Bangor Hydro-Elec. Co. v. F.E.R.C.

Decision Date15 March 1996
Docket NumberNo. 95-1083,HYDRO-ELECTRIC,95-1083
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.
CourtU.S. Court of Appeals — District of Columbia Circuit

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.

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.


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.


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 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 if the real defense is to be mounted by Interior as intervenor.

The Commission agrees with that reading, but suggests to us that the record should be remanded to it because Interior wishes to put in more material. But Interior has filed a motion to add to the record before us. Interior, consistent with its view that it is the proper respondent, seems to be treating the case as if petitioner were challenging a prescription that stemmed from a departmental "informal adjudication" a la Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), instead of from FERC's more formal licensing proceeding. See U.S. Dep't of Interior v. FERC, 952 F.2d 538 (D.C.Cir.1992); Cooley v. FERC, 843 F.2d 1464, 1472-73 (D.C.Cir.), cert. denied, 488 U.S. 933, 109 S.Ct. 327, 102 L.Ed.2d 344 (1988) (Commission erred in not addressing all the relevant evidence). We deny Interior's motion, and we also think it inappropriate to remand to FERC. Escondido explained that "the license applicant can seek review of the conditions in the court of appeals, but the court is to sustain the conditions if they are consistent with law and supported by the evidence presented to the Commission, either by the Secretary or other interested parties." 466 U.S. at 778 n. 20, 104 S.Ct. at 2113 n. 20 (emphasis added). The government contends this language in Escondido is only dicta, and it should not be read as confining Interior to the record before FERC. It may be dicta, but Supreme Court dicta tends to have somewhat greater force--particularly when expressed so unequivocally. Even were we not bound by it, however, we think the Court correctly devised the interrelationship between Interior and FERC. If Congress had intended Interior to have authority to require prescriptions independent of the Commission's licensing process, it could easily have so specified. By providing instead that Interior's prescription is to be a FERC license requirement, Congress implicitly indicated that it would have to be supported as would any other Commission licensing requirement. The record before us, then, is no more and no less than what was presented to the Commission. The Commission appears to have correctly recognized this point; its regulation states that when the Department submits a prescription the Department "must specifically identify and explain ... the prescriptions and their evidentiary and legal basis." 18 C.F.R. § 4.34(b)(1) (1995) (emphasis added). To be sure, this is an unorthodox administrative proceeding, but Escondido 's reading of the statute and the Commission's regulation is abundantly clear, and we therefore think Interior had no excuse for not including any evidence it wished to rely on, in the court of appeals, in the record before the Commission. It is simply too late now to seek to shore up its case.

It also follows, we think, that petitioner's claim that FERC had some sort of responsibility to inquire into Interior's internal decisionmaking process must be rejected. Under this statute, FERC performs primarily as a neutral forum responsible for compiling the record for the benefit of the court of appeals. It may subsequently on review take a position or not as it wishes, but it is certainly not its responsibility to investigate or prosecute any part of the case below. Moreover, since the record must be the one presented to the...

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