Save The Colorado v. Spellmon

Appellate Case: 21-1155 Document: 010110747304 Date Filed: 09/30/2022 Page: 1
FILED
United States Court of
PUBLISH Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
September 30, 2022
FOR THE TENTH CIRCUIT Christopher M. Wolpert
_________________________________ Clerk of Court
SAVE THE COLORADO, a
Colorado nonprofit corporation;
THE ENVIRONMENTAL GROUP, a
Colorado nonprofit corporation;
WILDEARTH GUARDIANS, a
nonprofit corporation; LIVING
RIVERS, a nonprofit corporation;
WATERKEEPER ALLIANCE, a
nonprofit corporation; SIERRA
CLUB, a nonprofit corporation,
Petitioners - Appellants,
v. No. 21-1155
LIEUTENANT GENERAL SCOTT
A. SPELLMON, in his official
capacity as the Chief of the U.S.
Army Corps of Engineers; DEBRA
HAALAND, in her official capacity
as Secretary of the Interior;
MARTHA WILLIAMS, in her
official capacity as the Principal
Deputy Director, exercising the
authority of Acting Director of the
U.S. Fish and Wildlife Service,
Respondents - Appellees,
and
CITY AND COUNTY OF DENVER,
acting by and through its Board of
Water Commissioners (Denver
Water),
Appellate Case: 21-1155 Document: 010110747304 Date Filed: 09/30/2022 Page: 2
Intervenor/Respondent -
Appellee.
_________________________________
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:18-CV-03258-CMA)
_________________________________
William S. Eubanks II (Matthew R. Arnold, with him on the briefs),
Eubanks & Associates, PLLC, Washington, DC, for the Petitioners-
Appellants.
Justin D. Heminger, Attorney, U.S. Department of Justice, Environment
and Natural Resources Division (Todd Kim, Assistant Attorney General,
U.S. Department of Justice, Environment and Natural Resources Division;
Sara E. Costello and Ellen J. Durkee, Attorneys; Milton Boyd and Melanie
Casner, Attorneys, U.S. Army Corps of Engineers; Kristen C. Guerriero,
Attorney, U.S. Department of the Interior, with him on the briefs),
Washington, DC, for the Respondents-Appellees.
Amanda Shafer Berman, Crowell & Moring LLP (David Y. Chung and
Elizabeth B. Dawson, Crowell & Moring LLP; Jessica R. Brody and
Nicholas A. DiMascio, Denver Water, Office of the General Counsel, with
her on the briefs), Washington, DC, for the Intervenor-Respondent-
Appellee.
_________________________________
Before BACHARACH, MURPHY, and CARSON, Circuit Judges.
_________________________________
BACHARACH, Circuit Judge.
_________________________________
This case arises out of a regulatory dispute involving a hydroelectric
project. The project aimed to boost a municipality’s water supply. To
obtain more water, the municipality proposed to raise a local dam and
expand a nearby reservoir. But implementation of the proposal would
require amendment of the municipality’s license with the Federal Energy
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Regulatory Commission, which was entrusted with authorization of all
hydroelectric projects.
To raise the dam and expand the reservoir, the municipality would
need to discharge fill material into the surrounding waters. These
discharges would require a permit from the U.S. Army Corps of Engineers.
So the municipality applied not only to the Federal Energy Regulatory
Commission for amendment of the license, but also to the Army Corps of
Engineers for a permit allowing discharge of fill materials into the
surrounding waters.
The Corps was the first to act, granting a discharge permit to the
municipality. A group of conservation organizations challenged the Corps’
decision by petitioning in federal district court. While the petition was
pending, the Federal Energy Regulatory Commission allowed amendment
of the municipality’s license to raise the dam and expand the reservoir.
The Commission’s amendment of the municipality’s license triggered
a jurisdictional question. Federal courts of appeals have exclusive
jurisdiction over petitions challenging decisions made by the Federal
Energy Regulatory Commission. 16 U.S.C. § 825l(b). Does this jurisdiction
extend to challenges against the Corps’ issuance of a permit to allow
discharges required for the modification of a hydroelectric project licensed
by the Federal Energy Regulatory Commission?
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The district court answered yes, but we disagree. The conservation
organizations are challenging the Corps’ issuance of a permit, not the
Commission’s amendment of a license. So the statute didn’t limit
jurisdiction to the court of appeals.
1. The municipality obtains a discharge permit from the Corps.
The Clean Water Act allows the Corps to issue permits for the
discharge of dredge or fill material into navigable waters. Clean Water Act
of 1972 § 404, 33 U.S.C. § 1344(a). To raise the dam and expand the
reservoir, the municipality needed to put concrete in the dam’s downstream
and inundate nearby wetlands. So the municipality applied to the Corps for
a permit to discharge material into the surrounding waters.
To issue the permit, the Corps had to comply with the National
Environmental Policy Act. See, e.g., Hillsdale Env’t Loss Prevention, Inc.
v. U.S. Army Corps of Eng’rs, 702 F.3d 1156, 1172–82 (10th Cir. 2012)
(discussing the validity of the Corps’ analysis under the National
Environmental Policy Act when issuing a discharge permit). This Act
requires federal agencies to prepare environmental impact statements for
“major [f]ederal actions significantly affecting the quality of the human
environment.” 42 U.S.C. § 4332(2)(C). Given this requirement, the Corps
issued an environmental impact statement about the likely environmental
consequences of discharges into the nearby waters.
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The Corps also needed to comply with the Endangered Species Act,
which requires federal agencies to protect species that are endangered or
threatened. 16 U.S.C. § 1536(a)(2). To comply with the Act, the Corps
consulted the U.S. Fish and Wildlife Service. These consultations led the
Service to issue a biological opinion involving the green lineage cutthroat
trout, viewing it as part of a larger protected species of greenback
cutthroat trout. Based on this view, the Service determined that the project
wouldn’t endanger or threaten the green lineage cutthroat trout in the
project area. But the Service changed its view four years later, viewing the
green lineage cutthroat trout as a separate species that wasn’t endangered
or threatened. The change led the Service to (1) determine that its
consultation was unnecessary and (2) withdraw its earlier biological
opinion.
