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Bangor Hydro-Electric Co. v. Federal Energy Regulatory Comm'n

ELR Citation: 26 ELR 20822
Nos. No. 95-1083, 78 F.3d 659/(D.C. Cir., 03/15/1996)

The court vacates a Federal Energy Regulatory Commission (FERC) order that required a hydropower facility to comply with a U.S. Department of the Interior (DOI) prescription to construct permanent upstream fish passages. The court first holds that FERC is the appropriate named respondent, even if DOI as intervenor is mounting the real defense, because the facility has been aggrieved by FERC's order. The court next denies DOI's motion to add to the record before the court. The U.S. Supreme Court stated in Escondido Mutual Water Co. v. La Jolla Band of Mission Indians, 14 ELR 20592 (1984), that a court of appeals must sustain conditions in a FERC license if they are consistent with the law and supported by the evidence presented to FERC. A FERC regulation states that when DOI submits a prescription it must specifically identify and explain the prescription and the evidentiary and legal basis for it. DOI, therefore, had no excuse for not including in the record before FERC any evidence DOI wished to rely on in the court of appeals. The court rejects, however, the hydropower facility's claim that FERC had a responsibility to inquire into DOI's internal decisionmaking process. Under the Federal Power Act, FERC performs primarily as a neutral forum responsible for compiling the record for the benefit of the court of appeals. The court next holds that DOI's prescription does not satisfy the Federal Power Act or Escondido. Although DOI asserts that a minimum of 315,000 adult alewives should be returned to upstream spawning areas in order to meet DOI's goal of a 2.3 million alewife run, data from other river systems indicate that there is no strong relationship between the rate of return—or escapement rate—and an alewife run. Also, the hydropower facility points out that the salmon run for the last 20 years has never exceeded 295 and that in 1992 only 4 salmon were caught at the fish trapping facility. Although an Atlantic States Marine Fisheries Commission management plan allegedly concluded that the escapement rate for alewives should be between 40 and 75 percent of an annual run in order to rebuild and increase the run, the plan is not in the record. In addition, the hydropower facility presented an expert's report that undermines DOI's opinion that a 315,000 escapement is justified. Therefore, DOI has not provided reasonable support for its escapement determination, and its prescription is not reasonably related to its goal.

Counsel for Petitioner
John A. Whittaker IV
Winston & Strawn
1400 L St. NW, Washington DC 20005
(202) 371-5700

Counsel for Respondent
Edward S. Geldermann
Federal Energy Regulatory Commission
825 N. Capitol St. NE, Washington DC 20426
(202) 208-0200

Before: SILBERMAN, BUCKLEY, and ROGERS, Circuit Judges.