Home » Case Summaries » 2003 » Confederated Tribes of the Umatilla Indian Reservation v. Bonneville Power Administration

 
 

Confederated Tribes of the Umatilla Indian Reservation v. Bonneville Power Administration

 

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Confederated Tribes of the Umatilla Indian Reservation and the Nez Perce Tribe (collectively Tribes), environmental groups, and the State of Oregon (Tribes, environmental groups, and the State of Oregon collectively petitioners) petitioned for review of various actions of Bonneville Power Administration (BPA), alleging that BPA failed to properly treat fish and wildlife on par with power. The Ninth Circuit rejected all of the petitions, dismissing some based on lack of jurisdiction and denying others on the merits.

BPA is a federal agency charged with marketing electricity in the Pacific Northwest. The BPA Administrator is required by the Northwest Power Act (NPA)[1] to “‘provide[] equitable treatment’ for fish and wildlife.”[2] Petitioners challenged numerous BPA actions on the basis that the agency did not provide this equitable treatment. The Ninth Circuit reviews BPA’s interpretation of its organic statutes under the arbitrary and capricious standard of review of the Administrative Procedure Act (APA).[3]

The Ninth Circuit dismissed a number of petitioners’ claims due to lack of jurisdiction under the NPA. As well as challenging “unreasonable delay” extending over a period of 22 years, the Tribes also targeted specific decisions made by BPA in 1995, 1997, 1998, and 2002.[4] The Ninth Circuit determined it did not have jurisdiction over the claims related to the 1995, 1997, and 1998 decisions because the NPA provides a ninety-day limit for judicial review,[5] and the Tribes did not bring their petitions for review until 2001. The Ninth Circuit held that it did not have jurisdiction over the 2002 decision because that decision was not final at the time the Tribes brought their petition. The Ninth Circuit also concluded that it had no jurisdiction over the Tribes’ claim of unreasonable delay because the NPA only gives the court jurisdiction over BPA’s final actions, and the 22 years of inaction that the Tribes alleged was not a final action under NPA.

Similarly, the Ninth Circuit held that it did not have jurisdiction to address the environmental groups’ claim that BPA violated the equitable treatment mandate by declaring power emergencies because those power emergencies were declared more than 90 days before the petitions were brought. The Ninth Circuit also held that it did not have jurisdiction to address the State of Oregon’s claim that BPA should have used a treasury payment deferral because BPA made the decision in March of 2001 and the petitions were filed in November of 2001. Finally, the Ninth Circuit concluded that it had no jurisdiction over the environmentalists’ challenge to BPA’s statutory authority to declare power emergencies because BPA declared power emergencies in January and April and the petitions were not filed until November.

The Ninth Circuit also considered providing the remedy of a writ of mandamus to the Tribes in order to address the claim of unreasonable delay and preserve its future jurisdiction. However, the Ninth Circuit found that a writ of mandamus was not warranted because the writs are only used in connection with agency matters if the circumstances are extraordinary. In this case, the circumstances were not extraordinary, and the Tribes did not meet the requirements for a writ set out in Bauman v. United States District Court,[6] which requires the petitioners to show that they have inadequate means to attain relief, the agency decision is “clearly erroneous as a matter of law,” and petitioners will be irreparably injured by the agency decision.[7] Here, the Tribes had a means to obtain relief, BPA’s decision was not clearly wrong, and the Tribes did not show an irreparable injury, so the Tribes did not fulfill the extraordinary circumstances requirement or the Bauman requirements for a writ to be issued.

The Ninth Circuit dismissed petitioners’ argument that BPA’s 2001 Decision Document violated the equitable treatment mandate of the NPA, finding that the 2001 Decision Document recognized the mandate and provided a reasoned, reviewable explanation that it was acting in an equitable manner under Northwest Environmental Defense Center v. Bonneville Power Administration (NEDC).[8] The Ninth Circuit noted that, in order to prove that BPA violated the equitable treatment mandate, petitioners would have to show that “overall, BPA treats fish second to power.”[9] Additionally, the Ninth Circuit noted that BPA “provided a list in the Decision Document of the current and future ‘adjustments to planning and operations in 2001 that directly address[ed] Tribal concerns.'”[10] The Ninth Circuit held that petitioners’ claim that the 2001 Decision Document violated the equitable treatment mandate was not ripe because it was a “cautionary announcement” and “did not declare any additional power emergencies.”[11] The Ninth Circuit also rejected Oregon’s challenge that the Decision Document arbitrarily and capriciously relied on the Northwest Power Planning Council’s program. The Ninth Circuit found that under NEDC BPA was required to consider the Council’s program in its analysis, and thus BPA’s reliance on the Council’s program was not arbitrary or capricious. The Ninth Circuit found that the environmental groups’ challenge to the Decision Document’s grant of power to declare power emergencies was not ripe because the ability to declare power emergencies was not a final agency action.

The Tribes argued in their reply brief that BPA was acting inconsistently with the Council’s program. The environmental groups argued in a letter that the 2000 Biological Opinion (BiOp) of the National Marine Fisheries Service (NMFS) arbitrarily and capriciously failed to satisfy the consultation requirement of the Endangered Species Act (ESA).[12] The Ninth Circuit rejected both of these arguments because petitioners did not raise them in their principal briefs.

The Ninth Circuit dismissed most of petitioners’ claims for lack of jurisdiction, and denied the rest of the petitions on the merits.

 


[1] Pacific Northwest Electric Power Planning and Conservation Act, 16 U.S.C. 839-839h (2000).

[2] Confederated Tribes of the Umatilla Indian Reservation v. Bonneville Power Admin. (Confederated Tribes), 342 F.3d 924, 928 (9th Cir. 2003) (citing 16 U.S.C. § 839b(h)(11)(A)(i)) (2000).

[3] 5 U.S.C. §§ 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (2000).

[4] Confederated Tribes, 342 F.3d at 928-929.

[5] 16 U.S.C. § 839f(e)(5) (2000).

[6] 557 F.2d 650 (9th Cir. 1977).

[7] Id. at 654-655.

[8] 117 F.3d 1520 (9th Cir. 1997).

[9] Confederated Tribes, 342 F.3d at 931 (citing NEDC, 117 F.3d at 1533).

[10] Id. at 932.

[11] Id. at 933.

[12] Endangered Species Act of 1973, 16 U.S.C. §§ 1531-1544 (2000).

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