Escondido Mut. Water Co. v. F.E.R.C.
| Citation | 701 F.2d 826 |
| Decision Date | 17 March 1983 |
| Docket Number | 80-7012 and 80-7110,Nos. 79-7625,s. 79-7625 |
| Parties | ESCONDIDO MUTUAL WATER COMPANY, City of Escondido, and Vista Irrigation District, Petitioners, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, San Pasqual Band of Mission Indians, Secretary of Interior, etc., et al., Intervenors. SAN PASQUAL, LA JOLLA, RINCON, PAUMA AND PALA BANDS of MISSION INDIANS, Petitioners, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Escondido Mutual Water Company, City of Escondido and Vista Irrigation District, Intervenors. The SECRETARY OF THE INTERIOR, acting in his capacity as trustee for the Rincon, La Jolla and San Pasqual Bands of Mission Indians, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Escondido Mutual Water Company, City of Escondido and Vista Irrigation District, Intervenors. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Paul D. Engstrand, Leroy A. Wright, San Diego, Cal., James C. Kilbourne, Washington, D.C., Robert S. Pelcyger, Boulder, Colo., argued, for petitioners; Jennings, Engstrand & Henrikson, Glenn, Wright, Jacobs & Schell, San Diego, Cal., C. Emerson Duncan, II, Duncan, Allen & Mitchell, Washington, D.C., on brief, for Escondido; Fredericks & Pelcyger, Boulder, Colo., on brief, for San Pasqual, etc.
Joseph S. Davies, Jr., Joshua Rokach, FERC, Washington, D.C., argued, for respondent; John A. Cameron, Acting Asst. Sol., Kristina Nygaard, FERC, Washington, D.C., on brief.
ORDER on PETITIONS FOR REHEARING
Before ANDERSON, FERGUSON and NELSON, Circuit Judges.
In these consolidated cases, petitions have been filed as follows:
1. A petition for rehearing and a suggestion for rehearing en banc filed December 20, 1982 by the Escondido Mutual Water Company, City of Escondido and Vista Irrigation District;
2. A petition for rehearing filed December 20, 1982 by the Secretary of the Interior;
3. A petition for rehearing filed December 16, 1982 by the San Pasqual, La Jolla, Rincon, Pauma and Pala Bands of Mission Indians;
4. A petition for rehearing filed December 23, 1982 by the Federal Energy Regulatory Commission.
In response to the petition for rehearing by the Federal Energy Regulatory Commission, the language in the panel opinion of November 2, 1982, in the middle of the first column of 5123 of the slip opinion, 692 F.2d 1223 at p. 1235, which states as follows:
First of all, any license issued by the Commission which includes conditions propounded by Interior will be subject to judicial review under section 313(b) of the FPA, 16 U.S.C. Sec. 825l (b). Secondly, any failure by the Secretary of the Interior to conform to the statutory standard in proposing conditions pursuant to section 4(e) will be reviewable as a final agency action under the applicable provisions of the Administrative Procedures Act, 5 U.S.C. Secs. 701-706 (1976). The spectre of an unconditional veto power, with which an appointed public official could frustrate the public policies underlying the FPA, is illusory.
has been amended to read as follows:
Any license issued by the Commission which includes conditions propounded by Interior will be subject to judicial review under section 313(b) of the FPA, 16 U.S.C. Sec. 825l (b). The spectre of an unconditional veto power, with which an appointed public official could frustrate the public policies underlying the FPA, is illusory.
With that amendment to the opinion, Judges Ferguson and Nelson have voted to deny all the petitions for rehearing and to reject the suggestion for rehearing en banc.
Attached hereto is a statement of Judge Anderson. Judge Anderson would grant and deny the various petitions for rehearing as stated in his concurring and dissenting statement.
The full court has been advised of the suggestion for en banc rehearing and no judge of the court has requested a vote on the suggestion for rehearing en banc. Fed.R.App.P. 35.
The petitions for rehearing are denied and the suggestion for a rehearing en banc is rejected.
I concur in denial of the petitions for rehearing filed by the Secretary of Interior and the San Pasqual, La Jolla, Rincon, Pauma and Pala Bands of Mission Indians ("Bands" ). For the following reasons, however, I dissent from denial of the petitions for rehearing filed by Escondido Mutual Water Company, City of Escondido, Vista Irrigation District ("Licensees" ), and the Federal Energy Regulatory Commission ("FERC" ). Except for the reservations expressed below, I continue to concur in the majority opinion.
