Amicus Curiae Brief — California v. Federal Energy Regulatory Commission

v

No. 89-333

In the Supreme Court of the Gnited States

OcToBer TERM, 1989

STATE OF CALIFORNIA, PETITIONER,

_

FEDERAL ENERGY REGULATORY COMMISSION, ET AL.

RESPONDENTS.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF OF THE MODESTO IRRIGATION DISTRICT

AND TURLOCK IRRIGATION DISTRICT

AS AMICI CURIAE IN SUPPORT OF RESPONDENT, THE FEDERAL

ENERGY REGULATORY COMMISSION

G1BSON, DUNN & CRUTCHER

Joe. S. Moskow!1Tz*

Grecory J. KERWIN

1801 California Street

Suite 4200

Denver, Colorado 80202

(303) 298-7200

Attorneys for Amici Curiae,

the Modesto Irrigation

District and Turlock

Irrigation Distri

*Counsel of Record

Of Counsel:

WARREN F. GANT, General Counsel

Modesto Irrigation District

ROGER K. MASUDA, General Counsel

Turlock Irriga tion District

(i)

QUESTION PRESENTED

Should this Court overrule First lowa Hydro-Electric Coop.

v. Federal Power Comm'n, 328 U.S. 152 (1946), and nearly 45

years of Supreme Court precedents and administrative practice so

that the State of California can assume control over hydroelectric

power projects already constructed or planned for construction?

TABLE OF CONTENTS

INTEREST OF AMICI CURIAE......... 2... 66... cee uee

SUMMARY OF ARGUMENT......... 2... 66. cece ew wen

REGS cocccccccccecccceccescccccesesscesuedeuans

IV.

Vi.

FIRST IOWA HAS BEEN UNIFORMLY FOL-

LOWED BY THIS COURT AND SHOULD NOT BE

QUERIED 0 vc ccccccccccccsesuccsbeneecesees

A. This Court Has Repeatedly Reaffirmed First Jowe .

B. This Court Has Repeatedly Found That The Fed-

eral Power Act Vests Comprehensive Regulatory

Aefipaty Ge GER GG 00ccsesvancendocesecs

C. First Jowa Controls Resolution Of This Case ....

THE STATE'S ARGUMENTS ABOUT THE LEGIS-

LATIVE HISTORY OF THE FEDERAL POWER

ACT OF 1920 ARE NEITHER NEW NOR PER-

SUASIVE; THIS COURT IN FIRST JOWA AD-

DRESSED AND REJECTED THEM .............

CALIFORNIA V. UNITED STATES, CONSTRUING

THE RECLAMATION LAW, OFFERS NO GUID-

ANCE FOR THE DECISION OF THIS CASE .....

THE STATE’S ARGUMENTS ABOUT ADMINIS-

TRATIVE INTERPRETATION ARE NOT RELE-

CALIFORNIA'S POSITION MAKES NO PRACTI-

CAL SENSE AND DOES NOT NECESSARILY

LEAD TO GREATER PROTECTION OF FISH-

Pere

B. State Regulation Of Stream Flows At FERC-

Licensed Projects Will Not Lead To Greater Pro-

tection And Enhancement Of Fish .............

C. California Is Simply Seeking To Expand Its Power

Under The Public Trust Doctrine. .............

VER. CETUS cc cccccccescecéeees 6546nnnEE

14

19

21

23

ill

TABLE OF AUTHORITIES

CASES

California v. United States, 438 U.S. 645 (1978) .......

Chevron, USA, Inc. v. Natural Resources Defense Council,

ED + did ckccwce coeseccececes

Escondido Mutual Water Co. v. La Jolla Band of Mission

Indians, 466 U.S. 765 (1984) ............0000 00 eee

Federal Power Comm'n v. Oregon, 349 U.S. 435 (1955) .

FPC y. Union Electric Co., 381 U.S. 90 (1965) .........

First Iowa Hydro-Electric Coop. v. Federal Power

Comm'n, 328 U.S. 152 (1946) ...........0200 00 ee

Ivanhoe Irrigation District vy. McCracken, 357 U.S. 275

AE ELER ED Co cdececécocccoseccass

Monongahela Power Co. v. Marsh, 809 F.2d 41 (D.C.

Cir.), cert. denied, 484 U.S. 816 (1987) .............

National Audubon Society v. Superior Court, 189 Cal.

Rptr. 346, 33 Cal. 3d 419, 658 P.2d 709 (1983), cert.

Se EE BEE GREED cess icccccccccccsccece

Nebraska v. Wyoming, 325 U.S. 589 (1945) ...........

New England Power Co. v. New Hampshire, 455 U.S. 331

ia kiandeeshenebenesenccccccces

Pacific Gas & Electric Co. v. State Energy Resources Con-

servation & Development Comm'n, 461 U.S. 190

EEE EEE ee

Patterson v. McLean Credit Union, 491 U.S._, 109

EEE EEE TT

Sperry v. Florida, 373 U.S. 379 (1963)..............--

State of California ex rel. State Water Resources Board v.

Federal Energy Regulatory Comm'n, 877 F.2d 743 (9th

ES LEE EEE

Tacoma v. Taxpayers of Tacoma, 357 U.S. 320 (1958) ..

United States v. Gerlach Live Stock Co., 339 U.S. 725

ESSE PPE TET OCCTL TTT ELELEL ETT

Page

3, 14, 15, 16,

17, 19

19

24

17

3, 22

iV

RULES AND STATUTES

ks pda cccweeeddeesaces

Electric Consumer Protection Act of 1986, Pub.L. No.

i aa dies

Federal Trade Commission Act of 1914, 38 Stat. 717

I i ath an a et a a ee

Federal Water Power Act of 1920, 41 Stat. 1063 (1920)

(codified at 16 U.S.C. §§ 791-823).................

Interstate Commerce Act of 1887, 24 Stat. 379 (1887) ..

Reclamation Act of 1902, 32 Stat. 388 (1920) (codified at

scattered sections of 43 U.S.C. §§ 372-1457) ........

a ce Cane eek eeeaces ses

MISCELLANEOUS

2 R. Clark, Waters and Water Rights, §§ 110.1, 110.2

SE a's och ark b Bass y 056s 0080 0rseebss dente cdwect«

4 R. Clark, Waters and Water Rights, § 330 (1970) ....

A. Golze, Reclamation in the United States (1961) .....

R. Walston, Storm in the Desert: The Great Western

Water Wars, 26 Journal of the West 78 (July 1987)...

passim

16

14, 15, 16

l

15

16

15

15

In the Supreme Court of the Gnited States

OCTOBER TERM, 1989

No. 89-333

STATE OF CALIFORNIA, PETITIONER,

v.

FEDERAL ENERGY REGULATORY COMMISSION, ET AL.