The Corps later granted a discharge permit.
2. The municipality applies to the Federal Energy Regulatory
Commission for amendment of the license.
The municipality needed not just a discharge permit from the Corps
but also amendment of its license from the Federal Energy Regulatory
Commission. See 16 U.S.C. § 797(e). The Commission cooperated with the
Corps and the Service to ensure compliance with the statutory requirements
governing the project. This cooperation included
 helping the Corps to draft an environmental impact statement
and
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 participating in consultations with the Fish and Wildlife
Service about possible effects on endangered or threatened
species.
The Commission not only worked with other agencies but also issued
its own supplemental environmental assessment to comply with the
National Environmental Policy Act. See 40 C.F.R. § 1501.3. In this
assessment, the Commission concluded that amendment of the
municipality’s license would not result in significant environmental
damage.
After the Commission issued its supplemental environmental
assessment, the conservation organizations moved to intervene in the
Commission proceedings. When this motion was denied, the conservation
organizations sought rehearing. The Commission denied rehearing, but
noted that its proceeding would not affect the conservation organizations’
ability to challenge the Corps’ actions.
3. Challenging the Corps’ discharge permit, the conservation
organizations sue in federal district court rather than in a federal
court of appeals.
After the Commission denied rehearing, the conservation
organizations petitioned the federal district court for review of the Corps’
issuance of a discharge permit. In the petition, the conservation
organizations claimed that the Corps and Service had violated the National
Environmental Policy Act, the Clean Water Act, and the Endangered
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Species Act; each claim also asserted a violation of the Administrative
Procedure Act. The municipality intervened to side with the Corps and
Service.
4. The district court orders dismissal for lack of subject-matter
jurisdiction, concluding that jurisdiction existed only in the
federal court of appeals.
After the petition had been pending in the district court for nearly
two years, the Commission allowed the municipality to amend its license.
This decision led the Corps, Service, and municipality to seek dismissal of
the petition, arguing that the federal courts of appeals had exclusive
jurisdiction over the petition. The district court agreed and ordered
dismissal, prompting the conservation organizations to appeal.
5. The claim does not fit within the statutory provision granting
jurisdiction to the court of appeals.
In their petition, the conservation organizations challenged the
Corps’ issuance of a discharge permit, not the Commission’s amendment of
the municipality’s license. Despite this framing of the challenge, the
district court concluded that jurisdiction lay exclusively in the federal
courts of appeals.
We conduct de novo review. Trackwell v. U.S. Gov’t, 472 F.3d 1242,
1243 (10th Cir. 2007). 1 Through de novo review, we conclude that the
1
The Corps, Service, and municipality urge us to apply the clear-error
standard to the district court’s factual findings. But when administrative
decisions are involved, we don’t defer to the district court’s conclusions.
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district court misapplied the jurisdictional statute. The statute provides
courts of appeals with exclusive jurisdiction over issues decided by the
Commission itself. Here, though, the claims involve issues decided by the
Army Corps of Engineers and the Fish and Wildlife Service, not the
Federal Energy Regulatory Commission.
Generally, a party challenging an agency action must petition in
federal district court. See Watts v. SEC, 482 F.3d 501, 505 (D.C. Cir. 2007)
(stating that “the ‘normal default rule’” requires parties challenging agency
action to start in federal district court rather than in a federal court of
appeals (quoting Int’l Bhd. of Teamsters v. Pena, 17 F.3d 1478, 1481 (D.C.
Cir. 1994))). But some statutes create exceptions by allowing the filing of
a petition in a court of appeals. Id.The Corps, Service, and municipality invoke such an exception,
pointing to the Federal Power Act, which provides exclusive jurisdiction to
the courts of appeals in challenges to orders issued by the Federal Energy
See Webb v. Hodel, 878 F.2d 1252, 1254 (10th Cir. 1989) (“On appeal from
a district court’s review of an agency’s action, the appellate court ‘must
render an independent decision on the basis of the same administrative
record as that before the district court; the identical standard of review is
employed at both levels; and once appealed, the district court decision is
accorded no particular deference.’” (quoting Brown v. U.S. Dep’t of
Interior, 679 F.2d 747, 748–49 (8th Cir. 1982))); see also Weight Loss
Healthcare Ctrs. of Am., Inc. v. Off. of Pers. Mgmt., 655 F.3d 1202, 1204
(10th Cir. 2011) (stating that “we accord no deference to the district
court’s decision” when we are “reviewing agency action” (quoting Lee v.
U.S. Air Force, 354 F.3d 1229, 1236 (10th Cir. 2004))).
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Regulatory Commission. 16 U.S.C. § 825l(b). We must determine the
applicability of this exception.
A. Statutory Text
We start with the text of the Federal Power Act, which addresses
only orders issued by the Commission itself:
Any party to a proceeding . . . aggrieved by an order issued by
the [Federal Energy Regulatory] Commission . . . may obtain a
review of such order in the United States court of appeals for
any circuit wherein the licensee or public utility to which the
order relates is located or has its principal place of business, or
in the United States Court of Appeals for the District of
Columbia, by filing in such court . . . a written petition praying
that the order of the Commission be modified or set aside in
whole or in part. . . . Upon the filing of such petition such court
shall have jurisdiction, which upon the filing of the record with
it shall be exclusive, to affirm, modify, or set aside such order
in whole or in part.
16 U.S.C. § 825l(b) (emphasis added); see Wichita Ctr. for Graduate Med.
Educ., Inc. v. United States, 917 F.3d 1221, 1224 (10th Cir. 2019) (“[W]e
start with the plain meaning of the text.”).
We are guided not only by the statutory text but also by the Supreme
Court’s interpretation. In City of Tacoma v. Taxpayers of Tacoma, 357 U.S.
320 (1958), the Supreme Court interpreted the statute to cover not only
orders issued by the Commission but also “all issues inhering in the
controversy.” 357 U.S. at 336. What did the Supreme Court mean by the
phrase “all issues inhering in the controversy”? The answer requires
consideration of the factual context in City of Tacoma. See Bryan A.
