion to stop the Columbia River from flowing downstream through the dams.

        With regard to the effect of dams on downstream migrants, BPA made principal use of a University of Washington computer model (CRiSP), based, for the most part, on the best available scientific and commercial data, which permitted BPA and NMFS to assess changes in salmon survival associated with changes in dam operations. Using the model, BPA could predict survival under its operational options, including changes in spill over dams, flow augmentation releases from upstream storage facilities, changes in reservoir elevations, and changes in the proportion of salmon transported downstream around dams and natural predators. The operational changes produced only modest changes in survival (see ER51, at 87, 90), and the computer model actually predicted adverse consequences from NMFS' RPA recommendations (see, e.g., ER41 (increased spill and reduced transportation)).

        In its biological opinion, NMFS explained that

"Juvenile and adult passage mortality through the FCRPS projects (reservoirs and dams) can conceptually be divided into: natural mortality that would have occurred in the pre-project river; additional mortality due to the existence of the projects; additional mortality that varies with the operation of the FCRPS; and additional mortality from other human activities. The total juvenile passage mortalities are estimated using the three available models. These models do not yield mortalities separated into the four conceptual categories described above. . . . NMFS knows of no scientifically reliable way to precisely apportion this mortality." (1995 BiOp at 67.)

        It is true that the passage models do not produce "apportioned" mortality estimates, but they can and do produce precisely the information required to conduct the analysis required by  7(a)(2): by varying operational scenarios, the models produce estimates of the "additional mortality that varies with the operation of the FCRPS". "Precise" or not, these models are the only feasible way to assemble and synthesize the "best available scientific and commercial data."

        The downstream juvenile passage survival estimates were then fed into "life cycle models" addressing the fate of adults. The computer runs included extraordinarily high continuing salmon harvest rates in the future. Indeed, what NMFS characterized as the "most extreme fishery reduction" involved inriver harvest rates of 15-36% or even higher, and a 70% of the extraordinarily high ocean harvest rates prevailing from 1988 to 1993. (ER33, at 12274-75.)

        Although the law limits "effects of the action" to effects measured against baseline of other "past and present" activities, the panel concluded that NMFS "appropriately considered the effect of future FCRPS operations within the context of other existing human activities that impact the listed species, including [future] incidental harvesting". Slip op. at 4398 n.6. Interpreting  7(a)(2) to bar agency action in order to offset the negative effects of other actions other Federal agencies might authorize in the future frustrates Congress' intent to allow agency action to proceed where that action does not jeopardize the continued existence of a listed species.

        But the panel went even further, and affirmed an interpretation of  7(a)(2) that barred agency action improving salmon survival, despite the federal regulation requiring a showing, for "jeopardy," that the agency action would "reduce appreciably the likelihood of both … survival and recovery." 50 C.F.R.  402.02. The panel explained that the "incremental improvements [to be obtained through the agency action] pale in comparison to the requirements for survival and recovery." Slip op. at 4399 n. 6. Listed species always have requirements for survival and recovery that aren't being met; otherwise they wouldn’t have been listed. It is error to interpret  7(a)(2) to forbid Federal agency action unless it meets the needs of listed species; most Federal agency action is not aimed at recovering listed species but some other legitimate public purpose, and Congress had no intent to impose an affirmative recovery obligation through  7(a)(2).

        It may well be true, as the panel noted, that BPA officials could face personal criminal liability for disagreeing with NMFS in construing the ESA if their constructions of  7(a)(2) were later held erroneous. Slip op. at 4396. This observation may explain BPA's acquiescence in errors of law, but it is axiomatic that "an order may not stand if the agency has misconceived the law". SEC v. Chenery, 318 U.S. 80, 94 (1943). Section 7(a)(2) should be construed to promote its purposes, not to limit potential liability of agency officials.

        If BPA can construe  7(a)(2) to require it to offset the effects of other, future Federal agency action, and to impose an affirmative obligation to recover salmon, not just avoid jeopardizing them,  7(a)(2) lacks any "intelligible principle" to guide agency decisionmaking, and is unconstitutional. Cf., e.g., American Trucking, supra.

IV. BPA's Decision to Acquiesce in Less than the "Best Science" Is Arbitrary, Capricious and Contrary to Law.

        As the Supreme Court has explained,

"[t]he obvious purpose of the requirement that each agency 'use the best scientific and commercial evidence available' is to ensure that the ESA not be implemented haphazardly, on the basis of speculation and surmise. While this no doubt serves to advance the ESA's overall goal of species preservation, we think it readily apparent that another objective (if not indeed the primary one) is to avoid needless economic dislocation produced by agency officials zealously but unintelligently pursuing their environmental objectives". Bennett, 117 S.Ct. at 1168.

        The decisions challenged in this petition are supported by nothing more than "speculation and surmise" that is flatly contradicted by the best available scientific and commercial evidence available. Space permits discussion of but one of the RPA’s measures adopted by BPA, but the record is rife with BPA's warnings that the conclusions of NMFS were "not scientifically grounded", e.g., ER38, at 24.

