Save the Colo. v. Spellmon

• Docket Number: 21-1155
• Decision Date: 30 September 2022
• Citation: 50 F.4th 954
• Parties: SAVE THE COLORADO, a Colorado nonprofit corporation; the Environmental Group, a Colorado nonprofit corporation; WildEarth Guardians, a nonprofit corporation; Living Rivers, a nonprofit corporation; Waterkeeper Alliance, a nonprofit corporation; Sierra Club, a nonprofit corporation, Petitioners - Appellants, v. Lieutenant General Scott A. SPELLMON, in his official capacity as the Chief of the U.S. Army Corps of Engineers; Debra Haaland, in her official capacity as Secretary of the Interior; Martha Williams, in her official capacity as the Principal Deputy Director, exercising the authority of Acting Director of the U.S. Fish and Wildlife Service, Respondents - Appellees, and City and County of Denver, acting by and through its Board of Water Commissioners (Denver Water), Intervenor/Respondent - Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

50 F.4th 954

SAVE THE COLORADO, a Colorado nonprofit corporation; the Environmental Group, a Colorado nonprofit corporation; WildEarth Guardians, a nonprofit corporation; Living Rivers, a nonprofit corporation; Waterkeeper Alliance, a nonprofit corporation; Sierra Club, a nonprofit corporation, Petitioners - Appellants,

v.Lieutenant General Scott A. SPELLMON, in his official capacity as the Chief of the U.S. Army Corps of Engineers; Debra Haaland, in her official capacity as Secretary of the Interior; Martha Williams, in her official capacity as the Principal Deputy Director, exercising the authority of Acting Director of the U.S. Fish and Wildlife Service, Respondents - Appellees,andCity and County of Denver, acting by and through its Board of Water Commissioners (Denver Water), Intervenor/Respondent - Appellee.

No. 21-1155

United States Court of Appeals, Tenth Circuit.

FILED September 30, 2022

William S. Eubanks II (Matthew R. Arnold, with him on the briefs), Eubanks & Associates, PLLC, Washington, DC, for the Petitioners-Appellants.

Justin D. Heminger, Attorney, U.S. Department of Justice, Environment and Natural Resources Division (Todd Kim, Assistant Attorney General, U.S. Department of Justice, Environment and Natural Resources Division; Sara E. Costello and Ellen J. Durkee, Attorneys; Milton Boyd and Melanie Casner, Attorneys, U.S. Army Corps of Engineers; Kristen C. Guerriero, Attorney, U.S. Department of the Interior, with him on the briefs), Washington, DC, for the Respondents-Appellees.

Amanda Shafer Berman, Crowell & Moring LLP (David Y. Chung and Elizabeth B. Dawson, Crowell & Moring LLP; Jessica R. Brody and Nicholas A. DiMascio, Denver Water, Office of the General Counsel, with her on the briefs), Washington, DC, for the Intervenor-Respondent-Appellee.

Before BACHARACH, MURPHY, and CARSON, Circuit Judges.

BACHARACH, Circuit Judge.

This case arises out of a regulatory dispute involving a hydroelectric project. The project aimed to boost a municipality's water supply. To obtain more water, the municipality proposed to raise a local dam and expand a nearby reservoir. But implementation of the proposal would require amendment of the municipality's license with the Federal Energy Regulatory Commission, which was entrusted with authorization of all hydroelectric projects.

To raise the dam and expand the reservoir, the municipality would need to discharge fill material into the surrounding waters. These discharges would require a permit from the U.S. Army Corps of Engineers. So the municipality applied not only to the Federal Energy Regulatory Commission for amendment of the license, but also to the Army Corps of Engineers for a permit allowing discharge of fill materials into the surrounding waters.

The Corps was the first to act, granting a discharge permit to the municipality. A group of conservation organizations challenged the Corps’ decision by petitioning in federal district court. While the petition was pending, the Federal Energy Regulatory Commission allowed amendment of the municipality's license to raise the dam and expand the reservoir.

The Commission's amendment of the municipality's license triggered a jurisdictional question. Federal courts of appeals have exclusive jurisdiction over petitions challenging decisions made by the Federal Energy Regulatory Commission. 16 U.S.C. § 825l (b). Does this jurisdiction extend to challenges against the Corps’ issuance of a permit to allow discharges required for the modification of a hydroelectric project licensed by the Federal Energy Regulatory Commission?

The district court answered yes , but we disagree. The conservation organizations are challenging the Corps ’ issuance of a permit , not the Commission ’s amendment of a license . So the statute didn't limit jurisdiction to the court of appeals.

1. The municipality obtains a discharge permit from the Corps.

The Clean Water Act allows the Corps to issue permits for the discharge of dredge or fill material into navigable waters. Clean Water Act of 1972 § 404, 33 U.S.C. § 1344(a). To raise the dam and expand the reservoir, the municipality needed to put concrete in the dam's downstream and inundate nearby wetlands. So the municipality applied to the Corps for a permit to discharge material into the surrounding waters.

