Aluminum Co. of America v. Bonneville Power Administration

In this third of three related cases, 1 we must decide whether a federal agency, the Bonneville Power Administration, acted arbitrarily and capriciously in augmenting river flows as a means of benefitting the salmon.

I

The factual background is largely set forth in the second of these related cases, Idaho Department of Fish & Game v. National Marine Fisheries Service, 56 F.3d 1071 (9th Cir.1995), and we discuss here only the facts that are particular to this petition for review. As we discussed there, the U.S. Army Corps of Engineers (the “Corps”), the Bureau of Reclamation (“BuRec”), and the Bonneville Power Administration (“BPA”) consulted with the National Marine Fisheries Service (“NMFS”) pursuant to the Endangered Species Act on the 1993 Operations Plan. Initially, in preparing its Biological Opinion, NMFS drafted a jeopardy opinion which included measures for augmented river flow as part of a reasonable and prudent alternative that would not jeopardize the salmon. NMFS did not ultimately issue the jeopardy opinion, however, because the federal agencies agreed by letter to modify their 1993 Operations Plan to incorporate NMFS’s recommended flow augmentation measures. On…