781 F.2d 163 (9th Cir. 1986), 85-1874, Trinity County Public Utilities Dist. v. Harrington

Docket Nº:85-1874.
Citation:781 F.2d 163
Party Name:TRINITY COUNTY PUBLIC UTILITIES DISTRICT, Hayfork Valley Public Utility District, Calaveras Public Power Agency, Tuolumne County Public Power Agency, Plaintiffs-Appellants, v. John S. HARRINGTON, et. al., Defendants-Appellees, and Northern California Power Agency, and Sacramento Municipal Utility District, Intervenors-Defendants-Appellees.
Case Date:January 23, 1986
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 163

781 F.2d 163 (9th Cir. 1986)

TRINITY COUNTY PUBLIC UTILITIES DISTRICT, Hayfork Valley

Public Utility District, Calaveras Public Power

Agency, Tuolumne County Public Power

Agency, Plaintiffs-Appellants,

v.

John S. HARRINGTON, et. al., Defendants-Appellees,

and

Northern California Power Agency, and Sacramento Municipal

Utility District, Intervenors-Defendants-Appellees.

No. 85-1874.

United States Court of Appeals, Ninth Circuit

January 23, 1986

Argued and Submitted Dec. 11, 1985.

Page 164

Dian M. Grueneich, Heller, Ehrman, White, & McAuliffe, San Francisco, Cal., Eric Redman, Heller, Ehrman, White, & McAuliffe, Seattle, Wash., for plaintiffs-appellants.

Daniel Davidson, Spiegel & McDiarmid, Washington, D.C., C. Max Vassanelli, Atty. U.S. Dept. of Justice, Washington, D.C., David S. Kaplan, Sacramento, Cal., for defendants-appellees.

Appeal from the United States District Court for the Eastern District of California.

Before CHOY, Senior Circuit Judge, SKOPIL and SCHROEDER, Circuit Judges.

CHOY, Senior Circuit Judge:

Appellants Trinity County Public Utility District, Hayfork Valley Public Utility District, Calaveras Public Power Agency, and Tuolumne County Public Power Agency appeal the district court's grant of summary judgment against them. The district court determined that the Trinity River Division Act and the Flood Control Act of 1962 gave appellants a first preference to energy and rates based on the Central Valley Project as a whole, rather than from the Trinity and New Melones plants. We affirm.

FACTS AND PROCEDURE

The Central Valley Project ("CVP") is a multipurpose federal project that includes several hydroelectric plants in northern and central California. Since 1977, the Western Area Power Administration ("WAPA"), an agency of the United States Department of Energy, has had responsibility for marketing CVP power in excess of that needed by the Bureau of Reclamation.

In 1955, Congress passed the Trinity River Division Act ("Trinity Act"), which authorized the construction of power plants in Trinity County. The Act provided that the Trinity plants "shall be integrated and coordinated, from both a finanical and an operational standpoint, with the operation of other features of the Central Valley project ..." Trinity River Division Act of August 12, 1955, ch. 872, Pub.L. No. 84-386, 69 Stat. 719 (1955). The Act also accorded preference customers in Trinity County a first preference to 25 per cent of the "additional energy available from the Central Valley project system as a result of the construction of the plants herein authorized and their integration with that system ..." 69 Stat. at 720.

In 1962, Congress passed legislation authorizing the New Melones project, Section 203 of the Flood Control Act of 1962, Pub.L. No. 87-874, 76 Stat. 1180, 1191 ("New Melones Act"). The New Melones Act also provided for integration of the New Melones plants with the CVP and accorded customers in Tuolumne and Calaveras counties a first preference to power. Both the New Melones and Trinity Acts are administered in accordance with

Page 165

federal reclamation law. Pub.L. No. 84-386, 69 Stat. 719 (1955); Pub.L. No. 87-874, 76 Stat. 1191 (1962).

In 1964, Congress authorized the Secretary of the Interior to import power from the Pacific Northwest for use in California through the Pacific Northwest-Pacific Southwest Intertie ("Intertie"). 1 The federal government has been importing power from the Intertie into the CVP area since 1971.

On June 21, 1982, October 29, 1982, and sometime after November 30, 1983, appellants contracted with WAPA for the purchase of power, pursuant to their first preference rights. On October 1, 1982, WAPA gave notice in the federal register of a proposed rate adjustment. Although appellants objected to the proposed rates, the Federal Energy Regulatory Commission ("FERC") approved WAPA's proposed rates for a five year period, from 1983 to 1988.

Appellants sought...

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