Overton Power Dist. No. 5 v. Watkins

• Decision Date: 28 July 1993
• Docket Number: No. CV-S-92-860-PMP (RLH).,CV-S-92-860-PMP (RLH).
• Citation: 829 F. Supp. 1523
• Parties: OVERTON POWER DISTRICT NO. 5 and Valley Electric Association, Inc., Plaintiffs, v. James D. WATKINS, solely in his capacity as the Secretary of the United States Department of Energy; Linda G. Stuntz, solely in her capacity as the Deputy Secretary of the United States Department of Energy; J. Michael Davis, solely in his capacity as the Assistant Secretary for Conservation and Renewable Energy of the United States Department of Energy; and Federal Energy Regulatory Commission, Defendants.
• Court: U.S. District Court — District of Nevada

829 F. Supp. 1523

OVERTON POWER DISTRICT NO. 5 and Valley Electric Association, Inc., Plaintiffs, v.James D. WATKINS, solely in his capacity as the Secretary of the United States Department of Energy; Linda G. Stuntz, solely in her capacity as the DeputySecretary of the United States Department of Energy; J. Michael Davis, solely in his capacity as the AssistantSecretary for Conservation and Renewable Energy of the United States Department of Energy; and Federal Energy Regulatory Commission, Defendants.

No. CV-S-92-860-PMP (RLH).

United States District Court, D. Nevada.

July 28, 1993.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Melvin D. Close, Jones, Jones, Close & Brown, Las Vegas, NV, James T. McManus, Arnold B. Podgorsky, Wright & Talisman, Washington, DC, for plaintiffs.

C. Max Vassanelli, Dept. of Justice, Civ. Div., Washington, DC, for defendants.

Robert S. Lynch, Phoenix, AZ, Michael R. Pontoni, Las Vegas, NV, for amici curiae Arizona Customer Group.

James P. Bartlett, Phoenix, AZ, Michael N. McCarty, Ritts, Brickfield & Kaufman, Washington, DC, James V. Lavelle, III, Crockett & Meyers, Ltd., Las Vegas, NV, for intervenor Arizona Power Authority.

David W. Hagen, Guild & Hagen, Ltd., Reno, NV, for amici curiae, Dept. of Water and Power of the City of Los Angeles, Southern California Edison Co., and Metropolitan Water Dist. of Southern California.

James K. Hahn, City Atty., Edward C. Farrell, Chief Asst. City Atty. for Water and Power, Los Angeles, CA, Northcutt Ely, Redlands, CA, for amici curiae, Dept. of Water and Power of the City of Los Angeles.

Bryant C. Danner, Ann Cohn, Rosemead, CA, Northcutt, Ely, Redlands, CA, for amici curiae, Southern California Edison Co.

Karen L. Tachiki, Asst. Gen. Counsel, Diana Mahmud, Deputy Gen. Counsel, Los Angeles, CA, for amici curiae, Metropolitan Water Dist. of Southern California.

MEMORANDUM DECISION AND ORDER

PRO, District Judge.

I.INTRODUCTION

Plaintiffs Overton Power DistrictNo. 5 and Valley Electric Association, Inc.(referred to collectively as "Plaintiffs" or "Overton/Valley"), are resale power customers of the Colorado River Commission.On October 15, 1992, Overton/Valley brought this action under the Administrative Procedure Act,5 U.S.C. § 551, et seq., and the Boulder Canyon Project Act, 43 U.S.C. § 617, et seq., for review of a final Order of the Federal Energy Regulatory Commission("FERC"), which confirmed a rate charged for power produced at Hoover Dam by the Department of Energy, Western Area Power Administration.SeeUnited States Department of Energy Rate OrderNo. WAPA-49, 46 Fed.Reg. 28881(June 25, 1991).Western, a Power Marketing Administration within the Department of Energy, established the WAPA-49 rate for power sold from the Boulder Canyon Project.The WAPA-49 rate was approved by the Federal Energy Regulatory Commission, which is responsible for reviewing such power rates to determine their lawfulness.The rate is designed to recover the costs of generating power at the Hoover Dam.In its Complaint, Plaintiff Overton/Valley claims the WAPA-49 rate is excessive and seeks an Order of this Court declaring WAPA-49 arbitrary, capricious and an abuse of discretion and otherwise not in accordance with law.Plaintiffs seek an Order precluding Western from placing any new rates into effect until after it proposes and the Federal Energy Regulatory Commission approves the substitute rate for WAPA-49.

Currently before the Court for consideration are a variety of motions filed by parties to this action and other interested entities.

On December 22, 1992, DefendantsJames Watkins, Linda Stuntz, J. Michael Davis and FERC, hereinafter referred to as "Defendants", filed a Motion to Dismiss or in the alternative a Motion for Summary Judgment(# 44).Plaintiffs filed an Opposition (# 49) on January 6, 1993.Plaintiffs also filed a Motion to Strike declarations submitted in support of Defendants' Motion to Dismiss(# 48) on January 6, 1993.Defendants filed an Opposition to this Motion to Strike(# 54) on January 21, 1993, and Plaintiffs filed a Reply (# 61) on February 3, 1993.Defendants filed their Reply (# 55) to Plaintiff's Opposition to Defendants' Motion to Dismiss on January 21, 1993.Plaintiffs filed a Motion for Authorization to File a Surrebuttal to Defendants' Reply (# 63) on February 9, 1993.Intervenor Arizona Power Authority filed its Response to Defendants' Motion to Dismiss(# 50) on January 8, 1993.¹

Plaintiffs filed a Cross-Motion for Summary Judgment(# 46) on December 24, 1992.Defendants filed an Opposition to this motion (# 51) on January 8, 1993, and Plaintiffs filed their Reply (# 56) on January 25, 1993.Plaintiffs filed a Motion requesting oral argument (# 58) on January 27, 1993.

