County of Butte v. Federal Energy Regulatory Commission , 445 F. App'x 928 ( 2011 )

FILED
NOT FOR PUBLICATION AUG 02 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
COUNTY OF BUTTE, CALIFORNIA, No. 10-70140
Petitioner, FERC Nos. EL09-55-000
EL09-55-001
THE METROPOLITAN WATER
DISTRICT OF SOUTHERN
CALIFORNIA, MEMORANDUM *
Intervenor,
v.
FEDERAL ENERGY REGULATORY
COMMISSION,
Respondent,
CALIFORNIA DEPARTMENT OF
WATER RESOURCES; STATE WATER
CONTRACTORS,
Respondents-Intervenors.
On Petition for Review of Orders of the
Federal Energy Regulatory Commission
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Argued and Submitted July 19, 2011
San Francisco, California
Before: TASHIMA and RAWLINSON, Circuit Judges, and RAKOFF, Senior
District Judge.**
Butte County, California (the County) petitions this court for review of the
Federal Energy Regulatory Commission’s (FERC) orders denying its complaint
and petition for rehearing against the California Department of Water Resources
(DWR), the licensee of a hydroelectric project located in Butte County. The
County sought reimbursement from the DWR for public safety services, including
law enforcement, fire, and rescue. The County contends that FERC acted
arbitrarily and capriciously by failing to find that the DWR violated the Federal
Power Act (FPA) and provisions of the license governing the hydroelectric project.
“Under the Administrative Procedure Act, this court reviews decisions by
FERC to determine whether the agency action was arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law.” Fall River Rural Elec.
Co-op., Inc. v. F.E.R.C., 543 F.3d 519, 525 (9th Cir. 2008) (citation omitted).
“In accordance with Chevron, we must also give substantial deference to the
Commission’s interpretation of its own regulations. In other words, we must defer
**
The Honorable Jed S. Rakoff, Senior District Judge for the U.S.
District Court for Southern District of New York, sitting by designation.
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to the Commission’s interpretation unless an alternative reading is compelled by
the regulation’s plain language or by other indications of the Commission’s intent
at the time of the regulation’s promulgation. Likewise, we must give deference to
the Commission’s interpretation of its own orders.” Cal. Trout v. F.E.R.C., 572
F.3d 1003, 1012-13 (9th Cir. 2009) (citation, alterations and internal quotation
marks omitted).
None of the statutory provisions or regulations relied on by the County
require the reimbursement of funds to a project’s host municipality. Importantly,
we are bound by FERC’s interpretation of its own regulations absent a showing of
contradictory language in the statutes and regulations or a different intent at the
time the governing rules were created. See California Trout, 572 F.3d at 1012-13.
The County pointed to none. Rather, the record reflects that FERC generally
discourages license provisions mandating reimbursement for services provided.
FERC’s preference is for concrete performance requirements in the license, as it
has no mechanism to confirm that proceeds paid to another entity actually serve a
project purpose. See Settlements in Hydropower Licensing Proceedings Under
Part I of the FPA, 116 FERC ¶ 61,270, 2006 WL 2709607, at *8 (2006). Local
authorities are responsible for law enforcement. See Yuba County Water Agency,
54 FERC ¶ 62,082, 63,140-41 (1991) (holding that the Sheriff’s office should be
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allowed to comment on a recreation plan because it is responsible for law
enforcement at the project). Thus, it would appear that this matter is more
appropriately resolved by state and local authorities rather than through an order
from FERC.
We acknowledge the existence of Articles 7 and 14 of the Form L-6, which
was incorporated into the license by reference. See Cal. Dep’t of Water Res., 17
F.P.C. 262, 265 (1957), 16 F.P.C. 1117, 1121 (1953). Article 7 mandates the
licensee to allow the public free access to project waters and lands. See 16 F.P.C.
at 1123. Article 14 requires that the licensee “do everything reasonably within its
power . . . to prevent, make advanced preparations for suppression, and suppress
fires on lands occupied under the license.” Id. at 1124. However, neither clause
mandates any specific expenditures, either for law enforcement or fire and rescue.
It simply cannot be said that FERC acted arbitrarily or capriciously by declining to
expand these provisions to include compensation for County personnel and
services.
PETITION FOR REVIEW DENIED.
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