Some fallacies about salmon restoration.

• Author: Buchal, James L.
• Position: Colloquium: Who Runs the River?

I was going to tell you about the law and these decisions until I listened to the other speakers this morning and I decided I was not really going to talk about the law at all. The reason is that the law is not very important to what is going on in these decisions. The legal strategy that has been employed by the Sierra Club Legal Defense Fund and others is as follows: let us not talk about the law; let us not talk about the facts; let us not talk about the administrative record. Those long, ugly string cites that the lawyers for the Northwest Power Planning Council worked so hard to put together, you do not even need to read those. We can just think big thoughts about history and salmon and the supposed trampling of the salmon interests by the power interests and from that, you can reach all your legal conclusions. And that is really what the courts have done in these cases.

Idaho Department of Fish & Game v. National Marine Fisheries Service (IDFG)(1) is in my view, is a fairly simple case. There is a regulation that says that federal agency action does not jeopardize the continued existence of a listed species unless it "reduce[s] appreciably the likelihood of both the survival and recovery of a listed species."(2) That is the law of the land. You can look it up. And so the hydropower operators came before the District Court with a program that very significantly increased survival of Snake River Salmon, and the National Marine Fisheries Service concluded that the program would not jeopardize the continued existence of Snake River salmon. And out comes an opinion with a lot of rhetoric about the need for a "major overhaul" of the system, and how everybody has been protecting the "status quo."(3) Nowhere does it explain how the law is to be applied to these facts, and, in particular, how you can jeopardize something by making it better.

The Northwest Resource Information Center v. Northwest Power Planning Council (NRIC)(4) opinion is more of the same thing. We have heard a lot this afternoon about the legislative history of the Northwest Power Act.(5) The legislative history is this: first, there was a power bill. Representative Dingell, Chairman of the House Commerce Committee, declared that there would be no power bill without fish provisions. So Chairman Dingell and the fishery interests put together a set of fish provisions in the Commerce Committee. Everyone looked at these provisions and said this is never going to pass, no way, no how.(6) So, Lorraine Bodi and a bunch of other people got together in an Ad Hoc Committee and they came up with language that could pass. Let me quote a sentence from a memo that the Ad Hoc Committee prepared and gave to Congress. It says, "the existing protection and mitigation obligations are neither increased nor diminished."(7) In other words, this bill is procedural and does not make any substantive changes at all. That same sentence is in the Interior Committee report on the bill.(8) So much for any grand legislative intent to put the fishery managers' interests first.

Now, what about the statutory language? Same thing. Section 4(h) tells the Power Planning Council to go out and collect a set of recommendations for fish and wildlife measures; collect them from the fish agencies; collect them from the utilities; collect them from everybody, customers; and put them all together.(9) And section 4(h)(7) says that if there is a conflict in the recommendations, give "due weight" to the view of the fishery agencies and the tribes.(10) What does "due weight" mean? The weight that is due. Just as "due process" means the process that is due, there are many court decisions which say "due weight" means that the decision-maker must give the evidence or recommendations what weight is due.

In the NRIC opinion, out of nowhere comes a "high degree of deference" principle.(11) You certainly won't find that concept in the legislative history. And not only is the Council supposed to give a high degree of deference to recommendations by fishery agencies and tribes, the NRIC court says that the Council is supposed to give a high degree of deference to statutory interpretations by Indian tribes and state fishery agencies.(12) Now that is a remarkable conclusion. Nowhere else in all those books over in the law library will you find another decision like this, declaring that we are going to interpret federal law by giving a high degree of deference to fishery agencies and tribes.

So there is not a lot of law in these opinions, at least as "law" is conventionally understood. What we have is the outcome of a brilliant strategy that has painted an untrue picture. So what I want to do this afternoon is talk a little bit about why that picture is not true.

Let us start at the beginning. Yes, there once were a lot...