        BPA found that there was "no biological justification" for the RPA's recommendation to reduce transportation of juvenile fish (ER38, at 14-15), and concluded in the ROD that the RPA's reduction of the transportation program would kill fish (ER53, at 9). Given 30 years of data before the agency demonstrating benefits to the transportation program, this was the only rational conclusion BPA could draw. As the National Research Council has pointed out: "No investigator to date has provided the Columbia River region with experimental results that demonstrate higher survival of inriver migrants than transported migrants at any [river] discharge level. Until such experimental data become available, transportation should continue to be used."

        Despite the absence of any scientific data against transportation, NMFS demanded that the program be reduced. Pressed to explain this decision, the Justice Department lamely offered that "transportation may contribute to mortality by causing stress and increasing exposure to disease". (BPA Br. 50) Studies proving the benefits of transportation are based on returning adults three, four or more years after transportation. Whatever stress or disease smolts suffered when transported did not prevent them from returning years later at double the rates of controls that traveled inriver. No member of this Court, afflicted with a disease, would give any deference to a doctor who said: "I have a pill that three decades of research confirms will double your expected lifespan, but some people experience stress and disease, so you can't have it."

        Administrative decisions are properly set aside under the "arbitrary and capricious" standard if the decision runs "counter to the evidence before the agency." Motor Vehicle, 463 U.S. at 43. This is the only case of which petitioners are aware sustaining a decision the agency expressly found was counter to the evidence before it.

        The Justice Department's basic response to these and the other science claims was to tell the panel that "reasonable and credible biologists, statisticians, modelers and other professional staff . . . have disagreed about the interpretation of biological data and scientific analysis" (BPA Br. 27). The Justice Department apparently fails to understand what science is. As the Supreme Court has explained, what sets scientific analysis apart is that the truth of scientific hypotheses can be tested with data—"this methodology is what distinguishes science from other fields of human behavior", Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593 (1993) (emphasis added). Continued advocacy of hypotheses refuted by the best available scientific data—such as asserted harms of transportation or benefits of spill and flow augmentation—represents political advocacy, not use of the best available scientific data. This Court can and must distinguish between the two if there is to be any progress in Columbia Basin salmon recovery.

        The panel decision did not attempt this task, instead accusing petitioners of "rehash[ing] the multi-year scientific debate" as a means of "cloaking their challenge in terms of the 'obligation to use the best scientific and commercial evidence available'". Slip op. at 4397. This substitutes rhetoric for analysis, because any attempt to enforce the "best science" requirement of the ESA, a duty expressly imposed by the Supreme Court, can be characterized as "rehashing a scientific debate." Meaningful judicial review requires analysis of the scientific issues presented. Such analysis is lacking in the panel opinion.

        The panel's suggestion that petitioners offered "nothing more . . . than evidence and arguments already considered by the consulting agency", slip op. at 4396-97, is incorrect. Much evidence, particularly evidence demonstrating minimal effects of dam operations, was never even cited in the biological opinion or ROD, much less analyzed or explained. (See, e.g., ER27, McNeil, "Survival . . .", at 2 ("marked cohorts experienced similar survival in dammed and undammed reaches"); ER29 (ocean conditions cause similar salmon declines in rivers with and without dams); ER35 (best population model shows no imminent likelihood of salmon extinction).) And even if evidence is deemed to be "considered" because it is buried somewhere in the thousands of documents alleged to constitute the "administrative record" (only because petitioners and others put it there), the APA requires more than nominal "consideration": it requires agencies to demonstrate "a rational connection between the facts found and the choice made." Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 158 (1962). BPA never provided any analysis of much of the data, and the only explanation it offered was "deference." The APA requires more than this. BPA did not merely ignore relevant data. On issue after issue, such as the total failure to balance asserted benefits to juvenile salmon with known adverse effects on adults, BPA acknowledged that NMFS "entirely failed to consider an important aspect of the problem", Motor Vehicle, 463 U.S. at 43. (E.g., ER38, at 8, 12.) To defer to such arbitrary action cannot constitute agency decisionmaking in accordance with the APA. The APA promises citizens better than that.

        And the ESA promises salmon better than that. This Court can and must resolve the disputes between real scientists whose conclusions are based on the "best available scientific and commercial data," and the "conservation scientists" whose unsupported hypotheses are being imposed through political interference in agency decisionmaking. It is well-within this Court's institutional competence to resolve such issues, cf., e.g., Daubert, supra; General Electric Co. v. Joiner, 118 S. Ct. 512, 519 (1997). If necessary, the Court can appoint a special master or other reviewer to assist in that task.

Conclusion

        This court should grant the petition.

        June 23, 1999.

                                                                                            James Buchal, OSB #92161
                                                                                            Murphy & Buchal LLP   
                                                                                            1135 Crown Plaza
                                                                                            1500 SW First Avenue
                                                                                            Portland, OR 97201
                                                                                            (503) 227-1011
 

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