United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 21, 2010 Decided December 28, 2010
No. 09-1134
HOOPA VALLEY TRIBE,
PETITIONER
v.
FEDERAL ENERGY REGULATORY COMMISSION,
RESPONDENT
PACIFICORP,
INTERVENOR
On Petition for Review of Orders of the
Federal Energy Regulatory Commission
Thane D. Somerville argued the cause for petitioner.
With him on the briefs was Thomas P. Schlosser.
Samuel Soopper, Attorney, Federal Energy Regulatory
Commission, argued the cause for respondent. With him on
the brief were Thomas R. Sheets, General Counsel, and Robert
H. Solomon, Solicitor.
Michael A. Swiger argued the cause for intervenor
PacifiCorp. With him on the brief was Sam Kalen.
2
Before: HENDERSON, BROWN, and KAVANAUGH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge
KAVANAUGH.
KAVANAUGH, Circuit Judge: One of the modern U.S.
government’s major regulatory tasks is to reconcile
competing demands on the Nation’s natural resources. This
case involves one small episode in that larger story. The
dispute concerns water resources in the Pacific Northwest,
where a hydroelectric plant provides power to some citizens
but interferes with the food needs and recreational desires of
others.
The Klamath Hydroelectric Project is located on the
Klamath River in Oregon and California. The Project serves
as a source of electricity for customers in a six-state area of
the Pacific Northwest. From 1956 to 2006, a power company
known as PacifiCorp operated the Klamath Hydroelectric
Project pursuant to a 50-year license granted by the Federal
Energy Regulatory Commission. Since the original license
expired in 2006, PacifiCorp has operated the Project under
successive annual licenses granted by FERC.
The Hoopa Valley Tribe of American Indians holds
fishing rights in the Klamath River and subsists in part on the
River’s trout. In 2007, the Tribe requested that FERC impose
conditions on PacifiCorp’s annual licenses so as to preserve
the Klamath River’s trout fishery. FERC declined to do so.
In this Court, the Tribe has challenged FERC’s refusal as
contrary to the Commission’s regulations and precedents, and
as unsupported by substantial evidence. We disagree and
therefore deny the Tribe’s petition.
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I
The Klamath Hydroelectric Project consists of dams,
reservoirs, and powerhouses along the Klamath River and one
of its tributaries in Oregon and California. Since 1956,
PacifiCorp has operated the Project pursuant to licenses
granted by FERC – specifically, a 50-year license that expired
in 2006 and annual licenses since then.
The Hoopa Valley Reservation is located in the Klamath
River Basin, and the Klamath River flows through the Tribe’s
lands. Tribe members fish in the Klamath River, and the
Tribe subsists in part on the River’s trout.
Seeking to protect the River’s trout fishery, the Tribe
petitioned FERC to include new ramping rate and minimum
flow requirements in PacifiCorp’s annual licenses. (The
ramping rate is the rate at which water levels rise or fall in the
river due to project operations.) FERC decided that such
interim conditions were not necessary and denied the Tribe’s
request. See PacifiCorp, Order Denying Motion for Interim
License Conditions, 125 FERC ¶ 61,196 (2008). The
Commission found that the trout fishery was sustaining
“certain adverse effects” from the Project but was
“nevertheless thriving,” and FERC concluded that the Project
posed no risk of “irreversible environmental damage.” Id.
¶¶ 13, 16.
The Tribe filed a petition for rehearing. In its denial of
that petition, FERC explained that, absent the prospect of
irreversible environmental harm from the licensed project, it
examines “a request to impose interim conditions under the
terms of the license essentially in the same manner as if [it]
4
were being asked to reopen the license.” PacifiCorp, Order
Denying Rehearing, 126 FERC ¶ 61,236, at ¶ 12 (2009).
Under that standard, the Commission will impose conditions
“[i]f, with the passage of time, a project is found to have
unanticipated, serious impacts on . . . fishery resources.” Id.
¶ 14; Ohio Power Co., Order Denying Requests for
Rehearing, 71 FERC ¶ 61,092, at 61,314 n.43 (1995).
Applying that “unanticipated, serious impacts” standard,
FERC concluded that there were no such impacts here and
that interim conditions were not necessary for the Klamath
Project.
The Tribe now seeks review of FERC’s decision.
II
The Tribe raises three alternative challenges to FERC’s
decision.
First, the Tribe contends that FERC’s decision declining
to impose interim conditions was “standardless.” The Tribe is
incorrect. The Commission explained that it would impose
interim conditions on a hydroelectric project if the project was
having “unanticipated, serious impacts” on fishery resources.
PacifiCorp, Order Denying Rehearing, 126 FERC ¶ 61,236,
at ¶ 14 (2009). The Commission in turn applied that standard:
“Because the project is not having an unanticipated, serious
impact on the trout fishery, it was an appropriate exercise of
our discretion to deny the Tribe’s request . . . .” Id. Contrary
to the Tribe’s argument, the Commission quite plainly
articulated and applied a standard in rejecting the Tribe’s
claims.
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Second, the Tribe claims that FERC required
“irreversible environmental damage” as a prerequisite to
imposing interim conditions on the Klamath Project.
According to the Tribe, such a requirement is too stringent.
But the premise of the Tribe’s argument is wrong: The
Commission did not require “irreversible environmental
damage” as a prerequisite to imposing interim conditions on
an annual license. To be sure, the Commission’s initial order
noted that the Klamath Project was not causing irreversible
environmental damage. See PacifiCorp, Order Denying
Motion for Interim License Conditions, 125 FERC ¶ 61,196,
at ¶ 13 (2008). But in doing so, FERC was merely suggesting
that a finding of irreversible environmental damage would be
sufficient to justify interim conditions to protect the trout
fishery. FERC never said that a finding of irreversible
environmental damage was necessary to justify interim
conditions here. In any event, to the extent there was any
ambiguity in the initial order, the Commission’s rehearing
order cleared it up. There, the Commission stated explicitly
that it could impose interim conditions even “absent a
showing of irreversible environmental damage.” 126
FERC ¶ 61,236, at ¶ 9; see also id. ¶ 10.
Third, the Tribe alternatively argues that the
“unanticipated, serious impacts” standard adopted by the
Commission in the rehearing order is inconsistent with
FERC’s precedents and regulations. We disagree. The
Commission has long applied the “unanticipated, serious
impacts” standard in deciding whether to reopen an existing
license. See Ohio Power Co., Order Denying Requests for
Rehearing, 71 FERC ¶ 61,092, at 61,314 n.43 (1995). FERC
decided to also employ that standard here because, the
Commission explained, it examines “a request to impose
interim conditions under the terms of the license essentially in
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the same manner as if [it] were being asked to reopen the
license.” 126 FERC ¶ 61,236, at ¶ 12. The Commission’s
analysis adheres to its statutory obligation to issue annual
licenses “under the terms and conditions of the existing
license.” 16 U.S.C. § 808(a)(1). That statutory provision was
designed to “preserv[e] the status quo at the expiration of a
long-term license.” Lac Courte Oreilles Band of Lake
Superior Chippewa Indians v. Fed. Power Comm’n, 510 F.2d
198, 206 (D.C. Cir. 1975). FERC preserves the status quo in
this context by treating annual licenses and long-term licenses
alike. Applying the same standard in both contexts as FERC
did here is, therefore, an entirely sensible way to fulfill the
Commission’s statutory obligation.
Contrary to the Tribe’s claim, moreover, the
“unanticipated, serious impacts” test is consistent with 18
C.F.R. § 16.18(d). By its terms, § 16.18(d) provides only that
“the Commission may incorporate additional or revised
interim conditions if necessary and practical to limit adverse
impacts on the environment.” As the Commission has
correctly explained, that broadly worded regulation grants
FERC considerable discretion in deciding when to condition
annual licenses. 126 FERC ¶ 61,236, at ¶ 17; see also Wash.
Water Power Co. v. FERC, 201 F.3d 497, 502 (D.C. Cir.
2000) (agency interpretation of its own regulation prevails
“unless it is plainly erroneous or inconsistent with the
regulation”) (citation omitted). The Commission has
exercised its discretion under § 16.18(d) by adopting the
“unanticipated, serious impacts” standard to guide its interim
conditions analysis. We find FERC’s decision consistent with
the regulation.1
1
In this context, the “unanticipated” prong of the test does not
meaningfully restrain the Commission from imposing interim
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Finally, the Tribe suggests that FERC has never before
applied the “unanticipated, serious impacts” test in an interim
conditions case. That is true, but there have not been many
cases with circumstances like those present here. The
Commission may articulate and apply the standard now.
Agencies have authority to establish legal standards “by
general rule or by individual, ad hoc litigation.” SEC v.
Chenery Corp., 332 U.S. 194, 203 (1947). That is all FERC
has done here, and we find its decision reasonable and
reasonably explained.
III
The Tribe further suggests that FERC’s decision –
namely, that the Project was not causing “unanticipated,
serious impacts” – lacked sufficient factual support in the
record. We disagree.
Based on evidence from a separate Department of the
Interior hearing and from FERC’s own Environmental Impact
conditions. Because hydroelectric power licenses can last for as
long as 50 years, environmental impacts on fishery resources that
are identified after the license period has ended almost certainly
will have been “unanticipated” at the time of the original licensing.
As a result, FERC’s analysis in deciding whether to impose interim
conditions usually will boil down to its assessment of whether the
impacts on fishery resources are sufficiently “serious” to justify
interim conditions. One situation that qualifies as “serious” under
this standard occurs when the project is causing “irreversible
environmental damage.” Cf. Platte River Whooping Crane Critical
Habitat Maintenance Trust v. FERC, 962 F.2d 27 (D.C. Cir. 1992);
Platte River Whooping Crane Critical Habitat Maintenance Trust
v. FERC, 876 F.2d 109 (D.C. Cir. 1989).
8
Statement, the Commission concluded that the Klamath River
trout fishery had sustained “some adverse effects” but was
nevertheless “thriving.” PacifiCorp, Order Denying Motion
for Interim License Conditions, 125 FERC ¶ 61,196, at ¶ 16
(2008). The Tribe questions that conclusion, arguing that
FERC cites unreliable data (based on catch rates) and has
chosen the wrong side in a battle of experts.
This controversy presents “a classic example of a factual
dispute the resolution of which implicates substantial agency
expertise.” Marsh v. Or. Natural Res. Council, 490 U.S. 360,
376 (1989). FERC acknowledged conflicting evidence and
weighed the testimony of dueling experts. There was
evidence on both sides; we thus have no basis to overturn the
Commission’s resolution of this debate. The Commission’s
conclusion is based on substantial evidence. Cf. Wis. Valley
Improvement Co. v. FERC, 236 F.3d 738, 746-47 (D.C. Cir.
2001).
***
We deny the Hoopa Valley Tribe’s petition for review.
So ordered.