California Sportfishing v. F.E.R.C.

• Decision Date: 12 December 2006
• Docket Number: No. 05-73064.,05-73064.
• Citation: 472 F.3d 593
• Parties: CALIFORNIA SPORTFISHING PROTECTION ALLIANCE; Pacific Coast Federation of Fishermen's Associations, Inc., Petitioners, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Pacific Gas and Electric Company, Respondent-Intervenor.
• Court: U.S. Court of Appeals — Ninth Circuit

472 F.3d 593

CALIFORNIA SPORTFISHING PROTECTION ALLIANCE; Pacific Coast Federation of Fishermen's Associations, Inc., Petitioners, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent Pacific Gas and Electric Company, Respondent-Intervenor.

No. 05-73064.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 5, 2006.

Filed December 12, 2006.

Trent W. Orr, San Francisco, CA, for the petitioner.

Carol J. Banta, Federal Energy Regulatory Commission, Washington, D.C., for the respondent.

William J. Madden, Jr., Washington, D.C., for the respondent-intervenor.

On Petition for Review of an Order of the Federal Energy Regulatory Commission.

Before: SCHROEDER, Chief Judge, TROTT and KLEINFELD, Circuit Judges.

SCHROEDER, Chief Judge:

This is a petition to review a decision of the Federal Energy Regulatory Commission ("FERC") not to initiate formal consultation with the National Marine Fisheries Service ("NMFS") about the operation of the DeSabla-Centerville hydroelectric project. The project is operated by respondent Pacific Gas and Electric ("PG & E") under a 30-year license that FERC issued in 1980. The petitioners seek the consultation in order to protect Chinook Salmon that were declared a threatened species in 1999.

The petitioners include California Sportfishing Protection Alliance and other environmental groups. The operative statute is section 7 of the Endangered Species Act ("ESA") that provides for formal consultation with NMFS to insure that "agency action" does not jeopardize continued existence of an endangered species. 16 U.S.C. § 1536(a)(2). We have jurisdiction pursuant to the Federal Power Act, 16 U.S.C. § 825(l)(b), to review the FERC orders denying petitioners' petition for consultation and petition for rehearing.

The dispositive issue is whether there was any "action authorized, funded, or carried out" by a federal agency, that would have triggered the ESA's consultation requirement in 1999. 16 U.S.C. § 1536(a)(2). Petitioners in essence are asking for consultation in order to determine whether PG & E should change the manner in which the project is operated pursuant to a license agreement issued by FERC in 1980. We conclude that the statutory language, the regulations promulgated pursuant to the statute, and our case law interpreting them compel the conclusion that the ESA imposes no duty to consult about activities conducted by PG & E pursuant to a previously issued, valid license from FERC.

FERC could unilaterally institute proceedings to amend the license if it so chose. This is because the license agreement itself contains provisions authorizing FERC to modify the license to reflect changing environmental concerns. The ESA and the applicable regulations, however, mandate consultation with NMFS only before an agency takes some affirmative agency action, such as issuing a license. See Tenn. Valley Auth. v. Hill, 437 U.S. 153, 186-88, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978); W. Watersheds Project v. Matejko, 456 F.3d 922, 930 (9th Cir.2006); Turtle Island Restoration Network v. Nat'l Marine Fisheries Serv., 340 F.3d 969, 977 (9th Cir.2003); 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.02. Because FERC took no affirmative action concerning PG & E's existing license, we must deny the petition for review.

BACKGROUND

The DeSabla-Centerville project is located in Butte County California. It consists of a system of dams, reservoirs, canals, and powerhouses that first divert water from two reservoirs and from Butte Creek into powerhouses for hydroelectric generation, before returning the water to Butte Creek down-stream. The operation of the dam system affects the flow of water in the creek, which provides spawning grounds for Chinook Salmon.

FERC may issue licenses to operate such projects for a term of up to 50 years. 16 U.S.C. § 799. PG & E operates this project under a 30-year license issued by FERC in 1980. The license allows FERC to require PG & E to make changes to operations to protect fish and wildlife. It states:

The Licensee shall, for the conservation and development of fish and wildlife resources, construct, maintain, and operate, or arrange for the construction, maintenance, and operation of such reasonable modifications of project structures and operation, as may be ordered by [FERC] upon its own motion or upon the recommendation of the Secretary of the Interior or the fish and wildlife agency or agencies of any state in which the project or part thereof is located, after notice and opportunity for hearing.

