Amicus Brief — Escondido Mut. Water Co. v. La Jolla Band of Mission Indians

No. 82-2056

IN THE

Supreme Court of the United

OcToBEerR TERM, 1983

Office - Supreme Court, U.S

pe ee

FEB 28 1984

EX*NO® t 1S

ESCONDIDO MUTUAL WATER COMPANY, CITY OF ONDIDO,

ee

and

VISTA IRRIGATION DISTRICT,

Petitioners,

V.

La JOLLA, RINCON, SAN PASQUAL, PAUMA, and

PALLA BANDS OF MISSION INDIANS, and

THE SECRETARY OF THE INTERIOR,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF OF AMICI CURIAE

NATIONAL WILDLIFE FEDERATION, AMERICAN

RIVERS CONSERVATION COUNCIL, CALIFORNIA

TROUT, COLORADO WILDLIFE FEDERATION,

ENVIRONMENTAL DEFENSE FUND, ENVIRONMENTAL

POLICY INSTITUTE, FRIENDS OF THE

EARTH, FRIENDS OF THE RIVER, INC., IDAHO

ENVIRONMENTAL COUNCIL, IDAHO WILDLIFE

FEDERATION, IZAAK WALTON LEAGUE OF AMERICA,

INC., MONTANA WILDLIFE FEDERATION, NATIONAL

AUDUBON SOCIETY, NATURAL RESOURCES

DEFENSE COUNCIL, INC., OREGON WILDLIFE

FEDERATION, SIERRA CLUB, TROUT UNLIMITED,

VERMONT NATURAL RESOURCES COUNCIL,

WILDERNESS SOCIETY,

and WYOMING WILDLIFE FEDERATION

IN SUPPORT OF RESPONDENTS

PATRICK A. PARENTEAU

Counsel of Record

CHRISTOPHER H. MEYER

National Wildlife Federation

1412 Sixteenth Street, N.W.

Washington, D.C. 20036

202/797-6859

Attorneys for Amici Curiae

February 23, 1984

i

QUESTION PRESENTED

Whether the Federal Energy Regulatory Commission may

reject license conditions found necessary by federal land man-

agement agencies to mitigate damage to federal reservations

from private hydroelectric power projects located within such

reservations. *

* Issues before this Court but not addressed in this brief are identified at

3, n.2.

‘i

TABLE OF CONTENTS

cop

CPF REIS DP ORRIEEEES BEBOP cesecccccccnencvscnnssoessesseecenovonebeneess i

Fe I I EERE BD on cecccinseresssovsocevennsesipnvocccnnenseniess ii

EE Ee Fs CRORE BEI o- creteneccsccnonsnscsvenbovenctosensorneabe iv

INTERESTS OF AMICI CURIAE .............ccssccsssssssssseeeees 2

SUMMARY OF ARGUMENT. ...ccccccccccrsccscsevscseccscscsscsees 3

TTS ieccertiashecitiiteinetiniprenspnenecvieepintiemepimeseninnepens 4

I. THE PLAIN MEANING OF SECTION 4(e)

IS THAT THE CONDITIONS DEEMED NEC-

ESSARY BY FEDERAL LAND MANAGE-

MENT AGENCIES MUST BE INCLUDED

BY THE COMMISSION IN HYDROELEC-

ie EE ED icitcnntdenvieesensicitniscninesitveeseressneeses 5

II. THERE IS NO REASON TO DEPART FROM

THE PROVISION’S PLAIN MEANING............ 6

A. The Purported “Conflict” Petitioners Have

Discovered Between the Section 4(e¢) Pro-

viso and the Rest of the Federal Power Act

Is No Conflict at All, But Rather a Logical

Division of Authority ................:ccccceeseeeeseees 7

B. The Commission Has Construed a Vir-

tually Identical Provision of the Federal

Power Act as Limiting Its Authority to

Review Agency Conditions ...................0..+. 11

Congress Has Adopted a Similar Division

of Responsibility for Other Agencies .......... 14

Db. The Legislative History of the Federal

Power Act Affirms the Plain Meaning of

I EID ial ci heidi oe teninccsidieensecstinnietomices 15

E. The Reading of Section 4(e) Urged by

Developers and the Commission Would

Render the Provision a Nullity ................... 17

F. Developers Are Free To Challenge Any

Conditions Included by Interior Which

They Believe To Be Unreasonable ............. 18

III. THE COMMISSION’S INTERPRETATION

OF SECTION 4(e¢) SHOULD BE GIVEN NO

MORE DEFERENCE THAN INTERIOR’S

CONTRARY INTERPRETATION ............00000++ 20

Page

IIIT iis nialcshasth chistes daa pbcteniioncinsicaidepeietesibaantellliatian 21

APPENDIX A

Detailed Statement of Interests .................ccccsceeseeeees A-1

APPENDIX B

Letter to R. Max Peterson, Chief, U.S. Forest

rey REI BOI pervnctnsccecnesosidenincdstenennssacion B-1

Letter from R. M. Housley, Deputy Chief, U.S.

Forest Service, January 17, 1984 ..0........ccccccseeeeeees B-3

Letter from J. B. Hilmon, Acting Deputy Chief,

U.S. Forest Service, February 14, 1984 ................ B-5

iv

TABLE OF AUTHORITIES

CASES:

American Paper Institute, Inc. v. American Electric

Power Service Corp., 103 S.Ct. 1921 (1983) ............

Atchison, Topeka & Santa Fe Railroad Co. v. United

nL SEED MeL ENED © DMI BD wii iencetdstnthintacncborsectoscosones

Boston Sand Co. v. United States, 278 U.S. 41 (1928)

Church of the Holy Trinity v. United States, 143 U.S.

RIT ceccstdatcciicinsthiateshtahaeiai edb botibebecamncssivedsé vebuten

Consumer Product Safety Commission v. GTE Syl-

vania, Inc., 447 U.S. 102 (1980) .........cccccceeeseeeeeeeeees

Escondido Mutual Water Co. v. FERC, 701 F.2d 826

(9th Cir. 1983), Appendix to Petition at 31.............

FERC v. Mississippi, 102 S.Ct. 2126 (1982) .........000+5

First Iowa Hydro-Electric Cooperative v. FPC, 328

BO EE IED kid cicccisdtihineniniatppadenanpitetieeneestncceseccosenes

Maine v. Thiboutot, 448 U.S. 1 (1980) .........cccceeeeeeeee

McEnvoy v. United States, 322 U.S. 102 (1944) .........

Muller v. Oregon, 208 U.S. 412 (1907) ......ccccccceeeeeeeesee

Train v. Colorado Public Interest Research Group,

Seid GIN RENE Ie PEE Dt csdichiprrinctabepenninbeniiannchcermscensts

Udall v. FPC, 387 U.S. 428 (1967) ......csssessssssesseseeeesees

United States v. American Trucking Associations, 310

be RE ee een eee

United States v. Katz, 271 U.S. 354 (1925) ..........ccc00

Watt v. Alaska, 451 U.S. 259 (1981) .....ccccccccesseeseerees

Weinberger v. Hynson, Wescott and Dunning, Inc.,

EN OO C BTS D sincgthntciecsdntntgnicinquesingiciintipemesans

STATUTES:

Act of March 3, 1921, ch. 129, 41 Stat. 1353 (1921)...

Act of Sept. 11, 1976, Pub. L. No. 94-407, 90 Stat.

1238 (1976) (codified at 16 U.S.C. sh 1273(a),

1278(a) (1982)) eostibeeceenensstngpenvocessondoteanons

Administrative Procedure Act §§ 5, 7, 8. ‘5 U.S.C.

Se i, Ses SEO UTE paschntiteinitsvnntasaneicqeuvactascustndans

Administrative Procedure Act § 10(e), 5 U.S.C.

§§ 706(2)(A)-706(2)(E) (1982) ....cecccecceeeeeeeee

rH

a

17

18-19

Department of Energy Organization Act, 42 U.S.C.

SS 7134, TISL, FETE TUTE Cees d saeeiscedercemntettes

Energy Security Act of 1980 § 408, Pub. L. No. 96-

294, 94 Stat. 611 (1980) (codified at 16 U.S.C.

FB HOG, BIOS (BSGED cctccscreamsnsthpieensinndaeiniates

Federal Power Act §3(2), 16 U.S.C. § 796(2)

Se Se EE AS ey BS

Federal Power Act §4(e), 16 US.C. § 797(e)

CHRIS Pcnsncscepncinscssevicsenconpenaicaiainaaaaatanniiie

Federal Power Act §4(f), 16 US.C. § 797(f)

( BIGZ) ecccccsvvesinsessesesmpepnncnieutadaiiiamaiaanaiiaiies

€ TSGEB ) ecvecocesonscosencccosnencusentieninesstaniiigantanvetaiaaiabmesainl

C EDEEE ) nccnccnstssetiasenstssiessctsemmnetipammdiaaiameiliaialaiiss

Federal Power Act § 15, 16 U.S.C. § 808 (1982).........

Federal Power Act §23(b), 16 U.S.C. § 817(b)

C BSB ) cccenscscecestsnninintastneniitghieeasaiaiaammaia amie ciate

Federal Power Act § 30, 16 U.S.C. § 823a (1982)......

Federal Power Act § 313(b), 16 U.S.C. § 825/(b)

C TGGEB ) sccsccnsensacocstessiscntpisiiakaniaatmalan amen

Federal Water Power Act of 1920, ch. 285, 41 Stat.

1063 (1920)........ Sececnenssinddintanniimaiaaaaaa aaa

Fish and Wildlife Coordination Act, 16 U.S.C.