RESPONDENTS.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF OF THE MODESTO IRRIGATION DISTRICT

AND TURLOCK IRRIGATION DISTRICT

AS AMICI CURIAE IN SUPPORT OF RESPONDENT, THE FEDERAL

ENERGY REGULATORY COMMISSION

INTEREST OF AMICI CURIAE

This Brief is filed pursuant to Supreme Court Rule 37 by the

Modesto Irrigation District and Turlock Irrigation District (“the

Districts”) as amici curiae in support of Respondent, the Federal

Energy Regulatory Commission (“FERC”). The Districts are

California irrigation districts organized and operated under the

California Water Code, and are agencies of the State of California

exercising governmental functions, see Cal. Water Code § 20570.

This brief is sponsored by the chief legal representative of each

irrigation district. Consequently, no consents to the filing of this

brief are required under this Court’s Rule 37.5.' These Districts

oppose the position advocated by the State of California in this

case, as ill-advised, unworkable, and contrary to Congress’ intent

and longstanding legal precedent.

‘Nevertheless, the Districts do have the consent of the parties to file this brief.

2

The Districts hold an FERC license for the construction and

operation of a 165 megawatt hydroelectric plant on the Tuolumne

River in California, which became operational in 1971 and was

built at an original cost of about $92.5 million. By amendment to

the license, the FERC recently authorized the addition of a fourth

generating unit at the plant and approved amendments to provide

for additional fish studies agreed upon by the Districts and the

California Department of Fish and Game and the U.S. Fish and

Wildlife Service. Article 37 of the license sets forth the minimum

flow release schedule for the protection and maintenance of fish

below the dam under normal, dry, and critically dry runoff con-

ditions. The normal water year schedule was modified by agree-

ment of the Districts and the California Department of Fish and

Game as authorized by Article 37 and the modified schedule was

approved by the FERC in the above license amendment. The

FERC retains authority to make further changes as may be re-

quired, upon notice and an opportunity for hearing.

From 1971 until 1985, the Districts operated their jointly

owned project, called the ““New Don Pedro Project’ (hereinafter

““New Don Pedro’’) in harmony with the state agency responsible

for administering state water rights, the State Water Resources

Control Board (“State Board”), represented by the Petitioner.

Since 1985, the State Board has taken the position that it has the

power to impose fish water release requirements different from

and more burdensome than the FERC requirements, and the

right—on an after-the-fact basis—in effect to attach conditions to

the outstanding FERC license for New Don Pedro. The State

Board's justification for this position has been the public trust

doctrine, which as interpreted by Petitioner purports to allow

reallocation of water from vested rights to so-called public uses.

As amici curiae in this proceeding, the Districts oppose any

change in the supremacy of FERC hydroelectric power licenses

and support the Ninth Circuit’s determination that the holders

of such licenses, once issued, are free from interference by state

agencies in areas covered by the FERC license.

3

SUMMARY OF ARGUMENT

In the court below, the State of California boldly sought to

usurp through “state preemption”’ the congressionally mandated

powers of the FERC and take over the management of new and

existing hydroelectric projects on the navigable rivers of Califor-

nia. The Ninth Circuit rejected California’s position based on this

Court’s ruling in First lowa Hydro-Electric Coop. v. Federal Power

Comm’n, 328 U.S. 152 (1946), which held that Congress intended

the Federal Power Commission (now FERC) to have exclusive

licensing and supervisory authority over hydroelectric plants on

navigable waterways. In First Jowa, this Court examined the text

of the statute, its structure, purpose and legislative history, and

rejected the claim of the State of Iowa that a state veto and dual

sovereignty were intended by Congress.

California contends that the time has come for this Court to

overrule First Iowa. Yet it cites no persuasive reason for this

Court to do so. The Court has consistently adhered to the view it

expressed in First Iowa. In its Ninth Circuit briefs, the State

purported to find “new” legislative history that justified its view,

but as the Ninth Circuit recognized, 877 F.2d at 749-50; Pet.

App. A-12 to A-13, the very extracts from the congressional

debates the State cited were considered by this Court in 1946 and

found 10t persuasive.

The State claims that California v. United States, 438 U.S. 645

(1978), justifies departure from First Jowa, neglecting to concede

that this Reclamation Act case is now 12 years old and that First

Iowa has been thereafter repeatedly cited as authoritative by this

Court. California v. United States restored to Section 8 of the

Reclamation Act the meaning found in it from 1902 to 1958; the

State would use that case to deprive the Federal Power Act of

the settled meaning it has enjoyed since 1946.

The dual sovereignty that the State seeks in this case is unwork-

able. For example, the FERC established a June bypass flow of

11 cubic feet per second (“cfs”) for the Rock Creek project,

4

thereby simultaneously allocating the remaining flow for hydro-

power generation. The State Board later decreed a June bypass

flow rate of 00 cfs. If the FERC mandated minimum bypass flow

is 11 cfs, it cannot also be 60 cfs because the 60 cfs bypass flow

results in a different allocation of water between the two compet-

ing uses. One agency must decide how much water shall be re-

leased for the protection of fish below a hydroelectric project.

California says it should decide; the statute, this Court’s prece-

dents and nearly 45 years of history say it should not—the FERC

should decide. This Court should reject California’s arguments

and affirm the Ninth Circuit decision because there is no reason

for the Court to reopen the issues settled long ago in First Iowa.

ARGUMENT

I.

INTRODUCTION

This Court is not writing on a clean slate. In 1946 the Court

carefully reviewed the great debate leading to the Federal Power

Act of 1920 (“FPA”) and confirmed that Congress intended for

the Federal Power Commission to exercise the full measure of

federal authority in administering power development of the na-

tion’s rivers. See First lowa Hydro-Electric Coop. v. Federal Power

Comm'n, 328 U.S. 152 (1946). The Court concluded that Con-

gress intended for states to exercise only an advisory role in rec-

ommending to the FPC how to manage power developments

within their borders. First Jowa controls the instant case and

should not be overruled.

Nevertheless, California argues its position here as though the

Court faces an issue of first impression. For example, California

analyzes the legislative history of the Federal Power Act’s adop-

tion in 1920, failing to note that this Court exhaustively analyzed

the same legislative history nearly forty-five years ago in 1946,

when deciding First Jowa. California exhorts this Court with pol-

icy arguments for how best to administer the nation’s hydroelec-

tric projects and power networks. See, e.g., Petitioner's Opening

241 Stat. 1063 (1920).

5

Brief, at 18-22, 45-47. Yet, despite California’s invitation, this

Court is not a super-agency mediating disputes about water uses

at federal power projects and attempting to create by judicial

decree the best or most efficient structure for managing all the

various FERC-licensed power projects. Congress has already

done this and the agency it vested with such authority is the

FERC and not the State of California. This Court has already

exercised its role in First Jowa, which is merely to construe the

Federal Power Act, which Congress adopted in 1920. This Court

then concluded that the Federal Power Commission, not the

states, has authority to regulate stream flows at FPC-licensed

projects. Many hydroelectric projects have been constructed in

reliance on the Court's ruling in First Iowa.’