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Garner, et al., The Law of Judicial Precedent 80 (2016) (“The language of
a judicial decision must be interpreted with reference to the circumstances
of the particular case and the question under consideration.”).
There a city had applied to the Federal Energy Regulatory
Commission for a license to build a dam. City of Tacoma, 357 U.S. at 323.
In the licensing proceeding, the state objected to the city’s request for a
license on the ground that the dam would destroy the state’s fish hatchery.
But the Commission overruled the objection and granted the license. Id. at
325–27. The state sued the city in state court, challenging the scope of the
city’s rights under the Commission’s license. Id. at 331.
The Supreme Court disallowed the litigation in state court,
concluding that the federal court of appeals had exclusive jurisdiction over
“all issues inhering in the controversy.” Id. at 336. The Supreme Court
reasoned that the applicable statute provided exclusive jurisdiction in the
court of appeals for objections involving the issuance of the license and
the scope of its terms. Id. Because the scope of the license’s terms
“inher[ed] in the controversy,” the state had to bring its challenge in the
federal court of appeals. Id. at 338–39.
Disregarding the context of City of Tacoma, the Corps, Service, and
municipality point to the breadth of the phrase “inhering in the
controversy.” We’ve previously interpreted the language as expansive.
Williams Nat. Gas Co. v. City of Okla. City, 890 F.2d 255, 262 (10th Cir.
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1989). Recently, however, the Supreme Court has more narrowly
interpreted the scope of its holding in City of Tacoma. In PennEast
Pipeline Co. v. New Jersey, 141 S. Ct. 2244 (2021), the Supreme Court
characterized its holding in City of Tacoma as recognizing the court of
appeals’ exclusive jurisdiction over the state’s “argu[ment] that a licensee
could not exercise the rights granted to it by the license itself.” PennEast
Pipeline Co. v. New Jersey, 141 S. Ct. 2244, 2254 (2021).
The Supreme Court’s language thus reflects the statutory text,
limiting the provision on exclusive jurisdiction to challenges involving the
Commission’s order itself. 16 U.S.C. § 825l(b). So the provision on
exclusive jurisdiction covers all issues “inhering in a controversy over [a
Federal Energy Regulatory Commission] order, where one party alleges
that it was aggrieved by the order.” 2 Merritt v. Shuttle, Inc., 245 F.3d 182,
188 (2d Cir. 2001) (Sotomayor, J.) (emphasis in original).
Following this standard, courts have distinguished between collateral
attacks on Commission orders—which are subject to exclusive jurisdiction
in the courts of appeals—and challenges that can be asserted in district
2
Citing City of Tacoma, the district court held that any cause of action
“‘inhering in the controversy’ related to a [Commission] order” would be
subject to exclusive review under the Federal Power Act § 313(b). Pet.
App’x at 141 (quoting City of Tacoma v. Taxpayers of Tacoma, 357 U.S.
320, 336 (1958)) (emphasis added). But nothing in the statute or City of
Tacoma would suggest exclusive jurisdiction in the court of appeals
whenever a cause of action “relates” in some way to a Commission license.
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courts. To determine whether a challenge constitutes a collateral attack on
an order by the Federal Energy Regulatory Commission, we consider
whether a successful challenge would require the court to modify or set
aside the Commission order. PennEast Pipeline Co. v. New Jersey, 141 S.
Ct. 2244, 2254 (2021). 3
The Corps and Service urge a broad reading of the “inhering in the
controversy” standard, arguing that the statute restricts jurisdiction to the
courts of appeals whenever the challenge is sufficiently related to an order
by the Federal Energy Regulatory Commission.
This approach would require us to disregard the statutory text and
ignore the differences between the issues decided by the Corps and the
Commission. The statute provides exclusive jurisdiction in the court of
appeals only for claims attacking a Commission order. See Mokdad v.
Lynch, 804 F.3d 807, 810 (6th Cir. 2015) (noting that a direct-review
provision generally extends only to “claims inescapably intertwined with
an order by a covered agency,” not “orders [by non-covered agencies] that
3
Some circuits similarly use an “inescapably intertwined” test,
requiring direct review in the court of appeals only when a claim is
“inescapably intertwined” with a covered agency’s order. See, e.g., Merritt
v. Shuttle, Inc., 245 F.3d 182, 189 (2d Cir. 2001). Under this test, a claim
is considered “inescapably intertwined” with an order when the claim
“attacks the matters decided by [that] order.” Id. We need not address
whether the district court had jurisdiction under the “inescapably
intertwined” test because the district court had jurisdiction under the test
stated in PennEast.
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are intertwined with orders of agencies that fall under the special review
statute” (emphasis in original)).
Given the statutory test, courts have applied the restriction on
jurisdiction to other agencies’ orders only when they
 were triggered by the Federal Power Act or the Commission’s
obligation under another statute, see, e.g., Nat’l Parks &
Conservation Ass’n v. FAA, 998 F.2d 1523, 1527–28 (10th Cir.
1993) (holding that the Federal Aviation Act’s exclusive-
review provision applied to action “taken under the [Federal
Aviation Act] and in regard to [the Federal Aviation
Administration’s] basic mission” of regulating the nation’s air
travel system),
 lacked significance outside the Commission’s process, see,
e.g., Cal. Save Our Streams Council, Inc. v. Yeutter, 887 F.2d
908, 912 (9th Cir. 1989) (noting that the conditions imposed on
the license by the Forest Service had no significance outside
the Commission’s licensing process), or
 were incorporated as enforceable terms into the Commission’s
license, see, e.g., Shafer & Freeman Lakes Envt. Conservation
Corp. v. FERC, 992 F.3d 1071, 1087 (D.C. Cir. 2021)
(Commission incorporated terms from the Fish and Wildlife
Service as enforceable conditions of a license); Me. Council of
the Atl. Salmon Fed’n v. Nat’l Marine Fisheries Serv., 858 F.3d
690, 693 (1st Cir. 2017) (Souter, J.) (Commission’s orders
incorporated the terms of the National Marine Fisheries
Service’s biological opinions).