SE 661-GEN GS) C RODD Dec reccsctstctctatctnisssnrnbaptivtiideessands

Forest and Rangeland Renewable Resources Plan-

ning Act of 1974, Pub. L. No. 93-378, 88 Stat. 476

feces (codified at 16 U.S.C. §§ 1600-1687

€ BSG ) ) cecccndqorscctsisnmasnescenentipeanlansssentsabionminsasaastnaiaien

Hells Canyon National Recreation Area Act,

$§ 3(a), 4, Pub. L. No. 94-199, 89 Stat. 1117

(1975) (codified at 16 US.C. §§ 460gg-2,

1274(a)( 12) (1982))

Mineral Leasing Act for Acquired Lands of 1947, 30

U.S.C. §§ 351-359 (1976 & Supp. V 1981) .............

Mineral Leasing Act of 1920, 30 U.S.C. §§ 181-287

(1976 & Supp. V 1981)

Mission Indian Relief Act of 1891, ch. 65, 26 Stat.

ri fo, ) ERIN,

3, 11-14

19

16-18

11, 12

10

National Forest Management Act of 1976, Pub. L.

94-588, 90 Stat. 2949 (1976) (codified at 16

U.S.C. $8 1600-1687 (1982) ) ou... eceeeeeeeeeeeeeee

Power Act Amendments of 1930, ch. 572, 46 Stat.

Pe i ccegiliilaitisenediehditisinadadiecimiuiencdetebsecenvenvtnnions

Power Act Amendments of 1935, ch. 687, 49 Stat.

iach cic harshatennisphnnasessoveessocssseehseghieemienpence

Public Utility Regulatory Policies Act of 1978, Pub.

L. No. 95-617, 92 Stat. 3117 (1978) (codified at

16 U.S.C. §§ 2601-2708 (1982) ) occ ceeeeeeeeeee

ADMINISTRATIVE DECISIONS:

Dryden Hydro Associates, Project No. 7030-001, 26

FERC 7 61,135 (Feb. 6, 1984)..............cccsscccsssroessoes

Duncan Miller, 79 Interior Dec. 416 (1972) .............4.

Fall Creek Associates, Project No. 7082-000, 25

FERC ¥ 62,092 (Oct. 24, 1983) ..........cscccssscssssceeseees

Great Northern Hydro Co., Project No. 7038-000, 25

FERC 4 62,287 (Dec. 5, 1983) ..........scsccsssscessessessees

Hydro-Cor, Inc., Project No. 7176-000, 25 FERC

Be BID Srcicicabibicciensnertverensemeenesesnes

Lester Kelley, et al. Project Nos. 6442-000, et al., 25

PERC F 61,410 (DGC. 22, 1963) | cccsecocccvvcssesesccccessacee

Mountain West Hydro, Inc., Project No. 7134-000, 25

FERC 4 62,056 (Oct. 18, 1983) ..........ccccsscccssscesseees

Sallie B. Sanford, 22 Interior Board of Land Appeals

Ban cigs chincdiociahigsabbdetieijakedeienstitseneanpiadeastanmocionse

Sierra Pacific Power Company, Project Nos. 4161-

000, 4162-000, 4163-000, 4164-000, 19 FERC

ET a, CONE B hddindiinicteninimsnsientedpimenvestnipabernisoveines

Southern Pacific Land Company, Project No. 5585-

000, 19 FERC § 61,297 ( 1982) ...........cscssscesseessssess

Swanson Mining Corporation and Walter M. Gleason,

Project No. 5677-000, 20 FERC 4 61,226 (1982)...

REGULATIONS:

Conduit Exemption Rules, 18 C.F.R. § 4.94 (1983)...

Preamble to Five Megawatts or Less Exemption

Rules, 45 Fed. Reg. 76,115 (1980) ..........cccccscceeseeees

Protest and Intervention Rules, 18 C.F.R.

eS By ae AE 0 EE Pcticepiien eeccancdecviatberinarese

CONSTITUTION:

Commerce clause, U.S. Const. art. I, § 8, cl. 3..............

Property clause, U.S. Const. art. IV, § 3, cl. 2 ..............

TREATISE:

C. D. Sands, 2A Sutherland Statutes and Statutory

Construction § 45.12 (4d ed. 1973) ..cecceeceeseeeeeeees

MISCELLANEOUS:

Environmental Unit to Review Procedure to Assess

Hydro Impact, Monitor, Vol. III, No. 20, at 1 (Oct.

BE RR ce En aR aE

Joint Petition of the National Marine Fisheries Ser-

vice and the Tulalip Tribes of Washington for

Coordination of Proceedings, for Development of

Data, and for Hearing, Project Nos. 4218 et al.

(filed Feb. 22, 1983) ..............02. ett glghersseessecsseesneenes

Land Areas of the National Fotest System, U.S.

Department of Agriculture, Forest Service, FS-383,

EG Ree D etctteancilte isan dbianariinttpestnsnectbanrinecie

Letter from J. B. Hilmon, Acting Deputy Chief, U.S.

Forest Service (Feb. 14, 1984) .............cccccccscsssssseees

Letter from R. M. Housley, Deputy Chief, U.S.

Forest Service (Jan. 17, 1984) .0..........cccccccccessssssseees

Letter to R. M. Peterson, Chief, U.S. Forest Service

SI ip IO hereetiicensissictliss Rade esedinnsnnithvekdseaencabingetoptes

Memorandum of O. C. Merrill, Chief Engineer, For-

—— at 6 (Oct. 31, 1917), Joint Appendix at

i tibsiiicataenchepusnnpsthsclidalpinicinichassegebivienptibanntoamlecs

Se Pc rtihipnsinersiececsnibtccdessepoteninhuitnigeniiovmctitiasinsenubtietbe

Statement of Secretary Houston, Hearings on Water

Power Before the House Committee on Water

Power, 65th Cong., 2nd Sess., at 676-77 (1918) .....

The Twelve License Conditions, Joint Appendix at

218-242, Commission’s Brief at Sa-lla ................0+

ia

17

16-17

IN THE

Supreme Court of the Bnited States

OcToOBER TERM, 1983

No. 82-2056

ESCONDIDO MUTUAL WaTER COMPANY, CITY OF ESCONDIDO,

and

VISTA IRRIGATION DISTRICT,

Petitioners,

Vv.

La JOLLA, RINCON, SAN PASQUAL, PAUMA, and

PALLA BANDS OF MISSION INDIANS and

THE SECRETARY OF THE INTERIOR,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF OF AMICI CURIAE

NATIONAL WILDLIFE FEDERATION, AMERICAN

RIVERS CONSERVATION COUNCIL, CALIFORNIA

TROUT, COLORADO WILDLIFE FEDERATION,

ENVIRONMENTAL DEFENSE FUND, ENVIRONMENTAL

POLICY INSTITUTE, FRIENDS OF THE

EARTH, FRIENDS OF THE RIVER, INC., IDAHO

ENVIRONMENTAL COUNCIL, IDAHO WILDLIFE

FEDERATION, IZAAK WALTON LEAGUE OF AMERICA,

INC., MONTANA WILDLIFE FEDERATION, NATIONAL

AUDUBON SOCIETY, NATURAL RESOURCES

DEFENSE COUNCIL, INC., OREGON WILDLIFE

FEDERATION, SIERRA CLUB, TROUT UNLIMITED,

VERMONT NATURAL RESOURCES COUNCIL,

WILDERNESS SOCIETY,

and WYOMING WILDLIFE FEDERATION

IN SUPPORT OF RESPONDENTS

2

INTERESTS OF AMICI CURIAE

Pursuant to Supreme Court Rule 36.2, the National Wild-

life Federation, American Rivers Conservation Council, Cali-

fornia Trout, Colorado Wildlife Federation, Environmental

Defense Fund, Environmental Policy Institute, Friends of the

Earth, Friends of the River, Inc., Idaho Environmental Council,

Idaho Wildlife Federation, Izaak Walton League of America,

Inc., Montana Wildlife Federation, National Audubon Society,

Natural Resources Defense Council, Inc., Oregon Wildlife

Federation, Sierra Club, Trout Unlimited, Vermont Natural

Resources Council, Wilderness Society, and Wyoming Wildlife

Federation file this brief as amici curiae in support of respond-

ents. Letters of consent from counsel for the parties have been

filed with the Clerk.

The members of amici curiae organizations use the nation’s

rivers on national forests and other federal reservations for

fishing, hunting, canoeing, kayaking, rafting, swimming, camp-

ing, bird watching, photography, and other forms of recreation.

Many of these streams and rivers will be adversely affected by

hydroelectric power development. However, far from opposing

all hydroelectric development, amici curiae have actively sup-

ported the balanced development of this renewable resource.'

Amici curiae see the environmental safeguards at stake in this

litigation as critical to the maintenance of that balance.

A more detailed statement regarding the interests of amici

curiae is set out as Appendix A to this brief.

‘ For example, several of amici curiae filed briefs in this Court as amici

curiae in support of the constitutionality of the Public Utility Regulatory

Policies Act of 1978, Pub. L. No. 95-617, 92 Stat. 3117 (1978) (codified at 16

U.S.C. §§ 2601-2708 (1982)) (the Act provides incentives to encourage

retrofiting of existing dams for power production), in FERC v. Mississippi,

102 S.Ct. 2126 (1982), and in support of the Federal Energy Regulatory

Commission's “avoided cost” rule implementing the Act in American Paper

Institute, Inc. v. American Electric Power Service Corp., 103 S.Ct. 1921

(1983).

3

SUMMARY OF ARGUMENT

The principle issue in this case is a straightforward ques-

tion of statutory construction arising under the Federal Power

Act (“FPA” or “the Act”).2 The FPA charges the Federal

Energy Regulatory Commission (“Commission”)? with the

task of licensing ¢ virtually all non-federal hydroelectric power

production in the nation.5 In most instances the Commission

has the final say (subject, of course, to judicial review) with

regard to all issues affecting the license.

