United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 7, 2008 Decided April 15, 2008
No. 05-1421
DUNCAN'S POINT LOT OWNERS ASSOCIATION INC., ET AL.,
PETITIONERS
v.
FEDERAL ENERGY REGULATORY COMMISSION,
RESPONDENT
UNION ELECTRIC COMPANY, ET AL.,
INTERVENORS
Consolidated with
06-1157, 06-1325
On Petitions for Review of Orders of the
Federal Energy Regulatory Commission
Eliehue Brunson argued the cause and filed the briefs for
petitioners.
Inez Y. Kaiser, pro se, filed a brief as intervenor in
support of petitioner.
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Samuel Soopper, Attorney, Federal Energy Regulatory
Commission, argued the cause for respondent. With him on
the brief were Cynthia A. Marlette, General Counsel, and
Robert H. Solomon, Solicitor. John S. Moot, Attorney,
entered an appearance.
Charles A. Zdebski argued the cause and filed the brief
for intervenor Union Electric Company.
Before: RANDOLPH and GRIFFITH, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
Opinion for the court filed by Circuit Judge GRIFFITH.
GRIFFITH, Circuit Judge: The operator of a hydroelectric
project at the Lake of the Ozarks in central Missouri, acting
pursuant to a license issued by the Federal Energy Regulatory
Commission (“FERC” or “the Commission”), granted a
developer an easement for a wastewater discharge pipe and
permission to build a seawall. FERC found that both actions
violated the license and ordered several remedies. Petitioners
challenged FERC’s handling of the matter. For the reasons set
forth below, we deny their petitions for review.
I.
The Bagnell Dam, completed in 1931, impounds the
Osage River in central Missouri to create the Lake of the
Ozarks — a massive, narrow, twisting reservoir that covers
over 55,000 acres and, with its many long branches, creates a
shoreline of some 1150 miles. The dam is part of the Osage
Hydroelectric Project (“Osage Project”), which has the
capacity to generate 176.2 megawatts of power. In 1981,
FERC granted the Union Electric Company, doing business
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as AmerenUE (“Ameren” or “the licensee”), a twenty-five-
year license to operate the Osage Project.
Petitioners are lot owners, homeowners, and residents of
Duncan’s Point, a historic resort that borders the Lake of the
Ozarks. Daniel Ralph Duncan, an African-American
businessman from Kansas City, Missouri, founded Duncan’s
Point in 1952 to offer “African-Americans peace, solitude and
an escape away from the indignities of racial inequality.”
Notice of Formal Complaint against Ameren at 3, Duncan’s
Point Lot Owners Ass’n v. Union Elec. Co., No. EL05-73-
000 (Mar. 4, 2005). The resort has over 300 acres and 70
homes, and offers access to fishing, boating, hunting, water
skiing, and swimming. Id. It is eligible for listing in the
National Register of Historic Places. Duncan’s Point Lot
Owners Ass’n v. Union Elec. Co., 111 F.E.R.C. ¶ 61,190,
61,919 (2005).
Ameren’s license to operate the Osage Project includes
terms governing the management of project property. In a
September 2004 letter order to Ameren, FERC announced its
determination that Ameren had violated two provisions of the
license by granting Pebble Creek Homes Association
(“Pebble Creek” or “the developer”) — a developer building
a community of lakefront homes near Duncan’s Point — an
easement for an effluent discharge pipe that crossed project
property, and permission to build a 2232-foot long seawall on
the lake shoreline, which is also project property. FERC’s
September 2004 letter order explained that the seawall, 300
feet of which had already been built, and the discharge pipe
“may have impeded public access to the Lake in contradiction
to article 18 of the license.” Letter from John E. Estep, FERC
Division of Hydropower Administration and Compliance, to
David Fitzgerald, Ameren, at 4 (Sept. 7, 2004) (“September
2004 Letter”). Article 18 provides that “[s]o far as is
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consistent with proper operation of the project, the Licensee
shall allow the public free access, to a reasonable extent, to
project waters and adjacent project lands owned by the
Licensee for the purpose of full public utilization of such
lands and waters for navigation and for outdoor recreational
purposes, including fishing and hunting.” See Union Elec.
Co., Project No. 459, 15 F.E.R.C. ¶ 62,038, 63,046 (1981)
(incorporating into the license the terms and conditions set
forth in Form L-3 (revised Oct. 1975), entitled Terms and
Conditions of License for Constructed Major Project
Affecting Navigable Waters of the United States, 54 F.P.C.
