Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Federal Power Commission, s. 73--2063

• Decision Date: 21 March 1975
• Docket Number: 73--2130,Nos. 73--2063,s. 73--2063
• Citation: 510 F.2d 198,166 U.S.App.D.C. 245
• Parties: . FEDERAL POWER COMMISSION, Respondent, Northern States Power Company, Intervenor. NORTHERN ENVIRONMENTAL COUNCIL, INC., et al., Petitioners, v. FEDERAL POWER COMMISSION, Respondent, Northern States Power Company, Intervenor. United States Court of Appeals, District of Columbia Circuit
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 198

510 F.2d 198

166 U.S.App.D.C. 245

LAC COURTE OREILLES BAND OF LAKE SUPERIOR CHIPPEWA INDIANS, Petitioner, v. FEDERAL POWER COMMISSION, Respondent, Northern States Power Company, Intervenor.

NORTHERN ENVIRONMENTAL COUNCIL, INC., et al., Petitioners, v. FEDERAL POWER COMMISSION, Respondent, Northern States Power Company, Intervenor.

Nos. 73--2063, 73--2130.

United States Court of Appeals, District of Columbia Circuit.

Argued Dec. 16, 1974.

Decided March 21, 1975.

L. Graeme Bell, III, Washington, D.C., and Larry B. Leventhal, Minneapolis, Minn., of the bar of the Supreme Court of Minnesota, pro hac vice, by special leave of court, for petitioner in No. 73--2063.

Romulo L. Diaz, Jr., Atty., F.P.C., with whom Leo E. Forquer, Gen. Counsel, and George W. McHenry, Jr., Sol., F.P.C., were on the brief, for respondent.

William J. Madden, Jr., Washington, D.C., with whom Paul T. Nowak, Jr., Washington, D.C., was on the brief, for intervenor Northern States Power Co.

John M. Wiley, Wausau, Wis., and Roger L. Gette, Devils Lake, N.D., were on the brief for petitioner Great Lakes Inter-Tribal Council, Inc. in No. 73--2130.

Edward Berlin, Washington, D.C., entered an appearance for petitioner Northern Environmental Council, Inc. in No. 73--2130.

Before WRIGHT, MacKINNON and ROBB, Circuit Judges.

Opinion for the court filed by Circuit Judge J. SKELLY WRIGHT.

Concurring and dissenting opinion filed by Circuit Judge maCKINNON.

J. SKELLY WRIGHT, Circuit Judge:

Petitioners seek review of the Federal Power Commission's Opinion No. 664, ¹ which held that the Commission has authority, under the relicensing section of the Federal Power Act, ² to grant a new long-term license or an interim annual license for FPC Project No. 108 despite the refusal of petitioner Lac Courte Oreilles Band of Lake Superior Chippewa Indians (the Band) to consent to further use by the licensee (intervenor Northern States Power Company (Northern States)) of tribal lands underlying the project. Petitioners also object to the Commission's issuance of annual licenses for Project No. 108 in 1972 and 1973. We hold that, under the circumstances of this case, the FPC was required to issue the annual licenses to the intervenor. In light of this disposition we hold that, pending the continuing administrative proceedings described below, ³ the question of the Commission's authority to license tribal lands notwithstanding tribal unwillingness to assent to such licensing is not ripe for review, although we believe the Commission premised its holding on an erroneous assumption and should therefore reevaluate its opinion, taking account of any relevant material being developed in the current proceedings.

I

Prior to expiration of the original license in 1971, Northern States filed with the FPC an application for a new license. No other license applications to operate Project No. 108 have been filed, although the United States Department of Agriculture, Forest Service, and the United States Department of the Interior have recommended that the United States take over, or 'recapture,' operation and maintenance of Project No. 108 pursuant to Section 14 of the Federal Power Act. ⁵ Petitioners, who intervened ⁶ in the hearings concerning the recapture-relicensing issue, ⁷ have expressed their desire for federal recapture of the project ⁸ while asserting their objections to Northern States' operation for eventual power generating purposes. ⁹

In petitioning to intervene before the Commission in the recapture-relicensing proceeding, the Band maintained that, pursuant to Section 16 of the Indian Reorganization Act of 1934, ¹⁰ it had the power to prevent any unwanted use of tribal lands by a Commission licensee, and that, since the existence and operation of Project No. 108 disrupted the Band's culture, affronted its respect for the environment, and prevented the growth of the Band's traditional staple, wild rice, it denied its permission for further use of its land for the project. Moreover, the Band claimed that issuance of any license over this denial would be contrary to the terms of the Treaty of 1854 which established the Lac Courte Oreilles Reservation; since the Commission purportedly could not therefore make the requisite finding under Section 4(e) of the Federal Power Act that 'the license will not interfere or be inconsistent with the purpose for which such reservation was created or acquired,' ¹¹ it allegedly lacked jurisdiction to issue a new license. Based on these assertions, the Band moved to restrict all future hearings on Project No. 108 to the issue of federal recapture, and to exclude any consideration of Northern States' application for a new license. The Commission denied this motion, ¹² and that ruling was not appealed.

