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Confederated Tribes & Bands of the Yakima Indian Nation v. Federal Energy Regulatory Comm'n

ELR Citation: 14 ELR 20593
Nos. Nos. 82-7561 et al., 746 F.2d 466/(9th Cir., 06/07/1984, 10/30/1984)

The court rules that the Federal Energy Regulatory Commission (FERC) violated the Federal Power Act (FPA), the Fish and Wildlife Coordination Act (FWCA), the Pacific Northwest Power Planning and Conservation Act (PNPA), and the National Environmental Policy Act (NEPA) by relicensing the Rock Island Dam on the Columbia River without first studying the dam's effects on fish, consulting with interested agencies and Indian tribes, and preparing an environmental impact statement (EIS). The court first rules that the Yakima are properly before the court even though they were not party to the original license proceeding. FERC apparently allowed their untimely intervention in the administrative appeal of the license order. They therefore were a party to the proceeding below, and entitled to petition for review. The National Wildlife Federation (NWF) alsomay not have been a party below. Since their petition raises no issues not raised by the other petitioners, and since NWF is an intervenor in the other petitions, the court dismisses NWS' petition as moot.

Turning to the merits, the court rules that FERC wrongly deferred consideration of the project's effect on fish until after licensing. FERC must make the same inquiries into fishery issues when reissuing a license as when issuing a new license. When issuing a new license, FERC must study the project's effect on the fishery resource and consider mitigative measures. In the instant proceeding, FERC failed to request a fish and wildlife report from the applicant, as its regulations require, and deferred study of fish issues to a consolidated proceeding governing fish protection measures for all the mid-Columbia River dams. These actions run counter to FERC's statutory mandate. Like NEPA, the FPA requires environmental studies be done before decisions are made. The consolidated study may be wise, but FERC should issue temporary, one-year licenses to the applicant until some study is complete, rather than a full-term license with a "reopener" clause to allow modification of the license in light of the consolidated study. The annual licenses could protect fish at least as well as the full-term license, and would give FERC broader discretion to implement the recommendations of the consolidated study, while also giving the licensee incentive to cooperate in the study. The court notes that on remand of the licensing proceeding, FERC will also have obligations under the FWCA and the PNPA.

The court holds that FERC violated its own regulations by failing to require a fish and wildlife report from the applicant and that FERC violated statutory duties by failing to consult with fishery agencies and Indian tribes prior to issuing the license. FERC may not waive the reporting requirement, since it is tied, not to a discretionary action, but to the agency's statutory duty to consider the fishery resource. To prepare the report under the regulation, the applicant would have had to consult with appropriate agencies. The FWCA and PNPA also impose consulting duties on FERC. FERC gave notice of the application to the agencies and tribes, but this notice did not fulfill FERC's affirmative obligation to consult.

Finally, the court holds that FERC should have prepared an EIS on the relicensing. FERC characterized the relicensing as continuation of the status quo, for which no EIS is normally required. Relicensing involves a new, irreversible and irretrievable commitment of a public resource and in that sense is kin to an original licensing for which an EIS is obviously required. The mid-Columbia River study is no substitute for an EIS since the study was not completed before FERC issued the license.

Counsel for Petitioners
Tim Weaver
Hovis, Cockrill & Roy
316 N. 3rd St., Yakima WA 98907
(509) 575-1500

Robert L. Klarquist, David C. Shilton
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2731

Terence L. Thatcher
National Wildlife Federation
519 SW 3rd Ave., Portland OR 97204
(503) 222-1429

Counsel for Respondent
Jerome M. Feit, Solicitor
Federal Energy Regulatory Commission, 825 N. Capitol St. NE, Washington DC 20426
(202) 357-8444

Before ANDERSON and FLETCHER, Circuit Judges, and EAST,* District Judge.