FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

IDAHO CONSERVATION LEAGUE,

Petitioner,

v.

BONNEVILLE POWER

ADMINISTRATION,

Respondent.

No. 12-70338

OPINION

On Petition for Review of an Order of the

Bonneville Power Administration

Argued and Submitted October 6, 2014

Portland, Oregon

Filed June 21, 2016

Before: Alex Kozinski, Ferdinand F. Fernandez

and Andre M. Davis,* Circuit Judges.

Opinion by Judge Kozinski

* The Honorable Andre M. Davis, Senior Circuit Judge for the U.S.

Court of Appeals for the Fourth Circuit, sitting by designation.
2 IDAHO CONSERVATION LEAGUE V. BPA

SUMMARY**

Environmental Law

The panel denied a petition for review of a decision of the

Bonneville Power Administration to move forward with a

proposal to change how the Albeni Falls Dam in the Pacific

Northwest operates during winter months without first

preparing an environmental impact statement under the

National Environmental Policy Act.

Lake Pend Oreille, which serves as the dam’s reservoir,

is jointly managed by the Army Corps of Engineers, the

Bonneville Power Administration, and the Bureau of

Reclamation. In the initial winter months of the dam’s

operation, starting in the late 1950s, the Corps fluctuated the

level of the lake, but in some years the Corps held the lake’s

level constant. From 1997 to 2011, the Corps held the lake’s

level constant. In 2011, the agencies confirmed in an

environmental assessment that they planned to return to a

more flexible approach and allow the lake level to fluctuate.

NEPA only requires the preparation of an environmental

impact statement when a proposed federal action is major, but

“where a proposed federal action would not change the status

quo,” an environmental impact statement is not required. 

Upper Snake River Chapter of Trout Unlimited v. Hodel, 921

F.2d 232, 235 (9th Cir. 1990).

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
IDAHO CONSERVATION LEAGUE V. BPA 3

The panel held that the agencies complied with NEPA

when they finalized their 2011 decision without preparing an

environmental impact statement. The panel held that holding

lake levels constant from 1997 to 2011 did not change the

status quo, and reverting to the previous regime of fluctuating

the lake levels did not change the status quo either. 

The panel held that because the agencies’ decision

adopting flexible winter operations did not trigger NEPA’s

requirement to publish an environmental impact statement,

petitioner’s challenges to the environmental assessment’s

finding of no significant impact were moot. The panel held

that petitioner did not properly raise a challenge to the

Bonneville Power Administration’s failure to prepare a

supplemental environmental impact statement addressing the

effects of the flowering rush on the dam’s operation.

COUNSEL

Bryan Hurlbutt (argued), Advocates for the West, Boise,

Idaho, for Petitioner.

Hub V. Adams (argued), Attorney; Jacilyn R. Margeson,

Assistant Attorney General; Randy A. Roach, General

Counsel; Bonneville Power Administration, Portland,

Oregon; David J. Adler, Special Assistant United States

Attorney; S. Amanda Marshall, United States Attorney;

Stephen J. Odell, Assistant United States Attorney; United

States Attorney’s Office, Portland, Oregon; for Respondent.
4 IDAHO CONSERVATION LEAGUE V. BPA

OPINION

KOZINSKI, Circuit Judge:

Operated by the Army Corps of Engineers (Corps), the

Albeni Falls Dam helps provide power to the Pacific

Northwest. The Bonneville Power Administration (BPA) is

charged with marketing the power generated from the dam. 

In 2011, the agencies decided to change how they operated

the dam during the winter months. We consider whether they

complied with the National Environmental Policy Act

(NEPA) when they finalized this decision without preparing

an environmental impact statement.

FACTS

The Albeni Falls Dam straddles the Pend Oreille River,

which connects Lake Pend Oreille and the Columbia River. 

Completed in 1957 as part of the Federal Columbia River

Power System, it is jointly managed by the Corps, BPA and

the Bureau of Reclamation. Like other dams in the System,

the Albeni Falls Dam is operated to balance a variety of

competing objectives, such as flood control, power

generation, navigation and wildlife conservation.