These cases don’t apply here because
 the actions by the Corps and Service were triggered by the
Clean Water Act and the Corps’ obligations under the National
Environmental Policy Act and Endangered Species Act—not the
Federal Power Act or the Federal Energy Regulatory
Commission’s obligations under these statutes,
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 the Corps and Service allowed the municipality to discharge fill
into the nearby waters with or without Commission approval of
the amended license, and
 the conditions imposed by the Corps and Service weren’t
enforceable terms under the Commission’s amended license.
The Corps and Service urge an expansive interpretation of the direct-
review provision, relying largely on two Tenth Circuit cases addressing a
similar jurisdictional statute for challenges to decisions by the Federal
Aviation Administration: National Parks & Conservation Ass’n v. Federal
Aviation Administration, 998 F.2d 1523 (10th Cir. 1993), and Custer
County Action Ass’n v. Garvey, 256 F.3d 1024 (10th Cir. 2001). In our
view, however, these opinions provide little guidance here.
In National Parks, we considered the effect of a statute providing the
court of appeals with exclusive jurisdiction over a decision by the Federal
Aviation Administration. There the statute triggered the Bureau of Land
Management’s decisions. Id. at 1528. We thus applied the jurisdictional
statute, holding that the Bureau’s actions had constituted “an important
ingredient” of the Federal Aviation Administration’s decision. Id. at 1528–
29 (quoting Cal. Save Our Streams Council, Inc. v. Yeutter, 887 F.2d 908,
912 (9th Cir. 1989)).
Here, though, the Corps and Service acted based on their obligations
under the Clean Water Act, National Environmental Policy Act, and
Endangered Species Act; and those statutes don’t restrict jurisdiction to the
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court of appeals. The jurisdictional restriction came from the Federal
Power Act, which the Corps and Service never had occasion to address.
The municipality also relies on Custer County Action Ass’n v.
Garvey, 256 F.3d 1024 (10th Cir. 2001). There we applied the federal
aviation jurisdictional statute to a decision and environmental impact
statement issued by the Air National Guard rather than the Federal
Aviation Administration. Id. at 1027. But the parties in Custer did not
dispute jurisdiction. And there the Federal Aviation Administration’s
decision had expressly “incorporated” and “adopted” the Air National
Guard’s decision and environmental impact statement. Id. at 1027, 1034.
Here, however, the Commission did not incorporate the decisions by the
Corps or Service. So under the statutory text, the federal court of appeals
lacked exclusive jurisdiction.
B. Reliance on Legislative History, Canons, and Policy
Arguments
All of the parties stray beyond the statutory text. For example, the
conservation organizations invoke policy arguments and legislative history.
And the Corps and Service invoke canons of construction involving
specific grants of jurisdiction, resolution of ambiguities in favor of
jurisdictional grants in the court of appeals, and disfavor of bifurcation.
But these principles would apply only if the jurisdictional statute were
ambiguous. See Sunshine Haven Nursing Operations, LLC v. U.S. Dep’t of
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Health & Hum. Servs., Ctrs. for Medicare & Medicaid Servs., 742 F.3d
1239, 1250 (10th Cir. 2014) (policy arguments); United States v. O’Brien,
686 F.2d 850, 852 (10th Cir. 1982) (legislative history); Nat’l Parks &
Conservation Ass’n v. FAA, 998 F.2d 1523, 1527 (10th Cir. 1993) (canon
favoring review by the court of appeals); Conn. Light & Power Co. v. Fed.
Power Comm’n, 324 U.S. 515, 527 (1945) (specific grants of jurisdiction).
No one suggests that the jurisdictional statute itself is ambiguous,
and it isn’t. The statute unambiguously covers only orders by the
Commission itself. 16 U.S.C. § 825l(b). Any ambiguity comes in
interpreting City of Tacoma, not the jurisdictional statute. So we need not
consider the parties’ arguments on legislative history, statutory canons, or
policy.
C. Difference Between the Issues Facing the Agencies
The approach by the Corps and Service jettisons not only the
statutory text but also the differences in the issues involved in the
Commission’s proceeding. The Corps evaluated the effect of discharges on
a massive water supply crossing several counties; the Commission
considered only the effect of the dam and reservoir on a single reservoir in
Boulder County. See, e.g., Fed. Appellees’ Supp. App’x at 175–78 & n.8
(observing that the Corps’ analysis covered the Moffat Project, which
“include[d] facilities outside the project boundary and features not within
the unit of development”).
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Given the different geographic scopes, the municipality
acknowledges that the Corps’ analysis extended beyond the Commission’s.
In fact, the municipality’s application to the Commission for an amended
license emphasized the differences between the Corps’ environmental
impact statement and the narrower environmental assessment conducted by
the Commission. In the application, the municipality noted that
stakeholders had expressed concern with greater diversions of water from
the West Slope. Appellants’ Supp. App’x at 5. Those waters were in the
Corps’ jurisdiction but not the Commission’s. The municipality spotlighted
that difference when arguing that the Commission’s inquiry was narrower
than the Corps’:
The Corps’ [environmental impact statement] analysis of the
Moffat Collection System Project includes the impacts of
additional diversions on the West Slope. The scope of analysis
for the Proposed Project is limited to the [Federal Energy
Regulatory Commission’s] jurisdiction under the Federal Power
Act. . . . [The municipality] distinguishes the two agency
authorizations (the Moffat Collection System Project analyzed
by the Corps and the Proposed Project analyzed by the
[Commission]) as follows: the Corps is asked to authorize the
placement of fill in jurisdictional waters of the U.S. associated
with construction and operation of the water supply project,
identified as the Moffat Collection System Project, while the
[Commission] will be asked to authorize the proposed
amendments to the licensed facilities and operation of the
hydropower project at Gross Reservoir (the Proposed
Project). . . . [The municipality] believes the scope of analysis
for [the Commission’s] license amendment decision is narrower.
Id. (emphasis added). Given the municipality’s focus on the different
analyses, how could the conservation organizations have shoehorned their
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broad geographic challenge to the Corps’ analysis into the Commission’s
narrower inquiry involving only the dam and reservoir?