1792, 1822 (1975), which terms include article 18). FERC’s
letter also explained that because Ameren “did not consider
alternatives to a seawall such as plantings or rip-rap nor did it
consider that a seawall may not have been necessary at the
site,” and because it “did not notify FERC . . . prior to
permitting the discharge pipe,” its actions violated article 41
of the license. September 2004 Letter at 3. Article 41
“delegates to the licensee authority to grant permission for
certain use and occupancy of project property, including
permits for construction of retaining walls, docks and similar
structures.” Id. at 1; see also 15 F.E.R.C. at 62,048–49 (article
41).
FERC ordered that the construction of the seawall cease
and that Ameren take detailed steps to mitigate the harm
already caused. September 2004 Letter at 4–6. Among other
things, FERC ordered that Ameren facilitate public access to
the lake by constructing a walkway along the seawall,
designating an area at the crossroads of the Duncan’s Point
and Pebble Creek communities as a shoreline access area for
the public, and developing a two-acre park near the new
development with a parking area and trail to the lake. Id. In
February 2005, FERC sent a follow-up letter order noting
Ameren’s compliance with several of the requirements and
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reminding it of its remaining obligations. Letter from John E.
Estep, FERC Division of Hydropower Administration and
Compliance, to Warren Witt, Ameren (Feb. 23, 2005).
Petitioners received copies of both FERC’s September
2004 and February 2005 letter orders, but did not properly
request rehearing of either. See Union Elec. Co., 114 F.E.R.C.
¶ 61,038, 61,112 n.14 (2006) (explaining that the filing
petitioners submitted regarding the two letter orders failed to
properly request rehearing). Petitioners filed a complaint with
FERC pursuant to FERC’s regulations, which provide that
“[a]ny person may file a complaint seeking Commission
action against any other person alleged to be in contravention
or violation of any statute, rule, order, or other law
administered by the Commission, or for any other alleged
wrong over which the Commission may have jurisdiction.” 18
C.F.R. § 385.206. Petitioners’ complaint alleged that
Ameren’s actions with regard to the discharge pipe and
seawall violated the project license, as well as the National
Environmental Policy Act (“NEPA”), the National Historic
Preservation Act (“NHPA”), the Clean Water Act (“CWA”),
and easements and covenants running with the land. FERC
denied the complaint. Its order stated that NEPA and the
NHPA apply to federal agencies, not private entities such as
Ameren, and that FERC does not have jurisdiction over the
petitioners’ CWA claims. Duncan’s Point Lot Owners Ass’n
v. Union Elec. Co., 111 F.E.R.C. ¶ 61,190, 61,923 (2005).
FERC explained that most of the alleged violations “concern
matters that are outside the Commission’s jurisdiction, and
those that are within [its] jurisdiction have already been
adequately resolved by Commission staff.” Id. at 61,920.
Petitioners filed a request for rehearing, see 18 C.F.R.
§ 385.713 (providing for requests for rehearing of final
Commission decisions or orders), challenging the denial of
their complaint and alleging for the first time that FERC itself
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had abridged petitioners’ due process rights and had violated
NEPA, the NHPA, and the CWA. FERC addressed and
rejected petitioners’ arguments and denied their request for
rehearing. Duncan’s Point Lot Owners Ass’n v. Union Elec.
Co., 112 FERC ¶ 61,289 (2005).
While petitioners were pursuing their claims before the
Commission, FERC continued to monitor Ameren’s
compliance with its September 2004 and February 2005 letter
orders. The Commission sent another letter order on
September 1, 2005, reminding Ameren of its continuing
responsibilities under the September 2004 order. Letter from
John E. Estep, FERC Division of Hydropower Administration
and Compliance, to Warren Witt, Ameren (Sept. 1, 2005).
Dissatisfied with FERC’s approach to Ameren’s compliance
obligations, petitioners filed a request for rehearing of this
letter order, see 18 C.F.R. §§ 385.206, 713, which FERC
denied. Union Elec. Co., 114 F.E.R.C. ¶ 61,038 (2006).
FERC sent yet another letter order to Ameren on March 28,
2006, reminding it of the duty to maintain in good condition
the walkway in front of the seawall. Petitioners also sought
rehearing of this letter order, 18 C.F.R. §§ 385.206, 713,
which FERC denied. Union Elec. Co., 116 F.E.R.C. ¶ 61,045
(2006).
Petitioners filed timely petitions for review of FERC’s
denials of their requests to rehear the dismissal of the
complaint, and the September 1, 2005 and March 28, 2006
letter orders. We consolidated the petitions and have
jurisdiction to consider them under 16 U.S.C. § 825l(b). We
review the Commission’s licensing decisions, such as those
taken in this case, under a deferential standard and will set
aside FERC’s orders only if they are arbitrary and capricious.
North Carolina v. FERC, 112 F.3d 1175, 1189 (D.C. Cir.