In granting this broad authority to the Commission, how-

ever, Congress carved out an important exception. Section 4(e)

2 This brief addresses the scope of the conditioning authority in section

4(¢) of the Federal Power Act, 16 U.S.C. § 797(¢) (1982). This provision,

invoked here by the Department of the Interior to secure certain protections

for respondent Indian Bands, is the same authority utilized by that depart-

ment and other federal agencies »> secure environmental mitigation for

hydroelectric projects located on national forests and other federal reserva-

uons. ( The term “reservations”, as defined in the FPA, encompasses national

forests and other withdrawn and acquired lands of the United States, except

for national parks which receive protection under another statute. See this

brief at 5, n.8.) The critical issue to am‘ci curiae is the mandatory nature of

the 4(¢) conditioning authority. Of less practical concern, in the view of amici

curiae, is the reach of that authority beyond the physical confines of the

federal reservation. Consequently, amici curiae take no position on the

question of whether a “reserved water right” is a “reservation” under the

FPA. Nor do they address questions in this case relating to the rights of the

Indian Bands under treaties, the Federal Power Act, 16 U.S.C. §§ 791a-825r

(1982), the Mission Indian Relief Act of 1891, ch. 65, 26 Stat. 712 (1891),

and other applicable law.

3 The term “Commission” refers both to the Federal Energy Regulatory

Commission and its predecessor, the Federal Power Commission. See

Department of Energy Organization Act, 42 U.S.C. §§ 7134, 7151, 7171-7177

(1982).

“FPA $§ 4(e), 15, 23(b), 16 U.S.C. §§ 797(e), 808, 817(b) (1982).

The Commission also issues preliminary permits (which secure an applicant's

priority for a subsequent license), FPA § 4(f), 16 U.S.C. § 797(f) (1982),

and exemptions from licensing requirements, FPA § 30, 16 U.S.C § 823a

( 1982); Public Utility Regulatory Policies Act §§ 405, 408, 16 U.S.C. §§ 2705,

2708 ( 1982).

5 This licensing authority extends to all projects reached by the federal

regulatory power under the commerce and property clauses of the Con-

stitution. FPA § 4(¢), 16 U.S.C. § 797(e) (1982); U.S. Const. art. 1, § 8, cl.

3; U.S. Const. art. IV, § 3, cl. 2.

4

of the Act—the same section which empowers the Commission

to license projects—contains the following limitation:

Provided, That licenses . . . within any reservation .. .

shall be subject to and contain such conditions as the

Secretary of the department under whose supervision

such reservation falls shall deem necessary for the

adequate protection and utilization of such reserva-

tion.

FPA § 4(e), 16 U.S.C. § 797(e) (1982).

The question in this case is simple. Does this statutory

language “mean[] what it says’? Maine v. Thiboutot, 448

U.S. 1, 4 (1980). Or, as petitioners would have it, should the

Court “improve” upon the scheme laid out by Congress, and

read into these words a new meaning such that the Commis-

sion—rather than the agencies charged with managing our

federal reservations—becomes the arbiter of how much

environmental protection is necessary?

ARGUMENT

This case arose over a diversion of water from the San Luis

River in California. Petitioners Escondido Mutual Water

Company, City of Escondido, and Vista Irrigation District

(hereinafter “developers”) sought relicensing ® of an irrigation

project which produces some incidental hydroelectric power.

The Department of the Interior (“Interior”) sought to attach

certain conditions to the license to protect the interests of

respondents La Jolla, Rincon, San Pasqual, Pauma, and Palla

Bands of Mission Indians. Developers objected to the condi-

tions, and the Federal Energy Regulatory Commission (““Com-

mission”) rejected ten out of twelve of Interior’s conditions.’

* Developers initially sought relicensing of the project. However, the

Commission decided to issue another “original” license because the scope of

the project was substantially changed from that of the first license. This had

the effect of mooting a dispute over whether the section 4(¢) conditioning

authority attaches to renewed as well as original licenses.

7 Joint Appendix at 218-242, Commission's Brief at Sa-lla. The

Commission's brief incorrectly identifies Interior's conditions 10, 11, and 12 as

conditions 9, 10, and 11, respectively.

5

The case has grown into much more than a dispute over

ten rejected conditions. The Commission maintains that In-

terior may not impose, but may only recommend to the

Commission, conditions on the licenses it issues. If that is so,

then neither may any other federal land management agency

(hereinafter “land manager”) impose conditions it finds neces-

sary to protect those federal reservations ® it is charged by

Congress with managing.®

I. THE PLAIN MEANING OF SECTION 4(e) IS THAT

THE CONDITIONS DEEMED NECESSARY BY FED-

ERAL LAND MANAGEMENT AGENCIES MUST BE

INCLUDED BY THE COMMISSION IN HYDRO-

ELECTRIC LICENSES.

The dispute turns on the meaning of the following sen-

tence. “[Ll]icenses . . . within any reservation . . . shall be

subject to and contain such conditions as the Secretary of the

department under whose supervision such reservation falls shall

deem necessary for the adequate protection and utilization of

such reservation.” Federal Power Act (“FPA” or “the Act’)

§ 4(e), 16 U.S.C. § 797(e) (1982) (emphasis added).

There is no disagreement among the parties to this case as

to the plain meaning of these words. Federal land managers

® Under the Federal Power Act, “reservations” is defined to include

“national forest, tribal lands embraced within Indian reservations, military

reservations, and other lands and interests in lands owned by the United

States, and withdrawn, reserved, or withheld from private appropriation and

disposal under the public land laws; also lands and interests in lands acquired

and held for any public purpose; but shall not include national monuments or

national parks”. Federal Power Act § 3(2), 16 U.S.C. § 796(2) (1982).

National Parks are excluded from the section 4(¢) provision because they

receive special protection under a separate statute prohibiting the construction

of hydroelectric power projects within them, Act of March 3, 1921, ch. 129, 41

Stat. 1353 (1921).

® Conservationists’ greatest concern is with national forest lands covering

over 190 million acres, Land Areas of the National Forest System, U.S.

Department of Agriculture, Forest Service, FS-383, at 1 (1983). It is

estimated that in the next decade, 3,000 hydroelectric projects will be

proposed for licensing on these lands alone. Letter of J. B. Hilmon, Acting

Deputy Chief, Forest Service, to Christopher H. Meyer (Feb. 14, 1984) set

out in Appendix B at B-5.

6

are charged under the FPA with determining which conditions

are “necessary for the adequate protection and utilization” of

federal reservations. The Commission’s role in this respect is

purely ministerial: it “shall” incorporate such conditions in any

license it issues.’ Indeed. the Commission appears to concede

in its main brief that, if the plain meaning of section 4(e)

governs, the decision of the Ninth Circuit on this question must

be affirmed."'

Il. THERE IS NO REASON TO DEPART FROM THE

PROVISION’S PLAIN MEANING.

In urging the adoption of the p.-in meaning of section

4(e), amici curiae conservation organizations (“conserva-

tionists”) do not contend that the Court is prohibited from

scrutinizing the legislative history behind the Act.'? The issue

is not whether extrinsic evidence may be explored, but what

happens when that exploration proves fruitless. On this point

the law is also clear. “Absent a clearly expressed legislative

intention to the contrary, [the statute’s] language must ordi-

narily be regarded as conclusive.” Consumer Product Safety

Commission v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980).

In other words, in order to justify a departure from the plain

1© This mandatory language is in sharp contrast to other provisions of the

FPA, such as section |4(b) dealing with federal takeover. “In any relicensing

proceeding before the Commission any Federal department or agency may

timely recommend, pursuant to such rules as the Commission shall prescribe,

that the United States exercise its right to take over any project or projects.”

FPA § 14(b), 16 U.S.C. § 807(b) (1982) (emphasis added). Clearly, had

Congress wished to make section 4(¢) conditions mere recommendations, it

knew how to do so.

‘1 “(In the decision of the Ninth Circuit below] the majority's reliance

upon the plain language rule does not advance its position. It is true that

Section 4(¢) provides that the license ‘shall’ include the conditions which the

Secretary deems necessary, but that does not end the inquiry.” Commission's

Brief at 20-21 (reference omitted ).

‘2 Such a biind approach to the law was abandoned long ago by this

Court. “[T]he plain-meaning rule is ‘rather an axiom of experience than a

rule of law, and does not preclude consideration of persuasive evidence if it

exists."” Watt v. Alaska, 451 U.S. 259, 266 (1981) (quoting Boston Sand Co.

v. United States, 278 U.S. 41, 48 (1928)); see Train v. Colorado Public

Interest Research Group, Inc., 426 US. i, 10 (1976); United States v.

American Trucking Associations, 310 U.S. 534, 543-44 (1940).

5

meaning of a statute, it must be demonstrated that the plain

language of the act violates the legislative intent and leads to an

“absurd result”. 19

A. The Purported “Conflict” Petitioners Have Dis-

covered Between the Section 4(e) Proviso and the

Rest of the Federal Power Act Is No Conflict at All,

But Rather a Logical Division of Authority.

Petitioners advance four arguments to support their con-

clusion that the plain meaning of the section 4(e) proviso

conflicts with the rest of the FPA, and must therefore be

reinterpreted by the Court.

The first argument rests on the allegedly comprehensive

nature of the FPA. The argument boils down to this: Because

the FPA was intended to “centralize authority in the Commis-

sion”, Commission’s Brief at 21, Congress must not have

intended section 4(e¢) to “undermine” the Commission’s power,

Commission’s Brief at 20. To put it more bluntly, petitioners

urge that the existence of a comprehensive organic act justifies

the Commission in ignoring express congressional directives

which limit its power under that act. Whatever merit this novel

principle of law might otherwise have, the argument overlooks

the obvious fact that each of the federal agencies involved

operates under a comprehensive organic act.'4 The purported

“conflict” posed by the ability of federal land managers to

impose license conditions against the wishes of the Commission

is no more real than the conflict one might find in the

Commission’s ability to license a project on federal lands which

the land manager believes interferes with its comprehensive

management of those lands. Such abstract conflicts are better

resolved by reference to statute than through judicial guess-

work.

