Hoopa Valley Tribe v. Fed. Energy Regulatory Comm'n, 913 F.3d 1099

Background

PacifiCorp operated the Klamath Hydroelectric Project (series of dams in CA/OR) under an expired license and sought relicensing/decommissioning beginning in 2004; state Section 401 water quality certifications remained unresolved since 2006.
Parties to a multi-stakeholder Klamath Hydroelectric Settlement Agreement (KHSA) agreed to hold state permitting in abeyance and have PacifiCorp annually withdraw-and-resubmit Section 401 certification requests to avoid statutory waiver during an interim period.
PacifiCorp later filed to amend/transfer licenses to Klamath River Renewal Corporation; FERC split the lower dams into a separate license and continues review, but states had not issued certifications.
Hoopa Valley Tribe, not a party to the KHSA, petitioned FERC claiming California and Oregon waived their Section 401 authority and that PacifiCorp failed to diligently prosecute its application; FERC denied relief and Hoopa sought court review.
The D.C. Circuit reviewed whether coordinated withdrawal-and-resubmission under an agreement restarts the one-year Section 401 waiver clock or amounts to state failure/refusal to act, and whether the court had jurisdiction despite states invoking sovereign immunity.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether coordinated withdrawal-and-resubmission restarts the 1-year Section 401 waiver period	The states’ repeated withdrawals-and-resubmissions (per KHSA) are a sham that should not restart the statutory clock; therefore states waived authority	Each resubmission is a new, independent request, triggering a new one-year review period, so no waiver occurred	Withdrawals-and-resubmissions pursuant to the KHSA did not constitute new requests; states waived Section 401 authority because they failed/refused to act within the statutory period
Whether PacifiCorp diligently prosecuted its licensing application	PacifiCorp did not diligently prosecute because it acquiesced to the delay scheme that prevented state action and stalled federal licensing	PacifiCorp acted per the settlement process and complied with agreed procedures; FERC should not find lack of diligence	Because the states waived their Section 401 authority, PacifiCorp’s conduct did not absolve the states; the court found waiver and rejected the diligence-based defense to avoid waiver
Whether the court has jurisdiction given states’ sovereign immunity	Hoopa: federal review of FERC orders is proper without joinder of states; relief concerns a federal agency decision	Oregon: states are indispensable parties entitled to Eleventh Amendment protection and joinder under Rule 19	Court has jurisdiction; Rule 15 controls appellate review and only the federal agency is required as respondent; sovereign immunity does not bar review of FERC orders

Key Cases Cited

Alcoa Power Generating Inc. v. FERC, 643 F.3d 963 (D.C. Cir.) (waiver provision prevents states from indefinitely delaying federal licensing)
Wisconsin Valley Improvement v. FERC, 236 F.3d 738 (D.C. Cir.) (standard of review for FERC orders under the APA)
Millennium Pipeline Co. v. Seggos, 860 F.3d 696 (D.C. Cir.) (discussing Section 401 waiver and state delay)
North Carolina v. FERC, 112 F.3d 1175 (D.C. Cir.) (precedent on state certification and timing issues under Section 401)
New York State Dep’t of Envtl. Conservation v. FERC, 884 F.3d 450 (2d Cir.) (discussing practical considerations around withdrawal-and-resubmission in Section 401 context)
Constitution Pipeline Co. v. New York State Dep’t of Envtl. Conservation, 868 F.3d 87 (2d Cir.) (context on applicant withdrawal/resubmission and state review concerns)
City of Tacoma v. FERC, 460 F.3d 53 (D.C. Cir.) (federal appeals courts may review FERC orders regarding state compliance despite state nonparticipation)
U.S. Dep’t of Interior v. FERC, 952 F.2d 538 (D.C. Cir.) (FERC’s role in soliciting comments and public participation in hydropower licensing)