This case does not involve a dispute concerning the extent of a

state’s authority to allocate consumptive use of surface waters

within its boundaries. This is not a water rights case. Instead, this

case presents the question of whether Congress may vest author-

ity in a federal agency to regulate integral features of federally

licensed energy projects on the nation’s rivers. The answer is that

Congress may vest such authority in a federal agency, that it has

done so in the Federal Power Act, and that conflicting state reg-

ulations must give way to such preemptive federal authority.

Stream flows are not simply an aesthetically pleasing, relatively

flexible feature at FERC-licensed hydroelectric projects; stream

flows and water storage are the soul of a project. Hydroelectric

dams exist for the purpose of storing or diverting water to run

through turbines and generate electricity at times when power is

needed (as well as for irrigation and other consumptive uses).

Water that is required for instream flows for fish is not available

3The massive power projects that Congress envisioned came to fruition and

now dominate the major navigable rivers of the country. The diverse water

works and power networks managed by the FERC transcend state boundaries,

spanning entire river basins and requiring coordination at all levels of stream

flows, water storage, and power generation. In reliance on the administrative

structure that Congress protected from parochial control by the several states,

hydropower project sponsors (and their bondholders) have invested billions of

dollars to create and maintain the massive power system Congress envisioned.

6

for project storage, consumptive uses, or future power generation.

When the FERC issues a license for a project, it carefully consid-

ers, with participation from the states, local governments, envi-

ronmental groups and other interested parties, the multitude of

factors that affect what level of instream flows should be required

at the project.

To fulfill its congressional mandate to administer federal power

projects within its jurisdiction, the FERC must have authority to

determine project flows. This case concerns the meaning of the

statute that gave the FERC plenary authority to regulate hydro-

electric projects within its jurisdiction. This Court construed that

Statute nearly forty-five years ago in First Jowa and concluded

that states may not veto the FERC’s determination of project

flows. Congress has not acted since then to vest such veto author-

ity in the states.* This Court should decline California's invitation

to rewrite the Federal Power Act to suit the state’s agenda.

FIRST IOWA HAS BEEN UNIFORMLY FOLLOWED

BY THIS COURT AND SHOULD NOT BE OVERRULED

A. This Court Has Repeatedly Reaffirmed First Jowa.

This Court has uniformly adhered to First Jowa’s holding that

the Federal Power Act of 1920 preempted all state regulation of

hydroelectric power projects licensed by the FERC. As recently

“Nothing has happened in the forty-four years since this Court's ruling in

First lowa to modify this Court's perspective on what Congress intended when

it adopted the Federal Power Act in 1920. This Court had available then the

same indicia of original legislative intent it has now. Moreover, Congress,

through its decision not to tamper with the balance of federal authority struck

im the FPA, has ratified and concurred in this Court's frequently reiterated

conclusion that Congress intended for the FPC to exercise comprehensive fed-

eral authorit). On questions of statutory interpretation, this Court defers to

Congress to amend a statute to meet perceived changes in the nation’s needs.

See Patterson v. McLean Credit Union, 491 US. , 109 S.Ct. 2363, 2370

(Kennedy, J.) & 2385 (Brennan, J., concurring) (1989) (special justification

required for departure from stare decisis on matters of statutory interpretation).

7

as 1982, in New England Power Co. v. New Hampshire, 455 U.S.

331, 338, n.6 (1982), the Court unanimously noted that, regard-

less of the extent of a state’s proprietary interest in a river that is

the source of power for a FERC-licensed hydroelectric project,

“the pre-eminent authority to regulate the flow of navigable wa-

ters resides with the Federal Government.” Citing First Jowa, the

Court noted that the state’s purported “ ‘ownership’ " of the river

“provides no justification for restricting or conditioning the use

of these federally licensed units.” Jd.

Similarly, in 1983, the Court summarized the First Jowa hold-

ing with respect to the preemptive purpose and sweep of the

Federal Power Act in order to distinguish it from the Atomic

Energy Act which did not give the NRC comprehensive planning

responsibility. See Pacific Gas & Electric Co. v. State Energy Re-

sources Conservation & Development Comm'n, 461 U.S. 190, 223,

n.34 (1983). The Court stated:

In First Iowa, this Court held that compliance with re-

quirements for a state permit under lowa law was not neces-

sary in order to secure a federal license for a hydroelectric

project. Allowing the States to veto federal decisions could

‘destroy the effectiveness of the Federal Act. It would subor-

dinate to the control of the State the “comprehensive” plan-

ning which the Act provides shall depend upon the judgment

of [the Federal Government].’ Id., at 164. In the same man-

ner, requiring compliance with state requirements would

have reduced the project to a size that the Federal Power

Commission had determined was inadequate, and compli-

ance with state engineering requirements could handicap the

financial success of the project.

Id. In addition, in Escondido Mutual Water Co. v. La Jolla

Band of Mission Indians, 466 U.S. 765, 773 (1984), the Court

discussed Congress’ purpose in passing the Federal Power Act

and noted, citing First Jowa, that Congress intended to vest in the

Commission exclusive authority to issue licenses for hydroelectric

aa enter am aie the ineffici oan fusi

caused by the ‘piecemeal, restrictive, negative approach’ to licens-

ing prevailing under prior law.” Thus, very recent Court deci-

ost x

sions have reaffirmed First Jowa’s holding with undiminished

force. Contrary to the claims of California this Court clearly does

not regard First Jowa as being undermined by recent preemption

and reclamation cases.

B. This Court Has Repeatedly Found That The Federal

Power Act Vests Comprehensive Regulatory Authority

In The FERC.

Since First Jowa the Court has revisited on several occasions

the question of Congress’ purpose in passing the FPA. Repeat-

edly, the Court has emphasized Congress’ intent to preempt the

field with federal regulation of hydroelectric projects. For exam-

ple, in FPC v. Union Electric Co., 381 U.S. 90, 97-98 (1965), the

Court explained that Congress intended to exercise “comprehen-

sive control over those uses of the Nation’s water resources in

which the Federal Government had a legitimate interest; these

uses included navigation, irrigation, flood control, and, very

prominently hydroelectric power—uses which, while unregulat-

ed, might well be contradictory rather than harmonious.” Quot-

ing First Jowa, the Court observed that the 1920 Act “ ‘was the

outgrowth of a widely supported effort of the conservationists to

secure enactment of a complete scheme of national regulation

which would promote the comprehensive development of the wa-

ter resources of the Nation, in so far as it was within the reach of

the federal power to do so... . Jd. at 99. In studying the

legislative history, the Court found that “conservationists and

opponents seemed to agree that the Act embodied the full meas-

ure of Congress’ authority under the Commerce Clause to regu-

late hydroelectric projects.” Jd. at 107.

