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Rainsong Co. v. Federal Energy Regulatory Comm'n

ELR Citation: 27 ELR 20600
Nos. No. 93-71035, 106 F.3d 269/(9th Cir., 02/06/1997) decision at 26 ELR 20832 withdrawn

The court holds that the Federal Energy Regulatory Commission (FERC) failed to comply with §4(e) of the Federal Power Act (FPA) in denying an application for a license to build a hydroelectric power plant on Lena Creek in the Olympic National Forest. The court first holds that FERC properly interpreted §4(e) to require a threshold determination of whether a license would interfere with or be inconsistent with the purpose for which the forest was created before balancing developmental and nondevelopmental purposes in deciding to issue the license. FERC's interpretation accounts for the language, purpose, and structure of §4(e). The court next holds, however, that FERC's reliance on a U.S. Forest Service land resource management plan for the forest, which designated the creek area for recreation in the natural and undeveloped setting constitutes an impermissible interpretation of its statutory mandate. In relying on the forest management plan to make its determination of the purposes of the forest reservation, FERC interprets the National Forest Management Act as directing the Forest Service to determine the purpose for which a forest was created or acquired. The Forest Service, however, is legislatively mandated to manage the land, not to determine from time to time for what purpose the forest was created. The court then holds that after determining that a license would be consistent with a forest's purpose, §4(e) requires FERC to balance development and nondevelopmental purposes by giving equal consideration to the purposes of energy conservation; the protection, mitigation of damage to, and enhancement of fish and wildlife; the protection of recreation opportunities; and the preservation of other aspects of environmental quality. The court remands the license application so that FERC may make an independent determination as to whether the license will not interfere with or be inconsistent with the purpose for which the Olympic National Forest was created or acquired. The court withdraws its earlier decision published at 26 ELR 20832 (9th Cir. Mar. 19, 1996), which held that FERC should consider the development and nondevelopment factors as part of its consistency inquiry.

[The withdrawn decision is published at 26 ELR 20832.]

Counsel for Petitioner
Christopher D. Williams
7 N. Main St., San Andreas CA 95249
(209) 754-3883

Counsel for Respondent
Timm L. Abendroth
FederalEnergy Regulatory Commission
825 N. Capitol St. NE, Washington DC 20426
(202) 208-0200

Before Goodwin, Sneed, and Kleinfeld, JJ.