Portland, OR —The U.S. Court of Appeals for the Ninth Circuit ruled today that an attempt to end the independent Fish Passage Center by Bonneville Power Administration (BPA) was illegal. The court ordered BPA to continue funding and support for the Fish Passage Center for the foreseeable future.
The decision in favor of the petition filed by Northwest Environmental Defense Center (NEDC), Public Employees for Environmental Responsibility (PEER) and Northwest Sportfishing Industry Association (NSIA), means that the independent experts of the Fish Passage Center will be able to keep analyzing fish runs and river operations for the Columbia and lower Snake Rivers. The Center’s work is vital to protecting and enhancing salmon, steelhead, bull trout and other fish moving through dams on these river systems.
BPA claimed language inserted into a congressional committee report by Senator Larry Craig (R-ID) barred the Fish Passage Center from receiving further funding. BPA then attempted to transfer the Center’s functions to a private consultant.
“The Ninth Circuit held BPA accountable,” said Stephanie Parent of the Pacific Environmental Advocacy Center (PEAC) who filed the petition. “Not only does BPA have a duty to fish, it has a duty to the public to engage in good government.”
In a unanimous ruling, a three-judge panel of the Ninth Circuit held —
“BPA acted contrary to law in concluding that congressional committee language carried the force of law…We hold that BPA’s decision to transfer the functions of the FPC…was arbitrary, capricious, and contrary to law…and order that BPA continue its existing contractual arrangement to fund and support the FPC…”
Craig and BPA acted in reaction to the Center’s figures being relied upon by a federal district court judge in ordering greater water releases from dams this past summer to aid salmon migration. The work of the Center is critical in determining whether native fish are traversing dams to reach their spawning grounds.
“This was a clear case of retaliation against scientists who were delivering inconvenient truths,” stated PEER General Counsel Richard Condit, whose organization is also representing Fish Passage Center staff in a separate, but related, constitutional challenge. “Despite this victory, we are now very concerned that BPA will seek out another route to censor independent science.”
The Court held that BPA’s attempt to replace the Fish Passage Center violated the provisions of the Northwest Power Act. In March, this same Court had stayed BPA’s actions on the very day that the Center was slated to cease operation but did not, until today, rule on the merits of the case.