Notice: This opinion is subject to formal revision before publication in the
Federal Reporter or U.S.App.D.C. Reports. Users are requested to notify
the Clerk of any formal errors in order that corrections may be made
before the bound volumes go to press.
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 16, 2004 Decided June 22, 2004
No. 03-1122
IN RE: AMERICAN RIVERS AND
IDAHO RIVERS UNITED,
PETITIONERS
On Petition for Writ of Mandamus
Jonathan R. Lovvorn argued the cause for the petitioners.
Amy R. Atwood and Eric R. Glitzenstein were on brief.
Dennis Lane, Solicitor, Federal Energy Regulatory Com-
mission, argued the cause for the respondent. Cynthia A.
Marlette, General Counsel, Federal Energy Regulatory Com-
mission, was on brief. Beth G. Pacella, Attorney, Federal
Energy Regulatory Commission, entered an appearance.
James B. Vasile, Hubert A. Farbes, Jr. and Mark J.
Mathews were on brief for the intervenor.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Before: EDWARDS and HENDERSON, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: In 1997 a
coalition of environmental organizations petitioned the Feder-
al Energy Regulatory Commission (FERC) to formally con-
sult under section 7 of the Endangered Species Act with the
National Marine Fisheries Service of the National Oceanic
and Atmospheric Administration (NOAA)1 regarding FERC’s
ongoing regulatory authority over hydropower operations af-
fecting threatened and endangered anadromous2 fish in the
Snake River basin. The petition has gone unanswered for
more than six years. Now petitioners American Rivers and
Idaho Rivers United (collectively, petitioners) seek a writ of
mandamus compelling a response, alleging that FERC’s six-
year delay is unreasonable under the Administrative Proce-
dure Act (APA), 5 U.S.C. § 706(1). For the reasons set forth
below, we grant the writ and order FERC to respond to the
petition within 45 days of the issuance of this opinion.
I.
The Endangered Species Act (ESA or Act), 16 U.S.C.
§§ 1531 et seq., is generally regarded as ‘‘the most compre-
hensive legislation for the preservation of endangered species
ever enacted by any nation.’’ Tennessee Valley Auth. v. Hill,
437 U.S. 153, 180 (1978); see also Rancho Viejo, LLC v.
Norton, 323 F.3d 1062, 1064 (D.C. Cir. 2003), cert. denied, 124
S. Ct. 1506 (2004). Finding that various species of fish,
wildlife and plants valuable to the health and welfare of the
nation have become extinct or face extinction because of
‘‘economic growth and development untempered by adequate
concern and conservation,’’ 16 U.S.C. § 1531(a)(1)-(3), the
1 The NOAA is an agency within the United States Department
of Commerce. See, e.g., Conservation Law Found. v. Evans, 360
F.3d 21, 23 n.1 (1st Cir. 2004). The National Marine Fisheries
Service (Service) is a part of NOAA. See id.
2 ‘‘Anadromous’’ fish, such as salmon, migrate upriver from the
sea to breed in fresh water. See WEBSTER’S THIRD NEW INTERNA-
TIONAL DICTIONARY 76 (1993).
3
Congress enacted the ESA to provide a means for conserving
endangered and threatened species as well as the ecosystems
they depend on, see id. § 1531(b); Rancho Viejo, 323 F.3d at
1064.
The ESA confers on the United States Departments of the
Interior (Interior) and of Commerce (Commerce) shared re-
sponsibilities for protecting threatened3 or endangered4 spe-
cies of fish, wildlife and plants. See 16 U.S.C. § 1533(a).
The Commerce Secretary has, in turn, delegated his authority
to list threatened or endangered marine and anadromous
species to the Service. Id. § 1533(a)(2)(A); 50 C.F.R.
§ 402.01(b); see 50 C.F.R. §§ 223.102 (threatened species),
224.101 (endangered species).
Section 7 of the ESA requires all federal agencies, ‘‘in
consultation with and with the assistance of the [Commerce
or Interior] Secretary,’’ to further the ESA’s purpose by
‘‘carrying out programs for the conservation’’ of listed species.
16 U.S.C. § 1536(a)(1). An agency must ensure that its
actions, including licensures, are ‘‘not likely to jeopardize the
continued existence of any endangered or threatened species
or result in the destruction or adverse modification of habitat
of such species which is determined by the Secretary TTT to
be critical.’’ Id. § 1536(a)(2); see Rancho Viejo, 323 F.3d at
1064. Upon determining that its activity ‘‘may affect listed
[marine or anadromous] species or critical habitat,’’ an agency
must initiate formal consultation with the Service5 by submit-
ting a written request containing, inter alia, descriptions of
3 A species is ‘‘endangered’’ if it ‘‘is in danger of extinction
throughout all or a significant portion of its range.’’ 16 U.S.C.
