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)

Page 826

701 F.2d 826 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. Nos. 79-7625, 80-7012 and 80-7110. United States Court of Appeals,
Ninth Circuit. March 17, 1983.

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.

Page 827

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.

J. BLAINE ANDERSON, Circuit Judge, concurring and dissenting:

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.

I. INDIAN CONSENT

A. Mission Indian Relief Act

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

Page 828

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...