Friends of the Cowlitz v. Fed. Energy Reg. Comm'n, CPR-FIS

• Decision Date: 14 June 2001
• Docket Number: CPR-FIS,PETITIONER,No. 99-70373,CITY,99-70373
• Citation: 253 F.3d 1161
• Parties: (9th Cir. 2001) FRIENDS OF THE COWLITZ ANDOF TACOMA, FERC PROJECT INTERVENOR, v. FEDERAL ENERGY REGULATORY COMMISSION, RESPONDENT
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1161

253 F.3d 1161 (9th Cir. 2001)

FRIENDS OF THE COWLITZ AND CPR-FISH, PETITIONERS, CITY OF TACOMA, FERC PROJECT INTERVENOR, v. FEDERAL ENERGY REGULATORY COMMISSION, RESPONDENT.

No. 99-70373

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted December 8, 2000

Filed June 14, 2001

NOTE: SEE AMENDED OPINION OF FEBRUARY 27, 2002.

Jonathan I. Feil, Simburg, Ketter, Sheppard & Purdy, Llp, Seattle, Washington, for the petitioners.

Douglas W. Smith, General Counsel, Jay L. Witkin, Solicitor, Timm L. Abendroth, Lona T. Perry, Federal Energy Regulatory Commission, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Federal Energy Regulatory Commission No. 2016-029

Before: Betty B. Fletcher and Raymond C. Fisher, Circuit Judges, and William W Schwarzer, District Judge.¹

B. Fletcher, Circuit Judge

This is an appeal from the summary dismissal by the Federal Energy Regulatory Commission ("Commission " or "FERC") of a complaint brought by two citizens groups dedicated to maintaining sustainable populations of anadromous and resident fish in the Cowlitz River Basin in southwestern Washington state. The petitioners, Friends of the Cowlitz River and CPR-Fish, allege that the City of Tacoma ("Tacoma") has failed to comply with the terms of its license to operate a hydroelectric project on the Cowlitz River. Although we are concerned that the grounds for the Commission's summary disposition rested on an improper legal basis and lacked support in the record, we deny the petition on the ground that the FERC has virtually unreviewable discretion to enforce (or, in this case, to not enforce) any alleged license violations.

I.

The Cowlitz River Project (FERC Project No. 2016) is a major hydroelectric project in Lewis County, Washington, consisting of two dams: the upstream Mayfield Dam (185 ft., completed in 1963), and the downstream Mossyrock Dam (325 ft., completed in 1968). Separated by thirteen miles, the two dams have a combined generating capacity of 460 megawatts. The project is owned and operated by Tacoma, under a license granted by the FERC in 1951 ("License").

The Cowlitz River, a lower tributary of the Columbia River, is home to native populations of anadromous fish, including chinook and coho salmon and steelhead trout. At the time of the licensing, opponents of the project, including the Washington Department of Fisheries (since renamed the Washington Department of Fisheries and Wildlife, or "WDFW"), argued that the dams would destroy the use of the river above Mayfield Dam for spawning. In response to these concerns, Tacoma maintained that it could sustain fish populations by facilitating upstream and downstream fish passage through the construction of fish ladders and other facilities. In addition, it proposed creating extensive fish hatcheries as a complement to the fish protection measures.

Accordingly, the following two articles were eventually incorporated into the License. Article 37² states, in pertinent part:

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 facilities and comply with such reasonable modifications of the project structures and operation as may be ordered by the Commission upon its own motion or upon the recommendation of the Secretary of the Interior of fish and wildlife agency or agencies of any State in which the project or a part thereof is located, after notice and opportunity for hearing and upon findings based on substantial evidence that such facilities and modifications are necessary and desirable, reasonably consistent with the primary purpose of the project, and consistent with the provisions of the [Federal Power Act].

In addition, Article 57³ of the license states:

Licensee shall continue to cooperate with the fishery agencies in the development of details of design, operation, and maintenance of these and of other facilities needed to maintain the existing runs of anadromous fish at the project and in evaluating the degree of success of these facilities to maintain those runs. Licensee shall submit to the Commission for approval functional drawings of permanent downstream migrant fish traps and design drawings of the fish-barrier dam as proposed for construction on the Cowlitz river adjacent to the salmon hatchery, and construction thereof shall not commence prior to Commission approval.