D. Inapplicability of the Commission’s Action to the
Conservation Organizations’ Claims
The conservation organizations don’t request relief from the
Commission’s approval of an amended license. They instead seek relief
from decisions by the Corps and Service, and these decisions didn’t spring
from the Federal Energy Regulatory Commission’s licensing process or
become part of the Commission’s license. Because all of the claims stem
from decisions by the Corps and the Service, the jurisdictional statute does
not restrict jurisdiction to the court of appeals.
(1) Separate Consideration of the Claims
To determine the applicability of the jurisdictional statute, we must
decide whether to consider the claims separately or together. The
conservation organizations, the Corps, and the Service have argued that we
should consider the claims together. We disagree with these parties.
For their part, the Corps and Service appear to argue that we need not
parse the separate claims because the Commission could have considered
all of them. In their brief, the Corps and Service argued that “the
substantive nature of a claim does not dictate whether an exclusive
jurisdiction provision applies.” Appellees’ Resp. Br. at 34. In oral
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argument, however, the Corps and Service clarified that we should
consider the jurisdictional issue claim-by-claim.
The conservation organizations argue that we need not parse the
separate claims, reasoning that all of the claims involve the challenge to
the Corps’ issuance of a discharge permit, which lay in the Corps’
jurisdiction rather than the Commission’s.
But the conservation organizations have challenged the discharge
permit through different statutory claims. Given this framing of the
challenge, we can consider the exclusivity of jurisdiction only by
examining each claim. In other words, whatever City of Tacoma meant by
the issues inhering “in the controversy,” we can apply that test only after
we understand what those issues are. And those issues vary here based on
the separate statutory claims. So we must separately consider each
statutory claim. See Mokdad v. Lynch, 804 F.3d 807, 811–15 (6th Cir.
2015) (examining each claim to determine the applicability of the statute
providing exclusive jurisdiction in the courts of appeals); Halifax Cnty. ex
rel. Bd. of Supervisors v. Lever, 718 F.2d 649, 650 (4th Cir. 1983) (“The
resolution of [the] issue depends on the inherent nature and character of
plaintiffs’ action, an issue which requires some review of the record.”). 4
4
The Corps and Service argue that claim-by-claim consideration could
result in separate litigation in district court and the court of appeals. The
Corps and Service give the example of Boulder County, which intervened
in the Commission proceeding. The Corps and Service argue that Boulder
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(2) The Claim Under the Clean Water Act
The conservation organizations allege that the Corps violated the
Clean Water Act by failing to
 select the least environmentally damaging practical alternative
and
 properly evaluate the project’s costs.
But when approving amendment of the license, the Commission had no
reason to (1) select the least environmentally damaging practical
alternative or (2) evaluate the costs from a discharge permit. These issues
affected the Corps’ consideration of a discharge permit, not the
Commission’s approval of an amended license.
The Clean Water Act and National Environmental Policy Act require
distinct analyses of alternatives to a proposed project. See Utahns for
Better Transp. v. U.S. Dep’t of Transp., 305 F.3d 1152, 1163 (10th Cir.
2002). For example, the Corps must address whether the proposed
activities constitute the least environmentally damaging practical
alternative. See 40 C.F.R. § 230.10. But the Commission didn’t address
County could have sued in the court of appeals, raising the same issues
that the conservation organizations seek to challenge in district court.
The problem with this argument is that the issues would differ:
Boulder County would be challenging actions by the Commission, and the
conservation organizations would be challenging actions by the Corps and
Service.
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that question. The question for the Commission was just whether
reasonable alternatives existed. 40 C.F.R. § 1502.14(a). 5 The conservation
organizations thus challenge determinations made by the Corps, which the
Commission didn’t address.
Even if the jurisdictional statute otherwise applied, it couldn’t cover
the claim under the Clean Water Act. Under the statute, the court of
appeals has jurisdiction over issues only if the Commission could have
considered them. See Williams Nat. Gas Co. v. City of Okla. City, 890 F.2d
255, 263 (10th Cir. 1989) (stating that the statutory provision on exclusive
jurisdiction in the court of appeals (16 U.S.C. § 825l(b)) applies when the
issue lies within the Federal Energy Regulatory Commission’s authority).
If we had to review an issue outside the Commission’s authority, the
statutory procedures would prevent meaningful review by
 limiting our review to the record before the Commission even
though other agencies had broader records,
5
The municipality observes that the conservation organizations made
public comments to the Commission about its analyses. But these
comments shed no light on the basis for the Commission’s decision. In
fact, the municipality admits that the Commission
 explained its limited role as a cooperating agency in drafting
the environmental impact statement and
 pointed to its supplemental environmental assessment as its
final assessment on environmental impacts specific to the
licensing process.
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 requiring exhaustion of the claims in the Commission despite
its inability to provide any relief, and
 granting us authority “to affirm, modify, or set aside” only the
Commission’s order, not the orders of other agencies.
16 U.S.C. § 825l(b). Exclusive jurisdiction would thus make sense only if
the Commission could have decided the conservation organizations’
challenges.
But the Commission acknowledged its inability to decide these
challenges, having disavowed authority to review the Corps’ permitting
decisions. See Cogeneration, Inc., 77 FERC ¶ 61,185; 61,724 (1996)
(concluding that the Federal Energy Regulatory Commission lacks
authority to determine whether the Corps had erred in issuing a permit);
Millennium Pipeline Co., 161 FERC ¶ 61,186, 2017 WL 5513717, at *7
(Nov. 15, 2017) (stating that the Corps bears exclusive authority to
implement procedural issues related to the Clean Water Act); Ruby
Pipeline, LLC, 133 FERC ¶ 61,015; 61,056 (2010) (“To the extent the
parties challenge the Army Corps’ authority to issue a [discharge permit]
or the process of obtaining the permit, the parties must seek redress with
the Army Corps.”). So the Commission could not have considered the
conservation organizations’ challenges to the Corps’ permit. And if the
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Commission couldn’t consider the challenges, the court of appeals couldn’t
obtain jurisdiction. 16 U.S.C. § 825l(b). 6
The Corps and Service argue that the question is which court should
hear the claim, not the Commission’s authority to hear the claim. But the
statute grants jurisdiction to the court of appeals only over issues that the
Commission could have considered. 16 U.S.C. § 825l(b). So we must
consider the Commission’s authority to consider the claim in the first
instance.
