Tuesday, January 4, 2011

Hoopa Valley Tribe v. FERC

Dec 28: In the U.S. Court of Appeals, D.C. Circuit, Case No. 09-1134. The Appeals Court indicates that one of the modern U.S. government's major regulatory tasks is to reconcile competing demands on the Nation's natural resources. The dispute in this case concerns water resources in the Pacific Northwest, where a hydroelectric plant provides power to some citizens but interferes with the food needs and recreational desires of others.
    The Klamath Hydroelectric Project is located on the Klamath River in Oregon and California. The Project serves as a source of electricity for customers in a six-state area of the Pacific Northwest. From 1956 to 2006, a power company known as PacifiCorp operated the Klamath Hydroelectric Project pursuant to a 50-year license granted by the Federal Energy Regulatory Commission (FERC). Since the original license expired in 2006, PacifiCorp has operated the Project under successive annual licenses granted by FERC.
    The Hoopa Valley Tribe of American Indians holds fishing rights in the Klamath River and subsists in part on the River's trout. In 2007, the Tribe requested that FERC impose conditions on PacifiCorp's annual licenses so as to preserve the Klamath River's trout fishery. FERC declined to do so. In this Court, the Tribe has challenged FERC's refusal as contrary to the Commission's regulations and precedents, and as unsupported by substantial evidence. The Appeals Court said it disagreed and denied the Tribe's petition.
    The Appeals Court ruled, "This controversy presents "a classic example of a factual dispute the resolution of which implicates substantial agency expertise.' Marsh v. Or. Natural Res. Council, 490 U.S. 360, 376 (1989). FERC acknowledged conflicting evidence and weighed the testimony of dueling experts. There was evidence on both sides; we thus have no basis to overturn the Commission's resolution of this debate. The Commission's conclusion is based on substantial evidence. Cf. Wis. Valley Improvement Co. v. FERC, 236 F.3d 738, 746-47 (D.C. Cir. 2001)."
    Access the complete opinion (click here).

No comments: