Cowlitz Indian Tribe v. Federal Energy Regulatory Commission

MEMORANDUM *

The Cowlitz Indian Tribe, Friends of the Cowlitz, and CPR-Fish (collectively “Petitioners”) petition for review of two orders of the Federal Energy Regulatory Commission (the “Commission”) in this consolidated appeal. The first petition for review, No. 03-73225, challenges the Commission’s order that issued a license for the continued operation of a hydroelectric project on the Cowlitz River in Washington, which is operated by the City of Tacoma (“Tacoma”). The second petition for review, No. 05-70391, challenges the Commission’s order that amended the license in light of a Biological Opinion (“BiOp”) submitted by the National Marine Fisheries Service (“NMFS”). Petitioners contend that the Commission: (1) failed to perform its statutory obligation to consider Tacoma’s record of compliance with the existing license in the relicensing process; (2) reached conclusions regarding downstream and upstream fish passage, hatchery management, and flood control that were arbitrary, capricious, and unsupported by substantial evidence; and (3) approved of an advisory committee as part of the new license in violation of the Federal Advisory Committee Act (“FACA”). Because the…