Covelo Indian Community v. F.E.R.C.
| Decision Date | 02 February 1990 |
| Docket Number | 87-7118,Nos. 87-7116,s. 87-7116 |
| Citation | 895 F.2d 581 |
| Parties | The COVELO INDIAN COMMUNITY, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. CALIFORNIA TROUT, INC., Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Pacific Gas and Electric Company; Mendocino County, California; County of Sonoma; Sonoma County Water Agency, Respondents-Intervenors. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Stephen V. Quesenberry, Virginia Dario Elizondo, and Lester J. Marston, California Indian Legal Services, Oakland, Cal., for petitioner, Covelo Indian Community.
Gregory A. Thomas and Michelle T. Leighton, Sausalito, Cal., for petitioner, California Trout, Inc.
Catherine C. Cook, Jerome M. Feit, and Joseph S. Davies, Washington, D.C., for respondent F.E.R.C.
Howard V. Golub, Jack F. Fallin, Jr., and Alice L. Reid, San Francisco, Cal., for intervenor, Pacific Gas and Elec. Co.
James P. Botz, Santa Rosa, Cal., and George A. Avery, Washington, D.C., for intervenor, Sonoma County and Sonoma County Water Agency.
H. Peter Klein and Sandra L. Applegate, Ukiah, Cal., for intervenor, County of Mendocino.
David C. Etheridge, Roger J. Marzulla, Anne S. Almy, and Blake A. Watson, Washington, D.C., for the U.S. as amicus curiae.
On Petitions for Review from an Order of the Federal Energy Regulatory Commission.
Before SKOPIL, FARRIS and HALL, Circuit Judges.
The Covelo Indian Community (the "Community"), a federally recognized Indian Tribe, and California Trout, Inc. ("Cal Trout"), a private fishing organization, seek review of the Federal Energy Regulatory Commission's ("FERC") decision to relicense a private utility's hydroelectric project in Northern California. FERC has moved to dismiss the petitions for lack of appellate jurisdiction, contending that (1) the Community was denied intervenor status and hence may not seek judicial review of the merits of the agency's order; and (2) Cal Trout failed to timely seek rehearing from the agency's decision on the merits and thereby preserve its objections for judicial review. We agree with FERC's contentions and conclude that our jurisdiction in this case is limited to determining whether the agency abused its discretion in denying the Community's motion to intervene. We find no abuse of discretion and therefore we dismiss the petitions.
On May 1, 1970 Pacific Gas & Electric Company (PG & E) filed an application with the Federal Power Commission, now FERC, to renew its license to operate the Potter Valley hydroelectric project on the upper Eel River in California. Electrical power is generated by diverting water from the Eel River across a natural divide to a powerhouse on the East Fork Russian River. The project also provides for summer irrigation of Potter Valley and has spawned development along the length of the Russian River.
Various groups with concerns about the allocation of water between the Eel and Russian Rivers responded to PG & E's relicense application. During the long renewal process, three fishing organizations were granted intervenor status. The California Department of Fish and Game (CDF & G), Humboldt County, Mendocino County, Sonoma County, and Lake County were also granted the right to intervene. Generally, the fishing groups sought to improve fishery resources of the Eel River. Sonoma County was determined to maintain the historic project flows along the Russian River. Humboldt County, on the other hand, sought to modify the diversion and thereby enhance the Eel River for recreational and fishery users. Mendocino County, which contains portions of both the Eel and Russian Rivers, sought to maintain the availability of irrigation water. CDF & G was specifically interested in enhancing fishery resources. PG & E, of course, sought to preserve the project's electrical output and to maintain the downstream benefits created by the project's existing water flow.
Following an investigation, FERC issued a Draft Environmental Impact Statement. A number of the intervenors submitted comments, focusing primarily on the adequacy of water flows in the Eel River. The Department of Interior ("Interior"), although not an intervenor, submitted comments criticizing FERC's proposed water flows down the Eel River, challenging the respective estimates of power loss and potential fisheries gain, and questioning the efficiency of the project's fish screens. After considering the various comments, FERC filed a Final Environmental Impact Statement on December 21, 1978.