1997); 5 U.S.C. § 706(2)(A) (reviewing court shall set aside
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agency actions found to be “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law”). We will
uphold FERC’s factual findings if they are “supported by
substantial evidence.” 16 U.S.C. § 825l(b).
II.
Petitioners allege that FERC violated NEPA, the NHPA,
and the CWA, and also denied them due process. We reject
their arguments and conclude that FERC’s responsibilities
with respect to the discharge pipe and the seawall extended no
further than its obligations under the license it granted to
Ameren. FERC’s manner of enforcing the license was
reasonable and in accordance with law, see 5 U.S.C.
§ 706(2)(A), and FERC provided petitioners with ample
notice and opportunity to participate in the proceedings.
Accordingly, we deny the petitions for review.
Petitioners argue that NEPA requires FERC to prepare
an environmental impact statement (“EIS”) of Pebble Creek’s
installation of the discharge pipe and construction of the
seawall. Under NEPA, a federal agency must prepare an EIS
for “major Federal actions significantly affecting the quality
of the human environment.” 42 U.S.C. § 4332(2)(C). We will
overturn an agency’s decision not to prepare an EIS only if
that decision was arbitrary, capricious, or an abuse of
discretion. TOMAC v. Norton, 433 F.3d 852, 861 (D.C. Cir.
2006). FERC explained that it did not prepare an EIS for the
discharge pipe and seawall because these activities “are
neither major nor significant.” 112 F.E.R.C. at 62,312; see 42
U.S.C. § 4332(2)(C). Rather, they “are considered sufficiently
insignificant that the Commission permits its licensees . . . to
authorize them without prior Commission approval.” 112
F.E.R.C. at 62,312. FERC also pointed to its regulations,
which state that the Commission generally will not prepare an
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EIS for activities such as the discharge pipe and seawall. Id.
at 62,313 n.14 (citing 18 C.F.R. § 380.4(a)(19)).
Because “the EIS requirement is triggered only by a
‘major Federal action[],’ ” Fund for Animals, Inc. v. Thomas,
127 F.3d 80, 83 (D.C. Cir. 1997), petitioners must argue that
the installation of the discharge pipe and the building of the
seawall are “major” actions. But they do not. Instead, they
argue that NEPA calls for an EIS here because the discharge
pipe and the seawall were under federal control and
responsibility. This argument is insufficient, as federal control
and responsibility for an action is not enough to trigger the
EIS requirement. See 42 U.S.C. § 4332(2)(C). In any event,
we are convinced that FERC’s decision not to prepare an EIS
for the discharge pipe and the seawall was reasonable. “The
NEPA process involves an almost endless series of judgment
calls,” and “[t]he line-drawing decisions necessitated by [the
NEPA process] are vested in the agencies, not the courts.”
Coalition on Sensible Transp., Inc. v. Dole, 826 F.2d 60, 66
(D.C. Cir. 1987). Our “role in reviewing an agency’s decision
not to issue an EIS is a limited one, designed primarily to
ensure that no arguably significant consequences have been
ignored,” TOMAC, 433 F.3d at 860 (internal quotation marks
omitted), and there is nothing in the record to suggest that
FERC ignored any significant consequences to the
environment resulting from the discharge pipe and the
seawall. Moreover, we have upheld agency determinations
not to prepare an EIS for activities affecting the
environmental to a much greater extent than the discharge
pipe and the seawall at issue in this case. See id. at 861
(concluding that the Bureau of Indian Affairs’ decision not to
prepare an EIS for the construction of a gaming resort was
reasonable); Dole, 826 F.2d at 66–71 (concluding that the
Department of Transportation’s decision not to prepare an
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EIS for a road construction project widening approximately
sixteen miles of highway was reasonable).
Petitioners also argue that FERC violated the NHPA, 16
U.S.C. § 470 et seq., which requires that a federal agency
“take into account the effect” of any federally assisted
“undertaking” on any district or site that is included in or is
eligible for inclusion in the National Register of Historic
Places, and “afford the Advisory Council on Historic
Preservation . . . a reasonable opportunity to comment.” Id.
