Nevada Power Co. v. Watt
| Decision Date | 16 June 1983 |
| Docket Number | 81-2143 and 82-1304,81-2066,COLORADO-UTE,Nos. 81-1944,s. 81-1944 |
| Citation | 711 F.2d 913 |
| Parties | , 15 Envtl. L. Rep. 20,821 NEVADA POWER CO., Plaintiff-Appellee, v. James G. WATT, Secretary of the Interior, Frank Gregg, Director of the Bureau of Land Management, and Paul L. Howard, Director of the Utah State Office of the Bureau of Land Management, Defendants-Appellants. PUBLIC SERVICE COMPANY OF COLORADO, Idaho Power Company, The Montana Power Company, Pacific Power & Light Company, Sierra Pacific Power Company, Southern California Edison Company, San Diego Gas and Electric Company, Plaintiffs- Appellees, and Cross-Appellants, v. James G. WATT, Secretary of the Interior, Frank Gregg, Director of the Bureau of Land Management, Dale R. Andrus, Director of the Colorado State Office of the Bureau of Land Management, Glendon E. Collins, Acting Director of the Arizona State Office of the Bureau of Land Management, James R. Ruch, Director of the California State Office of the Bureau of Land Management, Robert O. Buffington, Director of the Idaho State Office of the Bureau of Land Management, Michael J. Penfold, Director of the Montana State Office of the Bureau of Land Management, Edward Spang, Director of the Nevada State Office of the Bureau of Land Management, E.J. Petersen, Acting Director of the Oregon State Office of the Bureau of Land Management, Dell Vail, Acting Director of the Wyoming State Office of the Bureau of Land Management, Defendants- Appellants, and Cross-Appellees.ELECTRIC ASSOCIATION, INC., Plaintiff-Appellant, v. James G. WATT, Secretary of the Interior, Frank Gregg, Director of the Bureau of Land Management, Charles W. Luscher, Acting State Director of the Colorado State Office of the Bureau of Land Management, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Jacques B. Gelin, Atty., Dept. of Justice, Washington, D.C. (Carol E. Dinkins, Asst. Atty. Gen. and Dirk D. Snel, Steven A. Herman, Eleanor M. Granger, Attys., Dept. of Justice and Marcia C. Lipson, Atty., Dept. of the Interior, Washington, D.C., with him on the brief), for defendants-appellees.
Francis M. Shea, Washington, D.C. (Richard T. Conway, James R. Bieke and Patrick M. Hanlon, Washington, D.C., with him on the brief), Shea & Gardner, Washington, D.C., for plaintiffs-appellees and cross-appellants, Public Service Company of Colorado.
Bryant O'Donnell and James R. McCotter of Kelly, Stansfield & O'Donnell, Denver, Colo., Paul L. Jaurequi, Boise, Idaho, on the briefs for Idaho Power Co.
Robert E. Sullivan and Edward F. Bartlett, Butte, Mont., on the briefs for the Montana Power Co.
Richard D. Bach and Gail L. Achterman of Stoel, Rives, Boley, Fraser & Wyse, Portland, Or., on the briefs for Pacific Power & Light Co.
L. Earl Ligon, San Diego, Cal., on the briefs for San Diego Gas & Elec. Co.
Margaret A. Glodowski, Reno, Nev., on the briefs for Sierra Pacific Power Co.
John R. Bury and Tom P. Gilfoy, Rosemead, Cal., on the briefs for Southern California Edison Co.
Elliott Lee Pratt of Clyde, Pratt, Gibbs & Cahoon, Salt Lake City, Utah, for plaintiff-appellee, Nevada Power Co.
Stephen M. Mathis of Mathis & Koonce, P.C., Montrose, Colo., for plaintiff-appellant, Colorado-Ute Elec. Ass'n, Inc.
Before SETH, Chief Judge, and McWILLIAMS and SEYMOUR, Circuit Judges.
These consolidated appeals present a question of first impression concerning the reimbursement to the government of costs incurred in processing applications for rights-of-way under the Federal Land Policy and Management Act of 1976, 43 U.S.C. §§ 1701-1784 (1976 & Supp. V 1981) (FLPMA or Act). FLPMA authorizes the Secretary of the Department of the Interior to recover "reasonable costs" of processing applications for rights-of-way. FLPMA §§ 304, 310, 504(c), (g), 43 U.S.C. §§ 1734, 1740, 1764(c), (g).
