California Trout v. FERC

Jul 20: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-73664, 07-74494 & 08-71593. According to the Ninth Circuit, the Supreme Court has long stressed that “the formulation of procedures [is] basically to be left within the discretion of the agencies to which Congress [has] confided the responsibility for substantive judgments.” [Citing: Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 524-25 (1978)].

The Appeals Court said, "Agencies must have the ability to manage their own dockets and set reasonable limitations on the processes by which interested persons can support or contest proposed actions. In this respect, an agency’s procedural rules operate much as our own rules of procedure do: we require litigants to observe the orderly procedures of the court, even if such rules occasionally bar inattentive or ill-advised parties from our courtrooms. So long as an agency’s procedural rules do not afford petitioners less protection than the minimum mandated by the Administrative Procedure Act (APA) and the Constitution, we are not free to 'improperly intrude[ ] into the agency’s decision-making process' and second-guess its administrative tradeoffs. Id. at 525.

In the instant case, petitioners California Trout (CalTrout) and Friends of the River (FOR) contend that the Federal Energy Regulatory Commission (FERC, the Commission) applied its rule governing intervention in a license renewal proceeding in an arbitrary and capricious fashion. The Appeals Court, in a split decision said, "Although petitioners have set forth evidence that their late intervention would not prejudice the Commission’s proceeding, under the circumstances we cannot find that the Commission’s decision was an abuse of its discretion. The regulation at issue explicitly confers on the Commission a broad power to differentiate among untimely interveners and permits the Commission to summarily reject a prospective intervener who cannot demonstrate 'good cause' for its untimely motion. Because we find that the Commission reasonably determined that petitioners lacked good cause for their untimely attempt to intervene, we deny the petition for review."

In its final argument, the majority ruled, "Finally, we observe that the Commission’s procedural rules are no less important -- and, therefore, no less deserving of respect -- than our own code of procedure. Such rules provide for orderly decision-making and constitute advance notice of the process by which our institutions will conduct themselves. The petitioners knew the rules of the game and assumed the risks of their decision not to intervene. The Commission had no obligation, by statute or by rule, to provide relief for petitioners’ failure to intervene in a timely fashion."

The dissenting Justice said, "I respectfully dissent and would grant the petition because the Commission has erected an unreasonably high barrier to good cause for late intervention, and without explanation or justification has departed from its own precedent of routinely granting late intervention where there is no risk of prejudice. In denying Petitioners’ motions for late intervention, the Federal Energy Regulatory Commission (the Commission) has arbitrarily imposed a good cause requirement far more stringent than indicated by analogous precedent and at odds with the liberal standard it has applied consistently in similar cases. Moreover, it should not go unnoticed that in denying leave to intervene, the Commission has silenced any party wishing to advance Petitioners’ environmental concerns."

Access the complete opinion and dissent (click here).