Petitioners persuasively argue that our opinion misinterprets Sec. 8 of the Mission Indian Relief Act ("MIRA"). 26 Stat. 712 (1891). Section 8 provides in pertinent part:
Subsequent to the issuance of any tribal patent, ... any citizen of the United States, firm, or corporation may contract with the tribe, band, ... for the right to construct a flume, ditch, canal, pipe, or other appliances for the conveyance of water over, across, or through such lands, which contract shall not be valid unless approved by the Secretary of the Interior under such conditions as he may see fit to impose.
We interpreted Sec. 8 as the exclusive means by which a private party may obtain a right-of-way across reservations created pursuant to MIRA. Escondido Mutual Water Co. v. Federal Energy Regulatory Commission, 692 F.2d 1223, 1231-34 (9th Cir.1982). Our interpretation necessarily implies that the Bands, by withholding consent, can completely bar the licensing of a federal power project. Our interpretation further provides no recourse to the proposed licensee if Indian consent is arbitrarily or improvidently withheld. Upon reconsideration, I believe our interpretation of Sec. 8 conflicts with the Federal Power Act's ("FPA") pervasive scheme for obtaining rights-of-way over tribal lands.
The opinion relies heavily on legislative history which I believe is rather weak support for our sweeping holding. The 1969 House Committee Report, 692 F.2d at 1232, says nothing more than that a federal agency exceeds its authority if it grants rights-of-way without congressional delegation. The 1887 Attorney General opinion, id. at 1232-33, is merely an example of that proposition; an administrative agency (Interior) to whom Congress had not delegated power to grant rights-of-way. That opinion may have led to MIRA Sec. 8, but the legislative history bears no indication that Congress intended Sec. 8 as the exclusive means of obtaining rights-of-way. In 1891, perhaps contractual negotiation was the only means thought necessary to obtain rights-of-way from Mission Indians, especially given that the Attorney General opinion addressed a water project concededly beneficial to the Indians. More probably, however, Congress simply gave no thought to the eminent domain matter; contractual negotiation resolved the immediate problem.
A farther-sighted Congress subsequently enacted the FPA. In it, Congress recognized that contractual means may sometimes fail to obtain rights-of-way necessary to a federal power project. Section 21, for example, provides an alternative to the contractual process by delegating to licensees of federal power projects the power of eminent domain. FPA Sec. 21, 16 U.S.C. Sec. 814. Though that condemnation power is inapplicable to reservations held in trust by the United States, Sec. 21 may be applied to Indian lands held in fee. Federal Power Commission v. Tuscarora Indian Nation, 362 U.S. 99, 80 S.Ct. 543, 4 L.Ed.2d 584 (1960). 1
The FPA employs a different and much more protective scheme for acquiring the use of tribal lands within Indian reservations. Unlike privately owned property which may be utilized as required, FERC, under FPA Sec. 4(e), 16 U.S.C. Sec. 797(e), may license the use of tribal lands within an Indian reservation only upon a finding "that the license will not interfere or be inconsistent with the purpose for which such reservation was created or acquired." Even then, the license is subject to terms and conditions which the Secretary of Interior shall deem necessary for the adequate protection and utilization of the reservation. Id.
Moreover, unlike privately owned property which a licensee may condemn outright under Sec. 21, tribal lands within an Indian reservation may be used only upon payment of an annual rental charge. FPA Sec. 10(e), 16 U.S.C. Sec. 803(e). The rental charge is subject to approval "of the Indian tribe having jurisdiction of such lands" as provided in Sec. 16, 25 U.S.C. Sec. 476, of the Indian Reorganization Act. I believe Congress intended FPA Secs. 4(e) and 10(e) to be the counterparts in the tribal land sector to FPA Sec. 21 in the private land sector.
The majority acknowledges that Congress may exercise the condemnation power over tribal lands and may pass legislation delegating to a person or agency seeking a right-of-way that condemnation power. 692 F.2d at 1232. The majority and I disagree on the extent to which such an act of Congress must refer specifically to Indians. Tuscarora teaches that meticulous specificity is unnecessary. In responding to the Tribe's argument that Sec. 21 of the FPA could not apply to Indian lands because it did not specifically mention them, the Court observed, "it is well settled by many decisions of this Court that a general statute in terms applying to all persons includes Indians and their property interests." 362 U.S. at 116, 80 S.Ct. at 553, 4 L.Ed.2d at 596.
Even if a special act of Congress is necessary, I cannot conceive of a more direct and specially-tailored scheme for appropriation of Indian lands than the FPA. Tuscarora, although addressing the somewhat novel issue of Indian lands held in fee, says as much:
The Federal Power Act constitutes a complete and comprehensive plan for the development and improvement of navigation and for the development, transmission and utilization of electric power in any of the...
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