CENTRAL MONT. EL. POWER COOPERATIVE, INC. v. Bonneville Power Adm'r, CV-86-190-GF.

• Decision Date: 13 February 1987
• Docket Number: No. CV-86-190-GF.,CV-86-190-GF.
• Court: U.S. District Court — District of Montana
• Parties: CENTRAL MONTANA ELECTRIC POWER COOPERATIVE, INC. and Upper Missouri G & T Electric Cooperative, Inc., Plaintiffs, v. ADMINISTRATOR OF the BONNEVILLE POWER ADMINISTRATION, Defendant.

656 F. Supp. 781

CENTRAL MONTANA ELECTRIC POWER COOPERATIVE, INC. and Upper Missouri G & T Electric Cooperative, Inc., Plaintiffs, v. ADMINISTRATOR OF the BONNEVILLE POWER ADMINISTRATION, Defendant.

No. CV-86-190-GF.

United States District Court, D. Montana, Great Falls Division.

February 13, 1987.

Vicki W. Dunaway, Dunaway, O'Connor & Moe, P.C., Billings, Mont., James D. Pembroke, Duncan, Weinberg & Miller, Washington, D.C., for plaintiffs.

George F. Darragh, Jr., Asst. U.S. Atty., Great Falls, Mont., C. Max Vassaneilli, Sr. Trial Counsel, U.S. Dept. of Justice, Civ. Div., Washington, D.C., James O. Luce, Asst. Gen. Counsel, Bonneville Power Admin., Portland, Or., for defendant.

MEMORANDUM AND ORDER

HATFIELD, District Judge.

The plaintiffs, two Montana electric cooperatives, bring the present action to obtain judicial review of the Bonneville Power Administration's decision denying their respective requests for an allocation of power produced from the Libby Dam project.¹ Plaintiffs invoke jurisdiction under 28 U.S.C. §§ 1331 and 1336, as well as 42 U.S.C. § 7192.

The defendant, Administrator of the Bonneville Power Administration ("BPA"), moves the court to dismiss this action for want of subject matter jurisdiction. The BPA contends that jurisdiction over the controversy presented is vested exclusively in the Court of Appeals for the Ninth Circuit, pursuant to section 9(e)(5) of the Pacific Northwest Electric Power Planning and Conservation Act (the "Act"), 16 U.S.C. § 839f(e)(5).

The plaintiffs obviously oppose the dismissal, asserting that this court does have jurisdiction to entertain this controversy. In the alternative, plaintiffs move the court to transfer the action to the Court of Appeals for the Ninth Circuit pursuant to 28 U.S.C. § 1631.

The issue presented for resolution is whether the decision of the BPA denying the plaintiffs' allocation is subject to the jurisdictional prescription of section 9(e)(5) of the Act, which would vest jurisdiction to review that decision in the Court of Appeals. Having considered the merits of the arguments advanced by the parties in support of their respective positions, the court is compelled to conclude that the present controversy is subject to the jurisdictional prescription of section 9(e)(5), which precludes this court from exercising jurisdiction.

The jurisdictional issue presented is unique, given the specialized legislation involved. The court is persuaded, however, that allocation and...