## Facts

- Congress enacted the Pacific Northwest Electric Power Planning and Conservation Act of 1980 to balance an economical and reliable regional power supply with protection of fish and wildlife affected by the Columbia River Basin hydropower system.
- The Act created the Northwest Power Planning Council and required it to adopt a Fish and Wildlife Program giving fish and wildlife “equitable treatment” with power production.
- The Act also required consultation with federal and state fish-and-wildlife agencies and tribes (“fishery managers”) and imposed criteria for program measures, including use of best available scientific knowledge and complementing existing agency and tribal activities.
- In the early 1990s, the Council adopted major amendments to its program known as the “Strategy for Salmon.”
- Fishery managers recommended specific biological goals and minimum weekly spring flow targets (including 220 kcfs at The Dalles Dam), with adjustments based on actual conditions.
- The Council rejected key flow recommendations and adopted a “volumetric approach” that guaranteed lower equivalent flows during peak out-migration periods.
- Environmental and tribal petitioners argued the Council failed to explain, in the program itself, why it rejected fishery managers’ recommendations and failed to evaluate measures against sound biological objectives.
- Power-industry petitioners argued the Council failed to comply with the Act’s cost-effectiveness requirement to select the lowest-cost measures that achieve the same biological objectives.
- Multiple petitions for review were consolidated in the Ninth Circuit under the Northwest Power Act, with review framed by Administrative Procedure Act standards.

## Issues

1. Whether the Council violated 16 U.S.C. § 839b(h)(7) and the APA by failing to include, as part of the program, a written explanation of statutory reasons for rejecting fishery managers’ recommendations (including stream-flow measures).
2. Whether § 839b(h)(6)–(7) requires evaluation of measures against “sound biological objectives,” and whether the Strategy for Salmon failed to supply and apply such objectives.
3. Whether the criteria in § 839b(h)(6) impose substantive legal obligations, rather than merely stating a planning agenda.
4. Whether the Council complied with the Act’s cost-effectiveness requirement to choose the lowest-cost measures among alternatives that achieve the same biological objective.

## Decision

- The Ninth Circuit granted the petitions in substantial part and remanded the Strategy for Salmon amendments to the Council.
- The court held the Council violated § 839b(h)(7) by failing to provide, within the program itself, a clear written explanation for rejecting fishery managers’ recommendations on stream flows and related measures.
- The court held the Council failed to evaluate measures against sound biological objectives as required by § 839b(h)(6)–(7).
- The court held § 839b(h)(6) sets out substantive criteria the Council must satisfy when adopting program measures.
- The court stated the Council must accord a high degree of deference to fishery managers’ recommendations and interpretations on fish and wildlife matters, while retaining ultimate decision-making authority.
- The court rejected demands for a particular cost-quantification methodology but emphasized that cost-effectiveness analysis depends on clearly stated biological objectives and must be applied once objectives are defined.

## Legal Principles

- When a statute requires an agency or council to explain in writing, “as part of the program,” why expert recommendations were rejected, incorporating the explanation into the final adopted program is mandatory; relying on record materials alone is insufficient.
- Failure to comply with explicit statutory procedural and explanatory requirements renders action unlawful under the governing statute and arbitrary and capricious under APA review.
- Statutory criteria for a fish-and-wildlife program (including scientific grounding and consistency with agency and tribal activities) can be enforceable substantive constraints, not merely aspirational factors.
- Where Congress directs reliance on expert agencies and tribes in technical biological matters, the decisionmaker must give substantial deference to those recommendations and provide explicit statutory justification for departures.
- Cost-effectiveness requirements comparing “lowest cost” alternatives operate only after the decisionmaker specifies the biological objective to be achieved; economic comparisons must be tied to defined biological outcomes.

## Conclusion

The Ninth Circuit remanded the Council’s salmon-strategy amendments because the Council did not include required written explanations for rejecting fishery managers’ recommendations and did not ground its chosen measures in sound, articulated biological objectives, which also impeded lawful application of the Act’s cost-effectiveness mandate.


Nw. Res. Info. Ctr., Inc. v. Nw. Power Planning Council, 35 F.3d 1371 (9th Cir. 1994)