Nineteen years after FERC issued the license, the Chinook was declared a threatened species under the ESA. Endangered and Threatened Species; Threatened Status for Two Chinook Salmon Evolutionary Significant Units (ESUs) in California, 64 Fed.Reg. 50,394, 50,412 (Sept. 16, 1999).

After many fish died in Butte Creek in 2002 and 2003, NMFS requested FERC to initiate "formal consultation" regarding the project's effects on the Chinook pursuant to 50 C.F.R. § 402.14(a). FERC did not do so. In April 2004, petitioner California Sportfishing petitioned FERC to initiate formal consultation, and FERC denied the petition in August 2004. That denial, as well as the denial of rehearing on March 23, 2005 are the subject of this petition for review.

A major component of formal consultation is the production of a "Biological Opinion." 50 C.F.R. § 402.14(g)(4). In the Biological Opinion, NMFS must determine whether or not the action under review "is likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of critical habitat." 50 C.F.R. § 402.14(h)(3). If NMFS concludes that jeopardy is likely, it must issue "reasonable and prudent alternatives" to the action under review. Id. Along with such alternatives, NMFS must issue an "incidental take" statement. Id. § 402.14(I). The "incidental take" statement constitutes a permit for the agency or licensee to take endangered species, so long as they implement the reasonable and prudent alternatives and comply with the conditions of the incidental take statement. Bennett v. Spear, 520 U.S. 154, 170, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997).

The existing PG & E license is due to expire in 2009, and early consultation between FERC and NMFS has begun in contemplation of renewal proceedings. See 50 C.F.R. § 402.11. In May 2005, California Sportfishing filed this petition for review of the FERC denials of consultation. PG & E has intervened to defend the FERC denials as well as to contend that we lack jurisdiction to review the denials in light of the current preliminary consultations looking toward renewal of the license after its expiration in 2009.

DISCUSSION

A. Jurisdiction

We have jurisdiction to review a FERC order only if (1) it is final, (2) if review would not invade the discretion of the agency, and (3) if, absent review, the petitioner would suffer irreparable harm. Steamboaters v. FERC, 759 F.2d 1382, 1388 (9th Cir.1985). Here, FERC's denial of the petition for consultation is final, and our review would not disturb the exercise of any discretion of the agency.

The only issue raised as to our jurisdiction is PG & E's contention that California Sportfishing would not suffer irreparable harm as a result of the operation of the existing license, because consultation is already underway in connection with contemplated 2009 re-licensing proceedings. The gist of PG & E's position is that if there is to be a preliminary Biological Opinion issued in these proceedings as to what might be done to protect the Chinook after 2009, no irreparable harm can result from failure to consult now.

The consultation which petitioners seek in this proceeding, however, is aimed at measures to protect the Chinook under the operation of the existing license, and not under the terms of a license that would go into effect sometime in the future. The government suggests that it will act promptly to implement any changes recommended under the preliminary analysis for the new license, and will not wait for the issuance of a new license. There is nothing in the statute, however, that requires the government to take such immediate guidance from the preliminary Biological Opinion issued in connection with license renewal. That opinion will, as a matter of law, apply only to operations under the new license. Petitioners' concern is with ongoing operations that are affecting the Chinook now. There is a showing of irreparable harm and, accordingly, we have jurisdiction to consider whether the statute, as a matter of law, requires consultation with NMFS in connection with ongoing operations under an existing license.

B. Whether consultation is required

Section 7(a)(2) of the ESA states:

Each Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency (hereinafter in this section referred to as an "agency action") is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species . . .

16 U.S.C. § 1536(a)(2).

To support its position that the continuing operation of the project by PG & E is an agency "action" within the meaning of the statute, petitioners point to the Supreme Court's landmark decision in Tenn. Valley Auth. v. Hill, 437 U.S. 153, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). There, a project that had been approved repeatedly by Congress was required by the terms of the ESA to remain inoperative. Id. at 172, 98 S.Ct. 2279. This was because, if the project became operational, it would result in the destruction of the habitat of a newly discovered, but endangered species of snail darter. Id. at 171-74, 98 S.Ct. 2279. The agency was ordered not to take action to operate the dam. Id. at 195, 98 S.Ct. 2279.

In that case, the dam had not yet begun to operate and the contemplated...