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Friends of the Cowlitz v. FERC



Two citizen groups, Friends of the Cowlitz and CPR-Fish, appealed an order by the Federal Energy Regulatory Commission (FERC) dismissing their request for enforcement action against the city of Tacoma (Tacoma). The Ninth Circuit dismissed the appeal because FERC’s prosecutorial discretion under the Federal Power Act (FPA)[1] allows the agency to reject third-party requests for investigation or enforcement.

Tacoma owns and operates hydropower dams on the Cowlitz River in southwestern Washington under a license granted by FERC in 1951. In response to fierce opposition to licensing of the dams in the 1950s, Tacoma agreed to mitigate damage to salmon runs. Accordingly, FERC included mitigation measures in Tacoma’s hydropower license. These measures are enforced by FERC and are legally binding in federal court. Third parties may also petition FERC to take enforcement action, and FERC’s denial of such a petition is appealable in federal circuit court. In this case, FERC denied Cowlitz and CPR-Fish’s petition for enforcement. The two groups appealed.

The petitioners argued that FERC’s dismissal of their enforcement petition without a hearing was arbitrary because FERC’s explanation did not correspond with the facts on record. In support of their claim, petitioners introduced evidence contradicting FERC’s assertion that Tacoma had constructed the necessary fishways. Petitioners further argued that Tacoma had violated the terms of an agreement made pursuant to an article of the FERC license that required Tacoma to cooperate with the Washington Department of Fisheries and Wildlife. Specifically, the petitioners alleged that Tacoma had violated this agreement by failing to meet targeted fish-return levels during preceding years and had failed to build a second hatchery to correct those deficits. In response, FERC pointed out that the agreement was never formally incorporated into the license, and therefore was not binding on Tacoma.

The court agreed with the petitioners that Tacoma had continuously violated its license to the detriment of fish stocks. In light of these material issues of fact, FERC’s dismissal of petitioners’ request for enforcement action violated the agency’s own summary judgment standard.[2] The court also rejected FERC’s argument that the agreement did not have binding effect, on the grounds that the agreement was the only manifestation of the cooperation between Tacoma and other agencies mandated by the license article.

Despite holding that FERC’s summary dismissal of the petitioners’ complaint was “plainly erroneous as a matter of law,” the Ninth Circuit dismissed the case rather than remanding the Commission’s order. [3] The court used the reasoning in the Supreme Court case Heckler v. Chaney[4] to conclude that even if Tacoma’s violations of the dam license were ongoing, FERC’s decision not to prosecute was an “agency action . . . committed to agency discretion by law” under the Administrative Procedure Act, and hence not subject to judicial review.[5] The petitioners’ argument that FERC at least had an obligation to investigate alleged license violations also failed because FERC’s investigatorial discretion is unreviewable for the same reason.

[1] 16 U.S.C. §§ 791-828c (2000).

[2] 18 C.F.R. § 385.217(b) (2001) (stating if there is “no genuine issue of fact material to the decision” then the Commission may “summarily dispose” of the complaint).

[3] Friends of the Cowlitz v. FERC, 253 F.3d 1161, 1169 (9th Cir. 2001), amended by 282 F.3d 609 (9th Cir. 2002).

[4] 470 U.S. 821, 832 (1985). “[A]n agency’s decision not to take enforcement action should be presumed immune from judicial review under [5 U.S.C.] § 701(a)(2).” Id.

[5] Administrative Procedure Act, 5 U.S.C. § 701(a)(2) (2000).

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