The Corps and Service argue that the Commission can consider
whatever is presented. For this argument, the Corps and Service rely on a
Third Circuit opinion: Adorers of the Blood of Christ v. FERC, 897 F.3d
187, 197 (3d Cir. 2018). But that case involved a challenge to a
Commission order, id. at 190, and the Commission has repeatedly declined
to consider the validity of other agencies’ orders if they don’t bear on the
Commission’s own orders, see, e.g., High Country Res. Glacier Energy
Co., 87 FERC ¶ 61,123; 61,492 (1999) (“[I]t is not our role to judge the
validity of another agency’s delegation practices or decisionmaking.”).
6
The Corps and Service insist that the substantive issues are “related”
and “tied” to the Commission’s order. Appellees’ Resp. Br. at 30, 38.
Regardless of the asserted relationship, the Commission lacked authority to
decide the actual claims. The applicability of the direct-review provision
turns on the Commission’s authority to consider the claim itself, not the
relationship between the claim and issues within the Commission’s
authority.
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Adorers didn’t suggest otherwise. There the court rejected any
inherent limitation on the kinds of legal questions that the Federal Energy
Regulatory Commission could decide. Adorers, 897 F.3d at 197–98. The
court didn’t suggest that the Commission could consider challenges to
other agencies’ orders.
Because the Commission couldn’t decide this claim, direct review in
the court of appeals would have proven an empty exercise.
E. The Claim Under the National Environmental Policy Act
The conservation organizations also alleged that the Corps had
violated the National Environmental Policy Act by failing to
 define the purpose and need for the project,
 adequately evaluate the alternatives,
 incorporate all information available, and
 fully consider the impact on climate change.
The municipality argues that the conservation organizations
abandoned their argument based on this claim. We disagree, for the
conservation organizations’ opening brief repeatedly discusses this claim.
See, e.g., Appellants’ Opening Br. at 34, 46, 48. Having opposed analysis
of the jurisdictional question claim-by-claim, see p. 19, above, the
conservation organizations often refer collectively to their claims as
challenges to the actions by the Corps and Service, see, e.g., Appellant’s
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Opening Br. at 34, 39–41. Though the conservation organizations
sometimes spotlight one claim over another, they haven’t abandoned any of
their claims.
The conservation organizations’ allegations under the National
Environmental Policy Act address action by the Corps, not the Federal
Energy Regulatory Commission. The Commission conducted a
supplemental environmental assessment, but that assessment addressed
environmental issues related to amendment of the license for the
hydroelectric project itself—not the municipality’s discharge of fill
material in the surrounding waters. Fed. Appellees’ Supp. App’x at 179
n.25. The Commission otherwise disavowed consideration of the Corps’
environmental analysis involving expansion of the reservoir:
The Supplemental [Environmental Assessment] did not address
issues related to the Corps’ Final [Environmental Impact
Statement], the need for [the municipality’s] proposed expansion
of the Moffat Collection System, or environmental issues
associated with the expansion of the Moffat Collection System
that do not pertain directly to the [Commission] license for the
Gross Reservoir Hydroelectric Project. These issues were
appropriately addressed in the . . . Corps Final [Environmental
Impact Statement] for expansion of the Moffat Collection
System.
Id.
The Corps and Service argue that it’s impossible to divide the
environmental analyses of the Corps and the Commission. Though division
of the analyses might have been difficult, the two analyses were distinct,
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as the Commission explained. In district court, the conservation
organizations challenged only the Corps’ analysis, which had stemmed
from its environmental impact statement. 7
7
In oral argument, the conservation organizations said that they were
challenging only the Corps’ permit, not its environmental impact
statement. But in the supplemental petition, the conservation organizations
had asked the district court to set aside the environmental impact
statement.
Despite this request, the conservation organizations stated in oral
argument that they couldn’t challenge the environmental impact statement
itself because it wasn’t a final agency action. Under the Administrative
Procedure Act, administrative actions are reviewable only when they’ve
become final. 5 U.S.C. § 704. Applying the Act, courts differ on whether
an environmental impact statement is considered a “final agency action”
for purposes of the Administrative Procedure Act. Some courts treat an
environmental impact statement as a “final agency action.” See, e.g.,
Minard Run Oil Co. v. U.S. Forest Serv., 670 F.3d 236, 248 (3d Cir. 2011)
(concluding that the completion of an environmental impact statement
“would constitute final agency action”); Izaak Walton League of Am. v.
Marsh, 655 F.2d 346, 369 (D.C. Cir. 1981) (“An environmental impact
statement is a ‘final agency action’ within the meaning of the
[Administrative Procedure Act].”). Other courts treat an environmental
impact statement as a final decision only upon the issuance of a record of
decision. See, e.g., Or. Nat. Desert Ass’n v. Bur. of Land Mgmt., 625 F.3d
1092, 1118 (9th Cir. 2010). Once an agency solidifies its environmental
impact statement into a record of decision, some courts consider the
environmental impact statement a final agency action. See, e.g., Sierra
Club v. Slater, 120 F.3d 623, 631 (6th Cir. 1997) (“Although this court has
never addressed the question, it appears well-established that a final
[environmental impact statement] or the [record of decision] issued thereon
constitute the ‘final agency action’ for purposes of the [Administrative
Procedure Act].”).
We typically decline to address arguments initiated at oral argument.
