Bangor Hydro-Elec. Co. v. F.E.R.C., HYDRO-ELECTRIC

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtSILBERMAN
Citation78 F.3d 659
Parties, Util. L. Rep. P 14,095, 26 Envtl. L. Rep. 20,822 BANGORCOMPANY, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. United States Department of the Interior; United States Department of Commerce, Intervenors.
Decision Date15 March 1996
Docket NumberNo. 95-1083,HYDRO-ELECTRIC

Page 659

78 F.3d 659
316 U.S.App.D.C. 298, Util. L. Rep. P 14,095,
26 Envtl. L. Rep. 20,822
BANGOR HYDRO-ELECTRIC COMPANY, Petitioner,
v.
FEDERAL ENERGY REGULATORY COMMISSION, Respondent.
United States Department of the Interior; United States
Department of Commerce, Intervenors.
No. 95-1083.
United States Court of Appeals,
District of Columbia Circuit.
Argued Jan. 19, 1996.
Decided March 15, 1996.

Page 660

[316 U.S.App.D.C. 299] On Petition for Review of Orders of the Federal Energy Regulatory Commission.

John A. Whittaker, IV, Washington, DC, argued the cause for petitioner, with whom William J. Madden, Jr., was on the briefs.

Edward S. Geldermann, Attorney, Federal Energy Regulatory Commission, Bethesda, MD, argued the cause for respondent, with whom Jerome M. Feit, Solicitor, Washington, DC, and Joseph S. Davies, Deputy Solicitor, Bethesda, MD, were on the brief. Eric L. Christensen, Washington, DC, entered an appearance.

Jonathan F. Klein, Attorney, United States Department of Justice, Washington, DC, argued the cause for intervenors, with whom Lois J. Schiffer, Assistant Attorney General, Anne S. Almy, and John A. Bryson, attorneys, were on the brief.

Henri D. Bartholomot and Donald H. Clarke, Washington, DC, were on the joint brief for amici curiae.

Page 661

[316 U.S.App.D.C. 300] Before: SILBERMAN, BUCKLEY, and ROGERS, Circuit Judges.

SILBERMAN, Circuit Judge:

Bangor Hydro-Electric petitions for review of a FERC order requiring it to comply with a Department of Interior fishing prescription. Interior has not provided reasonable support for its prescription, and we therefore grant the petition.

I.

The Federal Energy Regulatory Commission issued Bangor a license to continue to operate a hydropower facility located on the Union River in Ellsworth, Maine. The license required Bangor to develop a plan for fish passage, consistent with any future prescription made by the Secretary of the Interior. Bangor submitted a plan relying extensively on trucking salmon and alewives, unable to swim back to their spawning areas due to the presence of Bangor's facility, from an existing trap facility 1 to locations upstream. Bangor committed to constructing permanent upstream fish passage facilities--the main alternative to trucking--only if the salmon run (fish coming downstream after spawning) exceeded 500 for three consecutive years.

The United States Fish and Wildlife Service (FWS), an arm of the Department of Interior, notified FERC that it did not approve of the Bangor plan and that pursuant to § 18 of the Federal Power Act, 16 U.S.C. § 811 (1985), it would require Bangor to construct permanent upstream fish passages five years after the issuance of the license. Section 18 provides:

The Commission shall require the construction, maintenance, and operation by a licensee at its own expense of ... such fishways as may be prescribed by the Secretary of the Interior or the Secretary of Commerce, as appropriate.

Id. The FWS explained:

Given that the run of alewives could soon reach its ultimate size of 2.3 million fish, we believe that the permanent fish passage facilities should be [constructed] ... The permanent facilities would initially be used by alewives, but should also be designed to accommodate a run of up to 1000 salmon.

Bangor estimated that the fishways would cost approximately $2 million and $30,000 in lost power benefits annually. Interior was unmoved, explaining: "[W]e will not sacrifice fish passage effectiveness or compromise fishery management objectives ... simply due to cost considerations." (emphasis added).

The Commission issued an order modifying Bangor's proposed fish passage plan requiring it to conform to FWS' fishway prescription. Bangor Hydro-Electric Co., 66 F.E.R.C. p 62,079 (1994). It refused to consider Bangor's contention that the FWS personnel lacked authority to require a § 18 fishway prescription because the Secretary of Interior had not properly delegated that authority, explaining that the Commission should not "dispute the effectiveness of Interior's delegation practices." Id. at 64,254. FERC also declined to consider Bangor's arguments concerning the need for the fishway prescription or the process by which Interior decided to require the fishway, concluding that under Escondido Mut. Water Co. v. La Jolla Band of Mission Indians, 466 U.S. 765, 104 S.Ct. 2105, 80 L.Ed.2d 753 (1984), and Lynchburg Hydro. Assoc., 39 F.E.R.C. p 61,079 (1987), it had no choice but to require Bangor to construct the fishways. Bangor unsuccessfully sought rehearing. The Commission issued a stay of its order, which required Bangor to begin construction, pending completion of judicial review. Bangor Hydro-Electric, 70 F.E.R.C. p 61,216 (1995). On appeal, Bangor repeats its due process and evidentiary arguments and challenges FERC's refusal to consider them.

