California Trout v. F.E.R.C.

• Decision Date: 20 July 2009
• Docket Number: No. 07-73664.,No. 08-71593.,No. 07-74494.,07-73664.,07-74494.,08-71593.
• Parties: CALIFORNIA TROUT, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. California Trout, Petitioner, v. Federal Energy Regulatory Commission, Respondent. Friends of the River, Petitioner, v. Federal Energy Regulatory Commission, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

572 F.3d 1003

CALIFORNIA TROUT, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent.

California Trout, Petitioner, v. Federal Energy Regulatory Commission, Respondent.

Friends of the River, Petitioner, v. Federal Energy Regulatory Commission, Respondent.

No. 07-73664.

No. 07-74494.

No. 08-71593.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 12, 2009.

Filed July 20, 2009.

Daniel P. Selmi (argued), Los Angeles, CA, and Amy J. Bricker, Rachel B. Hooper, and Amanda Garcia, San Francisco, CA, for the petitioners.

Holly E. Cafer, Kathrine Henry (argued), Cynthia Marlette, and Robert H. Solomon, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Federal Energy Regulatory Commission. FERC Project Nos. 2426-204, 2426-206, 2426-208.

Before RONALD M. GOULD, JAY S. BYBEE, and TIMOTHY M. TYMKOVICH,^* Circuit Judges.

Opinion by Judge BYBEE; Dissent by Judge GOULD.

BYBEE, Circuit Judge:

The Supreme Court has long stressed that "the formulation of procedures [is] basically to be left within the discretion of the agencies to which Congress [has] confided the responsibility for substantive judgments." Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 524-25, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978). Agencies must have the ability to manage their own dockets and set reasonable limitations on the processes by which interested persons can support or contest proposed actions. In this respect, an agency's procedural rules operate much as our own rules of procedure do: we require litigants to observe the orderly procedures of the court, even if such rules occasionally bar inattentive or ill-advised parties from our courtrooms. So long as an agency's procedural rules do not afford petitioners less protection than the minimum mandated by the Administrative Procedure Act ("APA") and the Constitution, we are not free to "improperly intrude[ ] into the agency's decisionmaking process" and second-guess its administrative tradeoffs. Id. at 525, 98 S.Ct. 1197.

In this case, petitioners California Trout ("CalTrout") and Friends of the River ("FOR") contend that the Federal Energy Regulatory Commission ("the Commission") applied its rule governing intervention in a license renewal proceeding in an arbitrary and capricious fashion. Although petitioners have set forth evidence that their late intervention would not prejudice the Commission's proceeding, under the circumstances we cannot find that the Commission's decision was an abuse of its discretion. The regulation at issue explicitly confers on the Commission a broad power to differentiate among untimely interveners and permits the Commission to summarily reject a prospective intervener who cannot demonstrate "good cause" for its untimely motion. Because we find that the Commission reasonably determined that petitioners lacked good cause for their untimely attempt to intervene, we deny the petition for review.

I

A

Bufo microscaphus californicus, the arroyo southwestern toad, is a small (two to three inch) amphibian with light greenish gray or tan warty skin and dark spots. See Endangered and Threatened Wildlife and Plants; Determination of Endangered Status for the Arroyo Southwestern Toad, 59 Fed.Reg. 64,859 (Dec. 16, 1994) (codified at 50 C.F.R. pt. 17). The toad can usually be identified by its movement, which consists of hopping (as opposed to walking or leaping), and its high-pitched trill that adult males emit during courtship. Id. It is not an especially peripatetic species — adult toads generally range no farther than a mile or so from the streams where they breed, and none are known to live outside the state of California. See Endangered and Threatened Wildlife and Plants; Final Designation of Critical Habitat for the Arroyo Toad, 66 Fed.Reg. 9415 (Feb. 7, 2001) (codified at 50 C.F.R. pt. 17).

The arroyo toad is quite particular about its habitat. It only lives in rivers or large streams that have shallow, gravelly pools, sandy terraces, and minimal vegetative cover. 59 Fed.Reg. at 64,859. The adult toad deposits its eggs in these shallow pools, where the potentially destructive water current is at a minimum, and the young toads eventually leave the pools to forage for insects on the sandy terraces. Id. The larger toads often burrow into the sandy terraces to create shelter and to escape from the sun's potentially lethal heat. Id. For this reason, urbanization and the rapid construction of dams in California beginning in the 1900s (which altered the natural water flows on which the toad had come to depend) severely degraded the arroyo toad's habitat. Id. By the early 1990s, nearly 76 percent of the species' habitat had been degraded, see 66 Fed.Reg. at 9414, and almost all the existing toad populations were near extinction. 59 Fed.Reg. at 64,859.