The Court has observed how a state’s licensing requirements

can interfere with a comprehensive scheme of federal regulation.

Citing First Jowa, the Court explained that: “A State may not

enforce licensing requirements which, though valid in the absence

of federal regulation, give ‘the State's licensing board a virtual

power of review over the federal determination’ that a person or

agency 1s qualified and entitled to perform certain functions, or

9

which impose upon the performance of activity sanctioned by

federal license additional conditions not contemplated by Con-

gress.” Sperry v. Florida, 373 U.S. 379, 385 & n.4 (1963). Simi-

larly, the Court has declared: “It is no longer open to question

that the Federal Government under the Commerce Clause of the

Constitution . . . has dominion, to the exclusion of the States, over

navigable waters of the United States (citing, among other cases,

First Iowa) . . . Congress has elected to exercise this power under

the detailed and comprehensive plan for development of the Na-

tion’s water resources, which it prescribed in the Federal Power

Act, to be administered by the Federal Power Commission. [cit-

ing First lowa)” Tacoma v. Taxpayers of Tacoma, 357 U.S. 320,

334 (1958). In addition, in Federal Power Comm. v. Oregon, 349

U.S. 435 (1955), the Court, interpreting § 27 of the Federal Water

Power Act and reaffirming First Jowa, explained:

There thus remains no question as to the constitutional

and statutory authority of the Federal Power Commission to

grant a valid license for a power project on reserved lands of

the United States, provided that, as required by the Act, the

use of the water does not conflict with vested rights of others

[quoting Section 27 in a footnote]. To allow Oregon to veto

such use, by requiring the State's additional permission,

would result in the very duplication of regulatory control

precluded by the First lowa decision. . . . No such duplica-

tion of authority is called for by the Act. [Quoting in a

footnote the portions of the First Jowa decision discussing

the threat of a state veto to comprehensive planning by the

FPC.]

Id. at 444-45 and nn.15, 16.

C. First lowa Controls Resolution Of This Case.

The Court's clear language in First Jowa and subsequent cases

leaves no room for the strained distinctions that the State of

California tries to draw here to distinguish First Jowa. California

is asking this Court to overrule First Jowa and nearly 45 years of

consistent precedents so California can seize control of FERC-au-

thorized hydroelectric projects and dictate the terms under which

they will continue to operate.

10

California advances two arguments to persuade this Court to

depart from the unbroken line of authority following First Jowa:

(1) that First Jowa was not concerned with water rights; and (2)

that the language directed to Section 27 of the FPA was dictum,

unnecessary to the decision. Petitioner's Opening Brief, at 36-38

& n.18. Both points are simply wrong.

According to what the State of Iowa told this Court at the time

First Iowa was decided, the purpose of the state law at issue in

that case was “to conserve and protect as far as possible all public

and riparian rights in the waters of the state . . . Surely, no one

can contend that this language [of the lowa statute] does not refer

to the appropriation, diversion and use of water for power pur-

poses.” See Petition for Rehearing by State of lowa, at 13 (1946)

(filed in First Jowa).’ The lowa law was, in fact, a codification of

the common-law riparian water rights rule forbidding trans-basin

diversions. Thus, contrary to California's suggestion, the issue in

First lowa was the same as that here—the extent to which state

laws concerning water rights are preempted by the FPA. Firsr

Jowa involved more than a state use permit; it involved state-cre-

ated water rights overridden by the FPA.

Similarly, California’s argument that Fir.. Jowa did not turn on

a construction of Section 27 of FPA is also wrong. The Court's

analysis of Section 27 in First Jowa was an integral part of the

conclusions it reached. See 328 U.S. at 175-77. California would

distinguish between a project operator's acquiring a permit prior

to obtaining an FERC license as opposed to a project operator's

acquiring a state water right prior to diverting water under an

FERC license. But that distinction makes no sense in light of the

Court's overriding concern in First Jowa. The Court repeatedly

emphasized that Congress intended to promote hydropower de-

velopment through federal licensing and there is no room for

‘Copies of relevant briefs filed with this Court in the First Jowa case were

appended to Intervenor, Rock Creek Limited Partnership's brief that was filed

with the Ninth Circuit; presumably these First Jowa briefs are also readily

available in this Court's archives. Therefore, they are not separately appended

to this arnici brief.

state control of matters within the federal plan of regulation.

Clearly the diversion of water by a FERC-licensed project is an

integral part of the generation of hydroelectric power. If a state

imposes conditions on such diversion that conflict with conditions

imposed by the FERC—such as the minimum fish flow require-

ments at issue here—it is interfering with the comprehensive

scheme Congress established. First Jowa cannot be neatly distin-

guished on the technical grounds suggested by the State of Cali-

fornia and this Court should not now overrule its longstanding

precedent in First lowa.

THE STATE’S ARGUMENTS ABOUT THE LEGISLATIVE

HISTORY OF THE FEDERAL POWER ACT OF 1920 ARE

NEITHER NEW NOR PERSUASIVE; THIS COURT IN

FIRST IOWA ADDRESSED AND REJECTED THEM

Much of the State’s brief is taken up with a detailed review of

selected portions of the legislative history of the FPA. The state

presents its arguments concerning the legislative history with

great fanfare, implying that it has unearthed previously unnoticed

but controlling authority that mandates overruling First lowa.

According to the State, “The legislative history of the FPA pro-

vide[s] the strongest indication that Congress intended to defer

to state water rights laws.” Petitioner's Opening Brief, at 22.

Unfortunately for the State, its strongest argument is simply a

belated reprise of the same legislative history arguments this

Court rejected nearly forty-five years ago in First Iowa. A few

examples illustrate this point and show why this Court should not

reexamine the informed interpretation of the legislative history

that it reached in 1946 in First.Jowa and has reaffirmed on nu-

merous occasions since then.

The State of California relies heavily on certain statements by

Congressman LaFollette concerning S. 1419 (1918). Petitioner's

Opening Brief, at 31-32 & n.15. California's brief neglects to note

that in First lowa this Court was aware of, considered, and re-

12

jected the State’s interpretation of Mr. LaFollette’s statements.