During this time FERC also conducted settlement conferences focusing on the allocation of water between the Eel and Russian Rivers. When those conferences proved unsuccessful, FERC held a prehearing conference to "investigate the proper allocation of water between the Eel and Russian River systems and determine if it would be appropriate to increase the current minimum flow in the Eel River from the Van Arsdale reservoir." (Unpublished Order Establishing Hearing and Requiring Prehearing Conference--July 5, 1979). That conference produced an offer from PG & E to increase water flows into the Eel River for a three-year period to allow study of the effects on downstream fishery resources. The various parties agreed to that study, and on November 1, 1979, an administrative law judge ("ALJ") entered an order approving the interim agreement.
During the next three years, a PG & E consultant studied the effects of increased water flows into the Eel River system. Monthly reports were submitted to all parties, and the parties' technical representatives met periodically to analyze the data and to suggest flow modifications. Near the end of the study, settlement conferences were again held. After the final study report was prepared, most of the parties, including all of the counties affected by the water flows of the two rivers, reached a tentative agreement on the terms of a final settlement. The ALJ thereafter scheduled a conference to allow each party the opportunity "to explain in detail its position as to a reasonable ... flow schedule."
Shortly before this conference, the Community sought to intervene in the relicensing proceedings, contending that it had not received notice of the relicensing proceedings and that its unique legal interests in water and fishery resources were not represented by other parties. The Community's request was opposed by several parties On November 30, 1982 six of the nine parties executed a settlement providing for (1) a complex schedule of water releases designed to promote the Eel River anadromous fishery; (2) capital improvements to the project; and (3) a review of water flow requirements after ten years. The three fishing groups declined to join the settlement. One of these groups, Cal Trout, filed objections to the settlement, especially to the "open-ended article in regard to the fishery," and requested that FERC hold an evidentiary hearing. The Community, although denied full party status, was nevertheless allowed to submit comments on the settlement. The Community argued that the settlement should not be approved without (1) hearings or other procedures to ensure adequate consideration of all fishery issues; (2) Interior's final recommendations; and (3) resolution of material issues of fact regarding the long-term effect of the proposed water flows on the Community's water and fishing rights.
who questioned the Community's lack of notice of the highly publicized proceedings and argued that the Community's late intervention would substantially prejudice the settlement. The ALJ nevertheless conditionally granted the Community's petition, ruling that the Community would be permitted full intervention rights only if the pending settlement did not occur before November 30, 1982, and even then, only to address the fishery conditions on the Eel River.
On May 3, 1983 the ALJ issued a decision certifying the contested settlement to FERC for its review and approval, denying the Community's request for intervenor status, and refusing to consider a supplemental report submitted by Interior. 25 F.E.R.C. p 63,050 (1983). The Community appealed the ALJ's denial of its petition to intervene. Several months later, FERC denied the Community's appeal, approved the contested settlement without a hearing, and issued a new fifty-year license to PG & E. 25 F.E.R.C. p 61,010 (1983). Both the Community and Cal Trout filed for rehearing. The Community's timely petition was denied. 25 F.E.R.C. p 61,334 (1983). Cal Trout's petition was untimely and denied on that ground. Id.
The Community appealed FERC's decision to this court but, prior to briefing, FERC sought and obtained a remand to allow it to clarify its order. See Covelo Indian Community v. FERC, No. 84-7063 (9th Cir. Apr. 16, 1984) (Order Granting Remand). On remand, Interior filed a request to intervene late, contending that it did not "intervene sooner because it had a right to assume that the Community would be fairly treated in the proceedings without Interior's involvement and because Interior need not intervene to carry out its statutory role under the FPA." FERC issued an Order on Remand on October 16, 1986 that affirmed its earlier order denying the Community's intervention and also denied Interior's motion to intervene. 37 F.E.R.C. p 61,019 (1986). FERC thereafter dismissed Cal Trout's and the Community's timely filed petitions for rehearing on the grounds that Cal Trout attempted to raise issues beyond the scope of the remand and the Community was not a party to the proceedings. 38 F.E.R.C. p 61,200 (1987). Both Cal Trout and the Community timely petitioned for judicial review.
Jurisdiction in this case is governed by section 313(b) of the Federal Power Act, 16 U.S.C. Sec. 825l (b) (1982), "which provides that any person aggrieved by an order of FERC may obtain review in the court of appeals."...
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