One place where the remaining arroyo toads continued to dwell was Piru Creek, a stream that meanders south from northwestern Los Angeles County through eastern Ventura County until it drains into the Santa Clara River. The creek runs through two large lakes: the northern Pyramid Lake and the southern Piru Lake. The eighteen-mile stretch of creek between these two lakes is known as "Middle Piru Creek." This area of the creek is surrounded mainly by national forest land (the Angeles National Forest and the Los Padres National Forest) and is used primarily for recreational activities, chief among which is fly-fishing.

It is surprising that the species had managed to survive for so long in Middle Piru Creek. In 1968, as part of the California Aqueduct Project,¹ construction began on Pyramid Dam, a 408-foot earth and rockfill edifice intended to prevent the natural flow of water from Pyramid Lake into Middle Piru Creek. The dam was completed in 1973, and in 1978 the Commission licensed the California Department of Water Resources ("DWR") and the Los Angeles Department of Water and Power to operate the dam and an associated power plant. This license strictly regulated the minimum amount of water that DWR could release from the dam at any one time. As a result, the increased water flow emitted from Pyramid Dam significantly altered the character of Middle Piru Creek.

Article 52 of the original license created the minimum flow requirements for the release of water from Pyramid Dam: DWR was instructed to release a continuous flow of at least 5 cubic feet per second ("cfs") in the winter and spring and at least 10 cfs in the summer and fall. Although these guidelines were slightly altered in 1982 to require occasional higher minimum releases depending on the ambient air temperature, they remained essentially unchanged until a confluence of events in the early 1990s revealed their detrimental effect on the arroyo toad.

First, in 1992 and 1993, large inflows into Pyramid Lake required DWR to release water at approximately 25 cfs during some months. Then, on December 16, 1994, the arroyo toad was officially added to the federal endangered species list.² See 59 Fed.Reg. 64,859. Due to worries that large fluctuations in the minimum flow would destroy arroyo toad eggs and tadpoles (by stranding them on land when water flows suddenly dropped and by washing them away when water flows dramatically increased), DWR changed its operating procedures — using a steady flow of 25 cfs from April through August (when arroyo toads were breeding) and then slowly reducing the flow during the winter months (when the tadpoles had dispersed). Unfortunately, these operating procedures, which had the effect of creating unnaturally large flows during the summer months and unnaturally low flows during the winter months, did not appear to actually benefit the toad.

Indeed, evidence gathered during the new high flow regime indicated that the increased flows might actually be damaging to the arroyo toad. In 2003, the U.S. Fish and Wildlife Service informed DWR that these unnatural flows were probably causing the incidental take of the arroyo toad and deteriorating its habitat. Specifically, the large release of water in the summer months created abundant vegetative growth on the creek's banks and encouraged increased water velocities downstream. This allowed noxious arroyo toad predators, such as bullfrogs, crawfish, and large-mouth bass, to multiply throughout the creek. It also prevented the toads from reproducing effectively — the large water flow eliminated the gravelly pools in which the toads would normally lay their eggs, and had the more pernicious effect of washing downstream any unprotected eggs and tadpoles. The reduced flow of water in the winter months prevented the natural flooding that would scour vegetation and replenish the finer sediments that the arroyo toad preferred.

The large summer flows did benefit at least one species in Middle Piru Creek: rainbow trout. Because rainbow trout prefer cold water (and may die if water temperatures are too high) they benefit from a deeper (and hence cooler) habitat. Since 1999, DWR maintained a trout fishery in the upper part of Middle Piru Creek, known as "Frenchman's Flat," and stocked it annually with around 3000 pounds of rainbow trout. Also, a number rainbow trout inhabited the area immediately downstream from Pyramid Dam above Frenchman's Flat — a designated "catch-and-release" area popular with local anglers. Because a weir separated Frenchman's Flat from the catch-and-release area, those trout in the catch-and-release area were a naturally-reproducing population not related to the stocked fish.

To remedy the problems the new flow regime was creating for the arroyo toad, the Fish and Wildlife Service recommended that DWR return Middle Piru Creek to a "natural flow regime," in which water would be released from Pyramid Dam in accordance with the rate of flow from Upper Piru Creek into Pyramid Lake. DWR accordingly filed an application with the Commission on March 17, 2005, to amend its license and...