§ 470f. Petitioners allege that FERC violated the NHPA
because it did not consider the effect of Pebble Creek’s
activities on Duncan’s Point, which is eligible for listing in
the National Register of Historic Places. They argue that
FERC had “indirect jurisdiction” over, and thus should have
taken account of, Pebble Creek’s activities because Ameren,
which holds a project license issued by FERC, authorized the
activities. They also argue that FERC failed to consult with
the Advisory Council on Historic Preservation (“ACHP”), the
Missouri State Historic Preservation Officer (“SHPO”), and
the petitioners. They make this second argument, however,
only in their reply brief, so it “comes too late for our
consideration.” Students Against Genocide v. Dep’t of State,
257 F.3d 828, 835 (D.C. Cir. 2001).
FERC agrees that it was required to consider the effect
on Duncan’s Point of any actions taken by the developer that
were authorized under the Osage Project license. See
Sheridan Kalorama Historical Ass’n v. Christopher, 49 F.3d
750, 754 (D.C. Cir. 1995) (stating that “federal authority
to . . . license a project can render the project an undertaking”
under the NHPA); 16 U.S.C. § 470w(7) (defining undertaking
as a “project, activity or program . . . requiring a Federal
permit[,] license, or approval”). The Commission emphasizes,
however, that only the discharge pipe and the seawall were
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authorized under the license, and that it properly took account
of the effect of these activities on Duncan’s Point. FERC
visited the site, consulted with the preservation authorities,
and concluded that the discharge pipe and the seawall would
have no adverse impact on the Duncan’s Point Historic
District. This conclusion was reasonable, and petitioners do
not point to any other activities that were authorized under the
project license, nor do they offer any basis upon which FERC
would have jurisdiction under the NHPA over activities not
authorized under the license. Accordingly, we conclude that
FERC fully met its responsibilities under the NHPA.
Petitioners also allege that FERC violated the CWA, but
their argument on this point violates our rules. Federal Rule
of Appellate Procedure 28(a)(9)(A) provides that the opening
brief must contain “appellant’s contentions and the reasons
for them, with citations to the authorities and parts of the
record on which the appellant relies.” Petitioners’ argument
fails this standard. They state no reasons for their contention
that FERC has violated the CWA and cite no authorities that
would support such a claim. Petitioners’ note that they argued
before FERC that Ameren’s approval of the effluent
discharge pipe, its alleged approval of the placement of fill
dirt by the developer in a wetlands area, and its proposed
placement of a park in a wetlands area amounted to violations
of the CWA. And they make reference to two provisions of
the CWA: 33 U.S.C. §§ 1311(a), 1342(a). But then their
argument abruptly ends, without explaining which CWA
claims they are pursuing on appeal or how the CWA
provisions they mentioned would support a claim against
FERC. Petitioners’ argument amounts to no more than an
unsupported assertion that FERC violated the CWA. This is
not enough, as “[w]e have repeatedly held that we will not
address an ‘asserted but unanalyzed’ argument because
‘appellate courts do not sit as self-directed boards of legal
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inquiry and research, but essentially as arbiters of legal
questions presented and argued by the parties before them.’ ”
SEC v. Banner Fund Int’l, 211 F.3d 602, 613–14 (D.C. Cir.
2000) (quoting Carducci v. Regan, 714 F.2d 171, 177 (D.C.
Cir. 1983) and applying FED. R. APP. P. 28(a)(9)(A)).
Nonetheless, even if petitioners’ argument did comply
with our rules, it is without merit. FERC’s responsibilities
related to the CWA were limited, and it met them. Under the
Federal Power Act, the Commission must “monitor and
investigate compliance” with its licenses. 16 U.S.C.
§ 823b(a). The only license terms related to the CWA
concerned Ameren’s duty to confirm that the developer had
secured the necessary permits under the CWA before
allowing the discharge pipe. Because FERC properly verified
that Ameren complied with the license in this regard, the
Commission fulfilled its duties related to the CWA.
Finally, petitioners allege that FERC denied them due
process. They accuse FERC staff of being “blinded by
unprofessional motives” and “biased against [petitioners] and
its members,” who were denied notice and an opportunity to
be heard about Ameren’s violations of the license. Reply Br.
at 13. These allegations find no support in the record. To the
contrary, FERC acted professionally and gave petitioners
ample notice and opportunity to participate in the
proceedings, as petitioners acknowledge in their brief. Id.
(“Yes, the record shows that Complainants [sic] have had
opportunities to bring their concerns to the Commission’s
attention.”). Petitioners complained that they were not
provided an evidentiary hearing, but FERC explained that a
hearing was unnecessary because the facts were not in
dispute. Moreau v. FERC, 982 F.2d 556, 568 (D.C. Cir. 1993)
(“FERC need not conduct an evidentiary hearing when there
are no disputed issues of material fact.”) Reviewing this
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determination for “abuse of discretion,” Sacramento Mun.
Utility Dist. v. FERC, 474 F.3d 797, 804 (D.C. Cir. 2007), we
find no error in FERC’s decision to resolve petitioners’
complaints on the written record.
***
FERC acted reasonably throughout the controversy
surrounding the developer’s discharge pipe and seawall.
Accordingly, we deny the petitions for review.
So ordered.