'3“All laws are to be given a sensible construction; and a literal

application of a statute which would lead to absurd consequences, should be

avoided whenever reasonable application can be given to it, consistent with

the legislative purpose.” United States v. Katz, 271 U.S. 354, 357 (1925). See

Atchison, Topeka & Santa Fe Railroad Co. v. United States, 295 U.S. 193, 208

(1935) (dissent); Church of the Holy Trinity v. United States, 143 U.S. 457,

459 (1892).

4 See this brief at 10, 0.18

8

Next petitioners raise section 10(a).'5 FPA § 10(a), 16

U.S.C. § 803(a) (1982). Because the Commission is instructed

under this section to license only those projects which are “best

adapted to a comprehensive plan” for the river basin, petition-

ers argue that the Commission must therefore be able to reject

conditions imposed by land managers under section 4(e).

Commission’s Brief at 19-20, n.25, 33; Developers’ Brief at 33-

18 Conservationists find ironic the Commission's reliance here on the

mandate for comprehensive planning under section 10(a). Environmental

organizations, Indian Tribes, and government fisheries agencies have sought

repeatedly to persuade the Commission that section 10(a) does, in fact,

require the preparation of comprehensive plans for river basins. See, e.g.,

Joint Petition of the National Marine Fisheries Service and the Tulalip Tribes

of Washington for Coordination of Proceedings, for Development of Data,

and for Hearing, Project Nos. 4218, 4741, 4786, 4885, 5305, 5338, 5339,

$341, 5356, 5358, 5400, 5402, 5403, 5404, 5428, 5430, 5431, $432, 5433,

$434, 5435, 5436, 5437, 5438, 5439, 5440, 5500, 5555, 5610, 5611, 5612,

6541, 5676, 5681, 5683, 5757, 5758, 5759, $777, 5778, 5816, 5818, 5819,

$825, 5829, 5837, 5853, 5926, 6176, 6216, 6220, 6221, 6256, 6295, 6310,

6311, 6348, 6465, 6495, 6496, 6503, 6505, 6506, 6507, 6530, 6533, 6534,

6539, 6611, 6672, 6830 (filed Feb. 22, 1983) (Snohomish River Basin in

Washington). Dozens of similar petitions have been filed on projects

proposed within the Salmon River Basin in Idaho, the Willamette River Basin

in Oregon, and the Wenatchee River Basin in Washington. To date these

efforts have not been successful. While the Commission has yet to rule finally

on any of these petitions, it has nevertheless issued preliminary permits over

objections in the Salmon River Basin, Order Denying Appeals, Lester Kelley,

et al., Project Nos. 6442-000, et al, 25 FERC 61,410 (Dec. 22, 1983), the

Snohomish River Basin, Order Issuing Preliminary Permit, Great Northern

Hydro Co., Project No. 7038-000, 25 FERC 62,287 (Dec. 5, 1983), the

Willamette River Basin, Orders Issuing Preliminary Permits, Mountain West

Hydro Inc., Project No. 7134-000, 25 FERC 62,056 (Oct. 18, 1983); Fall

Creek Associates, Project No. 7082-000, 25 FERC 62,092 (Oct. 24, 1983);

Hydro-Cor, Inc. Project No. 7176-000, 25 FERC 62,096 (Oct. 24, 1983), and

the Wenatchee River Basin, Order Denying Appeal, Dryden Hydro Associates,

Project No. 7030-001, 26 FERC 61,135 (Feb. 6, 1984). Moreover, on

September 15, 1983, the Commission rejected, by a 40 vote (former

Chairman C. M. Butler was not present), a staff proposal to undertake

cumulative environmental impact studies for multiple hydroelectric devel-

opment projects within river basins. Environmental Unit to Review Procedure

to Assess Hydro Impact, Monitor, Vol. Ill, No. 20, at 1 (Oct. 3, 1983) (the

Monitor is the Commission's official monthly publication). In short, the

section 10(a) mandate—which the Commission here finds to be so broad—is

the same mandate which the Commission has construed so narrowly that in

over fifty years it has never found it necessary to prepare a single com-

prehensive river basin plan.

9

34. How this conclusion follows is unclear. Section 10(a) is a

general articulation of the “public interest” considerations

which govern the Commission’s licensing decisions. Udall v.

FPC, 387 U.S. 428, 450 (1967). These general principles in no

way erase the more specific constraints imposed under section

4(e).'® Thus, while the Commission is guided by the section

10(a) public interest criteria in choosing the “best adapted”

project, its universe for selection is limited under the FPA to

projects whose harm to federal lands is mitigated through

section 4(e) conditions.

Third, the Commission tells the Court that the first clause

of the section 4(e) proviso conflicts with the second. Commis-

sion’s Brief at 17-20. The first clause requires a finding by the

Commission that “no interference or inconsistency” with the

purposes of the reservation will result from the issuance of a

license. The second clause contains the conditioning authonty

which is the subject of this litigation, There is no inconsistency

here. The “no interference or inconsistency” finding is a go/no-

go decision on the project. Congress withheld that power from

the land managers and placed it in the hands of the Commis-

sion. Left to the land managers under the second clause is the

authority, not to halt a project, but to specify mitigation

measures. In so allocating authority between the agencies,

Congress did not create a conflict. It struck a balance.

Finally, the Commission alludes to an “incongruous result”

which it fears might flow from a literal reading of section 4(e).

Commission’s Brief at 19-20. What the Commission apparently

has in mind is the possibility that the conditions imposed by a

land manager might render a power project uneconomical and

thereby in effect “veto” the license. Conservationists do not

shrink from the implications of this hypothetical.'7 If a private

6 Specific statutory provisions control the general. McEnvoy v. United

States, 322 U.S. 102, 107 (1944).

17 Conservationists would emphasize, however, that the notion of arrest-

ing hydroelectric development via 4(¢) conditions is nothing more than

hypothetical. The practical impact of 4(¢) conditions in the overwhelming

majority of cases is to mitigate, not halt, development. Moreover any

unreasonable conditions may be challenged by the applicant. See this brief at

18-19.

10

hydroelectric project on land reserved for public benefit cannot

turn a profit unless mitigation measures are eliminated, then

perhaps that project should not be built. There is certainly no

reason to read a contrary result into a plainly worded statutory

provision. If Congress wished to promote uneconomical

hydroelectric development by curtailing mitigation measures, it

is certainly within its power to do so. Section 4(e), however,

reflects a different choice of policy.

A straightforward reading of the Act demonstrates that

Congress intended to draw upon the special expertise of

multiple federal agencies where federal reservations are con-

cerned.'® Recognizing their intimate knowledge and under-

standing of the natural resources under their control, Congress

authorized federal land managers to require whatever mitiga-

tion measures they determine are necessary for projects located

within their reservations.

In so doing Congress did not “undermine the very author-

ity” of the Commission, Commission’s Brief at 20. In fact, the

Commission retains full authority to make those decisions

which fall within its expertise. It is for the Commission, not the

land manager, to weigh competing proposals for hydroelectric

development. It is for the Commission to assess the economic

feasibility and structural integrity of the various projects. It is

for the Commission to set the licensing fees and annual charges.

And it is for the Commission to forecast energy demands for the

region and consider what investments will best serve the public

good.

18 Federal land managers are charged under their organic and planning

acts with broad management responsibilities. For example, Congress has

created an intricate system of planning for all of the national forests. Forest

and Rangeland Renewable Resources Planning Act of 1974, Pub. L. No. 93-

378, 88 Stat. 476 (1974) (codified at 16 U.S.C. §§ 1600-1687 (1982));

National Forest Management Act of 1976, Pub. L. No. 94-588, 90 Stat. 2949

(1976) (codified at 16 U.S.C. §§ 1600-1687 (1982)). These laws—which

contain expressions of congressional will every bit as comprehensive and

detailed as those found in the FPA—provide the Forest Service with

guidelines encompassing everything from the selection of scientific com-

mittees to formulas to determine the allowable timber harvest on certain

lands.

<

.

11

The land manager’s responsibilities, on the other hand, are

sharply circumscribed. The land manager must determine what

mitigation measures are necessary for the “adequate protection

and utilization” of the reservations under its authority, in-

cluding, for example, the flows of water necessary to sustain

fisheries, the devices required to permit fish migration, and the

steps that must be taken to maintain water quality. In short, it

is for the land manager to say what must be done to minimize

destruction of public resources. These concerns may seem

“parochial” to developers, Developers’ Brief at 33, and the

result “undesirable” to the Commission, Commission’s Brief at

20, but to Congress the approach embodied in section 4(e)

reflects something more substantial: a firm commitment to

sound planning and balanced resource management.

B. The Commission Has Construed a Virtually Identical

Provision of the Federal Power Act as Limiting Its

Authority to Review Agency Conditions.

Section 4(e) of the FPA is not the only provision of federal

power law authorizing other agencies to mandate binding

conditions on hydropower projects within the Commission’s

jurisdiction. For instance, under section 30, 16 U.S.C. § 823a

(1982), the Commission is authorized to make the final

determination as to whether “manmade conduit” projects

(operated primarily for agricultural, municipal, or industrial

water supply purposes ) should be exempted from licensing and

other requirements, while the final authority to impose binding

conditions on such exempted projects is reserved to state and

federal fish and wildlife agencies.‘9 An identical arrangement

was adopted under section 408 of the Energy Security Act of

1980, Pub. L. No. 96-294, 94 Stat. 611 (1980) (amending

sections 405 and 408 of the Public Utility Regulatory Policies

Act of 1978) (codified at 16 U.S.C.

9 Section 30(c) provides in part, “[T]he Commission . . . shall include

in any such exemption—(1) such terms and conditions as the Fish and

Wildlife Service and the State agency each determine are appropriate to

prevent the loss of, or damage to, such resources and to otherwise carry out

the purposes of [the Fish and Wildlife Coordination] Act....” 16 U.S.C.

