Ca Sportfishing v. Ferc , 472 F.3d 593 ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CALIFORNIA SPORTFISHING 
PROTECTION ALLIANCE; PACIFIC
COAST FEDERATION OF FISHERMEN’S
ASSOCIATIONS, INC.,
Petitioners,
No. 05-73064

v.
FERC No. 108
FEDERAL ENERGY REGULATORY
COMMISSION, OPINION
Respondent,
PACIFIC GAS AND ELECTRIC
COMPANY,
Respondent-Intervenor.

On Petition for Review of an Order of the
Federal Energy Regulatory Commission
Argued and Submitted
April 5, 2006—San Francisco, California
Filed December 12, 2006
Before: Mary M. Schroeder, Chief Judge, Stephen S. Trott
and Andrew J. Kleinfeld, Circuit Judges.
Opinion by Chief Judge Schroeder
19351
19354 CALIFORNIA SPORTFISHING v. FERC
COUNSEL
Trent W. Orr, San Francisco, California, for the petitioner.
Carol J. Banta, Federal Energy Regulatory Commission,
Washington, D.C., for the respondent.
William J. Madden, Jr., Washington, D.C., for the respondent-
intervenor.
OPINION
SCHROEDER, Chief Judge:
This is a petition to review a decision of the Federal Energy
Regulatory Commission (“FERC”) not to initiate formal con-
CALIFORNIA SPORTFISHING v. FERC 19355
sultation with the National Marine Fisheries Service
(“NMFS”) about the operation of the DeSabla-Centerville
hydroelectric project. The project is operated by respondent
Pacific Gas and Electric (“PG&E”) under a 30-year license
that FERC issued in 1980. The petitioners seek the consulta-
tion in order to protect Chinook Salmon that were declared a
threatened species in 1999.
The petitioners include California Sportfishing Protection
Alliance and other environmental groups. The operative stat-
ute is section 7 of the Endangered Species Act (“ESA”) that
provides for formal consultation with NMFS to insure that
“agency action” does not jeopardize continued existence of an
endangered species. 16 U.S.C. § 1536(a)(2). We have juris-
diction pursuant to the Federal Power Act, 16 U.S.C.
§ 825(l)(b), to review the FERC orders denying petitioners’
petition for consultation and petition for rehearing.
The dispositive issue is whether there was any “action
authorized, funded, or carried out” by a federal agency, that
would have triggered the ESA’s consultation requirement in
1999. 16 U.S.C. § 1536(a)(2). Petitioners in essence are ask-
ing for consultation in order to determine whether PG&E
should change the manner in which the project is operated
pursuant to a license agreement issued by FERC in 1980. We
conclude that the statutory language, the regulations promul-
gated pursuant to the statute, and our case law interpreting
them compel the conclusion that the ESA imposes no duty to
consult about activities conducted by PG&E pursuant to a
previously issued, valid license from FERC.
FERC could unilaterally institute proceedings to amend the
license if it so chose. This is because the license agreement
itself contains provisions authorizing FERC to modify the
license to reflect changing environmental concerns. The ESA
and the applicable regulations, however, mandate consultation
with NMFS only before an agency takes some affirmative
agency action, such as issuing a license. See Tenn. Valley
19356 CALIFORNIA SPORTFISHING v. FERC
Auth. v. Hill, 437 U.S. 153, 186-88 (1978); W. Watersheds
Project v. Matejko, 456 F.3d 922, 930 (9th Cir. 2006); Turtle
Island Restoration Network v. Nat’l Marine Fisheries Serv.,
340 F.3d 969, 977 (9th Cir. 2003); 16 U.S.C. § 1536(a)(2); 50
C.F.R. § 402.02. Because FERC took no affirmative action
concerning PG&E’s existing license, we must deny the peti-
tion for review.
BACKGROUND
The DeSabla-Centerville project is located in Butte County
California. It consists of a system of dams, reservoirs, canals,
and powerhouses that first divert water from two reservoirs
and from Butte Creek into powerhouses for hydroelectric gen-
eration, before returning the water to Butte Creek down-
stream. The operation of the dam system affects the flow of
water in the creek, which provides spawning grounds for Chi-
nook Salmon.