§ 1532(6).
4 A species is ‘‘threatened’’ if it ‘‘is likely to become an endan-
gered species within the foreseeable future throughout all or a
significant portion of its range.’’ 16 U.S.C. § 1532(20).
5 If, following a biological assessment, see 50 C.F.R. § 402.12, or
informal consultation with the Service, see id. § 402.13, the agency
determines—and the Service concurs—that the contemplated action
is ‘‘not likely to adversely affect any listed species or critical
habitat’’ or ‘‘if a preliminary biological opinion, issued after early
4
the contemplated action and listed species or critical habitat
that may be affected by it. 50 C.F.R. § 402.14(a), (c). For-
mal consultation ordinarily culminates with the Service’s issu-
ance of a biological opinion that makes a ‘‘jeopardy’’ or ‘‘no
jeopardy’’ conclusion. Id. § 402.14(g)(4), (h)(3); see 16 U.S.C.
§ 1536(b)(4). If it determines that the action ‘‘is likely to
jeopardize the continued existence of a listed species or result
in the destruction or adverse modification of critical habitat,’’
the opinion suggests ‘‘reasonable and prudent alternatives, if
any,’’ the agency can take to avoid violating section 7. 50
C.F.R. § 402.14(h)(3); see 16 U.S.C. § 1536(b)(3)(A). Accord-
ing to the Service’s regulations, formal consultation must
usually be concluded within 90 days. See 50 C.F.R.
§ 402.14(e).
In 1955 FERC’s predecessor, the Federal Power Commis-
sion (Commission), granted a 50–year license to the Idaho
Power Company (IPC) to construct, operate and maintain the
Hells Canyon Complex, a hydropower project composed of
three dams—Oxbow, low Hells Canyon and Brownlee—in the
Hells Canyon area of the Snake River. See Idaho Power Co.,
Opinion & Order, 14 F.P.C. 55 (Aug. 4, 1955), reprinted in
Petitioners’ Addendum (P.A.) 1, 20. The Commission recog-
nized then that the project ‘‘would adversely affect the fish
and wildlife resources of the area, and particularly the ana-
dromous fish.’’ P.A. 7. Because the project ‘‘would block the
runs of anadromous fish,’’ the Commission concluded that
‘‘some type of fish facilities would have to be provided for the
protection of this resource.’’ P.A. 17. Accordingly, to mini-
mize the project’s impact on the anadromous fish, the Com-
mission required the IPC to construct and maintain ‘‘fish
ladders, fish traps or other fish handling facilities or fish
protective devices and provide fish hatchery facilities for the
purpose of conserving the fishery resources.’’ P.A. 21–22.
The IPC’s license also included a ‘‘re-opener’’ clause, provid-
consultation under § 402.11, is confirmed as the final biological
opinion,’’ formal consultation is not required. Id. § 402.14(b)(1)-(2).
‘‘Informal consultation’’ is an ‘‘optional process TTT designed to
assist the [f]ederal agency in determining whether formal consulta-
tion or a conference is required.’’ Id. § 402.13(a).
5
ing that the company must ‘‘comply with such reasonable
modifications of the project structures and operation in the
interest of fish life as may be prescribed hereafter by the
Commission upon its own motion or upon the recommenda-
tion of the Secretary.’’ P.A. 22.
It is not disputed that hydropower projects have contribut-
ed to declining populations of anadromous fish—namely,
salmon and steelhead trout species—in the Snake River and
the Columbia River basin. See, e.g., Endangered and Threat-
ened Species; Proposed Endangered Status for Snake River
Sockeye Salmon, 56 Fed. Reg. 14,055, 14,058 (Apr. 5, 1991)
(proposed rule (‘‘[C]urrent annual salmon and steelhead pro-
duction in the Columbia River Basin is more than 10 million
fish below historical levels, with 8 million of this annual loss
estimate attributable to hydropower development and opera-
tion.’’)). So far the Service has listed three Snake River
anadromous fish species as endangered and one as threat-
ened, each time listing hydropower development as a factor
contributing to population decline.6 In 1991 the Service listed
the Snake River sockeye salmon as endangered. See 56 Fed.