§ 823a(c) (1982).

12

$§ 2705, 2708 (1982) ), for projects of five megawatts or less.2°

(Both the “conduit exemption” and the “five megawatts or less

exemption” operate through section 30(c) of the FPA.)

In its implementing regulations for the “five megawatts or

less exemption” the Commission specifically rejected the argu-

ment of commenters that it should evaluate the reasonableness

of agency conditions.2"

Article 2 [to be included in each exemption] requires

compliance with any conditions prescribed by fish

and wildlife agencies. Commenters claim that this is

a forfeiture of Commission responsibilities which will

deter exemption applications. they [sic] request that

the Commission prescribes [sic] lenient environmen-

tal conditions where appropriate or possible, elimi-

nate Article 2 where state licensing procedures exist,

or at least urge other agencies to make conditions

minimal. Section 408 of the ESA [Energy Security

Act], which incorporates part of section 30 of the

[Federal Power] Act, gives fish and wildlife agencies

authority to establish binding exemption conditions

for carrying out the purposes of the Fish and Wildlife

Coordination Act. The Commission will not interpret

the statute otherwise. However, it is for the Commis-

sion to insert the recommendations of those other

agencies as conditions of an exemption.

Preamble to Five Megawatts or Less Rules, 45 Fed. Reg.

76,115, 76,120 (1980) (emphasis added).

2“The Commission may in its discretion . . . grant an exemption .

subject to the same limitations (t0 ensure protection for fish and wildlife as

el ao cle eee ee ae

subsections (c) and (d) of section 30 of the Federal Power Act... .” Energy

Security Act of 1980 § 408(b), 16 U.S.C. § 2705(d) (1982).

2’ The implementing regulations for the conduit exemption are in accord.

“The construction, operation, and maintenance of the exempt facility must

comply with any terms and conditions that any Federal or State fish and

wildlife agencies have determined are appropriate to prevent loss of, or

damage to, fish or wildlife resources or otherwise to carry out the purposes of

the Fish and Wildlife Coordination Act.” Conduit Exemption Rules, 18

C.F.R. § 4.94 (1983).

13

In three cases in the last two years the Commission has

reiterated this position. In each of these cases applicants for

exemptions urged the Commission to reject conditions offered

by other agencies as unreasonable. In each case the Commis-

sion insisted that it has no power to second guess the resource

agencies. “It is not within our authority to review conditions

imposed by fish and wildlife agencies pursuant to section 408 of

the ESA [Energy Security Act].”” Order on Appeal, Swanson

Mining Corporation and Walter M. Gleason, Project No. 5677-

000, 20 FERC ¥ 61,226 (1982) (a petition for rehearing on an

unrelated issue was granted by the Commission in an unpub-

lished order on April 22, 1983).22 “The Commission has no

authority to modify the requirement [for minimum flows

imposed by a state fish and wildlife agency].” Order Denying

Appeal, Southern Pacific Land Company, Project No. 5585-000,

19 FERC 4 61,297 (1982). “[WhJe find that recommendation

of 150 cfs [cubic feet per second] of minimum flow is a

mandatory condition .... Consequently, there is no reason for

the Commission to hold a hearing on the minimum flow issue,

as requested by Sierra.” Order on Rehearing, Sierra Pacific

Power Company, Project Nos. 4161-000, 4162-000, 4163-000,

4164-000, 19 FERC ¥ 61,307 (1982).

The Commission’s position on section 30(c) simply cannot

be reconciled with its position on section 4(e). The operative

language of the conditioning authority under the licensing

provision (section 4(¢)) and the exemption provision (section

30(c)) is virtually identical. Section 4(e) uses the words “shall

be subject to and contain such conditions”. FPA § 4(e), 16

U.S.C. § 797(e) (1982). Section 30(c) tracks this language

closely with the words “shall include in any exemption such

terms and conditions”. FPA § 30(c), 16 U.S.C. § 823a(c)

(1982).

22 In the Swanson order the Commission also states that it is not bound to

include terms and conditions “related not to that project’s environmental

impact.” Conservationists have no quarrel with this contention. But that, of

course, is not the question in this case. Here the Commission, while conceding

that the conditions fall within the scope of section 4(¢), insists on rejecting

them nevertheless because it does not like the result reached by Interior.

14

The two provisions cannot be distinguished on the basis of

what they say about the nature of the conditioning authority,

because they both say the same thing. More importantly, the

Commission’s elaborate “contextual” argument—that section

4(e) somehow changes meaning when read in the context of

the whole Federal Power Act—collides with the Commission’s

contrary position on section 30(c). Both provisions come from

the same Act and must therefore be read in the same context. If

the “comprehensive” nature of the FPA does not require the

Commission to be the final arbiter of conditions under section

30(c), then this same context can hardly mandate the opposite

result when applied to the nearly identical language of section

4(e).

C. Congress Has Adopted a Similar Division of Respon-

sibility for Other Agencies.

The notion that one federal agency should be charged with

issuing a license, permit, lease, or other authorization while a

different federal agency is authorized to specify binding condi-

tions is hardly novel. Under the mining laws, for example,

Interior’s Bureau of Land Management issues mineral leases,

while other land managers attach conditions when the mining

will occur on such agency’s land.?3

The question of whether the mineral leasing agency may

review the reasonableness of the conditioning agency’s condi-

tions bears an obvious resemblance to the question posed here

under the Federal Power Act. The issue has been litigated, and

23 The Mineral Leasing Act for Acquired Lands of 1947 provides, “No

mireral deposit covered by this section shall be leased except with the consent

of the head of the executive department, independent establishment, or

instrumentality having jurisdiction over the lands containing such deposit, or

holding a mortgage or deed of trust secured by such lands which is unsatisfied

of record, and subject to such conditions as that official may prescribe to insure

the adequate utilization of the lands for the primary purposes for which they

have been acquired or are being administered . . . .” 30 U.S.C. § 352 (1976 &

Supp. V 1981) (emphasis added ).

15

the government has consistently taken the position that one

agency may not second guess the other.24

Of course, whether in the context of a mining lease

application or a hydroelectric license application, an applicant

who believes that the conditioning agency has acted unreason-

ably may seek relief in court.25 The point is that under the

mining law abuse of agency power must be corrected by a

judge, not another agency. Conservationists can conceive of no

rationale for a different result under the parallel provisions of

the power law.

D. The Legislative History of the Federal Power Act

Affirms the Plain Meaning of Section 4(e).

A thorough examination of the legislative history of the

Federal Power Act yields no persuasive evidence that Congress

intended anything different from what it said in section 4(e).

Indeed, it strongly supports the interpretation adopted by the

Ninth Circuit in the case below.

24 In Sallie B. Sanford, 22 Interior Board of Land Appeals 289 (1975),

the Interior Board of Land Appeals upheld a Bureau of Land Management

decision granting a lease to the applicant subject to conditions which the U.S.

Army Corps of Engineers, which administers the land where the lease was to

be located, had submitted to the Bureau. The appeals board held that the

Bureau of Land Management had properly required the applicant to accept

the stipulations or suffer a rejection of the offer to grant the lease; and further

stated that the BLM had no authority to issue the lease free of the stipulations.

This interpetation had previously been upheld by the Department of

Interior in Duncan Miller, 79 Interior Dec. 416 (1972). In distinguishing

between the Mineral Leasing Act of 1920, 30 U.S.C. §§ 181-287 (1976 &

Supp. V 1981) and the Mineral Leasing Act for Acquired Lands Act of 1947,

30 U.S.C. §§ 351-359 (1976 & Supp. V 1981), the Board of Land Appeals

explained that the latter expressly provided that the Secretary could only lease

the applicable lands subject to those conditions which the executive depart-

ment or agency having jurisdiction over the land had prescribed to insure the

adequate utilization of the lands for the primary purpose for which they had

been acquired. It stated further, “This Board has recognized this obligation

even where it has appeared to the Board that the special stipulations

requested by the administering agency were unreasonable.” 79 Interior Dec.

at 420 (1972), (citations omitted ).

25 See this brief at 18-19.

16

There is no disagreement with petitioners’ assertion that

the purpose of the Federal Water Power Act of 1920, ch. 285,

41 Stat. 1063 (1920) (hereinafter “1920 Act’) 26 was to

“centralize authority in the Commission, ‘instead of the piece-

meal, restrictive, negative approach of the Rivers and Harbors

Acts and other federal laws previously enacted’”. Commis-

sion’s Brief at 21 (quoting First Iowa Hydro-Electric Coopera-

tive v. FPC, 328 U.S. 152, 180 (1946)). Statements of this

general purpose found in the legislative history, see Commis-

sion’s Brief at 21-25; Developers’ Brief at 34-35,27 are hardly

surprising and certainly of no consequence to the issue at hand.

Far more significant are the three direct references in the

legislative history of the 1920 Act to the section 4(e)2® condi-

tioning proviso. Each of these conforms to the plain meaning of

section 4(¢).29

26 The Federal Water Power Act of 1920 was later incorporated, as

Subchaper I, into the Federal Power Act, Power Act Ameadments of 1935,

ch. 687, 49 Stat. 838 (1935).

27 Much of petitioners’ discussion of the legislative history actually

explores the 1930 amendments to the 1920 Act, Power Act Amendments of

1930, ch. 572, 46 Stat. 797 (1930). Commission's Brief at 25-26; Developers’

Brief at 35-37. This history is not even directed to section 4(¢)—which has

never been amended—and, even if it were, would be of limited utility in

interpreting congressional intent ten years earlier. “Thus, even when it would

be otherwise useful, subsequent legislative history will rarely override a

reasonable interpretation of a statute that can be gleaned from its language

and legislative history prior to its enactment.” Consumer Product Safety

Commissica v. GTE Sylvania, Inc., 447 U.S. 102, 118 (1980).

28 Section 4(¢) of the FPA was designated section 4(d) in the Federal

Water Power Act of 1920.

