786 F.3d 18
D.C. Cir.2015Background
- La Grange Hydroelectric Project on the Tuolumne River (dam at RM 52.2) was built in the 1890s for irrigation and expanded in 1924 to include a powerhouse; turbines were replaced in 1989.
- In 2011 NMFS queried FERC about the project’s unlicensed status; FERC staff reviewed and concluded the project must be licensed under 16 U.S.C. § 817(1).
- FERC found three independent bases for mandatory licensing: (1) location on navigable waters of the United States; (2) reservoir occupies public (BLM) lands; and (3) project affects interstate commerce and experienced post‑1935 construction (capacity increase in 1989).
- Petitioners Turlock and Modesto Irrigation Districts challenged all three bases; Tuolumne River Trust argued FERC should also have treated La Grange and upstream Don Pedro as a single development unit.
- The D.C. Circuit denied the Districts’ petition (affirming FERC on all three grounds) and dismissed the Trust’s petition for lack of Article III standing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing (Trust) | Trust: wants court to direct FERC to find an additional jurisdictional basis (single‑unit with Don Pedro); alleged increased advocacy costs and future tourism loss | FERC (and Districts): Trust has no concrete, traceable, redressable injury from the asserted procedural/labeling change | Dismissed: Trust lacks injury in fact; advocacy costs and speculative tourism losses insufficient for standing |
| Navigability | Districts: Tuolumne (at La Grange) is not a navigable water under FPA; evidence of commercial suitability lacking | FERC: river is presently and historically navigable up to the project tailrace (government boat use; 19th‑century evidence); suitability for commerce does not require identification of a specific commercial use | Affirmed: substantial evidence supports FERC’s navigability finding |
| Federal lands (reservoir extent) | Districts: reservoir ends upstream of federal lands (their gradient analysis); FERC backwater method is too imprecise | FERC: used standard backwater and contour analyses (NMFS contour) and reasonably interpreted the graphs and normal maximum surface elevation (spillway crest) | Affirmed: FERC reasonably concluded the reservoir extends onto BLM land |
| Commerce Clause / post‑1935 "construction" | Districts: no reliable pre‑rehab ratings; FERC compared turbines to generators (apples‑to‑oranges); de minimis capacity increase should not trigger jurisdiction | FERC: relied on Districts’ own Bechtel report for pre‑rehab ratings; kilowatt figures reflect generator ratings consistent with industry practice; 1989 rehabilitation increased installed capacity | Affirmed: FERC permissibly found a 174 kW increase and post‑1935 construction, supporting jurisdiction |
Key Cases Cited
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (constitutional standing requires concrete, particularized injury)
- Exxon Mobil Corp. v. FERC, 571 F.3d 1208 (standing and redressability principles in FERC review)
- FPL Energy Maine Hydro LLC v. FERC, 287 F.3d 1151 (navigability standards and evidentiary sufficiency)
- Appalachian Electric Power Co. v. United States, 311 U.S. 377 (historic personal/private boat use can show suitability for commercial navigation)
- L.S. Starrett Co. v. FERC, 650 F.3d 19 (post‑1935 construction and installed‑capacity analysis for jurisdiction)
- Center for Law and Education v. Department of Education, 396 F.3d 1152 (expenditure of resources on advocacy does not by itself create Article III injury)