See First Iowa, 328 U.S. at 173-74; see also Brief For State of

lowa, at 28 (1946) (filed in First Jowa), Brief For The Federal

Power Commission, at 19 (1946) (filed in First Jowa), Brief For

First lowa-Hydro-Electric Cooperative, at 32-33 (1946) (filed in

First Iowa), Petition For Rehearing By State of lowa, at 17-19

(1946) (filed in First Iowa; the petition for rehearing was denied,

328 U.S. 879 (1946)).° The court of appeals in First Jowa had also

relied on Mr. LaFollette’s comments, see 151 F.2d 20, 25.17 &

28 n.36 (D.C. Cir. 1945). Obviously, when this Court decided

First lowa it was not persuaded by California's interpretation of

Congressman Mr. LaFollette’s statements. The Court heard nu-

merous characterizations of Mr. LaFollette’s statements and

chose one interpretation of them. Those statements have not

changed their meaning with the passage of forty-five years.

The State's brief also relies extensively on comments of Con-

gr-ssman Mondell made in a colloquy with Congressman Raker.

See Petitioner's Opening Brief, at 33, n.15. Mondell’s comments

were discussed, quoted and referenced in excruciating detail in

the briefs presented to this Court in First lowa. See FPC’s Brief,

at 20 (filed in First Jowa), First lowa Hydro-Electric’s Brief, at

34-35 & Appendix pp. 40-42 (filed in First Jowa), lowa Rehearing

Petition, at 18-19 (filed in First Jowa).

This Court also was made well aware of the sequence and

language of bills leading up to the final language of the FPA, to

which the State of California imputes great significance here in

its attempt to have First Jowa overruled. See First Iowa, 328 U.S.

at 176 n.20, Petitioner's Opening Brief, at 23-35. The First lowa

Hydro-Electric Cooperative included a detailed chronology of the

legislative history of the Federal Power Act which makes specific

reference to many of the points raised here in the State of

California's brief concerning H.R. 16673 (1914), H.R. 408 (1916),

S. 1419 (1918), and H.R. 3184 (1920). See First lowa-Hydro-

Electric's Brief, at Appendix pp. 37-45 (filed in First lowa). This

detailed summary of the legislative history was presented to the

court of appeals in First Jowa by the Federal Power Commission.

*See supra note §

=

13

See id. For example, Congressman Mondell’s statements concern-

ing section 14 of H.R. 16673 (1914), which according to the State

of California prove that rights to use water at federal power proj-

ects must be acquired from the states under the FPA, see Peti-

tioner’s Opening Brief, at 23-24, was quoted in entirety to both

the court of appeals and this Court in First Jowa. See First lowa

Hydro-Electric’s Brief, at Appendix pp. 44-45 (filed in First Jo-

wa). Obviously, this Court in First Jowa did not find Congressman

Mondell’s states-rights interpretation of the savings language in

section 9 and section 27 of the FPA (as carried forward from

section 14 of H.R. 16673) to be controlling. This Court is not in

any better position now to reassess its conclusion in First Jowa on

this aspect of the FPA's legislative history.

This cursory examination of the materials and arguments pre-

sented to the Court in First Jowa reveals that the Court had full

notice of all of the legislative history arguments about the FPA

raised in this case by the State of California as well as the many

persuasive arguments to the contrary. See lowa’s Brief, at 23-28,

36 (filed in First Iowa); FPC’s Brief, at 19-20, 40, 47-53 (filed in

First Iowa), First lowa Hydro-Electric’s Brief, at 22-23, 32-35,

Appendix pp. 37-45 (filed in First Jowa); lowa’s Petition For Re-

hearing, at 17-19, 24 (filed in First Iowa); see also First Iowa

Hydro-Electric Cooperutive v. FPC, 151 F.2d 20, 25 n.17, 27-28

n.36 (D.C. Cir. 1945), rev'd, 328 U.S. 152 (1946). The parties to

First Iowa recited chapter and verse to the Court for the major

points now raised by the State of California. Consequently, it is

extremely disingenuous for the State of California to argue here

that the legislative history of the FPA conclusively demonstrates

that Congress intended to permit states to dictate minimum flows

at FERC-licensed facilities. As the Ninth Circuit recognized be-

low, California’s revisionist interpretation of the selfsame evi-

dence of legislative history was thoroughly considered and re-

jected by this Court in First Jowa. See 877 F.2d at 749-50; Pet.

App. A-12 to A-13.

Here, the statutory scheme that Congress established is clear.

It is difficult to believe that Congress intended for 48 states, as

we then were, to have dual control over hydroelectric projects on

>» 14

navigable waters of the United States. Ample provision was made

for the states and their responsible agencies (fish and game, state

engineer) to appear and be heard in FPC licensing proceedings.

But the thrust of the statute was that the Commission would

decide on the value of each project and how it would be con-

structed and operated. To allow the Commission’s orders to be

set aside by a state agency is a result so at war with the statutory

scheme as to deny the text of the Act. The statute does not reflect

the ambiguity attributed to it by Petitioner.

IV.

CALIFORNIA V. UNITED STATES, CONSTRUING

THE RECLAMATION LAW, OFFERS NO GUIDANCE

FOR THE DECISION OF THIS CASE

California’s arguments here boil down to one issue: should this

Court overrule First Jowa and nearly 45 years of Supreme Court

precedents and administrative practice so that the State of Cali-

fornia can assume control over hydroelectric power projects al-

ready constructed or planned for construction? In asking this

Court to overrule its decision in First Jowa, California ignores the

vast differences between Congress’ 1902 program for reclamation

of arid lands and its 1920 program for federal administration of

hydroelectric projects.

The State of California places great reliance on the Court's

decision in California v. United States, 438 U.S. 645 (1978) (the

New Melones case), which required the Secretary of the Interior

to conform to state law in administering irrigation projects under

the 1902 Reclamation Act. But the New Melones case is not a

proper guide for the decision of this case. It was governed by the

Reclamation Act of 1902; this case is governed by the Federal

Power Act of 1920. The historical forces that produced the two

acts and the problems they were designed to solve were quite

different.

California’s revisionist interpretation of history carefully

avoids facing the differences between Congress’ reclamation pro-

gram in 1992 and its program to regulate and promote develop-

15

ment of federal power in 1920. See Petitioner's Opening Brief, at

17 (“the similarities of the programs are stronger than their dif-

ferences . . .”). California knows that this is the fundamental

weakness in its argument. For California it is enough to say that

the statutory language is similar, that both statutes created fed-

eral agencies, and that both programs provide for development

of water for economic purposes. /d. California may be persuaded

by such superficial analysis;’ yet this Court was not and should

not be. The Court cannot reverse the course of nearly 45 years of

history of federal power development and regulation without

probing deeper into the differences between federal power pro-

grams and the reclamation programs that California holds out as

an example. Too much is at stake here for that.

The Court’s decision in the New Melones case was influenced

in large part by the history and purposes of the reclamation laws,

which the Court viewed as rooted in and interwoven with state

law. As the Court noted, the reclamation laws reflect a sort of

“cooperative federalism”; in the Reclamation Act of 1902, Con-

gress “merely authorized the expenditure of funds in States whose

citizens were generally anxious to have them expended.” 438 U.S.

at 650-51. Congress’ goal was to help state and local governments

in the western states finance projects to store their water.