29 Mr. O. C. Merill, the principal architect of the bill, summarized the

conditioning authority as follows:

Licenses for power sites within the National Forests to be subject

to such provisions for the protection of the Forest as the Secretary

of Agriculture may deem necessary. Similarly, for parks and

other reservations under the control of the Departments of the

Interior and of War. Plans of structures involving navigable

streams to be subject to the approval of the Secretary of War.

This provision is for the purpose of preserving the adminis-

trative responsibility of each of the three Departments over lands

and other matters within their exclusive jurisdiction.

(footnote continues)

17

E. The Reading of Section 4(e) Urged by Developers

and the Commission Would Render the Provision a

Nullity.

It is not to be presumed that Congress means merely to

restate the obvious when it enacts provisions of law.% Yet this

is precisely the result urged upon the Court by petitioners in

their claim that section 4(e) merely authorizes federal land

managers to make recommendations to the Commission. This

(footnote continued)

Memorandum of O.C. Merrill, Chief Engineer, Forest Service at 6 (Oct. 31,

1917), Joint Appendix at 369, 373-74.

During a floor debate Senator Walsh spoke in opposition to an amend-

ment to the 1920 Act to create a tribal veto for projects on Indian lands

because the Indians’ interests were already well protected under section 4(e):

[T]he matter goes before the commission, which consists of the

Secretary of War, the Secretary of the Interior and the Secretary

of Agriculture. They all agree that it is in the public interest that

the license should be granted, or a majority of them so agree.

Furthermore, the head of the department must agree; that is to

say, the Secretary of the Interior in the case of an Indian

reservation must agree that the licence shall be issued.

59 Cong. Rec. 1564 (1920); see Developers’ Brief at 14.

Secretary of Agriculture David F. Houston testified along the same line:

If | am not mistaken, the provisions in the proposed measure are

more restrictive than existing law, in that they require the assent

of three heads of departments [the Departments of War, Agricul-

ture, and Interior which formed the original Commission] and

also the assent of the particular head of the department immedi-

ately charged with that government interest.

Hearings on Water Power Before the House Committee on Water Power,

65th Cong., 2nd Sess., at 678 (1918).

%“A statute is a solemn enactment of the state acting through its

legislature and it must be assumed that this process achieves an effective and

operative result. It cannot be presumed that the legislature would do a futile

thing.” C. D. Sands, 2A Sutherland Statutes and Statutory Construction

§ 45.12 (4d ed. 1973). In other words, statutes are to be read in such a way

that they add something to the law. It is a “well-established rule of statutory

construction that all parts of a statute, if at all possible, are to be given effect.”

Weinberger v. Hynson, Wescott and Dunning, Inc., 412 U.S. 609, 633 (1973).

18

is so because federal agencies need no special authorization to

recommend conditions to the Commission. Any interested

person may do that.3'

The suggestion that section 4(e) conditions were meant to

be mere recommendations is even more pointless when consid-

ered in the context of the provision’s origins in the Federal

Water Power Act of 1920, at which that time the Secretaries of

the Interior and Agriculture actually sat on the Commission.

They clearly did not need section 4(e) in order to make

“recommendations” to their fellow Commissioners. If section

4(e) adds anything, it must shift from the Commission to

federal land managers the authority to decide what mitigation

measures are needed to protect federal reservations.

F. Developers Are Free To Challenge Any Conditions

Included by Interior Which They Believe To Be

Unreasonable.

Developers and the Commission refer frequently in their

briefs to the “veto power” section 4(¢€) would bestow upon

federal land managers if its plain meaning were adopted.

Developers’ Brief at 34, 35, 38; Commission’s Brief at 11, 14,

20. But no such veto power is claimed by Interior. If

developers are dissatisfied with the conditions included by

Interior, their remedy is simple. They may go to court and urge

that the conditions are “arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.” Admin-

istrative Procedure Act § 10(e), 5 U.S.C. § 706(2)(A)

(1982).32 Interior and other land managers are no more

immune from judicial review than is the Commission.

31 The Commission's rules provide for participation in licensing proceed-

ings through protests (which are essentially comments) and through inter-

vention. 18 C.F.R. § 385.211 (1983) (dealing with protests); 18 C.F.R.

§ 385.214 (1983) (dealing with intervention). The Departments of the

Interior and Agriculture routinely comment and frequently intervene in such

proceedings.

32 On rehearing in the instant case the Ninth Circuit clarified procedures

for judicial review. Review of all matters connected with the license—

whether objections to decisions made by the Commission or to conditions

imposed by other agencies-—would be had in a single action in the U.S. Court

of Appeals pursuant to the FPA’s provision for direct review, FPA § 313(b),

(footnote continues)

19

Yet, rather than take advantage of this common form of

action, developers and the Commission would construct a more

complex mechanism for review. As they would have it,

developers should present their argument on the reasonableness

of Interior’s conditions not directly to a court, but first to the

Commission. The Commission would then sit in judgment on

the “reasonableness” of the conditions found necessary by

Interior. Should developers be dissatisfied with the Commis-

sion’s conclusion, they might then appeal the Commission’s

determination to the U.S. Court of Appeals pursuant to FPA

§ 313(b), 16 U.S.C. § 825 b) (1982).

But there the confusion begins. What should the Court of

Appeals make of the record below? Presumably it would be

required to judge whether the Commission acted arbitrarily in

assessing the reasonableness of Interior’s finding that the

conditions were necessary. Such a convoluted judicial task—in

which the court must review the reasonableness of one agency’s

assessment of the reasonableness of another agency’s find-

ing—is without precedent in administrative law.

How much simpler it would be for developers to go

directly to the U.S. Court of Appeals once the license is issued

and present their claim that the conditions mandated by the

land manager are arbitrary and capricious. Simple, but much

less satisfying to the developers, of course, than getting two

bites at the apple.

4

(footnote continued)

16 U.S.C. § 8254 b). Escondido Mutual Water Co. v. FERC, 701 F.2d 826,

827 (9th Cir. 1983), Appendix to Petition at 31. While the Ninth Circuit did

not state which standard of review would be applicable to review of such

conditions, it seems clear to conservationists that the “arbitrary and cap-

ricious” standard, Administrative Procedure Act §10(e), 5 U.S.C.

§ 706(2)(A) (1982), would apply. While other aspects of the relicensing

decision may be subject to the more searching “substantial evidence” test,

Administrative Procedure Act § 10(e), 5 U.S.C. § 706(2)(E) (1982), the

decision of the land manager regarding licensing conditions is informal

agency action not requiring a hearing “on the record” Administrative

Procedure Act §§ 5, 7, 8, 5 U.S.C. §§ 554, 556, 557 (1982).

33 Would, for example, the court be required to determine whether the

Commission failed to consider a relevant factor in its determination that the

land manager overlooked another relevant factor?

20

Ill. THE COMMISSION’S INTERPRETATION OF SEC-

TION 4(e) SHOULD BE GIVEN NO MORE DE-

FERENCE THAN INTERIOR’S CONTRARY INTER-

PRETATION.

Petitioners insist that this Court is bound to give “great

deference” to the longstanding interpretation of the FPA

offered by the Commission. Developers’ Brief at 37-38; see

Commission’s Brief at 33. This argument may be disposed of

easily.

Each of the many cases this Court has decided on the issue

of deference to agency interpretation of law deal with chal-

lenges by a private party to decisions or interpretations of a

single regulatory agency. Such is not the circumstance here.

Instead, positions taken by two federal agencies, each charged

with important regulatory responsibilities under the same law,

are in conflict. Each agency claims to have maintained its

position long and consistently.*4

There is no rule of administrative law or statutory construc-

tion which can resolve which agency shall receive “more”

deference. (Should it be the oldest agency? The largest? The

most independent? The most politically responsive?) In cases of

conflict between agencies, the Court must let the statute speak

for itself.

% Conservationists do not find that the Commission's position has been

held as long as it claims. The early cases cited by petitioners, Commission’s

Brief at 33; Developers’ Brief at 37-38, do not appear to be on point. See

Interior’s Brief in Opposition to Petition for Certiorari at 19.

21

CONCLUSION Fa

What began as a seemingly parochial Indian water rights

dispute has escalated into a debate on the nation’s policy of

resource management. From a few cubic feet per second of

water in an artificial waterway the stakes have grown to literally

thousands of contests over the streams and rivers which cross

the nation’s public forests, mountains, and deserts.

In the next decade an estimated 3,000 applications for

hydroelectric licenses will be filed by private parties on our

national forests alone.3S Whether the Secretaries charged by

Congress with managing those reservations or the Commission

established by Congress to monitor the development of the

nation’s water resources shall have the final say in conditioning

those projects is no small matter.

Conservationists bear the scars of years of battle with the

Commission over projects which would have flooded such

priceless resources as Hell’s Canyon on the Snake River divid-

ing Oregon and Idaho or the New River Gorge in the Appala-

chian Mountains of North Carolina. (Both projects would have

been licensed by the Commission but for the intervention of

Congress. )9© Consequently a check on the power of the Com-

mission to authorize the destruction of such river resources

seems to conservationists eminently sensible.

But neither the wisdom which conservationists see in the

balancing of authorities related to river development on public

lands, nor the efficiency the Commission sees in consolidating

that power in its hands, is an issue for this Court to decide.

Such questions are reserved for Congress. Congress has

35 See this brief at 5, n. 9.

% Hells Canyon National Recreation Area Act $§ 3(a), 4, Pub. L. No.

94-199, 89 Stat. 1117 (1975) (codified at 16 U.S.C. §§ 460gg-2, 1274(a)( 12)

(1982) ) (prohibiting the Commission from issuing a proposed license on the

Snake River); Act of Sept. 11, 1976, Pub. L. No. 94-407, 90 Stat. 1238 (1976)

(codified at 16 U.S.C. §§ 1273(a), 1278(a) (1982)) (revoking a license

granted on the New River).

