Sierra Ass'n for Environment v. F.E.R.C., 83-7054

• Decision Date: 16 October 1984
• Docket Number: No. 83-7054,83-7054
• Citation: 744 F.2d 661
• Parties: 14 Envtl. L. Rep. 20,531, 14 Envtl. L. Rep. 20,830 SIERRA ASSOCIATION FOR ENVIRONMENT, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. Kings River Conservation District, Intervenor. Kings River Water Association, Intervenor.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 661

744 F.2d 661

14 Envtl. L. Rep. 20,531, 14 Envtl. L. Rep. 20,830

SIERRA ASSOCIATION FOR ENVIRONMENT, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent Kings River Conservation District, Intervenor Kings River Water Association, Intervenor.

No. 83-7054.

United States Court of Appeals, Ninth Circuit.

Argued Jan. 10, 1984.

Submitted Jan. 15, 1984.

Decided May 3, 1984.

As Amended Oct. 16, 1984.

Glenn M. Kottcamp, Fresno, Cal., for petitioner.

Arlene Pianko Groner, Washington, D.C., for respondent.

Clifford W. Schulz, Kronick, Moskovitz, Tiedemann & Girard, Sacramento, Cal., for intervenor.

Petition for review of an order of the Federal Energy Regulatory Commission.

Before GOODWIN, PREGERSON and ALARCON ¹, Circuit Judges.

GOODWIN, Circuit Judge.

Sierra Association for Environment (SAFE) petitions for review of a Federal Energy Regulatory Commission (FERC) order licensing a hydroelectric project. SAFE argues it is entitled to a trial-type evidentiary hearing before FERC to oppose the license.

In 1978 the Kings River Conservation District sought permission to construct a hydroelectric project in the Dinkey Creek area. The environmental report required by 18 C.F.R. Sec. 4.41(f) accompanied its application to FERC. In 1979 FERC gave notice of the application and eventually received comments from the State of California, the California Department of Parks and Recreation, and the United States Departments of Interior, Agriculture (Forest Service), and the Army. In September 1979, FERC allowed the California Department of Fish and Game, the Kings River Water Association, the Fresno Audubon Society, Pacific Gas and Electric Company, and SAFE to intervene.

FERC issued a draft environmental impact statement (EIS) in November 1979 and invited interested parties to intervene or to comment on the draft EIS before January 7, 1980. The United States Departments of Interior, Commerce, and Agriculture, California agencies, environmental groups, individuals, and SAFE made comments. FERC issued a final environmental impact statement in August 1980. The EPA, California agencies, and individuals commented on it. In November 1980, SAFE made additional comments reiterating its objections to FERC's environmental reports.

In April 1980, SAFE moved for a "concurrent evidentiary and public hearing" on the project. In October 1980, two days of non trial-type hearings were held in Fresno, California, to take public comments.

In the same month the Conservation District made agreements with the California Department of Fish and Game and the United States Forest Service which addressed environmental concerns of the two agencies.

In March 1982 FERC granted the Conservation District a license for the project. In November 1982 FERC denied SAFE's petition for rehearing.

1. Capacity to sue

Before argument the Conservation District moved to dismiss SAFE's petition for review, arguing that SAFE was suspended for a brief period as a California corporation, that during that period it lacked capacity to sue under California law, and that the statute of limitations ran during that period. The motion was denied. The Conservation District now insists that SAFE's lack of capacity under California law during the suspension negates our jurisdiction.

SAFE's ability under California law as a suspended California corporation to initiate suit would be relevant if this action were under our diversity jurisdiction. See Woods v. Interstate Realty Co., 337 U.S. 535, 69 S.Ct. 1235, 93 L.Ed. 1524 (1949); Fed.R.Civ.P. 17(b). But because this action arises under federal law, SAFE had capacity to sue as an unincorporated association, Fed.R.Civ.P. 17(b)(1), and any incapacity under California law is accordingly irrelevant.

2. Trial-type hearing

Under 16 U.S.C. Sec. 825g (Federal Power Act) in conjunction with 5 U.S.C. Sec. 554 (Administrative Procedure Act), this challenged hydroelectric licensing is an "adjudication required by statute to be determined on the record after opportunity for an agency hearing." Public Utility District No. 1 v. FPC, 242 F.2d 672, 678 (9th Cir.1957), quoting 5 U.S.C. Sec. 554(a).