On February 2, 1993, the Department of Water and Power of the City of Los Angeles, Southern California Edison Company, and the Metropolitan Water District of Southern California("California Group") filed a Motion for Leave to file an Amicus Curiae brief(# 60).Plaintiffs filed an Opposition (# 64) on February 12, 1993.On March 2, 1993, the Arizona Customer Group² filed a Motion for Leave to file an Amicus Curiae brief(#79).No opposition has been filed.

Finally, Defendants filed a Motion to Bifurcate their Motion to Dismiss and Motion for Summary Judgment(# 53) on January 21, 1993.Plaintiffs filed an Opposition (# 59)January 27, 1993, and Defendants filed a Reply (# 63) on February 8, 1993.This Court held a hearing on the various Motions on July 16, 1993.

II.PRELIMINARY MOTIONS

A.The Briefs Filed Amicus Curiae (## 60 & 79)

"The privilege of being heard amicus rests solely within the discretion of the Court."In re: Roxford Foods Litigation,790 F.Supp. 987, 997(E.D.Ca.1991)(internal citations omitted).Although there are no prerequisites that must be met before qualifying for amicus status, seeid., historically, an amicus curiae is impartial and gives information about and an interpretation of the law.SeeTime Oil Co. v. Cigna Property & Cas. Ins. Co.,1990 U.S. Dist. LEXIS 15146 at *4(W.D.Wash.April 2, 1990)(citingLeigh v. Engle,535 F.Supp. 418, 420(N.D.Ill.1982)).

The Amicus Brief (# 60) filed by the California Group contains no citation to legal authority whatsoever.Furthermore, as Plaintiffs argue in their Opposition, the Amicus Brief merely restates arguments already posited by Defendants.Thus, the California Group's Motion for Leave to File a Brief Amicus Curiae (# 60) is denied.

A review of the amicus brief filed by the Arizona Power Group (# 79), however, urges another approach to the standing issue raised by the Defendants and considered by this Courtinfra.The brief contains many citations to legal authorities, and appears to be of help to this Court in reaching a just determination of the issues.Furthermore, this Court notes that no opposition to the Arizona Power Group's Motion (# 79) has been filed.Therefore, Arizona Power Group's Motion to File a Brief Amicus Curiae (# 79) is granted.

B.Motion To Bifurcate(# 53)

At the hearing conducted July 16, 1993, the Court denied Defendants' Motion to Bifurcate(# 53).

C.Motion To StrikeDefendants' Declarations (# 48)

Defendants have submitted six declarations in support of their Motion to Dismiss/Motion for Summary Judgment.They have also submitted two declarations in support of their Motion in Opposition to Plaintiffs' Motion to Dismiss.These declarations are sworn statements by various officials of the Western Area Power Administration ("Western") and the Bureau of Reclamation ("Reclamation").³Plaintiffs ask this Court to strike the declarations, because they assert that in reviewing the agency action at issue in this case, this Court is confined to the administrative record, and that it would be improper for this Court to consider post-hoc rationalizations of agency officials.

Generally, review of an administrative agency's action should be confined to the administrative record.See, e.g., AT & T Information Systems v. General Services Administration,810 F.2d 1233, 1236(DC Cir.1987).A court may, however, consider information outside the record, but only for "the limited purpose of background information or to determine whether the agency considered all of the relevant factors."Thompson v. U.S. Dep't of Labor,885 F.2d 551, 555(9th Cir.1989)."The administrative record consists of all documents and materials directly or indirectly considered by agency decisionmakers ..."Id.A court may also go outside the administrative record where it is necessary to aid in the Court's understanding of technical or complex subject matter.SeeFranklin Savings Ass'n v. Director, Office of Thrift Supervision,934 F.2d 1127, 1137(10th Cir.1991), cert. denied,___ U.S. ___, 112 S.Ct. 1475, 117 L.Ed.2d 619(1992)(citingAnimal Defense Council v. Hodel,867 F.2d 1244(9th Cir.1989)andAnimal Defense Council v. Hodel,840 F.2d 1432, 1436(9th Cir.1988)).

This Court relies on the submitted declarations inasmuch as they provide background explanation for the complex aspects of this case.This Court also relies upon the declaration of David G. Shelton, for the proposition that in calculating the WAPA-49 rate, Western did not take into account any deferral of Uprating Credits.SeePart V, Section C, infra.The determination of whether the calculation of WAPA-49 took such deferrals into account is an extremely complex task, and although this Court found nothing in the administrative record to indicate that WAPA-49 had in fact considered deferral of Uprating Credits, this Court notes that Shelton's explanation confirms this finding, and as such, relies on Shelton's declaration as an additional source of explanation.This is not a "post-hoc" rationalization of agency action, but rather evidence of the relevant factors considered and not considered by Western.SeeAT & T Information Systems, Inc.,810 F.2d at 1233(new material may be...