Arizona Power Pooling Ass'n v. Morton
Citation: 5 ELR 20708
No. Nos. 74-1167 et al., 527 F.2d 721/(9th Cir., 09/24/1975)
Plaintiff, a group of consumer-owned utilities, brought suit to gain the right to make a preferential bid, under the 1939 federal reclamation law, for federally-owned thermal electric power produced under the Colorado River Basin Act. The court of appeals reverses the district court's grant of summary judgment to defendants. The preference clause in the reclamation law clearly extends to federal sales of thermal as well as hydroelectric power, and surplus power includes "interim power," i.e., power available only pending completion of portions of the Central Arizona Project. By passing subsequent appropriations acts, Congress cannot be deemed to have ratified the Secretary of Interior's improper sale of the power in question to non-preference customers, for Congress was never informed that plaintiff and other potential preference customers had unsuccessfully sought to bid for the power. The Secretary's decision is not "committed to agency discretion" so as to be immune from judicial review under the Administrative Procedure Act. Although concededly unbounded in many respects, the Secretary's discretion is circumscribed by the mandatory language of the preference provision. The case is remanded with instructions to the district court to determine whether the Secretary abused his discretion in deciding not to offer this interim power to plaintiff.
Counsel for Plaintiff-Appellant
C. Emerson Duncan, II
Duncan, Allen & Mitchell
1775 K Street, N.W.
Washington, D.C. 20006
Michael A. Curtis
Meyers & Curtis
3003 N. Central Ave., Suite 1901
Phoenix, Ariz. 85012
James P. Bartlett
830 North First Ave.
Phoenix, Ariz. 85003
Counsel for Intervenor City of Bountiful, Utah
George K. Fadel
170 West Fourth Street
Bountiful, Utah 84010
Counsel for Defendants-Appellees
Department of Justice
Washington, D.C. 20530
William C. Smitherman, U.S. Attorney
5000 Federal Building
Phoenix, Ariz. 85025
Tuttle, J. for himself, Koelsch & Browning, JJ.