Lake Pend Oreille serves as the dam’s reservoir. When

water is released from the lake, it drives turbines that generate

electricity. This decreases the reservoir’s depth and causes its

shoreline to recede. For decades, the Corps maintained the

flexibility to generate power during the winter months. In the

initial winters of the dam’s operation, starting in the late

1950s, the Corps fluctuated the level of the lake to generate

power as needed. In some years, however, the Corps held the

lake’s level constant, often near 2051 feet.
IDAHO CONSERVATION LEAGUE V. BPA 5

In 1995, the Corps determined that allowing the lake’s

elevation to drop during the winter months had adverse

effects on the kokanee salmon population and so beginning

in 1997 began holding the lake’s elevation constant. But in

2009, BPA urged the Corps to return to a more flexible

approach to winter dam management. After two years of

discussions and a public comment period, the agencies

confirmed in a 2011 environmental assessment (EA) that they

planned to follow through with BPA’s proposal. The plan for

“flexible winter power operations” gives the Corps the option

each winter to store water in the reservoir and then release it

through the dam according to power needs. Thus, instead of

keeping the lake’s level constant, the Corps may allow it to

rise and fall by as much as five feet during the winter.

The EA concludes that the proposed winter fluctuations

will have no significant environmental impact. Accordingly,

the agencies decided to move forward with the proposal

without preparing an environmental impact statement (EIS). 

See 40 C.F.R. §§ 1501.4(b)–(c), 1508.9. Petitioner

challenges this decision as a violation of NEPA and asks us

to require BPA to prepare an EIS. We have original

jurisdiction pursuant to the Northwest Power Act. 16 U.S.C.

§ 839f(e)(5).

DISCUSSION

NEPA, which applies to all federal agencies, 42 U.S.C.

§ 4332, doesn’t dictate particular policy outcomes; instead, it

regulates the manner in which agencies arrive at them. 

Specifically, for all “major Federal actions significantly

affecting the quality of the human environment,” the agency

must prepare an EIS, which is a detailed study examining the

environmental consequences of its decision. Id.
6 IDAHO CONSERVATION LEAGUE V. BPA

§ 4332(2)(C). An EA is meant to briefly document the

reasons for the agency’s determination whether an EIS is

required. 40 C.F.R. § 1508.9; see Cascadia Wildlands v.

Bureau of Indian Affairs, 801 F.3d 1105, 1111 (9th Cir.

2015). The EA here concludes that no EIS is required

because the proposed action will not “result in any new

significant impacts to the human environment.”

1. NEPA only requires the preparation of an EIS when a

proposed federal action is major. See Upper Snake River

Chapter of Trout Unlimited v. Hodel, 921 F.2d 232, 234–35

(9th Cir. 1990). A federal action that may have significant

environmental impacts need not “also be ‘major’ in an

economic or some other nonenvironmental sense to trigger

the EIS requirement.” City of Davis v. Coleman, 521 F.2d

661, 673 n.15 (9th Cir. 1975); see 40 C.F.R. § 1508.18

(“Major reinforces but does not have a meaning independent

of significantly.”). But when an agency, responding to

changing conditions, makes a decision to operate a completed

facility “within the range originally available” to it, the action

is not major. Upper Snake River, 921 F.2d at 235 (quoting

Cty. of Trinity v. Andrus, 438 F. Supp. 1368, 1388 (E.D. Cal.

1977)). In other words, “where a proposed federal action

would not change the status quo, an EIS is not necessary.” 

Id.; accord San Luis &Delta-Mendota Water Auth. v. Jewell,

747 F.3d 581, 646 (9th Cir. 2014).

Upper Snake River involved a challenge to the Bureau of

Reclamation’s management of the Palisades Dam. Upper

Snake River, 921 F.2d at 233. Reclamation typically ensured

that water flowed into the Snake River at a rate of at least

1,000 cubic feet per second. Id. In response to a drought, the

agency reduced water flow below that rate in two consecutive

years and wanted to do so a third time without preparing an
IDAHO CONSERVATION LEAGUE V. BPA 7

EIS. Id. at 233 & n.1, 234. We acknowledged that, “if an

ongoing project undergoes changes which themselves amount

to ‘major Federal actions,’ the operating agencymust prepare

an EIS.” Id. at 234. But Reclamation was not effecting a

substantial operational change or expanding the Palisades

Dam’s original facilities. Instead, the agency was doing what

it had always done: “from time to time and depending on the

river’s flow level, adjust[ing] up or down the volume of water

released from the Dam.” Id. at 235. Accordingly, we found

that Reclamation did not need to prepare an EIS. Id. at 236.

