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BPA Wins Lawsuit in Ninth Circuit Over 2001 Hydro Operations by Bill Rudolph NW Fishletter, September 12, 2003

A three-judge panel from the United States Court of Appeals for the Ninth Circuit has denied a petition filed by lower Columbia River Indian tribes, environmentalists and fishing groups that argued BPA had violated its statutory duty to treat fish and wildlife equitably with power. At issue were hydro operations in 2001, when flows and spill for fish were curtailed during a months-long power emergency.

The panel ruled BPA is not required to treat fish and wildlife equitably in every decision it makes, "so long as on the whole, it treats fish on a par with power."

In its defense, BPA listed nine points that the agency said proved it was treating fish equitably. The panel found BPA's argument "a reasoned explanation of its decision."

Those points included maintaining flow for fish at Vernita Bar, spilling for Spring Creek hatchery fish, buying back industrial and irrigation load, buying power on the market, calling for conservation and soliciting proposals for more wind generation.

In 2001, when the plaintiffs filed the petition, they said BPA-mandated low river flows killed so many fish that runs would be driven closer to extinction, "undoing years of work to restore them and perpetuating economic hardship in fishing dependent communities all along the coast."