125 



48 



ExpUnatioD of Ex Parte 



In Central Lincoln Peoples' Utilitv Dist v Johnson. 735 F.2d 1 101 (9th Cir 1984). the United States 

 Couit of Appeals for the Ninth Circuit held that the Administrative Procedure Act's prohibition on ex parte 

 conummications applies to BPA ratemaldng because it is formal rulemaking required to be made on the 

 section 7(i) hearing record after opportunity for an agency hearing. Accordingly, BPA must avoid ex parte 

 comnumication concerning issues pending resolution in ongoing rate he a ring* - 



The recent case f>f Portland Audubon Society v. The E; "4«\gPTH Species Committee. 

 No. 92-70436 (9th Cir. April 1, 1993) strongly counsels that BPA avoid possible ex parte communications 

 cooceming rate case issues. In d>e P ft rtllH ^ Audubon Society case, environmental grxwps c h al len ged the 

 decision of the Endangered Species Committee (the "God Squad") to grant an exemption fixrni the 

 Ttquironents of the Endangered Species Act to the Bureau of Land Management for diirteen timber sales in 

 western Or^on. Tbe groups based their challenge on ex parte contacts that were alleged to have occurred 

 between the White House and Committee members. The Court first held that the APA's ban on ex parte 

 communications appUed to the Committee's deliberations, stating that the "result is similar to the one we 

 reached in a case involving formal rulemaking," Ae Central Lincoln case involving BPA. The Court then 

 determined that the President and his staff were subject to die APA's ban on ex parte communications since 

 the "provision's history makes it clear diat the ex parte communication prohibition was meant to include 

 public o£Bcials." (Note in this r^ard that the application of ex parte prohibitions to Congressional 

 communications has been expressly recognized in the Ethics Manual of the United States House of 

 Representatives.) The Court remanded the matter for an evidentiary hearing before an administrative law 

 judge on the questions of whedier any improper communications with the White House had in bcX occurred 

 during the Committee's decision-making process, and, if so, what remedy is required. Quite 

 understandably, this case causes BPA to very cautiously evaluate for ex parte problems any inquiries that 

 happen to involve issues pending in BPA's 7(i) process. 



BPA would be remiss not to also point out that a number of the Task Force's other questions bear on program 

 and program level issues that BPA had argued to the rate case Hearing Officer should be excluded from the 

 rate case. BPA had argued that inclusion of diese type of issues in the rate case would undermine BPA's 

 program planning processes and responsibilities, and interfere with the Federal budget process. BPA also 

 argued that Presidential and Congressional authority over BPA budgets could be compromised, and the 

 Constitutional doctrine of sqiaration of powers would be violated were the judiciary called upon to review 

 budget decisions ^proved by Congress. However, the Hearing Officer concluded over BPA's objections diat 

 the program and program level materials were relevant to BPA's rate case revenue requirement and should 

 dierefore be allowed in the rate case. Despite the Hearing Officer's action, BPA does not r^ard 

 communications regarding program and program level issues to be subject to the rate case's ex parte 

 prohibition. The reason for diis is that BPA's rate case procedures (S 1 Fed. R^. 761 1 (1986) exclude from 

 the ex parte ban a matter "which relates to a topic that is only secondarily the object of a hearing, for which 

 BPA is statutorily responsible under provisions other than Northwest Power Act section 7, or which is 

 eventually decided other than through a section 7(i) hearing." BPA believes that communications concerning 

 programs and program levels meet the quoted criteria. 