If the agencies in our case have consistently fluctuated

winter lake levels, formalizing that approach would not be a

major federal action because the agencies would be “doing

nothing new, nor more extensive, nor other than that

contemplated when the [Albeni Falls Dam] was first

operational.” Id. at 235. The Corps fluctuated the elevation

of Lake Pend Oreille in many winters prior to 1997, and

various dam management strategies considered in a 1995 EIS

included elements of what is now the proposal for flexible

winter operations. Accordingly, the question is whether

holding lake levels constant from 1997 to 2011 changed the

status quo. If not, then reverting to the previous regime

doesn’t change the status quo either.

The Corps discussed holding winter lake levels constant

in an EA published in 1995. This document reviewed a

proposal for a three-winter test to hold the lake at a high

minimum and found that doing so would have no significant

environmental impacts. BPA and the Corps subsequently

published Records of Decision putting this plan into action. 

We have explained that the time for an EIS is when an agency

undertakes a “significant shift of direction in operating

policy.” Grand Canyon Trust v. U.S. Bureau of Reclamation,
8 IDAHO CONSERVATION LEAGUE V. BPA

691 F.3d 1008, 1022 (9th Cir. 2012) (as amended). And, for

purposes of NEPA, the term “[m]ajor reinforces but does not

have a meaning independent of significantly.” 40 C.F.R.

§ 1508.18. Thus, this short-term decision, which was found

to have no significant environmental impact, could not have

constituted a major federal action because it wasn’t a

significant or long-term change in operating policy. In short,

it did not change the status quo.

Actions taken with respect to winter dam management

since 1995 reinforce the conclusion that there was no change

to the status quo. As mentioned, the plan to hold winter lake

levels constant began as a three-year test. The agencies

managing the dam twice decided to carry forward this

management strategy at the urging of the U.S. Fish and

Wildlife Service. It’s also notable that, since 2000, an

interagency team has met each year to recommend the lake’s

constant elevation for the coming winter. In four winters

from 1996 to 2011, Lake Pend Oreille was held near 2051

feet; the lake was also held near that elevation in eight

winters between 1980 and 1995. See Upper Snake River,

921 F.2d at 235 (finding that even if an agency had only

engaged in a proposed action sporadically in the past, that

was enough to show that repeating that action did not change

the status quo). As in Upper Snake River, the agencies here

considered each year how to manage the Albeni Falls Dam

based on that year’s conditions. The Corps never

relinquished its authority to fluctuate the lake’s elevation in

response to power demands: The Corps’ 2002 Water Control

Manual notes that Lake Pend Oreille “is usually operated”

within a one-foot range above the winter minimum, but that

“storage above [that minimum] may be used for . . .

unscheduled hydropower operations.” Thus, from 1997 to

2011, the agencies maintained the discretion they have
IDAHO CONSERVATION LEAGUE V. BPA 9

always had to respond annually to changing conditions. See

id. Continuing to do so did not change the status quo.

Because the period when the agencies held winter lake

levels constant did not change the operational status quo,

neither does the decision to revert to flexible winter

operations. Power generation has always been among the

central concerns in operating the dam. For example, a 1948

Army report on plans for the dam explained that, “[d]uring

the fall and winter period when regional power supply is

lowest and power loads are greatest, the stored water [at Lake

Pend Oreille] will be drawn upon for power purposes.” The

EA echoes that report, noting that “[t]he purpose of [flexible

winter operations] is to more efficiently use the available

water storage capabilities at AFD to generate power during

the winter” and that “[s]toring water in the near term will

provide power benefits at a future date when that water is

released[,] . . . depend[ing] on power prices, load demand,

and conditions at [another dam].” As the EA further

explains: “Historically, winter power operations have been

associated with [releasing] water for power. Water was

stored for power operations during the winter in the 1980s

and early 1990s.” Thus, in some winters the lake has

fluctuated, and in others it hasn’t. Accordingly, the agencies

will be doing “nothing new, nor more extensive, nor other

than that contemplated when the project was first

operational.” Upper Snake River, 921 F.2d at 235.

Petitioner argues that Upper Snake River is

distinguishable because “[u]nder existing operations, the

Corps maintains steady lake levels throughout winter,” while

under flexible winter operations, “lake levels would be raised

and lowered over a five-foot range up to three times every

winter for the life of the Dam.” But Petitioner’s view of
10 IDAHO CONSERVATION LEAGUE V. BPA

“existing operations” is incorrectlylimited to operations since

the publication of the 1995 EA. Moreover, Petitioner

mischaracterizes the proposal. According to the current EA,

it’s “unlikely” that lake levels would rise and fall over a fivefoot range three times everywinter—a variety of factors, such

as power demand and weather conditions, will influence how

the agencies operate the dam each year. Additionally, there

may still be winters where the agencies hold the lake’s level

constant in order to facilitate kokanee reproduction. Thus,

the flexible winter operations proposal comprises elements of

both earlier and more recent management strategies. These

details support the conclusion that the agencies charged with

operating the Albeni Falls Dam will do so in accordance with

the status quo. Id.; see also Grand Canyon Trust, 691 F.3d at

1022.

