Case summaries.

• Position: II. Natural Resources G. Pacific Northwest Electric Power Planning and Conservation Act through III. Miscellaneous, with footnotes, p. 892-921 - 2013 Ninth Circuit Environmental Review

7. Pacific North west Electric Power Planning and Conservation Act

   1. Northwest Resource Information Center, Inc. v. Northwest Power and Conservation Council, 730 F.3d 1008 (9th Cir. 2013).

   The Northwest Resource Information Center (NRIC) (209) challenged the Sixth Northwest Power Plan (Plan), as promulgated by the Northwest Power and Conservation Council (Council), (210) claiming the Plan did not give due consideration to the accommodation of fish and wildlife interests. Hearing the case directly, the Ninth Circuit affirmed the Plan with respect to NRIC's "due-consideration" challenge, but remanded it to the Council to 1) allow for public notice and comment on the proposed environmental cost-benefit methodology, and 2) to reconsider the inclusion of a market price-based estimate of accommodating fish and wildlife interests.

   Enacted in 1980, the purpose of the Pacific Northwest Electric Power Planning and Conservation Act (Power Act) (211) is to resolve the conflicts between the Columbia River Basin's two great natural resources: hydropower and salmon. The Power Act established the Council, which promulgates regional conservation and electric power plans, (212) as well as a program to protect, mitigate, and enhance fish and wildlife. (213) While these two programs were intended to exist independently, the latter includes a fish and wildlife program. (214) As a result, in adopting the Plan in February 2010, the Council laid out biological objectives, principles, and strategies designed to benefit fish and wildlife. However, the Council did not prescribe specific operations for fish and wildlife as it had in the past, determining that agencies operating dams had already produced plans to improve fish and wildlife conditions.

   NRIC took issue with this decision and filed a timely petition to challenge the Plan. Finding the Plan to be a final action subject to judicial review, the Ninth Circuit heard the case directly, (215) and subsequently allowed the Bonneville Power Administration, (216) Northwest River Partners, (217) and the Public Power Council (218) to intervene and file response briefs. The Ninth Circuit reviewed the Council's adoption of the Plan under the "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" standard. (219)

   NRIC first argued that the Plan failed to give due consideration to fish and wildlife interests because it failed to independently consider the needs of anadromous fish. The Council agreed that such consideration was a serious substantive obligation and even noted that in the past it had recognized such consideration as part of the Power Act's fish and wildlife program mandate. However, the Council countered that it had in fact given fish and wildlife interests their due consideration for three reasons: 1) it evaluated many power resource scenarios; 2) it developed an accommodated plan for the fish and wildlife program; and 3) it considered effects of potential new power resources on environmental quality, fish, and wildlife.

   The Ninth Circuit rejected the first two explanations, but accepted the third. The Ninth Circuit dismissed the first explanation because the Council had failed to show how the two analyzed power resource scenarios were relevant. Further, the Ninth Circuit reasoned that post hoc reliance on alternatives not designed for due consideration would not fulfill the statute's requirement for due consideration. The Ninth Circuit dismissed the second suggested method because the fish and wildlife program the Council adopted was statutorily mandated and thus could not qualify as fulfilling the other independent obligation. (220) The Ninth Circuit upheld the reasonableness of the third explanation because the Power Act's due consideration requirement was aimed specifically at new power resource acquisitions, not existing ones. Therefore, the Ninth Circuit held that the Council was not obligated to reconsider the fish and wildlife measures adopted in the fish and wildlife program in order to satisfy the due consideration requirement.

   NRIC next made two arguments regarding the methodology the Council used in the Plan. First, NRIC argued that by failing to include a clear methodology for evaluating environmental costs and benefits in the draft version, the Plan was arbitrary, capricious, and contrary to the statute. Second, NRIC argued that the methodology included in the final version of the plan was inadequate. The Council conceded that its failure to include its methodology in the draft plan was an "unfortunate error." (221) However, the Council characterized the omission as an irrelevant procedural point, which was harmless because the methodology was self-evident. Furthermore, the Council noted that NRIC's proposed methodology would not have been adopted, even with more notice and comment procedures. The Ninth Circuit held that the Council's post hoc litigation position was insufficient to demonstrate the error had no bearing on the procedure for or substance of the decision. Therefore, the Ninth Circuit remanded the Plan to the Council for the limited purpose of using an appropriate notice and comment period to adopt a methodology.