In 1967, Tacoma and WDFW entered into an agreement ("Agreement") whereby the parties stated their intention to "maintain the numbers" of adult salmon returns at defined levels, through two methods: by making use of the watershed above Mayfield Dam to spawn and rear salmon; and by supplementing these populations through hatchery production. Tacoma agreed to construct, operate, and maintain certain fish facilities, including an adult release site, a downstream migrant trapping facility in the Mossyrock reservoir, downstream migrant bypass facilities at Mayfield Dam, a salmon hatchery (along with facilities for supplying sufficient water to the hatchery), a barrier dam, fish ladders, and adult separation facilities.

At the same time, the Agreement expressly recognized that it is "subject at all times to the terms and conditions of the said license irrespective of the effect of any other wording or expression of intent otherwise set forth herein. " Tacoma submitted a preliminary draft in April 1967 to the Commission, requesting comments and asking whether the License required the agency to approve the Agreement. In its reply, the Commission advised Tacoma that its approval was not required, but suggested changes in several provisions and requested that a final copy of the Agreement be included in the agency's files.

In May 1997, Friends of the Cowlitz River and CPR-Fish filed a complaint with the FERC, alleging inter alia that Tacoma had violated the terms of the Agreement and the License by failing to maintain the agreed-upon levels of fish populations and by failing to cooperate with WDFW in instituting remedial measures. As relief for the alleged violations, these petitioner organizations requested that Tacoma be ordered to comply with WDFW's requests for additional hatchery facilities, that Tacoma be required to make up the deficit in adult fish under the Agreement or pay monetary compensation, and that Tacoma be assessed a civil penalty for each day that the alleged violations continued.

According to the petitioners' complaint, Tacoma has failed to meet the required adult return numbers for at least one of the three anadromous species every year since the Agreement's inception. Furthermore, the required numbers were not met for all three species during the five years immediately preceding the filing of the complaint (i.e., from 1992 through 1996), when the numbers of returning fish dropped to"crisis proportions." The complaint alleged that Tacoma's overreliance on a single salmon hatchery and the associated rearing densities constituted "the primary reasons the mitigation levels in the 1967 Agreement cannot be met." Although WDFW had proposed additional salmon rearing facilities since 1988, Tacoma consistently withheld its consent to these proposals. Thus, according to the petitioners, Tacoma's refusal to cooperate has prevented the fish hatchery facilities from adequately mitigating for the fisheries resources damaged by the Cowlitz River Project. In addition, the petitioners claimed that Tacoma had neglected its obligation under the license to operate downstream juvenile passage facilities through the dams, and that other key facilities had been allowed to languish with little or no use. Finally, the petitioners charged that Tacoma had failed to install and operate permanent downstream fish traps, or even to submit designs for such traps to the Commission, in clear violation of Article 57.⁴

In the petitioners' view, the Agreement was intended by both parties to effectuate the terms of Articles 37 and 57, pursuant to which Tacoma was required to design and construct facilities to sustain anadromous fish populations and to continue to cooperate with WDFW in the development of such facilities. As stated in the complaint, "Tacoma's failure to provide sufficient rearing capacity to accomplish the adult fish returns required in the 1967 Agreement, and its failure to cooperate with Fish & Wildlife's proposals or to submit feasible alternatives, constitute violations of the 1967 Agreement and the [analogous] provision of Article 57 . . . ." Furthermore, Tacoma's "recalcitrance in accepting much needed improvements in hatchery operations has severely damaged the fisheries' resources of the Cowlitz River . . . . Besides the ecological harm, Tacoma's accumulated deficit in returning adult salmon has imposed substantial economic losses on Complainants and the people of Lewis County."

In November 1998, nearly eighteen months after the filing of the complaint, the Commission issued an order summarily dismissing the complaint without prejudice on the grounds that, among other things, the Agreement was a private contract whose terms were never approved by the Commission or incorporated into the License itself. The Commission held that since alleged violations of the Agreement did not amount to violations of the License, the complaint was meritless and did not require an evidentiary hearing or a formal investigation.

Significantly, the Commission did not base its ruling on its discretion to not enforce alleged license violations. Rather, the Commission affirmatively found that "Tacoma ha[d] complied with all of requirements of Articles 37 and 57 of the license, ha[d] submitted all of the plans and design drawings required by those articles, ha[d] constructed and operated all of the fishery facilities specifically prescribed in the license, and [wa]s releasing new fish consistent with the...