To issue the permit, the Corps had to comply with the National Environmental Policy Act. See, e.g. , Hillsdale Env't Loss Prevention, Inc. v. U.S. Army Corps of Eng'rs , 702 F.3d 1156, 1172–82 (10th Cir. 2012) (discussing the validity of the Corps’ analysis under the National Environmental Policy Act when issuing a discharge permit). This Act requires federal agencies to prepare environmental impact statements for "major [f]ederal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). Given this requirement, the Corps issued an environmental impact statement about the likely environmental consequences of discharges into the nearby waters.

The Corps also needed to comply with the Endangered Species Act, which requires federal agencies to protect species that are endangered or threatened. 16 U.S.C. § 1536(a)(2). To comply with the Act, the Corps consulted the U.S. Fish and Wildlife Service. These consultations led the Service to issue a biological opinion involving the green lineage cutthroat trout, viewing it as part of a larger protected species of greenback cutthroat trout. Based on this view, the Service determined that the project wouldn't endanger or threaten the green lineage cutthroat trout in the project area. But the Service changed its view four years later, viewing the green lineage cutthroat trout as a separate species that wasn't endangered or threatened. The change led the Service to (1) determine that its consultation was unnecessary and (2) withdraw its earlier biological opinion.

The Corps later granted a discharge permit.

2. The municipality applies to the Federal Energy Regulatory Commission for amendment of the license.

The municipality needed not just a discharge permit from the Corps but also amendment of its license from the Federal Energy Regulatory Commission. See 16 U.S.C. § 797(e). The Commission cooperated with the Corps and the Service to ensure compliance with the statutory requirements governing the project. This cooperation included

• helping the Corps to draft an environmental impact statement and

• participating in consultations with the Fish and Wildlife Service about possible effects on endangered or threatened species.

The Commission not only worked with other agencies but also issued its own supplemental environmental assessment to comply with the National Environmental Policy Act. See 40 C.F.R. § 1501.3. In this assessment, the Commission concluded that amendment of the municipality's license would not result in significant environmental damage.

After the Commission issued its supplemental environmental assessment, the conservation organizations moved to intervene in the Commission proceedings. When this motion was denied, the conservation organizations sought rehearing. The Commission denied rehearing, but noted that its proceeding would not affect the conservation organizations’ ability to challenge the Corps’ actions.

3. Challenging the Corps’ discharge permit, the conservation organizations sue in federal district court rather than in a federal court of appeals.

After the Commission denied rehearing, the conservation organizations petitioned the federal district court for review of the Corps’ issuance of a discharge permit. In the petition, the conservation organizations claimed that the Corps and Service had violated the National Environmental Policy Act, the Clean Water Act, and the Endangered Species Act; each claim also asserted a violation of the Administrative Procedure Act. The municipality intervened to side with the Corps and Service.

4. The district court orders dismissal for lack of subject-matter jurisdiction, concluding that jurisdiction existed only in the federal court of appeals.

After the petition had been pending in the district court for nearly two years, the Commission allowed the municipality to amend its license. This decision led the Corps, Service, and municipality to seek dismissal of the petition, arguing that the federal courts of appeals had exclusive jurisdiction over the petition. The district court agreed and ordered dismissal, prompting the conservation organizations to appeal.

5. The claim does not fit within the statutory provision granting jurisdiction to the court of appeals.

In their petition, the conservation organizations challenged the Corps’ issuance of a discharge permit, not the Commission's amendment of the municipality's license. Despite this framing of the challenge, the district court concluded that jurisdiction lay exclusively in the federal courts of appeals.

We conduct de novo review. Trackwell v. U.S. Gov't , 472 F.3d 1242, 1243 (10th Cir. 2007).¹ Through de novo review, we conclude that the district court misapplied the jurisdictional statute. The statute provides courts of appeals with exclusive jurisdiction over issues decided by the Commission itself. Here, though, the claims involve issues decided by the Army Corps of Engineers and the Fish and Wildlife Service, not the Federal Energy Regulatory Commission.

Generally, a party challenging an agency action must petition in federal district court. See Watts v. SEC , 482 F.3d 501, 505 (D.C. Cir. 2007) (stating that "the ‘normal default rule’ " requires parties challenging agency action to start in federal district court rather than in a federal court of appeals (quoting Int'l Bhd. of Teamsters v. Pena , 17 F.3d 1478, 1481 (D.C. Cir. 1994) )). But some statutes create exceptions by allowing the filing of a petition in a court of appeals. Id.

The Corps, Service, and municipality invoke such an exception, pointing to the Federal Power Act, which provides exclusive jurisdiction to the courts of appeals in challenges to orders...