   Finally, NRIC argued that the Council's decision to include an "inflated" cost estimate of the fish and wildlife program while removing a much lower estimate was arbitrary and capricious. The Council countered that the estimate had no bearing on the development of the Plan. The Ninth Circuit held that Council's argument did not address whether the action was arbitrary. Finding no other basis for the Council's decision, the Ninth Circuit remanded the Plan to the Council to either include a reasoned basis for the estimate or remove it. (222)

   In sum, the Ninth Circuit affirmed the Plan with regard to the due consideration challenge, but remanded the Plan to the Council for the limited purposes of 1) proceeding through proper notice and comment on the methodology for determining environmental costs and benefits, and 2) reconsidering the inclusion of the fish and wildlife cost estimate.

8. Alaska National Interest Lands Conservation Act

   1. John v. United States, 720 F.3d 1214 (9th Cir. 2013).

      This litigation concerned two consolidated challenges to the 1999 Final Rules (1999 Rules), which regulate the implementation of the Alaska National Interest Lands Conservation Act (ANILCA). (223) The Secretary of the Interior and the Secretary of Agriculture (the Secretaries) promulgated the 1999 Rules to designate which navigable waters within Alaska constitute "public lands" under ANILCA. The first challenge, brought by Plaintiff-Appellants Katie John et al., (Katie John) alleged that the 1999 Rules are too narrow. The second challenge, brought by Plaintiff-Appellant the State of Alaska (Alaska), claimed that the 1999 Rules are overly broad. The Ninth Circuit affirmed the district court and upheld the 1999 Rules against both challenges.

      ANILCA's two fundamental objectives are 1) to preserve and protect nationally significant landscapes, and 2) to protect rural residents who maintain a subsistence way of life and to ensure that the resources upon which they depend are adequately available. (224) Consequently, ANILCA provides that fish and game activities conducted for "nonwasteful subsistence uses" should be given priority over those performed for other purposes. (225) This federal priority applies to all public lands, which are defined as "lands situated in Alaska which, after December 2, 1980, are Federal lands." (226) The Secretaries are responsible for implementing the rural subsistence priority under ANILCA, but are able to implement priorities only where the State has not already done so. (227) In 1978, prior to ANILCA's adoption, Alaska granted subsistence users fish and game priority under state law. Regulations promulgated by the state Joint Boards of Fish and Game initially connected subsistence fishing to geographic communities, and eventually included a "rural" criterion for priority. (228) In 1982 the Secretary of the Interior certified Alaska, allowing it to manage subsistence hunting and fishing under ANILCA.

      The addition of the "rural" element to the subsistence priority created interpretive difficulties for the State of Alaska and ultimately resulted in the Department of the Interior's (DOI) denial of recertification. Three primary cases dealt with this issue. In 1985, the Alaska Supreme Court held in Madison v Alaska Department of Fish and Game that statutory preference should be given to subsistence users regardless of whether their place of residence qualified as rural. (229) As a result of this holding, DOI presented Alaska with an ultimatum: bring its subsistence use policy back into compliance with ANILCA by June 1, 1986, or lose its authority under ANILCA. (230) In response, Alaska amended its subsistence statute, limiting the definition of subsistence activities to people residing in rural areas of the state. The Alaska legislature defined "rural area" as an area of the state where the typical consumption of fish and game for noncommercial purposes is indicative of the economy. (231)

      This limited definition of "rural" led to the second relevant case, Kenaitze Indian Tribe v. Alaska. (232) Under the amended statute, the Kenai Peninsula was not classified as rural because it had amenities common to nonrural areas, such as shopping centers and grocery stores. The Ninth Circuit reasoned that because the Kenai Peninsula was nowhere near urban, the state's definition of "rural" was too narrow. (233) The court held that "rural" should include communities smaller than 2,500 people, or towns or cities outside of urban areas not exceeding certain limits. (234) The Ninth Circuit's interpretation extended ANILCA's priority to people in small communities regardless of their dependence on fish and game for subsistence.

      Several months later, in McDowell v. State, the Alaska Supreme Court held that...