Reg. at 58,623. It listed two more species of salmon, the
Snake River spring/summer chinook salmon and the Snake
River fall chinook salmon, as threatened the following year7
and as endangered two years later through an emergency
6 See Endangered and Threatened Species: Listing of Several
Evolutionary Significant Units (ESUs) of West Coast Steelhead, 62
Fed. Reg. 43,937, 43,950 (Aug. 18, 1997) (final rule); Endangered
and Threatened Wildlife and Plants; Emergency Reclassification
of the Snake River Spring/Summer Chinook Salmon and the Snake
River Fall Chinook Salmon From Threatened to Endangered Sta-
tus, 59 Fed. Reg. 54,840 (Nov. 2, 1994) (emergency rule); Endan-
gered and Threatened Species; Status of Snake River Spring/Sum-
mer Chinook Salmon and Snake River Fall Chinook Salmon, 59
Fed. Reg. 42,529, 42,530 (Aug. 18, 1994) (emergency interim rule);
Endangered and Threatened Species; Endangered Status for
Snake River Sockeye Salmon, 56 Fed. Reg. 58,619, 58,622 (Nov. 20,
1991) (final rule).
7 See Endangered and Threatened Species; Threatened Status
for Snake River Spring/Summer Chinook Salmon, Threatened
6
rule.8 See 59 Fed. Reg. at 54,840; 59 Fed. Reg. at 42,531–32.
In 1993 the Service also designated an area including the
Hells Canyon reach of the Snake River as critical habitat for
these three salmon species. See Designated Critical Habitat;
Snake River Sockeye Salmon, Snake River Spring/Summer
Chinook Salmon, and Snake River Fall Chinook Salmon, 58
Fed. Reg. 68,543, 68,546 (Dec. 28, 1993) (final rule). And in
1997, the Service listed the Snake River population of west
coast steelhead trout as threatened. See 62 Fed. Reg. at
43,950.
Reacting to these developments, a coalition of environmen-
tal organizations (including petitioner American Rivers) re-
quested FERC in November 1997 to initiate formal consulta-
tion with the Service regarding FERC’s ongoing regulation of
IPC’s operation of the Hells Canyon Complex.9 See Petition
to Initiate Consultation Under the Endangered Species Act at
1-17, reprinted in P.A. 40-56 [hereinafter 1997 petition]. The
petition asked FERC to act within 30 days ‘‘[b]ecause time is
running out for the endangered salmon.’’ P.A. 56. The
coalition further recited that it would consider FERC’s failure
to respond within 30 days a constructive denial of the petition
and would file immediately for rehearing. P.A. 56.
Status for Snake River Fall Chinook Salmon, 57 Fed. Reg. 14,653
(Apr. 22, 1992) (final rule).
8 The emergency designation is no longer in effect. See 16 U.S.C.
§ 1533(b)(7) (emergency regulation ceases to have force after 240
days); 50 C.F.R. § 424.20(a) (same); see also Endangered and
Threatened Species; Withdrawal of Proposed Rule to List Snake
River Spring/Summer Chinook Salmon and Fall Chinook Salmon
as Endangered, 63 Fed. Reg. 1807, 1811 (Jan. 12, 1998) (proposed
rule; withdrawal (withdrawing proposed rule to reclassify Snake
River spring/summer and fall chinook salmon as endangered)).
9 The coalition filed its request pursuant to 18 C.F.R.
§ 385.207(a)(5), which provides that ‘‘[a] person must file a petition
when seeking TTT [a]ny other action which is in the discretion of
[FERC] and for which this chapter prescribes no other form of
pleading.’’ Id.
7
When FERC failed to meet the deadline, the coalition
reacted as promised. It notified FERC that it considered the
agency’s inaction a denial of the petition and requested
rehearing. See Request for Rehearing of Constructive Order
Denying Petition to Initiate Consultation Under the Endan-
gered Species Act at 1-3, reprinted in P.A. 111-13. FERC
subsequently denied rehearing, noting ‘‘[b]ecause there has
been no order from which to seek rehearing, [the] rehearing
request is premature and must be rejected.’’ Idaho Power
Co., Order Rejecting Request for Rehearing, 82 FERC ¶ 61,-
049 (Jan. 22, 1998) (footnote omitted). The coalition then
petitioned the Ninth Circuit Court of Appeals for review of
FERC’s denial of the petition effected by its failure to act.