FERC may issue licenses to operate such projects for a
term of up to 50 years. 16 U.S.C. § 799. PG&E operates this
project under a 30-year license issued by FERC in 1980. The
license allows FERC to require PG&E to make changes to
operations to protect fish and wildlife. It states:
The Licensee shall, for the conservation and devel-
opment of fish and wildlife resources, construct,
maintain, and operate, or arrange for the construc-
tion, maintenance, and operation of such reasonable
modifications of project structures and operation, as
may be ordered by [FERC] upon its own motion or
upon the recommendation of the Secretary of the
Interior or the fish and wildlife agency or agencies
of any state in which the project or part thereof is
located, after notice and opportunity for hearing.
Nineteen years after FERC issued the license, the Chinook
was declared a threatened species under the ESA. Endangered
CALIFORNIA SPORTFISHING v. FERC 19357
and Threatened Species; Threatened Status for Two Chinook
Salmon Evolutionary Significant Units (ESUs) in California,
64 Fed. Reg. 50,394, 50,412 (Sept. 16, 1999).
After many fish died in Butte Creek in 2002 and 2003,
NMFS requested FERC to initiate “formal consultation”
regarding the project’s effects on the Chinook pursuant to 50
C.F.R. § 402.14(a). FERC did not do so. In April 2004, peti-
tioner California Sportfishing petitioned FERC to initiate for-
mal consultation, and FERC denied the petition in August
2004. That denial, as well as the denial of rehearing on March
23, 2005 are the subject of this petition for review.
A major component of formal consultation is the produc-
tion of a “Biological Opinion.” 50 C.F.R. § 402.14(g)(4). In
the Biological Opinion, NMFS must determine whether or not
the action under review “is likely to jeopardize the continued
existence of a listed species or result in the destruction or
adverse modification of critical habitat.” 50 C.F.R.
§ 402.14(h)(3). If NMFS concludes that jeopardy is likely, it
must issue “reasonable and prudent alternatives” to the action
under review. Id. Along with such alternatives, NMFS must
issue an “incidental take” statement. Id. § 402.14(I). The “in-
cidental take” statement constitutes a permit for the agency or
licensee to take endangered species, so long as they imple-
ment the reasonable and prudent alternatives and comply with
the conditions of the incidental take statement. Bennett v.
Spear, 520 U.S. 154, 170 (1997).
The existing PG&E license is due to expire in 2009, and
early consultation between FERC and NMFS has begun in
contemplation of renewal proceedings. See 50 C.F.R.
§ 402.11. In May 2005, California Sportfishing filed this peti-
tion for review of the FERC denials of consultation. PG&E
has intervened to defend the FERC denials as well as to con-
tend that we lack jurisdiction to review the denials in light of
the current preliminary consultations looking toward renewal
of the license after its expiration in 2009.
19358 CALIFORNIA SPORTFISHING v. FERC
DISCUSSION
A. Jurisdiction
[1] We have jurisdiction to review a FERC order only if (1)
it is final, (2) if review would not invade the discretion of the
agency, and (3) if, absent review, the petitioner would suffer
irreparable harm. Steamboaters v. FERC, 759 F.2d 1382,
1388 (9th Cir. 1985). Here, FERC’s denial of the petition for
consultation is final, and our review would not disturb the
exercise of any discretion of the agency.
[2] The only issue raised as to our jurisdiction is PG&E’s
contention that California Sportfishing would not suffer irrep-
arable harm as a result of the operation of the existing license,
because consultation is already underway in connection with
contemplated 2009 re-licensing proceedings. The gist of
PG&E’s position is that if there is to be a preliminary Biologi-
cal Opinion issued in these proceedings as to what might be
done to protect the Chinook after 2009, no irreparable harm
can result from failure to consult now.
[3] The consultation which petitioners seek in this proceed-
ing, however, is aimed at measures to protect the Chinook
under the operation of the existing license, and not under the
terms of a license that would go into effect sometime in the
future. The government suggests that it will act promptly to
implement any changes recommended under the preliminary
analysis for the new license, and will not wait for the issuance
of a new license. There is nothing in the statute, however, that
requires the government to take such immediate guidance
from the preliminary Biological Opinion issued in connection
with license renewal. That opinion will, as a matter of law,
apply only to operations under the new license. Petitioners’
concern is with ongoing operations that are affecting the Chi-
nook now. There is a showing of irreparable harm and,
accordingly, we have jurisdiction to consider whether the stat-
CALIFORNIA SPORTFISHING v. FERC 19359
ute, as a matter of law, requires consultation with NMFS in
connection with ongoing operations under an existing license.