The Reclamation Act was originally intended to conquer the

desert by bringing irrigated agriculture to arid western lands. It

created a public works program in which the federal government

supplied the otherwise absent capital for irrigation development.*

The Bureau of Reclamation built and operated the projects within

"Nevertheless, California's representatives clearly know that the reclamation

program was a public works program meant to promote state and local irriga-

tion projects while the federal power program was not. See, e.g., R. Walston,

Storm in the Desert: The Great Western Water Wars, 26 Journal of the West 78

(July 1987) (discussing in detail the history behind and reasons for federal

reclamation projects).

*See generally A. Golze, Reclamation in the United States 19-34 (1961) (cited

in California v. United States, 438 U.S. 645, 649 nn.1-3 (1978)); 2 R. Clark,

Waters and Water Rights, §§ 110.1, 110.2, at 120-21 (1967).

16

the framework of a state legal system that provided the water

rights and authorized the organization of water districts that ob-

ligated themselves to pay construction, operating and mainte-

nance costs.’ In the absence of state law, there was no project.

The Federal Power Act stands in stark contrast to the Recla-

mation Act. The FPA is a regulatory statute, in the tradition of

the Interstate Commerce Act of 1887, 24 Stat. 379 (1887) (which

established the Interstate Commerce Commission) and the Fed-

eral Trade Commission Act of 1914, 38 Stat. 717 (1914) (which

established the Federai Trade Commission) and was a forerunner

of the regulatory agencies of the 1930s. The purposes of the FPA

were three-fold: (1) to promote hydroelectric power on federal

lands and on navigable waterways controlled by the federal gov-

ernment; (2) to give preference to public entities such as munici-

palities in the use of the power; and (3) to capture for the govern-

ment some of the economic rents of water power, first by charges

to licensees and second by recapture provisions upon expiration

of licenses. This pervasive regulatory scheme could and did pro-

vide protection in Section 27 for vested water rights established

under state law. It had no room for supervening regulation of the

projects by state administrative agencies. '°

The State of California would like to persuade this Court, with

“revisionary zeal,” see California v. United States, 438 U.S. 645,

693 (1978) (White, J., dissenting), to change the law, as it pur-

°The Turlock Irrigation District and Modesto Irrigation District do not re-

ceive any Bureau of Reclamation water.

(See generally 4 R. Clark, Waters and Water Rights § 330, at 293-94 (1970).

Theodore Roosevelt recommended in 1908 that “although works for improve-

ment of navigation, power development, irrigation, flood control, and water

supply for domestic and manufacturing purposes should continue, the time had

come to merge local projects and uses of inland waters in a comprehensive plan

designed to benefit the Nation as a whole.” /d. at 293 (citing 42 Cong. Rec. 6988

(1908)). Private and public power interests continued to fight over how to

develop a comprehensive plan for the development of the nation’s waterways.

Id. at 294. The conservationists prevailed, establishing in the FPA a national

policy on the “use and development of water power on public lands and naviga-

ble streams.” /d.

17

portedly did in the New Melones case. But the State’s premise is

wrong. New Melones did not change the law; it restored to Section

8 the meaning it had from 1902 to 1958 and repudiated the ap-

parent departures from that meaning appearing in dicta in the

late 1950s. Until then federal-state relations under the Reclama-

tion Act followed a familiar, well-worn path for more than 50

years from the Act’s adoption in 1902—a path marked by mile-

stones such as Nebraska v. Wyoming and Gerlach, in which the

Court routinely rejected claims of federal supremacy and reaf-

firmed deference to state law mandated by Section 8 of the Rec-

lamation Act.!!

Only when patently insupportable claims under state law were

advanced did this Court—unnecessarily—depart from deference

to state law under Section 8. Thus in /vanhoe Irrigation District

v. McCracken, 357 U.S. 275, 288 (1958), the petitioner, in a bra-

zen attempt to evade acreage restrictions imposed by the 1902

Act, asserted that state law forbade such restrictions. Unfortu-

nately, instead of giving the simple answer that Section 5 of the

1902 Act set forth a specific congressional directive that was

intended to override any contrary provision of state law, the

Court undercut Section 8 and its deference principle. 357 U.S. at

290, 295-97. The achievement of the New Melones case was to

point out the unnecessary deviation from prior decisions repre-

sented by /vanhoe and to restore the principle of deference em-

bodied in Section 8.

''\See United States v. Gerlach Live Stock Co., 339 U.S. 725 (1950); Nebraska

v. Wyoming, 325 U.S. 589 (1945). In Nebraska v. Wyoming, Nebraska chal-

lenged diversions by Wyoming and Colorado of irrigation water from the North

Platte River and sought an equitable apportionment of the waters from that

river. 325 U.S. at 591-92. The Court confirmed that Section 8 of the Reclama-

tion Act of 1902 required the federal government, as a “carrier and distributor”

of feclamation project water, to conform with state law concerning the appro-

priation and use of such water. 325 U.S. at 614-15.

In United States v. Gerlach Live Stock Co., the United States challenged

private parties’ claims for compensation arising from loss of riparian rights

caused by construction of the Central Valley Project in California. 339 U.S. at

727-28. The Court concluded that when Congress instructed that the reclama-

tion law would govern construction of this project, Congress intended the Sec-

retary of Interior to proceed in compliance with state laws concerning appro-

priation and use of such water. 339 U.S. at 734-36, 739-42.

The FPA has no comparable legal history. From the time this

Court first spoke in 1946, in First Jowa, the Act has been charac-

terized as a pervasive licensing and regulatory system adminis-

tered exclusively by a federal agency. There is no occasion for this

Court to re-examine the FPA because, unlike Section 8, its inter-

pretation has been uniform and unbending in respect to the ne-

cessity of federal supremacy. The Reclamation Act did not pre-

empt state law; with reclamation projects Congress directed the

Bureau of Reclamation to proceed in conformity with state law.

In stark contrast, the Federal Power Act was the product of a

heated and bitter debate in which the need for power was bal-

anced against the need for conservation by placing all projects

governed by the act under the exclusive regulatory control of the

Federal Power Commission. The role of conflicting state regula-

tion was specifically addressed in the debate in Congress over the

FPA and Congress deliberately chose to preempt such conflicting

state rules by dividing control by subject matter and giving each

entity final authority within its jurisdiction. See First Iowa, 328

U.S. at 167-68. Congress decided to protect against the risk that

states would veto projects that satisfied federal requirements. See

id. at 164. Thus, the FPA is not an example of legislation where

Congress’ preemptive intent was unclear; Congress clearly chose

for federal authority to preempt overlapping or conflicting state

regulation.'? The states and their agencies have ample opportu-

nity to voice their concerns through appearances before the Com-

'2The evidence of preemption is clear in this case. The Court in First lowa

reviewed the language and legislative history of the Federal Power Act and

concluded that Congress intended “to secure a comprehensive development of

national resources and not merely to prevent obstructions to navigation...”

328 U.S. at 181. The Court thereby distinguished the FPA from the Rivers and

Harbors legislation cited by the State for the proposition that federal and state

authorities have dual authority over matters in navigable waters. See Petitioner's

Opening Brief, at 40, 48. The Court concluded that, “The detailed provisions of

the Act providing for the federal plan of regulation leave no room or need for

conflicting state controls.” First Jowa, 328 U.S. at 181. There is no question that

regulation of project releases—the point of dispute in the instant case—is an

integral part of the FERC’s regulatory task under the FPA. Therefore, it is clear

that California's conflicting proposals must give way under established preemp-

tion doctrine.

19

mission, and through their continuing authority over the propri-

etary matters as discussed by the Court in First Jowa.

The State’s position in this case comes down to a naked assault

on estabushed, heretofore unchallenged law. New Melones offers

ne comfort, for it restored the Reclamation Act’s historical mean-

ing by reaffirming the first 50 years of interpretation of that Act

by this Court. Yet the State would use New Melones to overturn

nearly 45 years of settle 1 interpretation and administration of the

FPA under this Court's rulings. In short, the State would expand

New Melones beyond recognition in order to gain control over

hydroelectric projects—a control that Congress never intended

the states to have and that no court has ever validated.

V.

THE STATE’S ARGUMENTS ABOUT ADMINISTRATIVE

INTERPRETATION ARE NOT RELEVANT HERE

The State of California and the amici States have made passing

reference to the alleged contemporaneous administrative interpre-

tation of the FPA prior to this Court’s definitive ruling in First

Iowa in 1946. See Petitioner’s Opening Brief, at 35, n.17; Brief of

Amici States, at 20-24. An administrative interpretation that may

have been followed more than 45 years ago—and not followed at

any time since—is not relevant to this Court's interpretation of

the legal issues raised by the FPA. If principles of deference to

administrative interpretation are to guide the legal interpretations

made on this appeal, see, e.g, Chevron, USA, Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837 (1984), it is the

current interpretation, advanced here by the FERC and followed

and relied on by private parties for nearly 45 years, that is rele-

vant.

Even so, California and the amici States’ summary of the Fed-

eral Power Commission's interpretation of the FPA prior to 1946

is inaccurate. The most reliable summary of the FPC’s position

appears in its brief to this Court in First Jowa. See FPC’s Brief

20

(filed in First Jowa). The FPC’s position then, although problem-

atic now in light of the Court's resolution of matters in First lowa,

clearly does not lead to the position advocated here by the State

of California.

The FPC went to great lengths in 1946 to distinguish the FPA

from the earlier Rivers and Harbors legislation and call the

Court's attention to the unique legislative history of the FPA. See

FPC’s Brief, at pp. 47-57 (filed in First Jowa). The FPC stressed

that the Court should not ignore the “whole chapter of American

history” by which conservationists, after extensive debates, se-

cured “enactment of a complete scheme of national regulation

which would affirmatively encourage and promote the compre-

hensive development and utilization of the water resources of the

Nation, insofar as it was within the reach of the federal power to

do so, instead of the piecemeal, restrictive, negative approach of

the River and Harbor Acts and other federal laws previously

enacted.” Jd. at p. 47. Congress, according to the FPC in 1946,

sought to create “a complete scheme of regulation intended to

secure and promote the comprehensive development of water re-

sources subject to Federal control, in the public interest.” /d. at

p. 53. It is not insignificant that this Court appears to have bor-

rowed and thereby endorsed this language from the FPC’s Brief

in presenting the Court's interpretation of the FPA in First lowa.

See 328 U.S. at 180-81.

Therefore, the State of California's arguments about the FPC’'s

administrative interpretation from 1920 to 1946 are misplaced

and should be rejected. The FPC’s position even prior to 1946

does not lead to the dual control sought here by the State of

Cahfornia.

Vi.

CALIFORNIA'S POSITION MAKES NO PRACTICAL

SENSE AND DOES NOT NECESSARILY LEAD TO

GREATER PROTECTION OF FISHERIES

California argues in this action that it has exclusive authority

to regulate minimum project flows at an FERC-licensed hydro-

21

electric facility in order to impose more stringent requirements

on the operator than the FERC has imposed. California implies

in its Petition that such exclusive regulation of flows by the states

is workable, does not infringe upon the FERC’s prerogative, and

will lead to greater protection of fish. Yet, in fact, California's

proposed “state preemption” makes no practical sense, directly

infringes on the regulatory prerogative that Congress intended

the FERC to exercise, and merely transfers final decisionmaking

authority from the FERC to the states without any assurance that

states will be any more or less protective of fish than the FERC.

A. California’s Interpretation Of The FPA Is Unworkable.

Both Congress and this Court recognized the practical prob-

lems that inhere in a system in which two separate decisionmak-

ing entities have the right independently to set the parameters for

operation of hydroelectric projects. California here is advocating

precisely the veto power and overlapping jurisdiction that Con-

gress sought to eliminate with the comprehensive program of

federal regulation created in the Federal Power Act. The Court

construed the FPA in First Jowa as preemptive of state laws that

conflict or interfere with the FPC’s regulatory authority at FPC-

licensed projects precisely to prevent a state from exercising a

veto: “Such a veto power easily could destroy the effectiveness of

the federal act. It would subordinate to the control of the State

the ‘comprehensive’ planning which the Act provides shall de-

pend upon the judgment of the Federal Power Commission or

other representatives of the Federal Government.” 328 U.S. at

164. The Court stated: “A dual final authority, with a duplicate

system of state permits and federal licenses required for each

project, would be unworkable. ‘Compliance with the require-

ments’ of such a duplicated system of licensing would be nearly

as bad.” Jd. at 168.

California attempts to gloss over the unworkability of state

regulation of FERC project flows by arguing here that it is not

~ | in obtaini FERC.-li per

See, e.g., Petitioner's Opening Brief, at 48-49. The State argues

22

that it is not infringing on the FERC’s prerogative when it sets

more stringent conditions than the FERC, id. at 48-49, an argu-

ment that the Ninth Circuit rejected as, in effect, a veto of the

project. 877 F.2d at 749; Pet. App. A-12. Veto, in the sense of

“forbid,” may not be the State’s usual objective, but displacement

of any other authority certainly is. When the FERC sets 100 cfs

of water for fish, it is simultaneously assuring the availability of

the remaining supply for other uses. When the State Board sets

175 cfs for fish, it is allocating 75 cfs less for other uses than the

FERC ordered. The basic mistake of the State’s thinking is re-

vealed in the statement that the State has set more stringent

conditions and hence there is no conflict between the State

Board’s order and the FERC’s order. The test is not how strin-

gent are the requirements for fish; rather, conflict occurs because

of differences between the State Board and the FERC over

amounts of water allocated for power. The State Board’s more

stringent requirement for fish is an invasion of the FERC’s re-

quirements for power. Each state agency has had the opportunity

to fight out before the FERC the amount of water to be released

for fish. The fight is a charade if, after losing, the state agency

imposes its desires anyway.'?

