Snoqualmie Indian Tribe v. F.E.R.C.

• Citation: 545 F.3d 1207
• Decision Date: 07 October 2008
• Docket Number: No. 05-74060.,No. 05-72739.,05-72739.,05-74060.
• Parties: SNOQUALMIE INDIAN TRIBE, Petitioner, State of Washington Department of Ecology, Intervenor, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Puget Sound Energy, Inc., Intervenor. Puget Sound Energy, Inc., Petitioner, State of Washington Department of Ecology, Intervenor, v. Federal Energy Regulatory Commission, Respondent, Snoqualmie Indian Tribe, Intervenor.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

545 F.3d 1207

SNOQUALMIE INDIAN TRIBE, Petitioner, State of Washington Department of Ecology, Intervenor, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Puget Sound Energy, Inc., Intervenor.

Puget Sound Energy, Inc., Petitioner, State of Washington Department of Ecology, Intervenor, v. Federal Energy Regulatory Commission, Respondent, Snoqualmie Indian Tribe, Intervenor.

No. 05-72739.

No. 05-74060.

United States Court of Appeals, Ninth Circuit.

Argued February 8, 2007.

Submitted September 30, 2008.

Filed October 7, 2008.

Andrea Rodgers, Charles M. Tebbutt, Western Environmental Law Center, Eugene, OR, for petitioner Snoqualmie Indian Tribe.

Mark W. Schneider, Markham A. Quehrn, and Kristine R. Wilson, Perkins Coie LLP, Bellevue, WA, for petitioner/intervenor Puget Sound Energy, Inc.

John S. Moot, Robert H. Solomon, Michael E. Kaufmann, Washington, DC, for respondent Federal Energy Regulatory Commission.

Rob McKenna, Joan M. Marchioro, Olympia, WA, for intervenor Washington Department of Ecology.

Michael W. Gendler, Gendler & Mann LLP, Seattle, WA, for amici curiae Washington Association of Churches, the Church Council of Greater Seattle, and the Lutheran Public Policy Office of Washington State.

Harold S. Shepherd, Clinton, CO, for amicus curiae Center for Water Advocacy.

On Petition for Review of an Order of the Federal Energy Regulatory Commission. FERC Nos. 2493-016, 2493-027.

Before: RAYMOND C. FISHER and RICHARD C. TALLMAN, Circuit Judges, and DAVID A. EZRA,^* District Judge.

TALLMAN, Circuit Judge:

The Snoqualmie Tribe petitions for review of a decision of the Federal Energy Regulatory Commission ("FERC") granting Puget Sound Energy, Inc. ("PSE") a license to operate for another forty years the Snoqualmie Falls Hydroelectric Project. The Tribe argues that FERC's relicensing decision violates the Religious Freedom Restoration Act ("RFRA") because FERC employed the wrong legal standard for reviewing claims under RFRA and because substantial evidence does not support FERC's conclusion that the relicensing decision does not substantially burden the Tribe's free exercise of religion. The Tribe also asserts that FERC failed to consult with the Tribe on a government-to-government basis in violation of the National Historic Preservation Act ("NHPA"). PSE cross-petitions for review of FERC's decision to impose water flow requirements that exceed those established in the Washington State Department of Ecology's ("Ecology") water quality certification ("WQC").

We have jurisdiction under 16 U.S.C. § 825 l (b). After hearing argument in this appeal, we vacated submission pending publication of Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058 (9th Cir. 2008) (en banc). In reliance on that opinion, we now issue our decision in this case. We deny the petitions for review.

First, substantial evidence supports FERC's finding that the relicensing decision does not substantially burden the Tribe's free exercise of religion. Second, we conclude that, although FERC employed the wrong standard for analyzing RFRA claims, this error was harmless because FERC's standard was more generous to plaintiffs than the standard we have now articulated in Navajo Nation and the Tribe has failed to demonstrate a substantial burden that would meet the Navajo Nation standard. Third, because the record for purposes of NHPA § 106 consultation closed in 1997—before the Tribe gained federal recognition in 1999—FERC was not obligated to consult with the Tribe on a government-to-government basis. Finally, FERC's amendment of the license order's minimum instream flow provisions did not conflict with the conditions in Ecology's WQC and was supported by substantial evidence.

I

Snoqualmie Falls is a 268-foot waterfall about thirty miles east of Seattle on the Snoqualmie River as it flows down from the Cascade Mountains. If the Snoqualmie River flowed freely over the Falls, water flows in years of normal rainfall would exceed 1000 cubic feet per second ("cfs") eighty percent of the time.

Puget Sound Power and Light, predecessor to PSE, constructed a hydroelectric power plant at the Falls in 1898. The Federal Power Commission issued a license for the project in 1975. Puget Sound Power & Light Co., 53 F.P.C. 1657 (1975), 54 F.P.C. 157 (1975), 54 F.P.C. 599 (1975). The project consists of a low-level diversion dam located upstream from the Falls, an underground power plant, and an above-ground power plant downstream of the Falls, with a total generating capacity of 44.4 megawatts. Electricity produced by the project annually averages about 273,000 megawatt hours, depending upon rainfall. The 1975 license mandated that PSE maintain an instream flow of 100 cfs over the Falls during daylight hours.