Petitioner finallyargues that implementing flexiblewinter

operations requires an EIS because the continued operation of

the Albeni Falls Dam is itself a major federal action that

significantly affects the human environment. See 40 C.F.R.

§ 1508.18(a) (“Actions include new and continuing activities

. . . .”). But decisions made as a part of the ongoing operation

of a federal project must themselves “rise to the level of

major federal actions to warrant preparation of an EIS.” 

Upper Snake River, 921 F.2d at 235 n.3. Requiring an agency

to prepare an EIS every time it takes an action consistent with

past conduct would grind agency decisionmaking to a halt. 

Cf. Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 373 (1989)

(explaining that requiring a supplemental EIS every time new

information is available “would render agency

decisionmaking intractable”); Grand Canyon Trust, 691 F.3d

at 1022 (noting it would be neither pragmatic nor realistic to

require an agency to prepare an EIS when it engages in

“routine and required annual reporting”).
IDAHO CONSERVATION LEAGUE V. BPA 11

2. Petitioner claims the EA arbitrarily concludes that

flexible winter operations will have only an incremental

impact on the spread of the flowering rush, an invasive

species that was discovered around Lake Pend Oreille in

2008. Because the decision adopting flexible winter

operations doesn’t trigger NEPA’s requirement to publish an

EIS, this and Petitioner’s other challenges to the EA’s finding

of no significant impact are moot. See Upper Snake River,

921 F.2d at 234.

Petitioner also argues in passing that, because the

flowering rush has never been considered in a NEPA

document, “BPA arbitrarily limited its analysis of flowering

rush impacts to only the incremental impacts attributable to

the new winter fluctuations; BPA never considered the

significance of the spread of flowering rush in relation to the

Dam’s year-round operation.” Agencies have a continuing

duty to “prepare supplements to . . . final environmental

impact statements” if there are “significant new

circumstances or information relevant to environmental

concerns” that were not considered in an earlier EIS. 

40 C.F.R. § 1502.9(c)(1); Marsh, 490 U.S. at 372–74. The

relevant EIS in this case is the 1995 Columbia River Power

System Operation Review Environmental Impact Statement

(SOR EIS), a programmatic EIS that evaluated a range of

alternative management strategies for the 14 federal dams and

reservoirs in the Columbia River Power System. The EA

here acknowledges that the SOR EIS did not consider the

effect of the dam’s operation on the flowering rush and

characterizes the rush’s spread as “new information.” It

nevertheless concludes that there are “no significant new

circumstances or information” warranting preparation of a

supplemental EIS.
12 IDAHO CONSERVATION LEAGUE V. BPA

Petitioner may well have a colorable claim that the

agencies managing the Albeni Falls Dam must supplement

the SOR EIS with an analysis of how year-round dam

operations, as compared with flexible winter operations

specifically, affect the “seemingly inevitable spread of this

invasive species.” But this question is outside the scope of

this case; Petitioner sought review of “the final decision . . .

adopting the ‘Flexible Winter Power Operations’ at Albeni

Falls Dam.” Petitioner’s opening brief similarly frames the

issue as whether BPA violated NEPA by “approving the new

winter operations without preparing an up-to-date EIS” and

concludes by asking us to “reverse and remand the . . . EA

approving the Flexible Winter Operations.” Petitioner only

mentions in a footnote that BPA might need to prepare a

supplemental EIS addressing the impact of year-round dam

operations on the flowering rush. We do not “ordinarily

consider matters on appeal that are not specifically and

distinctly argued” in an opening brief, Laboa v. Calderon,

224 F.3d 972, 985 (9th Cir. 2000), including those raised only

in a footnote, see id. at 985 n.8. A later agency decision or

action may provide Petitioner occasion to challenge BPA’s

failure to prepare a supplemental EIS addressing the

flowering rush. But the time has passed to do so as part of a

challenge to this EA.

We address Petitioner’s remaining claims in a

memorandum disposition filed concurrently herewith.

DENIED.