SAFE wrongly maintains that Public Utility 's application of the Federal Power Act and the Administrative Procedure Act specifically requires a trial-type hearing in this case, i.e., one with witnesses under oath, cross-examination, and compulsory process, rather than just a hearing. In Public Utility, the holder of a preliminary permit for a hydroelectric project filed a petition seeking limitations in a proposed license in order to protect its site from encroachment. The Commission proceeded to issue the license without any hearing whatsoever on the ground that in an "agreement" filed by the petitioner with the Commission, the petitioner had waived its right to a hearing. In that case, "instead of proceeding in the usual manner," id. at 674, there was a "complete failure of the Commission ... to hold any hearing ...." Id. at 682.

In the instant case, rather than denying SAFE the opportunity to participate in the licensing proceedings before it, the Commission opened the proceeding to participation by SAFE and all other interested parties. Moreover, in issuing the license, the Commission carefully considered SAFE's submissions and responded to each of its comments. Where, as here, SAFE was in fact afforded a hearing on its claims, Public Utility is not sufficient precedent for setting aside the Commission's action.

After Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978), we cannot lightly impose additional procedural requirements on agency decision making. In addition to considering Public Utility 's application of the Federal Power Act and the Administrative Procedure Act, we have further examined the Administrative Procedure Act, the substantive statutes governing FERC's powers, and due process notions to determine whether any of them require greater procedural protection than was in fact accorded to SAFE. Because each of these potential sources of procedural requirements fails to yield any on the facts of this case, we decline to disturb FERC's order granting the license.

a. Administrative Procedure Act (APA)

Title 5 U.S.C. Secs. 554, 556, and 557, the APA sections applicable to adjudications, do not automatically require a trial-type hearing in this case. Title 5 U.S.C. Sec. 556(d) provides in part that

A party is entitled to present his case or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts.

SAFE had ample opportunity, of which it availed itself, to present evidence to FERC. SAFE is entitled to cross-examination only as required for a full and true disclosure of the facts. Central Freight Lines, Inc. v. United States, 669 F.2d 1063 (5th Cir.1982) (cross-examination is not an absolute right under 5 U.S.C. Sec. 556). SAFE has not explained how a trial-type hearing with cross-examination would have produced a fuller and truer disclosure of the facts than the paper hearing process employed. In response to SAFE's request for a trial-type hearing, FERC's order granting the hydroelectric license stated, "[t]hose material facts required for an informed decision on whether or not a license should be issued are not in dispute."

As a threshold matter, SAFE had the burden of tendering evidence suggesting the need for an adjudicatory hearing on particular material questions of fact. Costle v. Pacific Legal Foundation, 445 U.S. 198, 214, 100 S.Ct. 1095, 1105, 63 L.Ed.2d 329 (1980); Georgia-Pacific Corp. v. EPA, 671 F.2d 1235, 1241 (9th Cir.1982). We conclude that SAFE's contentions do not rest on particular material questions of fact. Rather, SAFE's objections appear to result from different assessments of environmental values, energy independence goals, and future energy prices. These assessments are, of course, very relevant to the wisdom of licensing the hydroelectric project; however, trial-type procedure is not helpful in resolving such value and policy conflicts. See Marathon Oil Co. v. EPA, 564 F.2d 1253, 1261 (9th Cir.1977) (correctly noting that APA procedures such as cross-examination are inappropriate for determinations resting on the "drawing of policy," but not recognizing that policy assessments may also be relevant outside of rulemaking procedures).

Title 5 U.S.C. Sec. 556(d) concludes:

In ... applications for initial licenses an agency may, when a party will not be prejudiced thereby, adopt procedures for the submission of all or part of the evidence in written form.

FERC was within its discretion in adopting a "paper hearing" procedure because SAFE has completely failed to point out the existence of any specific disputed fact that should appropriately be resolved through a trial-type proceeding. Thus, SAFE has wholly failed to indicate how it will be prejudiced by a "paper-hearing" process. Our decisions in Marathon Oil and Public Utility establish that SAFE is entitled to a hearing on the record. Our decision in Georgia-Pacific explains that this hearing must be a trial-type hearing only when disputed facts material to the contested agency decision exist.

It was not clear at oral argument whether SAFE had indeed requested hearings on "disputed facts" "material to the contested agency decision." FERC's only response to SAFE's allegations had been...