B. Whether consultation is required
Section 7(a)(2) of the ESA states:
Each Federal agency shall, in consultation with and
with the assistance of the Secretary, insure that any
action authorized, funded, or carried out by such
agency (hereinafter in this section referred to as an
“agency action”) is not likely to jeopardize the con-
tinued existence of any endangered species or threat-
ened species or result in the destruction or adverse
modification of habitat of such species. . .
16 U.S.C. § 1536(a)(2).
To support its position that the continuing operation of the
project by PG&E is an agency “action” within the meaning of
the statute, petitioners point to the Supreme Court’s landmark
decision in Tenn. Valley Auth. v. Hill, 437 U.S. 153 (1978).
There, a project that had been approved repeatedly by Con-
gress was required by the terms of the ESA to remain inopera-
tive. Id. at 172. This was because, if the project became
operational, it would result in the destruction of the habitat of
a newly discovered, but endangered species of snail darter. Id.
at 171-74. The agency was ordered not to take action to oper-
ate the dam. Id. at 195.
In that case, the dam had not yet begun to operate and the
contemplated government action at issue was its start up. Id.
at 171. Here PG&E has been operating the DeSabla-
Centerville project for more than 20 years. The question is
thus whether such ongoing operations are similarly subject to
the ESA. The answer requires an examination of the structure
of the Act.
19360 CALIFORNIA SPORTFISHING v. FERC
Congress could have provided that once a species is listed
as threatened or endangered under the ESA, federal agencies
must consult with expert agencies like NMFS about the
impact of all ongoing operations, including those carried out
pursuant to licenses. This is how the petitioners ask us to
interpret the ESA. Congress did not so provide, however.
[4] The statute requires federal agencies to consult with
NMFS or another expert agency in connection with federal
agency action in order to “insure that any action . . . is not
likely to jeopardize the continued existence” of threatened
species. 16 U.S.C. § 1536(a)(2). The statute looks to the
future effect of contemplated actions by the agency. The trig-
gering mechanism for consultation is an agency action, not
the listing of a species. Because the focus is on the future
effect of the agency’s action, the statute requires the govern-
ment to insure that an action “is not likely to” jeopardize an
endangered species. 16 U.S.C. § 1536(a)(2). Again, the phrase
“likely to” does not refer to present effects but to the future.
The regulations reinforce this purpose by requiring the agency
to “review its actions at the earliest possible time.” 50 C.F.R.
§ 402.14(a).
[5] The leading Supreme Court authority is in accord. In
Tenn. Valley Auth. v. Hill, the Supreme Court looked to the
action about to be taken by the agency to operate the dam.
437 U.S. at 171. The Court held that because such action
would jeopardize the habitat of the endangered snail darter,
the agency could not begin operating the dam. Id. at 173-74.
The Court thus focused on the potential effect of the govern-
ment’s contemplated action. The point was made more suc-
cinctly in the later case of Bennett v. Spear, 520 U.S. at 158,
where the Court said an agency must engage in formal consul-
tation “[i]f an agency determines that action it proposes to
take may adversely affect a listed species.”
The petitioners, nevertheless, contend that PG&E’s opera-
tion of this project constitutes ongoing agency action that can
CALIFORNIA SPORTFISHING v. FERC 19361
trigger a requirement for consultation with the expert agen-
cies. They rely on our decision in Turtle Island Restoration
Network v. Nat’l Marine Fisheries Serv., 340 F.3d 969 (9th
Cir. 2003). The case is instructive, but does not support peti-
tioners here.
[6] Turtle Island involved an ongoing government program
to issue permits for fishing that could cause collateral damage
to sea turtles and other endangered species, affecting their sur-
vival. Id. at 971. We held that once a species was listed as
endangered under the ESA, the agency was required to take
into account the potential effect on the species before issuing
future fishing permits. Id. at 977. It is significant for purposes
of this case that permits issued in the past were not affected.
Id.
In Turtle Island, we distinguished our decisions in Sierra
Club v. Babbitt, 65 F.3d 1502 (9th Cir. 1995) and Envtl. Prot.
Info. Ctr. v. Simpson Timber Co., 255 F.3d 1073 (9th Cir.
2001) on the grounds that in those cases, the relevant agency
activity had been completed. Turtle Island, 340 F.3d at 976-
77. In Sierra Club the agency had already granted a right of
way through forest land to a logging company. Sierra Club,
65 F.3d at 1505. Thus consultation for road-building by the
logging company was not required. Id. at 1509. In Simpson
Timber, consultation was not required because the agency had
already issued an incidental take permit to a logging contrac-
tor. Simpson Timber, 255 F.3d at 1079.