See American Rivers v. FERC, 170 F.3d 896 (9th Cir. 1999).
It met with no more success there. Id. at 897. The Ninth
Circuit dismissed the petition for want of jurisdiction, explain-
ing that ‘‘appellate jurisdiction is dependent on the issuance
of an order by FERC’’ and the agency’s ‘‘[m]ere inaction TTT
cannot be transmuted by petitioners into an order rejecting
their petition.’’ Id.
Following the Ninth Circuit’s decision, coalition members
along with other groups have repeatedly requested FERC to
either grant the 1997 petition and immediately initiate section
7 consultation or formally deny the petition.10 More than six
years later, FERC has yet to respond to the 1997 petition.
The petitioners now ask us to grant a writ of mandamus
compelling FERC to act formally on the 1997 petition. We
have jurisdiction to entertain the request in order to safe-
guard our prospective jurisdiction under the Federal Power
Act, 16 U.S.C. § 825l(b). See Telecomms. Research & Action
10 See Letter from Robert J. Masonis, American Rivers, to Spenc-
er Abraham, Sec’y of Energy, et al. 6 (Aug. 28, 2002), reprinted in
P.A. at 140; Letter from Pat Ford, Save Our Wild Salmon, et al., to
Patrick Henry Wood III, Chairperson, FERC, & Kevin P. Madden,
Office of General Counsel, FERC 4 (Nov. 1, 2001), reprinted in P.A.
at 144; Letter from Aaron Courtney, Pacific Envtl. Advocacy Ctr.,
et al., to Spencer Abraham, Sec’y of Energy, et al. 6 (Apr. 19, 2001),
reprinted in P.A. at 133.
8
Center v. FCC, 750 F.2d 70, 76 (D.C. Cir. 1984) (‘‘Because the
statutory obligation of a Court of Appeals to review on the
merits may be defeated by an agency that fails to resolve
disputes, a Circuit Court may resolve claims of unreasonable
delay in order to protect its future jurisdiction.’’) [hereinafter
TRAC].
II.
Mandamus is an extraordinary remedy reserved for ex-
traordinary circumstances. See, e.g., In re United Mine
Workers of Am. Int’l Union, 190 F.3d 545, 549 (D.C. Cir.
1999). An administrative agency’s unreasonable delay pres-
ents such a circumstance because it signals the ‘‘breakdown of
regulatory processes.’’ Cutler v. Hayes, 818 F.2d 879, 897
n.156 (D.C. Cir. 1987). Accordingly, we will interfere with
the normal progression of agency proceedings to correct
‘‘transparent violations of a clear duty to act,’’ In re Bluewa-
ter Network, 234 F.3d 1305, 1315 (D.C. Cir. 2000), because
‘‘[i]t is obvious that the benefits of agency expertise and
creation of a record will not be realized if the agency never
takes action.’’ TRAC, 750 F.2d at 79. In considering a
charge of unreasonable delay, however, we must satisfy our-
selves that the agency has a duty to act and that it has
‘‘unreasonably delayed’’ in discharging that duty. 5 U.S.C.
§ 706(1); see id. § 555(b); In re Bluewater Network, 234
F.3d at 1315. Although our test to determine whether to
address an alleged unreasonable delay is ‘‘hardly ironclad,’’
TRAC, 750 F.2d at 80, we are guided by the standard
announced in TRAC:
(1) the time agencies take to make decisions must be
governed by a ‘‘rule of reason’’; (2) where Congress has
provided a timetable or other indication of the speed with
which it expects the agency to proceed in the enabling
statute, that statutory scheme may supply content for
this rule of reason; (3) delays that might be reasonable
in the sphere of economic regulation are less tolerable
when human health and welfare are at stake; (4) the
court should consider the effect of expediting delayed
9
action on agency activities of a higher or competing
priority; (5) the court should also take into account the
nature and extent of the interests prejudiced by delay;
and (6) the court need not ‘‘find any impropriety lurking
behind agency lassitude in order to hold that agency
action is ‘unreasonably delayed.’ ’’
In re United Mine Workers of Am. Int’l Union, 190 F.3d at
549 (quoting TRAC, 750 F.2d at 80).
Rather than attempting to demonstrate the reasonableness
of its more than six-year delay, FERC defends its inaction
indirectly with arguments that proceed along two related and,
at times, conflicting fronts. FERC first asserts that it is not
obligated to address the 1997 petition at all. In FERC’s
view, simply filing a petition seeking agency action does not,
by itself, require FERC to respond to it. Moreover, accord-
ing to FERC, neither a re-opener clause in a hydropower
licensee’s license nor the Service’s listing of endangered or
threatened species or designation of critical habitat requires
it to initiate formal consultation under section 7 of the ESA.
In this regard, FERC maintains that ‘‘the ESA prerequisite
for instituting formal consultation has not yet been met and
the precise obligations of FERC in these circumstances are
far from clear under the statute or regulations.’’ Respon-
dent’s Br. at 17. Both of FERC’s assertions are founded on
fundamental misunderstandings; the former of the law, the
latter of the legal issue before us.
FERC’s insistence that it is not obligated to address a
petition filed under one of its own regulations allowing re-
quests for discretionary action, see 18 C.F.R. § 385.207(a)(5),
is without merit. Under the APA a federal agency is obligat-
ed to ‘‘conclude a matter’’ presented to it ‘‘within a reasonable
time,’’ 5 U.S.C. § 555(b), and a reviewing court may ‘‘compel
agency action unlawfully withheld or unreasonably delayed.’’
Id. § 706(1); see In re Int’l Chem. Workers Union, 958 F.2d
1144, 1149 (D.C. Cir. 1992) (per curiam). FERC may not
wish to respond to the 1997 petition but any person aggrieved
by a FERC action—including a failure to act—is entitled to
judicial review under the Federal Power Act, see 16 U.S.C.
10
§ 825l(b). Indeed, the primary purpose of the writ in circum-
stances like these is to ensure that an agency does not thwart
our jurisdiction by withholding a reviewable decision. See
TRAC, 750 F.2d at 76.
FERC’s assertions that it is not obligated to initiate formal
consultation under section 7 either by virtue of the re-opener
clause in IPC’s license or based on the Service’s ESA actions
are beside the point. FERC is obligated under the APA to
respond to the 1997 petition. Moreover, these contentions go
not to the reasonableness of FERC’s delay but to the merits
of the petition itself. We are not concerned here with what
answer FERC might ultimately give the petitioners; rather,
we are reviewing its failure to give them any answer for more
than six years.
FERC’s second front involves contentions that again, in
one way or another, address the merits of the 1997 petition.
FERC contends that, given its involvement in (or notice of)
ongoing efforts to resolve complex litigation regarding Snake
River water rights, ‘‘it is difficult to see what more FERC
could do’’ and that ‘‘[n]othing more is or can be required.’’
Respondent’s Br. at 14, 15. FERC also points out that
‘‘interim measures[ ] agreed to by the affected agencies and
parties’’ address the Service’s listing of the salmon and
steelhead species until the water rights litigation is resolved.
Respondent’s Br. at 18. FERC further explains that, be-
cause resolution of the water rights litigation will bear on the
section 7 formal consultation regarding the operation of the
Hells Canyon Complex, the Service has ‘‘counsel[led] forbear-
ance’’ and asked FERC to ‘‘suspend information gathering
until negotiations to settle that litigation have run their
course.’’ Respondent’s Br. at 18.
In a similar vein, FERC stated during oral argument that
it had already ‘‘done what was requested in the 1997 petition.’’
Oral Arg. Tr. at 11. FERC’s assertion that it responded to
the 1997 petition by doing what the petition requested runs
counter to its position on brief and discussed above. More
significantly, FERC’s resort to certain record items does not
11
constitute an unequivocal—or even coherent—response to the
1997 petition.11
While FERC makes various attempts to rationalize its
delay, none of its reasons comports with the specific consider-
ations outlined in TRAC. See TRAC, 750 F.2d at 80. There
is ‘‘no per se rule as to how long is too long’’ to wait for
agency action, In re Int’l Chem. Workers Union, 958 F.2d at
1149, but a reasonable time for agency action is typically
counted in weeks or months, not years. See Midwest Gas
Users Ass’n v. FERC, 833 F.2d 341, 359 (D.C. Cir. 1987)
(‘‘[T]his court has stated generally that a reasonable time for
an agency decision could encompass ‘months, occasionally a
year or two, but not several years or a decade.’ ’’ (quoting
MCI Telecomms. Corp. v. FCC, 627 F.2d 322, 340 (D.C. Cir.
