Steering by dicta.

• Author: Volkman, John M.
• Position: Colloquium: Who Runs the River?

I want to focus less on the details of this surprising Northwest Resource Information Center v. Northwest Power Planning Council (NRIC) opinion and instead talk about what its broad messages may be, and where they may take us.(1)

I think everyone involved in this case, including the victors, found a lot of surprises in the opinion. I did not foresee the court's unwillingness to review the Northwest Power Planning Council's findings on the recommendations. But that is not a big problem because it is something we can fix. The bigger surprise to me was that the court would give us so many dicta, and especially these dicta.

This is no reflection on Professor Anke Blumm's impressive body of writing, but I was surprised that the court pretty much adopted Mike's entire opus--I do not think the opinion misses a single point. Maybe Mike has noticed something that was overlooked, but as near as I can tell, they even went beyond Mike on some things.

How did that happen? And how seriously do we take an opinion like that? The last part of the question is easy for me. I take this opinion very seriously. We will probably argue about some of it if we go back to court, but I do not think this is a collection of loose dicta. On the other part of the question, about why the court would write an opinion like this, I really have no better an answer to that than anyone else. But I can read the warnings I see in the opinion and speculate about them. One wanting is that the court wants to see a process that is driven by recommendations of the fish and wildlife agencies and tribes, and while it did not review the record in detail, the panel was convinced that it was not seeing that kind of record.(2) A second warning is that the court expects the Council generally to avoid substituting its judgment on biological questions for that of the agencies and tribes, at least unless it has a very clear reason for doing so.(3) A third warning is that the court may want to see the Council base its judgment on a systematic framework of biological objectives.(4) That in itself would be a very significant thing.

Maybe the court thought that it took a two-by-four just to make those points clear. But there is some very strong language in this opinion, and some people read a much broader message in it than just those three warnings. Perhaps the other message is this: when you go back and you look at the legislative history of the Northwest Power Act,(5) the fish and wildlife...