This Court clearly recognized in First Jowa the same ploy at-

tempted here by the State of California: “Compliance with State

requirements that are in conflict with federal requirements may

well block the federal license.” 328 U.S. at 167. Congress in-

tended for the FERC to draw the line in setting conditions for

operation of hydroelectric facilities, between environmental re-

Amici American Rivers, et al. contend that imposition of state-mandated

minimum flows at FERC-licensed projects is analogous to Army Corps of En-

gineers participation in regulating water pollution at hydroelectric projects.

Brief of Amici Curiae American Rivers et al. in Support of Petitioner, at 29-31.

Such Army Corps participation is the result of Congress’ “radical change in

legislative policy” wrought in the Federal Water Pollution Control Act Amend-

ments of 1972, see Monongahela Power Co. v. Marsh, 809 F.2d 41, 45 (D.C.

Cir.), cert. denied, 484 U.S. 816 (1987), and sheds no additional light on Con-

gress’ intent in the entirely separate legislation at issue in this case—the FPA—

which this Court definitively construed in First lowa.

23

quirements and economic feasibility.'* Yet the position the State

of California is advocating here effectively makes all terms and

conditions of FERC licenses superfluous because the State can

Obviously, neither Congress nor this Court envisioned states

playing such a role at FERC-licensed projects.

Unlike the FERC, the states are not charged with balancing the

need for power against the need for promotion of fisheries. If the

FERC is construed as having exclusive control over power, and

the State has controlling jurisdiction to promote fisheries, no

agency will ever balance these interests.

B. State Regulation Of Stream Flows At FERC-Licensed

Projects Will Not Lead To Greater Protection And En-

hancement Of Fish.

California also tries to make its extreme position palatable by

implying that exclusive state authority over stream flows will lead

to greater protection and enhancement of fish for recreational and

commercial purposes. California suggests in its Brief that the

purpose of its more stringent minimum flow requirements for the

Rock Creek project is to protect trout, a recreational fish. Peti-

tioner’s Opening Brief, at 2-3. Nevertheless, the State’s proposed

interpretation of the FPA will not necessarily operate to advance

greater protection and enhancement of fish either within or out-

side California. '*

“Indeed, the FERC concluded in this case that the state's recommended

minimum flows would jeopardize the economic feasibility of the Rock Creek

project by causing “Rock Creek to suffer an extended span of substantial finan-

cial loss during the license term.” Pet. App. A-20 to A-21.

'‘Amici American Rivers et al. advance a different, result-driven, argument

that ignores the terms of the FPA and Congress’ intent. They contend that the

level of minimum project flows that most promotes fisheres, set either by a siate

or by the FERC, should apply to FERC projects. Brief of Amici Curiae Ameri-

can Rivers et al. in Support of Petitioner, at 8-9. The American Rivers position

fails to balance the need for power with the need to promote fisheries, it would

authorize a state to divert water to fish that the FERC would use for power.

Such state authority could be used to render impracticable any FERC project,

including importantly, all existing FERC-hcensed facilities.

24

The State's interpretation of the FPA would simply shift deci-

sionmaking prerogative from the FERC to the states; yet Con-

gress specifically left the final decision with the FERC in enacting

the Electric Consumer Protection Act of 1986, Pub.L. No.

99.495, 100 Stat. 1243, which amended portions of the FPA.

Such a shift would not necessarily lead to enhanced fishery pro-

tection. The FERC is equally obligated by a host of laws and

regulations to protect fishery resources. Such concerns are an

integral factor in its decision to regulate minimum flows for fish.

The fact that the State is unhappy in this particular instance with

the FERC’s resolution of such issues is not sufficient reason to

upset the entire system of federal regulation.

Thus, the State of California's interpretation of the FPA is

cumbersome and unworkable because of the state veto problems

recognized by Congress and this Court. In addition, the State's

position will not necessarily advance and may well hinder the

protection and enhancement of the nation’s fishery resources. In

short, the State’s position is contrary to Congress’ intent, reflects

bad policy and should be rejected.

C. California Is Simply Seeking To Expand Its Power

Under The Public Trust Doctrine.

The State makes no bones about the broad objectives it has in

seeking to overturn First Jowa in this litigation. Its aims are not

confined to low-head hydroelectric projects. The principal objec-

tive of the State is to oust the FERC from a meaningful role in

the licensing and oversight of all hydroelectric power projects—

proposed and existing—and to replace the federal agency with the

State Board. Once this power play has been effectuated, the State

Board will invoke the public trust as announced by the California

Supreme Court in National Audubon Society v. Superior Court,

189 Cal. Rptr. 346, 33 Cal. 3d 419, 658 P.2d 709 (1983), cert.

denied, 464 U.S. 977 (1983). Relying on the public trust, which

arguably reaches every trickle of water in the state and perhaps

the snowpack as well, the State Board means to rewrite FERC

licenses to its own taste, without regard to bond obligations, fed-

a

25

eral recapture rights, or FERC orders designed to implement a

comprehensive plan for the development of federal waterways. '*

This is not even a “dual” system of control—water cannot be

released at 100 cfs and at 175 cfs at the same time. A single

authority must decide how much water goes to fish, how much

to power and other uses. The State of California claims that au-

thority in this case, but Congress and this Court lodged the power

in the FERC, where it should remain.

VIL

CONCLUSION

The Ninth Circuit’s decision below should be affirmed and the

relief sought by California in this case should be denied.

FEBRUARY 1990. Respectfully submitted,

GiBson, DUNN & CRUTCHER

Joe. S. Moskowrrz*

Greocory J. Kerwin

1801 California Street, Suite 4200

Denver, Colorado 80202

(303) 298-7200

Attorneys for Amici Curiae,

the Modesto Irrigation District

and Turlock Irrigation District

*Counsel of Record

Of Counsel:

WARREN F. Gant, General Counsel

Modesto Irrigation District

RoGcer K. Masupba, General Counsel

Turlock Irriaation Diceri

‘The amici States candidly admit their desire to rewrite FERC licenses to

suit their tastes. For example, the State of Idaho would like retroactively to

subordinate all hydropower water use in favor of “future upstream uses ” Brnef

of Amici States in Support of Petitioner, at 26-27.

_