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Hoopa Valley Tribe, Petitioner v. Federal Energy Regulatory Commission

December 28, 2010

HOOPA VALLEY TRIBE, PETITIONER
v.
FEDERAL ENERGY REGULATORY COMMISSION, RESPONDENT PACIFICORP, INTERVENOR



On Petition for Review of Orders of the Federal Energy Regulatory Commission

The opinion of the court was delivered by: Kavanaugh, Circuit Judge:

Argued September 21, 2010

Before: HENDERSON, BROWN, and KAVANAUGH, Circuit Judges.

Opinion for the Court filed by Circuit Judge

One of the modern U.S. government's major regulatory tasks is to reconcile competing demands on the Nation's natural resources. This case involves one small episode in that larger story. The dispute concerns water resources in the Pacific Northwest, where a hydroelectric plant provides power to some citizens but interferes with the food needs and recreational desires of others.

The Klamath Hydroelectric Project is located on the Klamath River in Oregon and California. The Project serves as a source of electricity for customers in a six-state area of the Pacific Northwest. From 1956 to 2006, a power company known as PacifiCorp operated the Klamath Hydroelectric Project pursuant to a 50-year license granted by the Federal Energy Regulatory Commission. Since the original license expired in 2006, PacifiCorp has operated the Project under successive annual licenses granted by FERC.

The Hoopa Valley Tribe of American Indians holds fishing rights in the Klamath River and subsists in part on the River's trout. In 2007, the Tribe requested that FERC impose conditions on PacifiCorp's annual licenses so as to preserve the Klamath River's trout fishery. FERC declined to do so. In this Court, the Tribe has challenged FERC's refusal as contrary to the Commission's regulations and precedents, and as unsupported by substantial evidence. We disagree and therefore deny the Tribe's petition.

I

The Klamath Hydroelectric Project consists of dams, reservoirs, and powerhouses along the Klamath River and one of its tributaries in Oregon and California. Since 1956, PacifiCorp has operated the Project pursuant to licenses granted by FERC - specifically, a 50-year license that expired in 2006 and annual licenses since then.

The Hoopa Valley Reservation is located in the Klamath River Basin, and the Klamath River flows through the Tribe's lands. Tribe members fish in the Klamath River, and the Tribe subsists in part on the River's trout.

Seeking to protect the River's trout fishery, the Tribe petitioned FERC to include new ramping rate and minimum flow requirements in PacifiCorp's annual licenses. (The ramping rate is the rate at which water levels rise or fall in the river due to project operations.) FERC decided that such interim conditions were not necessary and denied the Tribe's request. See PacifiCorp, Order Denying Motion for Interim were being asked to reopen the license." PacifiCorp, Order Denying Rehearing, 126 FERC ¶ 61,236, at ¶ 12 (2009). Under that standard, the Commission will impose conditions "[i]f, with the passage of time, a project is found to have unanticipated, serious impacts on . . . fishery resources." Id. ¶ 14; Ohio Power Co., Order Denying Requests for Rehearing, 71 FERC ¶ 61,092, at 61,314 n.43 (1995).

License Conditions, 125 FERC ¶ 61,196 (2008). The Commission found that the trout fishery was sustaining "certain adverse effects" from the Project but was "nevertheless thriving," and FERC concluded that the Project posed no risk of "irreversible environmental damage." Id. ¶¶ 13, 16.

The Tribe filed a petition for rehearing. In its denial of that petition, FERC explained that, absent the prospect of irreversible environmental harm from the licensed project, it examines "a request to impose interim conditions under the terms of the license essentially in the same manner as if [it]

Applying that "unanticipated, serious impacts" standard, FERC concluded that there were no such impacts here and that interim conditions were ...


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