The Falls is considered a sacred site by the few hundred enrolled members who today comprise the Snoqualmie Tribe. The Falls plays a central role in the Tribe's creation story and is an important location for its religious practices. The Tribe believes that the mist generated by the Falls connects the earth to the heavens and that a powerful water spirit lives in the plunge pool below the Falls. A 1993 article co-authored by anthropologist Kenneth Tollefson and sociologist Martin Abbott found that "[t]he Falls provides a place for contemporary Snoqualmie to gather to pray, to meditate, to worship, and to renew their contact with their ancestors and their spiritual powers." The Tribe performs religious ceremonies at the Falls, including "vision quests," often multi-day events in which individual tribal members seek spiritual contact through meditation, fasting, and bathing in the water below the Falls. The Falls has been designated as eligible for listing on the National Register of Historic Places as a Traditional Cultural Property.

On November 25, 1991, PSE filed an application with FERC for the relicensing of its hydroelectric project pursuant to the Federal Power Act, 16 U.S.C. §§ 791-828c. As required by the Clean Water Act, 33 U.S.C. §§ 1251-1387 ("CWA"), PSE also requested a WQC from the Department of Ecology. Ecology issued a WQC for the project on September 24, 2003. The WQC specified minimum water flows over the Falls, ramping rates, and water quality monitoring.

In evaluating PSE's license application, FERC considered several alternatives, including the proposed action (PSE's proposal to increase water diversion by an additional 1,500 cfs and to make major structural modifications), a minor upgrade (refurbishment of the existing project and a substantial increase in flows), and the Tribe's preferred alternative (decommissioning the entire project). FERC took the middle ground and ultimately recommended and licensed the minor upgrade.

As part of the NHPA § 106 process, PSE prepared and submitted a Cultural Resources Mitigation and Management Plan ("Cultural Plan") and a Historical Resources Mitigation and Management Plan ("Historical Plan") on February 26, 1996. On December 19, 1996, FERC filed a letter requesting the Advisory Council on Historic Preservation to sign the Programmatic Agreement, which implemented these plans, and indicated that the requirements of § 106 had been satisfied. On January 22, 1997, the Advisory Council signed the Programmatic Agreement, thus closing the record for purposes of NHPA § 106. The Snoqualmie Tribe did not achieve federal recognition until October 6, 1999. See Final Determination To Acknowledge the Snoqualmie Tribal Organization, 62 Fed.Reg. 45,864 (Aug. 29, 1997).

On June 29, 2004, FERC issued an order relicensing the project (the "License Order"). As required by § 401 of the CWA, 33 U.S.C. § 1341(d), FERC made compliance with the WQC a condition of the license. In the License Order, FERC adopted the minimum water flows established in the WQC except for requiring greater water flows during Labor Day weekend. The resulting mandated minimum flows, as set forth in Article 21 and Appendix A, were as follows: May 16-31: 200 cfs at all times; June 1-30: 450 cfs at all times; July 1-August 31: 100 cfs during daytime and 25 cfs during night-time (except weekends and holidays, which require 200 cfs at all times); September 1-May 15: 100 cfs during daytime and 25 cfs during nighttime (except Labor Day weekend, which requires 200 cfs during daytime).

On July 29, 2004, the Tribe filed a request for rehearing and stay of the License Order. On August 30, 2004, FERC temporarily granted rehearing for further consideration. On March 1, 2005, FERC issued an order partially granting and partially denying the Tribe's request and denying a stay (the "First Rehearing Order"). FERC revised Article 421 of the License to require 1000 cfs at all times during May and June, thus conforming the License to the higher minimum daytime flows recommended by FERC staff in the final Environmental Impact Statement ("EIS"). On April 28, 2005, the Tribe petitioned us to review the First Rehearing Order.

On March 31, 2005, PSE requested that FERC rehear the First Rehearing Order pursuant to 16 U.S.C. § 825 l (a). On June 1, 2005, FERC issued an order denying PSE's request for rehearing (the "Second Rehearing Order"). On July 8, 2005, PSE petitioned for review of the Second Rehearing Order.

We granted PSE's and the Tribe's motions to intervene in the petition for review proceedings. The Washington Department of Ecology was also granted intervention. We granted the parties' joint motion to consolidate the proceedings. This consolidated appeal challenges the Licensing Order, First Rehearing Order, and Second Rehearing Order (collectively, the "relicensing decision").

II

Under the Administrative Procedure Act, agency decisions may be set aside only if "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A); United States v. Bean, 537 U.S. 71, 77, 123 S.Ct. 584, 154 L.Ed.2d 483 (2002); High Sierra Hikers Ass'n v. Blackwell, 390 F.3d 630, 638 (9th Cir.2004). An agency's...