22

considered, resolved, and spoken. Its conclusion is stated

clearly in section 4(e). Conservationists urge that it be applied.

Respectfully submitted,

NATIONAL WILDLIFE FEDERATION,

AMERICAN RIVERS CONSERVATION

COUNCIL,

CALIFORNIA TROUT,

COLORADO WILDLIFE FEDERATION,

ENVIRONMENTAL DEFENSE FUND,

ENVIRONMENTAL POLICY INSTITUTE,

FRIENDS OF THE EARTH,

FRIENDS OF THE RIVER, INC.,

IDAHO ENVIRONMENTAL COUNCIL,

IDAHO WILDLIFE FEDERATION,

IZAAK WALTON LEAGUE OF AMERICA,

INC.,

MONTANA WILDLIFE FEDERATION,

NATIONAL AUDUBON SOCIETY,

NATURAL RESOURCES DEFENSE

COUNCIL, INC.,

OREGON WILDLIFE FEDERATION,

SIERRA CLUB,

TROUT UNLIMITED,

VERMONT NATURAL RESOURCES

COUNCIL,

WILDERNESS SOCIETY, and

WYOMING WILDLIFE FEDERATION,

Amici Curiae

By: PaTRICK A. PARENTEAU,

Counsel of Record

CHRISTOPHER H. MEYER

National Wildlife Federation

1412 Sixteenth Street, N.W.

Washington, D.C. 20036

202/797-6859

Attorneys for Amici Curiae

February 23, 1984

A-l

APPENDIX A

Detailed Statement of Interests

The National Wildlife Federation is a nonprofit member-

ship organization incorporated in 1939 under the laws of the

District of Columbia. The Federation maintains its headquar-

ters at 1412 Sixteenth Street, N.W., Washington, D.C. 20036

(telephone 202-797-6859). The Federation is the largest

nongovernmental conservation education organization in the

world, with affiliate organizations in fifty-one states and terri-

tories. Its 4.1 million members and supporters are dedicated to

increasing public awareness of the need for wise use, proper

management, and conservation of our natural resources. The

Federation undertakes a comprehensive conservation education

program, distributes numerous periodicals and educational

materials, lobbies for the adoption of laws to protect and

improve the environment, and litigates when necessary to

conserve natural resources and wildlife. The Federation’s

Water Resources Program has undertaken a broad range of

legal, legislative, administrative, and educational initiatives

aimed at improving the management of our nation’s rivers with

particular attention given to the sensitive and intelligent devel-

opment of hydroelectric power. In addition, the Federation’s

Public Lands and Energy Program actively promotes the

conservation of energy from hydroelectric and other power

sources.

American Rivers Conservation Council is a nonprofit

membership organization incorporated in the District of Co-

lumbia. Organized in 1973, it now counts over 4,000 members

nationwide. Its business address is 323 Pennsylvania Avenue,

S.E., Washington, D.C. 20003 (telephone 202-547-6900). The

American Rivers Conservation Council is the only national

citizens group dedicated exclusively to river conservation. Its

principal activities include seeking additions to the National

Wild and Scenic Rivers System, support for state and local river

conservation programs, opposition to wasteful or destructive

water projects, and expansion of public awareness and appre-

ciation of our river heritage. The Council publishes American

Rivers, a quarterly journal of river conservation.

A-2

California Trout is a nonprofit, tax-exempt corporation

organized under the laws of the state of California and having

its principal office and place of business at 550 California Street,

San Francisco, California 94104 (telephone 415-392-8887).

California Trout is a statewide conservation organization sup-

ported by sport fishermen, with approximately 1,600 individual

members and forty affiliated local angling clubs representing

another 2,000 persons. California Trout was organized in 1970

to protect and restore wild trout, native steelhead, and the

waters that nurture them in California. California Trout has

intervened in numerous licensing proceedings before the Fed-

eral Energy Regulatory Commission.

The Colorado Wildlife Federation is organized under the

laws of the state of Colorado and is affiliated with the National

Wildlife Federation whose goals and objectives it shares. It

maintains its headquarters at P.O. Box 18887, Denver, Colo-

rado 80218 (telephone 303-830-2557).

The Environmental Defense Fund is a nationwide public

interest organization with approximately 45,000 members. Its

staff of lawyers, scientists, and economists works to protect and

improve environmental quality and public health. The Fund

pursues responsible reform of public policy in the fields of

energy and resource conservation, pest control, toxic chemicals,

water resources, air quality, land use and wiidlife, working

through research, public education, and judicial, administrative,

and legislative action. The Environmental Defense Fund is

organized under the laws of the state of New York with its

headquarters at 444 Park Avenue, South, New York, New

York 10016 (telephone 212-686-4191).

The Environmental Policy Institute is a nonprofit organiza-

tion incorporated under the laws of the District of Columbia in

1974. The Institute engages in research, public education,

lobbying, and litigation activities in support of energy and

water conservation, the protection of air, water and land

resources, the safe and clean use of coal, oil, and natural gas,

limitations on the use of nuclear power and weaponry, and the

protection of agricultural resources and the nation’s food

resource base. The Institute has over 10,000 contributors and

A-3

supporters from around the country. The organization main-

tains its headquarters at 218 D Street, S.E., Washington, D.C.

20003 (telephone 202-544-2600).

Friends of the Earth is a nonprofit corporation founded in

1969 under the laws of the state of New York. Its headquarters

are located at 1045 Sansome Street, San Francisco, California

94111 (telephone 415-433-7373). Friends of the Earth is a

national conservation organization with 32,000 members in the

United States, and international affiliate organizations in

twenty-six other countries. Since its founding, Friends of the

Earth has worked to secure preservation and protection of the

nation’s heritage of outstanding free-flowing rivers and streams,

the diminution of which has become an increasing concern to

the organization’s members in recent years.

Friends of the River, Inc. is organized under the California

nonprofit corporation law for the purpose, in part, of advocat-

ing the preservation of riparian ecosystems and the natural

values of free-flowing rivers in the western United States.

Friends of the River actively pursues these goals through its

legal, administrative, legislative, research, and public education

programs. It maintains its headquarters at Building C, Fort

Mason, San Francisco, California 94123 (telephone 415-771-

0401). Currently Friends of the River has 3,000 members in

more than thirty states.

The Idaho Environmental Council was founded under the

laws of the state of Idaho to coordinate and stimulate the

creative ideas, manpower, and financial resources of

conservation-minded individuals and organizations to provide

an increased understanding of modern man’s impact upon his

environment. The Council is headquartered at P.O. Box 1708,

Idaho Falls, Idaho 83401 (telephone 208-345-2030).

The Idaho Wildlife Federation is a state affiliate of the

National Wildlife Federation whose goals and objectives it

shares. It is organizated under the laws of the state of Idaho,

and maintains its offices at 432 S. 11th Street, Pocatello, Idaho

83201 (telephone 208-233-3079).

The Izaak Walton League of America, Inc. is organized to

promote means and opportunities for educating the public to

A-4

conserve, maintain, protect, and restore the soil, forest, water,

air, and other natural resources of the United States, and to

promote the enjoyment and wholesome utilization of those

resources. The League is organized under the laws of the state

of Illinois, and is headquartered at 1701 North Fort Myer

Drive, Suite 1100, Arlington, Virginia 22209 (telephone 703-

528-1818).

The Montana Wildlife Federation is an affiliate of the

National Wildlife Federation whose goals and objectives it

shares. The Montana Wildlife Federation is organized under

the laws of the state of Montana and is headquartered at P.O.

Box 3526, Bozeman, Montana 59715 (telephone 406-587-

1713).

The National Audubon Society is one of the oldest, largest,

and most experienced national conservation organizations. It is

devoted to conservation and protection of the natural environ-

ment which supports bot humankind and wildlife. The

Society’s 512,000 members in 492 chapters are backed by a

full-time staff of 130 persons working in the New York

headquarters, Washington, D.C. office, four state offices, four

camps, four nature centers, two research centers, and ten

regional offices. The staff includes scientists and other profes-

sionals specialized in water policy. Among the Society’s

purposes is the wise use of the nation’s water resources and

protection of riparian and aquatic habitat. The Society is a

nonprofit corporation organized under the laws of the state of

New York with headquarters at 950 Third Avenue, New York,

New York 10022 (telephone 212-832-3200).

Natural Resources Defense Council, Inc. is a nonprofit

membership organization incorporated under the laws of the

state of New York. Its headquarters are at 122 East 42nd

Street, New York, New York 10168 (telephone 212-949-0049).

The Council has approximately 28,000 members residing in all

states and territories. Since its inception in 1970, the Natural

Resources Defense Council has been dedicated to the prudent

management and the wise use of the natural resources of the

earth, including energy and water resources, through the advo-

cacy of effective federal, state, and local laws.

A-5

The Oregon Wildlife Federation is an affiliate of the

National Wildlife Federation whose goals and objectives it

shares. The Oregon Wildlife Federation is organized under the

laws of the state of Oregon. It maintains its offices at 2753 N.

32nd, Springfield, Oregon 97377 (telephone 503-747-8400 ).

The Sierra Club is a nonprofit corporation, organized

under the laws of the state of California, having its principal

Office and place of business at 530 Bush Street, San Francisco,

California 94108 (telephone 415-981-8634). The Sierra Club

is a national conservation organization founded in 1882 with

approximately 330,000 members. The purposes of the Sierra

Club are to explore, enjoy, and protect the wild places of the

earth; to practice and promote the responsible use of the earth’s

ecosystems and resources; and to educate and enlist humanity

to protect and restore the quality of the natural and human

environment.

Trout Unlimited is a nonprofit international conservation

organization incorporated in 1959 under the laws of the state of

Michigan. The organization maintains its headquarters at 501

Church Street, N.E., Vienna, Virginia 22180 (telephone 703-

281-1100). Its 37,000 members are dedicated to the protection

of clean water and the enhancement of trout and salmon

resources. Trout Unlimited’s twenty-five years of work to

enhance salmonoid habitat has involved its members in

educational programs, water quality surveillance programs, and

field projects designed to restore degraded habitats and provide

up- and down-stream passages for fish migration.

