Central Montana Elec. Power Co-op., Inc. v. Administrator of Bonneville Power Admin.

• Decision Date: 01 March 1988
• Docket Number: Nos. 86-7602,87-7080 and 87-3624,s. 86-7602
• Citation: 840 F.2d 1472
• Parties: CENTRAL MONTANA ELECTRIC POWER COOPERATIVE, INC.; Upper Missouri G & T Electric Cooperative, Inc., Petitioners, Montana Power Company, Petitioner-Intervenor, v. ADMINISTRATOR OF the BONNEVILLE POWER ADMINISTRATION, Respondent. CENTRAL MONTANA ELECTRIC POWER COOPERATIVE, INC.; Upper Missouri G & T Electric Cooperative, Inc., Plaintiffs-Appellants, Montana Power Company, Intervenor, v. ADMINISTRATOR OF the BONNEVILLE POWER ADMINISTRATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1472

840 F.2d 1472

CENTRAL MONTANA ELECTRIC POWER COOPERATIVE, INC.; Upper

Missouri G & T Electric Cooperative, Inc., Petitioners, Montana Power Company, Petitioner-Intervenor, v. ADMINISTRATOR OF the BONNEVILLE POWER ADMINISTRATION, Respondent.

CENTRAL MONTANA ELECTRIC POWER COOPERATIVE, INC.; Upper

Missouri G & T Electric Cooperative, Inc., Plaintiffs-Appellants, Montana Power Company, Intervenor, v. ADMINISTRATOR OF the BONNEVILLE POWER ADMINISTRATION,

Defendant-Appellee.

Nos. 86-7602, 87-7080 and 87-3624.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Sept. 11, 1987.

Decided March 1, 1988.

Richmond F. Allan, Washington, D.C., for petitioners Central Montana Elec. Power Co-op., et al.

Daniel O. Flanagan, Butte, Mont., for petitioner-intervenor Montana Power Co.

L. Randall Weisberg, Portland, Or., for respondent BPA.

Appeal from a Decision of the Bonneville Power Administration.

Appeal from the United States District Court for the District of Montana.

Before CANBY ^* and BEEZER, Circuit Judges, and GRAY, ^** District Judge.

BEEZER, Circuit Judge:

Central Montana Electric Power Cooperative and Upper Missouri G & T Electric Cooperative (the Cooperatives) challenge the decision by the Administrator of the Bonneville Power Administration (BPA) to deny its request for an allocation of electricity produced at the Libby Dam and Reservoir (Libby). We conclude that the action is justiciable for review, original jurisdiction lies with this Court, and that the controlling statutes set forth no Montana preference for Libby power.

FACTS

Libby is a federal hydroelectric project located in western Montana. The Administrator of the BPA is the federal marketing agent for all electric power produced by the United States government in the Pacific Northwest, which includes energy generated at Libby. In May 1986 the Cooperatives, on behalf of their member cooperatives serving consumers in eastern Montana, applied to the Administrator to purchase power from the Libby project under an asserted "Montana reservation." The BPA denied the requests, reasoning that it had no authority to provide Montana users with a preference to power from Libby because Congress had not established a Montana reservation for Libby power.

The Cooperatives simultaneously sought judicial review of the BPA's decision in this Court and in the District Court of Montana. The Cooperatives petitioned for a declaration that the electric power produced at Libby is reserved by law primarily for use in Montana and that they qualified as preference customers. The district court, 656 F.Supp. 781, concluded that the court of appeals had original jurisdiction over the controversy under section 9(e)(5) of the Pacific Northwest Electric Power Planning and Conservation Act (Northwest Power Planning Act), 16 U.S.C. Sec. 839f(e)(5), and transferred the action to this Court. The district court reasoned that Congress intended that BPA decisions regarding allocation and marketing of power from Libby were to be governed by the provisions of the Northwest Power Planning Act. The Cooperatives subsequently appealed the transfer order. The three dockets generated by the case were consolidated for briefing.

I

The Administrator contends that we should decline jurisdiction because the issue presented is not ripe for adjudication as envisioned in the case or controversy requirement of Article III of the Constitution. The Administrator argues that there is nothing upon which the Cooperatives' asserted preference may operate. Any power preference would operate only as a "tie-breaker" among competing applicants for a limited supply of federally marketed power that is actually available for distribution. An applicant holding a recognized power preference cannot compel the power marketing agent to breach pre-existing contracts with non-preference purchasers. See City of Anaheim v. Duncan, 658 F.2d 1326, 1330-31 (9th Cir.1981). Because of the amount of power committed for sale under existing long-term contracts, the Administrator maintains, there will be no available power for allocation under an asserted Montana preference until expiration of the present contracts in 2001.