1980))). FERC’s six-year-plus delay is nothing less than
egregious.12
Not only has FERC neglected a petition seeking action
under a law designed to ‘‘halt and reverse the trend toward
11 Compare Letter from J. Mark Robinson, Director, Office of
Energy Projects, FERC, to Robert Lohn, Regional Administrator,
Service 1 (Oct. 25, 2002) (‘‘I’m requesting formal consultation with
your office, pursuant to section 7 of the [ESA], with respect to the
impacts of the Hells Canyon Complex Project TTT on threatened or
endangered species and/or critical habitat.’’), reprinted in P.A. 146,
with Letter from James C. Tucker, IPC, to J. Mark Robinson,
Director, Office of Energy Projects, FERC 1 (Dec. 2, 2002) (‘‘We
were advised [during a meeting on November 6, 2002] that FERC
was not initiating § 7(a)(2) consultationTTTT’’), reprinted in P.A.
147.
12 We have questioned a similar delay, see Pub. Citizen Health
Research Group v. Brock, 823 F.2d 626, 628 (D.C. Cir. 1987) (six-
year delay ‘‘tread[ed] at the very lip of the abyss of unreasonable
delay’’), and shorter ones too, see, e.g., Air Line Pilots Ass’n, Int’l v.
Civil Aeronautics Bd., 750 F.2d 81, 86 (D.C. Cir. 1984) (five-year
delay unreasonable); Pub. Citizen Health Research Group v. Au-
chter, 702 F.2d 1150, 1157–59 (D.C. Cir. 1983) (per curiam) (three-
year delay unreasonable); MCI Telecomms. Corp., 627 F.2d at 324–
25, 338–42 (four-year delay unreasonable).
12
species extinction, whatever the cost,’’13 but its dilatoriness is
apparently—it offers nothing to the contrary—uncharacteris-
tic of the relatively swift treatment it routinely gives similar
petitions.14 Further, FERC offers no ‘‘plea of administrative
error, administrative convenience, practical difficulty in carry-
ing out a legislative mandate, or need to prioritize in the face
of limited resources.’’ Cutler, 818 F.2d at 898. While FERC
vacillates between claiming that it is not obligated to respond
to the 1997 petition and asserting it can do no more, it has in
no way indicated that any practical impediments have pre-
vented a response or that any ‘‘agency activities of a higher or
competing priority’’ have required its attention.15 See In re
13Tennessee Valley Auth., 437 U.S. at 184; see also 16 U.S.C.
§§ 1531(b), 1536.
14 See Puget Sound Energy, Inc., Order Dismissing Petition, 95
FERC ¶ 61,015 (Apr. 2, 2001) (dismissing petition for formal consul-
tation within three months), available at 2001 WL 477657; Phelps-
Dodge Morenci, Inc., Order Denying Petition, 94 FERC ¶ 61,202
(Feb. 23, 2001) (denying petition for formal consultation in less than
two years), available at 2001 WL 275411; Montana Power Co.,
Order Dismissing Petition, 83 FERC ¶ 61,290 (June 12, 1998)
(dismissing petition seeking damages and restitution within one
month), available at 1998 WL 308087; South Suburban Citizens
Opposed to Polluting Our Env’t v. Chewton Glen Energy–Ford
Heights, LLC, Order Dismissing Petition for Declaratory Order, 79
FERC ¶ 61,291 (June 2, 1997) (dismissing petition for declaratory
order within four months), available at 1997 WL 290241; Modesto
Irrigation Dist., Turlock Irrigation Dist., City and County of San
Francisco, CA, Order Dismissing Petition, 35 FERC ¶ 61,356 (June
19, 1986) (dismissing petition requesting permit cancellation in less
than two years), available at 1986 WL 77869.
15 Under the final TRAC criterion, ‘‘[t]he court need not find any
impropriety lurking behind agency lassitude in order to hold that
agency action is ‘unreasonably delayed.’ ’’ 750 F.2d at 80 (quoting
Pub. Citizen Health Research Group v. FDA, 740 F.2d 21, 34 (D.C.
Cir. 1984)). Nonetheless, FERC candidly admits its disdain for the
petitioners’ effort to seek review of the agency’s inaction. See
Respondent’s Br. at 14 (asserting that petitioners’ ‘‘call for formal
consultation appears to have the sole function of obtaining a FERC
order [they] can appeal’’).
13
United Mine Workers of Am. Int’l Union, 190 F.3d at 549.
* * *
The petitioners are entitled to an end to FERC’s marathon
round of administrative keep-away and soon. Accordingly,
we hereby direct FERC to issue a judicially reviewable
response to the 1997 petition within 45 days from the date of
the issuance of this opinion.
So ordered.