See Corder v. Lewis Palmer Sch. Dist. No. 38, 566 F.3d 1219, 1235 n.8
(10th Cir. 2009) (“An argument made for the first time at oral argument
. . . will not be considered.”). We adhere to that practice here, for we lack
briefing on the issue and “confine ourselves to deciding only what is
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The Corps, Service, and municipality cite cases where the federal
courts of appeals had exclusive jurisdiction over challenges under the
National Environmental Policy Act. But in all of those cases, the statutory
challenges focused on decisions bearing significance only for orders by
agencies subject to exclusive review in a court of appeals. See Nat’l Parks
& Conservation Ass’n v. FAA, 998 F.2d 1523, 1528–29 (10th Cir. 1993)
(applying the jurisdictional statute for decisions by the Federal Aviation
Administration to a decision by the Bureau of Land Management because
the Bureau’s “decision-making process [had been] initiated by the
provisions of the [Federal Aviation Administration] Act”); Cal. Save Our
Streams Council, Inc. v. Yeutter, 887 F.2d 908, 911–912 (9th Cir. 1989)
(applying the exclusive-review provisions for orders by the Federal Energy
Regulatory Commission to a decision by the Forest Service because the
Forest Service had imposed conditions lacking “significance outside the
[Commission’s] licensing process”); City of Rochester v. Bond, 603 F.2d
927, 934–35 (D.C. Cir. 1979) (addressing decisions by the Federal
Aviation Administration and Federal Communication Commission when
jurisdictional statutes required direct review of decisions by these agencies
in the court of appeals); Env’t Def. Fund, Inc. v. EPA, 485 F.2d 780, 783
necessary to the disposition of the immediate case.” Whitehouse v. Ill.
Cent. R.R., 349 U.S. 366, 373 (1955).
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(D.C. Cir. 1973) (per curiam) (applying the exclusive-review provisions
for orders by the Environmental Protection Agency to a challenge to an
Environmental Protection Agency order based on the National
Environmental Protection Act). Here the challenges involved statutory
compliance by the Corps, not the Commission, and the Corps’ decision
reached beyond the Commission’s jurisdiction.
The Corps, Service, and municipality argue that
 the Commission relied on the Corps’ environmental impact
statement and
 vacatur of the Corps’ environmental impact statement would
result in vacatur of the Commission’s order.
But vacatur of the environmental impact statement would not necessarily
undermine the Commission’s licensing decision; the Commission said that
it not only had considered the environmental impact statement but also had
relied on the Commission’s own review and on the municipality’s
submissions.
Nor would it have made sense for the Commission to rely on the
Corps’ environmental impact statement. The Corps was addressing impacts
on a massive water supply crossing several counties; the Commission was
addressing the effects only in a single reservoir in Boulder County. Given
the narrower scope of the environmental issues facing the Commission, a
successful challenge to the Corps’ broader environmental impact statement
wouldn’t necessarily have affected the Commission’s licensing decision.
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Granted, the Commission’s record incorporated the Corps’ findings
under the Clean Water Act. But the Commission’s decision didn’t
incorporate the Corps’ findings. To the contrary, the Commission just
recognized the overlap of evidence bearing on the decisions involving
amendment of the license and issuance of a discharge permit. Indeed, the
Commission expressly acknowledged that
 its “proceeding in no way shield[ed] the Corps from judicial
review” and
 “nothing in [the Commission’s] proceeding prevented [the
conservation organizations] from” separately challenging the
Corps’ order.
Supp. App’x at 117 n.26.
The Commission did rely on some of the information in the Corps’
environmental impact statement. Id. at 178 (noting that the Commission’s
environmental assessment examined “the effects of the portions of the
action that were before the Commission, to the extent that those effects
were not addressed in the [f]inal [environmental impact statement]”); id. at
190 (concluding in the environmental assessment that the licensing project
“would not cause environmental effects beyond those identified in the
[environmental impact statement] and would, in fact, reduce the level of
some effects”). But if we were to extend direct review to the conservation
organizations’ claims, we would be morphing the Federal Power Act
beyond its text, subjecting the Corps’ orders to an appellate court’s
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exclusive jurisdiction just because the Commission had relied on some
information in the Corps’ environmental impact statement.
The Corps, Wildlife Service, and municipality emphasize that the
Commission acted as a cooperating agency in drafting the environmental
impact statement. But the Commission’s role as a cooperating agency is
spelled out in an agreement, which states that the Commission participated
in drafting the environmental impact statement “independent[ly] of [its]
responsibility regarding the license amendment process for the
[hydroelectric project].” Supp. App’x at 2. The Corps and Service point to
no authority for us to recalibrate our interpretation of the Federal Power
Act based on the Commission’s role as a cooperating agency.
F. Claim Under the Endangered Species Act
The conservation organizations also invoked the Endangered Species
Act based on
 the Service’s issuance and subsequent withdrawal of a
biological opinion about the green lineage cutthroat trout and
 the Corps’ reliance on the Service’s decisions.
The municipality contends that the conservation organizations
abandoned this claim. This contention is unconvincing because the
conservation organizations often referred collectively to their claims. See
pp. 24–25, above.
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The Commission didn’t say that it was incorporating the Service’s
analyses under the Endangered Species Act. So we must decide whether the
statutory provision on jurisdiction is otherwise implicated by the
conservation organizations’ substantive challenge to the Service’s
decisions.
In applying the Endangered Species Act, the Commission addressed
the Service’s biological opinions, its consultation with the Corps, and the
Service’s withdrawal of the first biological opinion. 8 But the Commission
didn’t incorporate the Service’s decisions into the terms of the amended
license.
The Corps, Service, and municipality cite cases where courts of
appeals exercised exclusive jurisdiction over the Service’s opinions that
the Commission had solicited and adopted. But those cases involved
opinions requested by the Commission and prepared exclusively for its
licensing process. See City of Tacoma v. FERC, 460 F.3d 53, 76 (D.C. Cir.
2006); Me. Council of Atl. Salmon Fed’n v. Nat’l Marine Fisheries Serv.,
8
No green lineage trout exist within the Commission’s licensing area.
But the Commission stated that it had asked to join the re-consultation
because the Service’s regulations required agencies to consider “effects of
[their] action” beyond “those effects or activities over which [the agencies]
exert[] legal authority or control.” Fed. Appellees’ Supp. App’x at 182
n.31 (quoting Revised Regulations for Interagency Cooperation Under the
Endangered Species Act, 84 Fed. Reg. 44,976; 44,990 (Aug. 27, 2019)
(amending 50 C.F.R. pt. 402)). Amendment of the license could affect the
trout in areas upstream of the licensing area. Id.31
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858 F.3d 690, 691–93 (1st Cir. 2017) (Souter, J.). The Commission didn’t
solicit or incorporate the Service’s biological opinions. So the court of
appeals lacks exclusive jurisdiction over the Service’s biological opinions.