[7] Here, as in both Simpson Timber and Sierra Club the
agency action of granting a permit is complete. The ongoing
activity is that of PG&E operating pursuant to the permit.
Plaintiffs in this case are not challenging an ongoing program
of issuing new permits that underlay our decision in Turtle
Island.
[8] Even more recently, in W. Watersheds, 456 F.3d at 930,
the plaintiffs challenged the agency’s failure to consult on
19362 CALIFORNIA SPORTFISHING v. FERC
whether the agency should regulate certain rights-of-way used
by private parties to divert water. In rejecting the plaintiffs’
challenge, we explained that “Ninth Circuit cases have
emphasized that section 7(a)(2) consultation stems only from
‘affirmative actions’ ” of an agency. Id. We held that because
private parties, and not the government, were diverting the
water, there was no agency action triggering a duty to consult.
Id. at 931.
[9] This case is materially the same. PG&E, a private party,
operates the hydroelectric project challenged in this case.
FERC, the agency, has proposed no affirmative act that would
trigger the consultation requirement for current operations.
The petitioners also rely on Pacific Rivers Council v.
Thomas, 30 F.3d 1050 (9th Cir. 1994), but it does not support
their argument either. Pacific Rivers involved certain Land
and Resource Management Plans (“LRMPs”) governing thou-
sands of different projects in two national forests. Id. at 1052.
After the Forest Service adopted the LRMPs, the Chinook
was listed as a threatened species. Id. We held that the Forest
Service had to initiate formal consultation on the LRMPs
because they affected each future project planned in the for-
ests. Id. at 1053. We observed that “every individual project
planned in both national forests . . . is implemented according
to the LRMPs.” Id. Because they continued to apply to new
projects, we concluded that “the LRMPs have an ongoing and
long-lasting effect even after adoption,” and represented “on-
going agency action.” Id.
Unlike Pacific Rivers, this case involves no such long-
lasting effects on new permits. The action was concluded in
1980 when FERC issued the license to PG&E.
[10] The regulations promulgated pursuant to the ESA
make it clear that the operation of a project pursuant to a per-
mit is not a federal agency action. The regulations expressly
define the term “action” to include the granting of licenses
CALIFORNIA SPORTFISHING v. FERC 19363
and permits. The definitional regulation provides in relevant
part that “action” means:
(a) actions intended to conserve listed species or
their habitat;
(b) the promulgation of regulations;
(c) the granting of licenses, contracts, leases, ease-
ments, rights-of-way, permits or grants-in-aid;
or
(d) actions directly or indirectly causing modifica-
tions to the land, water, or air.
50 C.F.R. § 402.02 (emphasis added).
[11] Thus the granting of the license to PG&E in 1980 was
a federal agency action. See W. Watersheds, 456 F.3d at 931.
However, the continued operation of the project by PG&E in
1999, when the Chinook Salmon was declared threatened, is
not a federal agency action.
Finally, Petitioners point to 50 C.F.R. § 402.03, which pro-
vides that Section 7’s requirements apply to all actions in
which there is “discretionary Federal involvement or control.”
Petitioners contend that the reopener provisions, contained
within Articles 15 and 37 of the license, create such discre-
tionary federal control within the meaning of the regulation.
[12] Article 37 gives FERC the discretionary authority to
require changes in the operation of the project, after notice
and hearing. Article 15 requires the Licensee to make such
modifications as may be ordered after FERC exercises such
discretion. Thus, the reopener provisions do no more than
give the agency discretion to decide whether to exercise dis-
cretion, subject to the requirements of notice and hearing. The
reopener provisions in and of themselves are not sufficient to
19364 CALIFORNIA SPORTFISHING v. FERC
constitute any discretionary agency “involvement or control”
that might mandate consultation by FERC.
CONCLUSION
[13] Petitioners in this case are concerned with only one
license, issued in 1980, authorizing PG&E to operate the proj-
ect for thirty years. There is no ongoing government action
within the meaning of the ESA. The only relevant agency
action now under contemplation is the renewal of the license.
Consultation for the renewal, according to the parties, has
already begun. The agency, is not required to initiate separate
consultation with respect to PG&E’s operation of the project
under the existing, 1980 license agreement.
The petition for review is DENIED.