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Swinomish Tribal Community v. Federal Energy Regulatory Comm'n

Citation: 10 ELR 20628
No. Nos. 78-1659 et al., 627 F.2d 499/14 ERC 1705/(D.C. Cir., 06/20/1980)

The District of Columbia Circuit of Appeals upholds the Federal Energy Regulatory Commission's (FERC's) renewal of a license authorizing enlargement of the Ross Dam, a hydroelectric facility on the Skagit River in Washington. After disposing of petitioners' claim that the expiration of the original license for the facility rendered its renewal invalid, the court also rejects their arguments that the license was renewed in violation of § 4(e) of the Federal Power Act (FPA) and § 7(b) of the Wild and Scenic Rivers Act (WSRA). The former provision, which allows the Secretaries of Agriculture and the Interior to attach conditions to FERC licenses for projects affecting federal lands, was not raised before the Commission and thus may not be considered on judicial review pursuant to § 313 of the FPA. Notwithstanding the merit in petitioners' claim under § 7(b) of the WSRA, which allows the same Secretaries to block the licensing of projects deemed harmful to wild and scenic rivers, the court declines to decide the issue. Since FERC is now conducting two separate proceedings in which the FPA and the WSRA issues will be addressed, the court abstains from resolving them in light of prudential considerations. The court goes on to reject petitioners' contention that FERC illegally refused to reopen the administrative record when, three years after the record had been closed, the Department of the Interior proposed certain license conditions designed to maintain downstream water quality. In light of the tardiness of Interior's proposals as well as the wide discretion to which agencies are entitled in structuring their administrative proceedings, the court finds that FERC's decision to consider Interior's proposals in a separate proceeding was within its discretion. With respect to FERC's compliance with the National Environmental Policy Act, the court finds that the agency adequately investigated the effects of the project upon the Canadian environment. Since the International Joint Commission prepared a detailed study of such effects that was properly attached to FERC's environmental impact statement, there was no need to prepare a supplemental impact statement on the same matters. The court also finds that FERC adequately considered and rejected three alternative plans for the project, including increasing the height of the dam by 50 feet less than originally proposed, delaying the construction schedule, and developing alternate sources of power, such as conventional steam-electric power plants.

In dissent, Judge Wald states that FERC violated the FPA by failing to consider in the proceeding below whether the license amendment would damage downstream water quality or Indian fishing rights. She adds that FERC had inadequate grounds on which to reject the alternative of limiting the increase in the height of the dam.

Counsel for Petitioners
Robert C. Pelcyger, Lawrence A. Aschenberenner, Sharon K. Eads
Native American Rights Fund
1506 Broadway, Boulder CO 80302
(303) 447-8760

Bruce Terris, Edward H. Comer
1826 18th St. NW, Washington DC 20036
(202) 332-1882

Counsel for Respondent
Kristina Nygaard, McNeill Watkins II, David Boergers
Federal Energy Regulatory Commission, 825 N. Capitol St. NE, Washington DC 20426
(202) 357-8472

Counsel for Intervenor City of Seattle
Robert L. McCarty
McCarty & Noone
Suite 3306, 490 L'Enfant Plaza East, Washington DC 20024
(202) 554-2955

Counsel for Intervenor State of Washington
Charles B. Roe Jr., James M. Johnson, Robert E. Mack, Ass't Attorneys General
Temple of Justice, Olympia WA 98504
(206) 753-2550

Before: MacKINNON and WALD, Circuit Judges and PRATT,* United States District Judge for the District of Columbia