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Sierra Ass'n for Env't v. Federal Energy Regulatory Comm'n

Citation: 14 ELR 20830
No. No. 83-7054, 744 F.2d 611/(9th Cir., 10/16/1984) Amended

The court issues an amended opinion superseding the one appearing at 14 ELR 20531.

The court rules that an intervenor in a Federal Energy Regulatory Commission (FERC) hydropower licensing proceeding is not automatically entitled to a trial-type evidentiary hearing. The court first holds that petitioner, an unincorporated association, has standing to sue under federal law, and any lack of standing under stated law would be relevant only in a diversity action. The court then rules that neither the Administrative Procedure Act (APA), the Federal Power Act (FPA), nor due process requires FERC to hold a trial-type hearing in the case before it. The APA does not require trial-type procedures for adjudications unless such procedures are necessary for full and true disclosure of facts. Petitioner has failed to point out any material questions of fact that could be better resolved with trial-type procedures. The FPA does not require a trial-type hearing; the "paper hearing" that FERC conducted provided it with sufficient information to rationally exercise its discretion under the Act. The paper hearing also satisfied petitioner's due process rights. Finally, the court rejects as unproven petitioner's claim that FERC did not base its conclusions on substantial evidence.

Counsel for Petitioner
Glenn M. Kottcamp
616 P St., Fresno CA 93721
(209) 264-5000

Counsel for Respondent
Joseph Davies
Office of the Solicitor
Federal Energy Regulatory Commission, 825 N. Capitol St. NE, Washington DC 20425
(202) 357-8468

Counsel for Intervenor
Clifford W. Schultz
Kronick, Moskovitz, Tiedemann & Girard
Suite 900, 555 Capitol Mall, Sacramento CA 95814
(916) 444-8920

Before GOODWIN, PREGERSON and ALARCON1, Circuit Judges.