During the course of these still pending recapture-relicensing proceedings, the Commission's secretary, acting pursuant to Section 15(a) of the Federal Power Act, ¹³ issued interim annual licenses to Northern States in August of 1971, 1972, and 1973. On September 1, 1972 the Band filed an application for rehearing concerning the secretary's public notice that the second of these annual licenses for Project No. 108 was issued to Northern States for the period August 8, 1972 to August 7, 1973. ¹⁴ In granting the motion for rehearing, the Commission directed the parties to submit briefs 'on the question of the jurisdiction of this Commission to issue both an annual license and a new license in Project No. 108 without the consent of the Lac Courte Oreilles Band.' ¹⁵ After this briefing was completed the Commission, on August 6, 1973, issued the third annual license to Northern States, conditioning the grant on the fact that should the Commission decide, based on the previously submitted briefs, that it did not have jurisdiction to issue such an annual license, the license would terminate as of the date of the Commission's opinion. On August 31, 1973 the Band applied for a rehearing with respect to issuance of that license, and on September 5, 1973 a similar application was filed by several intervenors. ¹⁶ These petitions repeated the substance of the claims made by the Band in the recapture-relicensing proceedings.

On September 14, 1973 the Commission issued Opinion No. 664, the subject of this appeal. In concluding that opinion, the Commission declared:

(A) In exercising the authority conferred upon it by section 15 of the Federal Power Act, the Commission may grant a new license or an annual license for Project No. 108, notwithstanding the unwillingness of the Lac Courte Oreilles Band of Lake Superior Chippewa Indians to consent to the use by the licensee of tribal lands underlying such project.

(B) The petition and application for rehearing, filed herein on September 1, 1972, and the applications for rehearing filed on August 31, 1973, and September 5, 1973, are denied. ¹⁷

However, the Commission explicitly stated that its opinion was not to be construed as indicating any predisposition on the issues of recapture and relicensing, or as a finding under Section 4(e) of the Federal Power Act that a new license could issue consistent with the purposes for which the reservation was established; ¹⁸ these issues are the subject of administrative hearings which, as already noted, are still pending.

Commissioner Moody nevertheless dissented, stating:

(W)e cannot, as a matter of law make the essential finding required by 4(e). By treaty and by statute, the Lac Courte Oreilles Band has been given sovereignty over tribal lands; this was, and continues to be, the 'purpose for which such reservation was created.' With the Band's unequivocal rejection of use of tribal lands by Northern States or any Commission licensee for power purposes, we have no lawful basis for the issuance of a license. ¹⁹

II

Section 15(a) of the Federal Power Act, 16 U.S.C. § 808(a) (1970), provides:

If the United States does not, at the expiration of the original license, exercise its right to take over, maintain, and operate any project or projects of the licensee, as provided in section 807 of this title, ²⁰ the commission is authorized to issue a new license to the original licensee upon such terms and conditions as may be authorized or required under the then existing laws and regulations, or to issue a new license under said terms and conditions to a new licensee, which license may cover any project or projects covered by the original license, and shall be issued on the condition that the new licensee shall, before taking possession of such project or projects, pay such amount, and assume such contracts as the United States is required to do in the manner specified in section 807 of this title: Provided, That in the event the United States does not exercise the right to take over or does not issue a license to a new licensee, or issue a new license to the original licensee, upon reasonable terms, then the commission shall issue from year to year an annual license to the then licensee under the terms and conditions of the original license until the property is taken over or a new license is issued as aforesaid.

(Emphasis added.) Defending its grant of annual licenses to Northern States under this provision, the Commission asserted:

In this proceeding, the conditions are met: the United States had not exercised its right to take over, and a new license has not been granted. The operative word is 'shall'. We had no option not to issue annual licenses in August 1971, 1972, and 1973 to the Northern States Power Company. * * * ²¹

In essence, petitioners argue that this literal interpretation of Section 15, which accords the FPC a purely ministerial and nondiscretionary function in the issuance of interim annual licenses, leads to incongruous results. Reasoning from the premise that the Treaty of 1854 and Section 16 of the Indian Reorganization Act do in fact accord the Band a veto power over undersired Commission licensing of its tribal lands, peti...