6. The effect on the hydroelectric project wouldn’t trigger the
jurisdictional statute.
The Corps and Service argue that the statute on exclusive jurisdiction
applied because relief would interfere with the execution of the project.
This argument lumps together the administrative actions because all
of them were meant to facilitate the hydroelectric project licensed by the
Commission. But our inquiry focuses on consideration of the claims
themselves, not their relationship to the proposed activities.
To frame our inquiry, we draw guidance from PennEast Pipeline Co.
v. New Jersey, 141 S. Ct. 2244 (2021). There the Supreme Court
considered the scope of a provision of the Natural Gas Act, which gave
exclusive jurisdiction to courts of appeals. Id. at 2254. The jurisdictional
provision was implicated when the Commission granted the petitioner a
certificate to authorize the installation of a pipeline. Id. at 2253. To lay the
pipeline, the petitioner filed condemnation proceedings in federal district
court to obtain rights-of-way on public land owned by a state, and the state
objected. Id.The federal government, as amicus curiae, argued that the state had
needed to assert its objection in the court of appeals, contending (like the
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Corps, the Service, and the municipality do here) that if the district court
were to credit the state’s argument, the eventual decision would modify the
Commission’s order. The Supreme Court rejected this argument, stating
that relief wouldn’t “‘modify’ or ‘set aside’” the Commission’s order
because the order had “neither purport[ed] to grant [the petitioner] the
right to file a condemnation suit against States nor address[ed] whether
[the statute] grants that right.” Id. at 2254.
The Corps and Service argue that PennEast is distinguishable
because the Natural Gas Act contained a separate provision authorizing
certificate holders to exercise the right of eminent domain in district
courts. But in PennEast, the Supreme Court didn’t rely on that provision to
allow the state to assert its objection in district court. The PennEast court
relied on the jurisdictional provision and distinguished City of Tacoma on
the ground that there the state had sought to modify or set aside a Federal
Energy Regulatory Commission order by arguing that “a licensee could not
exercise the rights granted to it by the license itself.” 141 S. Ct. at 2254.
The Ninth Circuit used similar reasoning in Snoqualmie Valley
Preservation Alliance v. United States Army Corps of Engineers, 683 F.3d
1155 (9th Cir. 2012). There the Ninth Circuit noted that the petitioner’s
challenge to the Corps’ verification of a nationwide discharge permit might
“interfere with activities specifically authorized by the [Federal Energy
Regulatory Commission’s] license.” Id. at 1159–60. But the Ninth Circuit
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declined to require filing in the court of appeals because the challenge had
not constituted “an improper collateral attack on the [Commission]
license.” Id.The Corps and Service point to two factual differences with our case:
1. Snoqualmie involved a nationwide permit, not an individual
permit.
2. The Corps conducted an extensive environmental assessment
here, but not in Snoqualmie.
See id. at 1158–60. But the Corps and Service don’t say why these
differences matter. Regardless of the nature of the permits and
environmental analyses, the Ninth Circuit reasoned that a claimant could
petition in federal district court to attack the Corps’ permit because the
challenge didn’t involve the Commission’s licensing decision. Id. at 1160.
This reasoning is just as applicable here even though our case involves an
individual permit based on an environmental impact statement.
The opinions in PennEast and Snoqualmie Valley 9 mirror the
Commission’s acknowledgments here that its proceedings didn’t
 “shield[] the Corps from judicial review” or
9
Snoqualmie Valley isn’t binding here. But it’s the only other circuit
court opinion to address our issue, and we are generally reluctant to create
a circuit split just because we might “think the contrary arguments are
marginally better.” United States v. Thomas, 939 F.3d 1121, 1130 (10th
Cir. 2019).
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 address the need to expand the water supply or mitigate the
environmental impact “that do not pertain directly to the
[Commission’s] license for the [hydroelectric project].”
Fed. Appellees’ Supp. App’x at 117 n.26, 179 n.25.
Granted, the Commission’s statements do not bind us when deciding
the scope of district courts’ jurisdiction. See Lindstrom v. United States,
510 F.3d 1191, 1195 n.3 (10th Cir. 2007). But the Commission could have
amended the license whether or not the Corps had issued a discharge
permit. See, e.g., Pub. Util. Dist. No. 1, 151 FERC ¶ 62,204; 64,560
(2015); Clean River Power MR-7, LLC, 153 FERC ¶ 62,260, 2015 WL
9581364, at *15 (Dec. 30, 2015). Because the license amendment order
didn’t incorporate the discharge permit, the Commission had no
responsibility over the permit itself. See Duncan’s Point Lot Owners Ass’n
v. FERC, 522 F.3d 371, 378 (D.C. Cir. 2008) (stating that the Commission
bore only limited responsibilities under the Clean Water Act and had only
to monitor and investigate compliance with the Commission’s licenses);
see also 16 U.S.C. § 823b(a) (stating that “[t]he Commission shall monitor
and investigate compliance with each license and permit issued under this
subchapter”).
As a practical matter, the municipality needed a discharge permit to
raise the dam and expand the reservoir—matters subject to the
Commission’s licensing decision. So if the conservation organizations
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succeed on the statutory claims, the hydroelectric project itself might be in
jeopardy. But this doesn’t mean that
 the Commission could have acted on the challenges outside its
regulatory jurisdiction or
 the jurisdictional statute covers orders by the Corps or Service
that would have remained in place with or without amendment
of the license.
7. Conclusion
The conservation organizations’ claims did not attack the merits of
the Commission’s approval of an amended license. So the district court
shouldn’t have dismissed the petition for lack of subject-matter
jurisdiction. The Federal Power Act’s jurisdictional provision applies only
to issues inhering in the controversy that the Commission decided, and the
conservation organizations did not raise such issues in the petition. We
thus reverse and remand for further proceedings in accordance with this
opinion.
36