Three district courts, in cases involving almost identical issues of fact and law, reached differing results on the central issue we must resolve here: whether the Secretary adequately considered the "reasonableness factors" listed in section 304(b) () in assessing "reasonable costs" of processing to applicants for rights-of-way across the public lands. In Nevada Power Co. v. Watt, No. 81-1944, and Public Service Co. v. Watt (PSC II), Nos. 81-2066 and 81-2143, district courts in Utah and Colorado, respectively, held that the Secretary must consider the 304(b) factors, and that he had failed to do so adequately. The Secretary appeals in both cases, and the appellees in PSC II raise additional issues on cross-appeal. In Colorado-Ute Electric Ass'n v. Watt, No. 82-1304, another judge in the District of Colorado held that the Secretary was not required by law to consider the factors, and Colorado-Ute appeals.
These appeals raise a number of fairly straightforward legal issues. Where possible, common issues will be discussed collectively. Significantly different factual and legal issues will be discussed individually.
Although our opinion primarily addresses Interior's cost-reimbursement practices under FLPMA, we must also consider cost-reimbursement under two earlier acts, the Independent Offices Appropriation Act (IOAA), 31 U.S.C. § 483a (1976), and the Public Land Administration Act (PLAA), 43 U.S.C. §§ 1371, 1374 (repealed 90 Stat. 2792 (1976)). Interior's FLPMA cost-reimbursement regulations had their genesis in regulations developed under the two earlier acts. The validity of the earlier regulations is raised for our examination in Colorado-Ute. We therefore discuss the development of the regulations under the earlier acts in order to provide the historical context for the FLPMA regulations and to facilitate our review of Colorado-Ute.
At all times pertinent to this appeal, federal policy has required persons seeking special permits to use the public lands to reimburse the government for costs incurred in processing their applications. Interior initially promulgated the cost reimbursement regulations here at issue in 1975, citing as authority, inter alia, Title V of the IOAA, 31 U.S.C. § 483a and sections 201 and 204 of the PLAA, 43 U.S.C. §§ 1371, 1374. 40 Fed.Reg. 17,841 (April 23, 1975); see 43 C.F.R. § 2802.1-2 (1975). The regulations provided that:
"An applicant for a right-of-way or a permit incident to a right-of-way shall reimburse the United States for administrative and other costs incurred by the United States in processing the application, including the preparation of reports and statements pursuant to the National Environmental Policy Act (42 U.S.C. 4321-4347), before the right-of-way or permit will be issued ...."
In January 1976, six western utility companies filed suit challenging the reimbursement regulations. The utilities sought declaratory and injunctive relief against application of the regulations on the grounds that the regulations exceeded the Secretary's statutory authority, and alternatively, that if the regulations were authorized, the statutes represented an unconstitutional delegation by Congress of the tax power. In Public Service Co. v. Andrus, 433 F.Supp. 144 (D.Colo.1977) (PSC I ), Judge Finesilver held that the IOAA and PLAA authorized Interior to recover costs only for services providing "special benefits to [applicants] beyond those which accrue to the public at large." Id. at 155. The judge found that environmental assessments and impact statements triggered by an application for a right-of-way were of general benefit to the public. Id. at 152-53. Because those studies did not "provide special benefits to [applicants] beyond those which accrue to the public at large," id. at 156, he held that their costs could not be charged to applicants. He enjoined Interior from enforcing the regulations "to the extent that they exceed the authority provided by" the PLAA and the IOAA. Id.
FLPMA became effective in October 1976. During the proceedings in PSC I, the plaintiffs moved to amend their complaint to challenge the regulations under FLPMA as well as the IOAA and the PLAA. The trial court denied the motion "[b]ecause the Secretary of the Interior has not yet interpreted the FLPMA nor, to [the court's] knowledge, issued regulations under it." Id. at 147 n. 2. Interior dismissed its appeal of PSC I on November 22, 1977, assertedly because FLPMA provided express new authority for cost reimbursement.
FLPMA directs Interior to promulgate rules and regulations to carry out the purposes of the Act. 2 FLPMA § 310, 43 U.S.C. § 1740. Prior to such rulemaking, existing rules and regulations were to continue in force to the extent practicable. Id. The Act specifically authorizes the Secretary to issue regulations concerning rights-of-way:
"The Secretary ... may, by regulation or prior to promulgation of such regulations, as a condition of a right-of-way, require an applicant for or holder of a right-of-way to reimburse the United States for all reasonable administrative and other costs incurred in processing an application for such right-of-way and in inspection and monitoring of construction, operation, and termination of the facility pursuant to such right-of-way ...."
Id. § 504(g), 43 U.S.C. § 1764(g). Section 304 gives the Secretary more explicit authority to charge persons for applications relating to the public lands, including those for rights-of-way.
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