The Vermont Natural Resources Council is a state affiliate

of the National Wildlife Federation whose goals and objectives

it shares. The Council is organized under the laws of the state

of Vermont and maintains its headquarters at 7 Main Street,

Montpelier, Vermont 05602 (telephone 802-223-2328).

The Wilderness Society is a national conservation organi-

zation with approximately 105,000 members nationwide. It is

incorporated in Washington, D.C. and maintains its headquar-

ters at 1901 Pennsylvania Avenue, N.W., Washington, D.C.

20006 (telephone 202-828-6600). A primary concern of the

Society since its founding in 1935 has been the establishment

A-6

and proper management of wilderness areas. Protection of

wild and free-flowing rivers through wilderness and wilderness

candidate areas is integral to the preservation of their wilder-

ness character. Efforts to preserve wild and free-flowing rivers

are ranked high on the Society’s conservation agenda.

The Wyoming Wildlife Federation is a state affiliate of the

National Wildlife Federation whose goals and objectives it

shares. It is organized under the laws of the state of Wyoming

and is headquartered at P.O. Box 333, Cheyenne, Wyoming

82003 (telephone 307-637-5433).

B-1

APPENDIX B*

Letter to R. Max Peterson, Chief, U.S. Forest Service,

January 4, 1984

HAND DELIVER

January 4, 1984

R. Max Peterson, Chief

United States Forest Service

P.O. Box 2417

Washington, D.C. 20013

Attention: Richard D. Hull

Director of Lands

United States Forest Service

Dear Chief Peterson:

The National Wildlife Federation and other environmen-

tal organizations are deeply concerned with the exponential

growth in proposals for hydroelectric power projects within

national forests and other federal reservations. We would

appreciate an answer to each of the following questions regard-

ing the numbers of development proposals within reservations

under the Secretary of Agriculture’s jurisdiction, and the pro-

cess by which the Secretary exercises his responsibilities under

section 4(e) of the Federal Power Act, 16 U.S.C. § 797(e)

(1982), and other applicable law in protecting, managing, and

utilizing these lands and resources.

1. Please describe the process used by the Department of

Agriculture to develop necessary conditions pursuant to section

4(e) for hydroelectric power licenses within reservations under

the jurisdiction of the Secretary of Agriculture.

* In appending this correspondence to their brief, amici curiae do not

seek to supplement the record on review. Rather they wish solely to identify

matters of public fact, Muller v. Oregon, 208 U.S. 412, 419-21 (1907) (on

“the Brandeis brief”), which demonstrate the gravity of problem posed.

B-2

2. During fiscal year 1983, how many hydroelectric power

applications (for licenses, permits, and exemptions) were no-

ticed to the Department of Agriculture by the Federal Energy

Regulatory Commission within reservations under the Secre-

tary’s jurisdiction? What percentage of all applications noticed

during fiscal year 1983 do the applications within these reserva-

tions constitute? If possible, please provide a breakdown (1)

by category of applicauion (license, permit, and exemption)

and (2) by reservation, for these applications.

3. In approximately what percentage of cases, both histori-

cally and currently, does the Secretary of Agriculture exercise

his conditioning power under section 4(e) with respect to

applications for licenses within reservations under the Depart-

ment’s jurisdiction? In what percentage of these cases does

the Commission include without significant modification all the

conditions imposed by the Secretary in the licenses it issues?

How does the Department deal with those instances in which

the Commission significantly modifies or rejects conditions

which the Department has found necessary to impose?

Sincerely,

Christopher H. Meyer

Counsel

Water Resources Program

B-3

Letter from R. M. Housley, Deputy Chief, U.S. Forest Service,

January 17, 1984

United States Department

of Agriculture

Forest Service

Washington Office

12th & Independence, SW

P.O. Box 2417

Washington, D.C. 20013

Reply to: 2770

Date: Jan 17 1984

Mr. Christopher H. Meyer

Counsel

Water Resources Program

National Wildlife Federation, NW

Washington, D.C. 20036

Dear Mr. Meyer:

This is in response to your January 4 letter and Dave

Conrad’s discussions with members of our Lands Staff, con-

cerning the Department of Agriculture’s role in the Federal

.Energy Regulatory Commission (FERC) hydroelectric licens-

ing process.

Answers to your questions are as follows:

Question 1. Exhibit | includes a flow chart and a general

description of our process for handling FERC projects. Special

conditions are only developed to avoid or mitigate environmen-

tal impacts caused by project operations not adequately covered

in the Commission’s standard form license articles. The special

conditions are drafted by functional specialists most knowl-

edgeable of the impact. They are then subjected to a rigid

review to assure clarity, applicability, reasonableness, that the

conditions are within our jurisdictional! authority and that they

conform to Agency and Department policy.

Question 2. The number of hydroelectric power appli-

cations reviewed by the Department during fiscal year 1983 is

B-4

shown in Exhibit 2. The table breaks the data down by type of

applications, type of action, and by Forest Service Region. The

table distinguishes between those affecting National Forest

System (NFS) lands and other (non-FWS) lands.

Question 3. The Secretary of Agriculture exercises his

conditioning power under Section 4(e) on all license appli-

cations directly affecting Department programs. This amounts

to about 60 percent of all license applications. Approximately

66 percent of our section 4(e) responses to FERC include one

or more special license conditions. The Commission includes

without significant modification approximately 80 percent of

these special conditions in licenses issued.

How we have handled the significant modifications or

rejections depends on the seriousness of the impact, the overall

reasonableness of our request, extraneous circumstances, such

as cases where the license had been issued before FERC had

received our 4(e) report. Exhibit 3 includes samples of our

4(e) report, how they were handled by the Commission and a

note on our follow up action if any.

Our basic approach is to notify FERC of the discrepancy if

significant and, since the passage of the Federal Land Policy

and Management Act (FLPMA), deny the licensee access to

NFS lands. After exhausting the administrative appeal process,

our backup is through litigation.

Sincerely,

R. M. Housley

Deputy Chief

[ Attachments omitted }

B-5

Letter from J. B. Hilmon, Acting Deputy Chief, U.S. Forest

Service, February 14, 1984

United States Department

of Agriculture

Forest Service

Washington Office

12th & Independence, SW

P.O. Box 2417

Washington, D.C. 20013

Reply to: 2770

Date: February 14, 1984

Mr. Christopher H. Meyer

1412 Sixteenth Street, NW

Washington, D.C. 20036

Dear Mr. Meyer:

This supplements our January 17 letter concerning the

Department of Agriculture’s role in the Federal Energy Regu-

latory Commission (FERC) hydroelectric licensing process.

An extrapolation of data derived from an analysis of

applications for license or amendment of license received

during the past four years indicates that in the next decade

some 3,000 applications will be filed with the Federal Energy

Regulatory Commission that will affect National Forest lands.

Each application is reviewed carefully and conditions are

developed to adequately protect or mitigate damage to re-

sources under our charge. The purposes of the conditions are

compromised when FERC substantially modifies or rejects our

recommendations.

Based on a sampling of 201 license (or amendment)

applications, where licenses were issued during the period

between April 18, 1980, and January 13, 1984, or pending as of

January 30, 1984, we find that out of 19 licenses issued during

this period affecting National Forest lands, in 13 instances the

Secretary of Agriculture included conditions by authority of

B-6

Section 4(e) FPA (41 Stat. at 1065) as amended. Of the 13

cases where 4(e) conditions were included:

6 were accepted by the Commission without substan-

tial modification;

1 was accepted but with substantial modification;

3 of the cases involved some outright rejections of our

4(e) conditions; and

3 of the cases involved Commission-issued licenses

where all of our 4(e) conditions were rejected.

Although this is not an inclusive listing of all license cases

under review during this period, we do feel this is a representa-

tive sample.

The Secretary of Agriculture exercises special care in

establishing specific 4(e) conditions which we believe to be

essential and in distinguishing these conditions from general

comments or recommendations regarding FERC applications

for license applications (See Tables 1 and 2, enclosed).

Sincerely,

J. B. Hilmon

Acting Deputy Chief

Enclosures

B-7

[ Attachment to Letter of February 14, 1984 |

TABLE 1

1 2 3 4 5 6 7

No. of 4(e) Without With Some Where

Projects 4e) Included Substantial Substantial With All

Reviewed Letter in Modifi- Modifi- Some Were

in to FERC Letter cation cations Rejections Rejected

Sample‘ No.(%)' No. (%)? No. (%)? No.(%)? No. (%)? No. (%)?

Licenses Issued or Amended

Involving FS Lands

| ETC TE ee oe 19 13 13 6 l 3 3

Amendments................... 20 11 & 3 1 l 3

ee 39 24(62) 21(88) 9(43) 2(10) 4(19) 6(28)

Other Lands

IN iicicluioadaccupincdenscceds 40 14 l l

Amendments................... 17

| SE $7 14(25) 1(7) 1( 100)

Total Issued or Amended....... 96 38(40) 22(45) 2(45) 2(9) 4(18) 6(27)

Licenses or Amendments

- Pending as of 1/30/84

Involving FS Lands

NI it ctriscasesents 72 72 43

Amendments ........... 4 4 3

ea 76 76(100) 46(61)

Other Lands

II Aansidisccnitic- pve 29 29 4

Amendments............

Ee 29 29(100) 4(14)

Total Pending ....................0--.- 105 105( 100) 50( 48)

Total Reviewed ...................... 201

1 Column 2 % Column |

2 Column 3 % Column 2

3 Columns 4, 5, 6, or 7 % Column 3

“Sample a sampling of licenses and amendments issued during April 18, 1980, and January 13,

1984, or pending as of January 30, 1984.

[Additional Attachment omitted }