II.

We are met at the outset with a rather novel jurisdictional argument from the government (the Department) as intervenor. It claims that FERC is the wrong respondent. Interior is the real governmental party in interest because Bangor is actually challenging Interior's fishway prescription,

Page 662

[316 U.S.App.D.C. 301] concerning which the Commission takes no position. Therefore, the petition should be denied. In Escondido, 466 U.S. at 778 & n. 20, 104 S.Ct. at 2113 & n. 20, the Supreme Court, interpreting this unusual statute, explained that in these sorts of cases 2 the Commission is obliged to include the Department's prescription, but is free, if a petition for review is filed, to support, oppose, or remain neutral regarding the prescription.

Nevertheless, the order on review is undeniably that of the Commission. The relevant statutory section provides:

Any party to a proceeding under this Act aggrieved by an order issued by the Commission in such proceeding may obtain a review of such order ... by filing ... a written petition praying that the order of the Commission be modified or set aside....

16 U.S.C. § 825l (b) (1985) (emphases added). It seems beyond question that petitioner has been aggrieved within the meaning of that provision by the Commission's order regardless of the Commission's reasons for including the prescription in the order. It follows therefore that FERC is the appropriate named respondent even...

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58 practice notes
  • Part II
    • United States
    • Federal Register November 17, 2005
    • 17 Noviembre 2005
    ...Band of Mission Indians, 466 U.S. 765 (1984); American Rivers v. FERC, 201 F.3d 1186 (9th Cir. 1999); Bangor Hydro-Electric Co. v. FERC, 78 F.3d 659 (D.C. Cir. 1996). After a license has been issued, the license, including the Departments' conditions and prescriptions, is subject to reheari......
  • Electric utilities (Federal Power Act): Hydroelectric licensing regulations,
    • United States
    • Federal Register November 17, 2005
    • 17 Noviembre 2005
    ...Band of Mission Indians, 466 U.S. 765 (1984); American Rivers v. FERC, 201 F.3d 1186 (9th Cir. 1999); Bangor Hydro-Electric Co. v. FERC, 78 F.3d 659 (D.C. Cir. 1996). After a license has been issued, the license, including the Departments' conditions and prescriptions, is subject to reheari......
  • California Trout v. F.E.R.C., No. 07-73664.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 20 Julio 2009
    ...the finding of `the Commission as to the facts if supported by substantial evidence shall be conclusive.'" Bangor Hydro-Elec. Co. v. FERC, 78 F.3d 659, 663 (D.C.Cir.1996) (quoting 16 U.S.C. 825l(b)) (emphasis removed). Because we, like the D.C. Circuit, have recognized that "the Court reads......
  • Al Bahlul v. United States, No. 11–1324
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • 20 Octubre 2016
    ...generally must be treated as authoritative.”) (internal quotation marks and citations omitted); Bangor Hydro–Electric Co. v. FERC , 78 F.3d 659, 662 (D.C. Cir. 1996) (“It may be dicta , but Supreme Court dicta tends to have somewhat greater force—particularly when expressed so unequivocally......
  • Request a trial to view additional results
54 cases
  • California Trout v. F.E.R.C., No. 07-73664.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 20 Julio 2009
    ...the finding of `the Commission as to the facts if supported by substantial evidence shall be conclusive.'" Bangor Hydro-Elec. Co. v. FERC, 78 F.3d 659, 663 (D.C.Cir.1996) (quoting 16 U.S.C. 825l(b)) (emphasis removed). Because we, like the D.C. Circuit, have recognized that "the Court reads......
  • Al Bahlul v. United States, No. 11–1324
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • 20 Octubre 2016
    ...generally must be treated as authoritative.”) (internal quotation marks and citations omitted); Bangor Hydro–Electric Co. v. FERC , 78 F.3d 659, 662 (D.C. Cir. 1996) (“It may be dicta , but Supreme Court dicta tends to have somewhat greater force—particularly when expressed so unequivocally......
  • Am. Rivers v. Fed. Energy Regulatory Comm, No. 98-70084
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 14 Enero 2000
    ...when properly prescribed by the Secretaries.") (emphasis added); accord Bangor Hydro-Electric Co. v. Federal Energy Regulatory Comm'n, 78 F.3d 659, 662 n.2 (D.C. Cir. 1996). Here, however, the Commission attempts to distinguish Escondido, insisting that its reasoning does not apply when wha......
  • City of Tacoma, Washington v. F.E.R.C., No. 05-1054.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 22 Agosto 2006
    ...capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706; see Bangor Hydro-Elec. Co. v. FERC, 78 F.3d 659, 663 & n. 3 (D.C.Cir. 1996); Pyramid Lake, 898 F.2d at 1414. Therefore, the BiOps and the ITSs must be upheld as long as the agencies "considered the......
  • Request a trial to view additional results

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