Jurisdiction to award the declaratory relief that the Cooperatives seek exists only in "a case of actual controversy." 28 U.S.C. Sec. 2201. A case is considered ripe for review when all "the essential facts establishing the right to declaratory relief have already occurred." Wickland Oil Terminals v. Asarco, Inc., 792 F.2d 887, 893 (9th Cir.1986). The question we must address is "whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826 (1941); see also National Basketball Ass'n v. SDC Basketball Club, Inc., 815 F.2d 562, 565 (9th Cir.), cert. dismissed, --- U.S. ----, 108 S.Ct. 362, 98 L.Ed.2d 386 (1987). As we have noted, "[t]he issue is not whether the requested declaratory relief is hypothetical. Rather, the issue is whether the case presents a sufficiently concrete case and controversy upon which relief properly may be fashioned." National Basketball Ass'n, 815 F.2d at 566 n. 2.

The administrative record before us reveals that the BPA did not base its final determination of the Cooperatives' request on impossibility because of existing contracts. The BPA instead took the position that a geographic reservation for Montana was established by Congress with respect to the Hungry Horse project but not for the Libby project. As a result of the agency's statutory interpretation, the Administrator concluded that the BPA had no authority to provide users in Montana with a geographic preference to power from Libby.

What is involved between the parties is not an abstract question based upon the possibility of a factual situation that may never develop. The contention is over the proper construction of the controlling statutes. The declaratory relief sought by the Cooperatives is not so speculative as to render it non-justiciable. The Cooperatives allege that the Administrator's denial of their applications constitutes final agency action based exclusively on an erroneous construction of law, which deprives them of statutory rights. The Cooperatives seek, in essence, a declaration holding that the electric power produced by the Libby project is reserved by statute primarily for use in the State of Montana. The BPA has consistently been in direct conflict with the Cooperatives on the issue of a congressionally created geographic preference for Libby power, and has specifically denied their allocation requests based on its construction of the controlling statutes.

Upon examining the totality of the circumstances, we conclude that an actual controversy exists between parties having sufficient adverse legal interests, and that the essential facts establishing a right to declaratory relief have occurred. The statutory dispute between the Cooperatives and the BPA "calls, not for an advisory opinion upon a hypothetical basis, but for an adjudication of present right upon established facts." Ashcroft v. Mattis, 431 U.S. 171, 172, 97 S.Ct. 1739, 1740, 52 L.Ed.2d 219 (1977) (per curiam) (quoting Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 242, 57 S.Ct. 461, 464-65, 81 L.Ed. 617 (1937)). Accordingly, the case before us is justiciable and the Cooperatives' claim for declaratory relief is ripe for review. ¹

II

The Cooperatives argue that the present case is not within our original jurisdiction under 16 U.S.C. Sec. 839f(e)(5) to review the Administrator's denial of the allocation requests because such action was not taken "under" or "pursuant to" the Northwest Power Planning Act. Instead, the Cooperatives contend, the suit is under the jurisdiction of the district court under 28 U.S.C. Secs. 1331, 1337 & 42 U.S.C. Sec. 7192. We disagree.

Section 9(e)(5) of the Northwest Power Planning Act provides:

Suits to challenge the constitutionality of this chapter, or any action thereunder, final actions and decisions taken pursuant to this chapter by the Administrator or the Council, or the implementation of such final actions, whether brought pursuant to this chapter, the Bonneville Project Act, the Act of August 31, 1964 (16 U.S.C. 837-837h), or the Federal Columbia River Transmission System Act (16 U.S.C. 838 and following), shall be filed in the United States court of appeals for the region.... Suits challenging any other actions under this chapter shall be filed in the appropriate court.

16 U.S.C. Sec. 839f(e)(5). We have consistently interpreted this judicial review provision "with a broad view of this Court's jurisdiction and a narrow definition of district court jurisdiction." Pacific Power and Light v. Bonneville Power Admin., 795 F.2d 810, 814 (9th Cir.1986). Under this section, suits challenging final actions by the BPA must be reviewed by this Court. See Forelaws on Board v. Johnson, 709 F.2d 1310, 1311-12 (9th Cir.1983); Central Lincoln Peoples' Util. Dist. v. Johnson, 686 F.2d 708, 710 (9th Cir.1982), rev'd on other grounds sub. nom. Aluminum Co. of America v. Central Lincoln Peoples' Util. Dist., 467 U.S. 380, 104 S.Ct. 2472, 81 L.Ed.2d 301 (1984); see also Public Util. Comm'r v. Bonneville Power Admin., 767 F.2d 622, 626 (9th Cir.1985).

According to the language of section 9(e)(5), district court jurisdiction is established only over "other actions" that do not lie within this Court's original jurisdiction. Although the district court has exclusive jurisdiction "over nonconstitutional suits challenging actions taken pursuant to the Act by agencies other than BPA or the Northwest Power Planning Council," it has "no jurisdiction over challenges to BPA or Northwest Power Planning Council actions under the Act."...