ELR Citation: ELR 20862
No(s). 91-70519 (9th Cir. May 19, 1993)

The court upholds the Federal Energy Regulatory Commission's (FERC's) finding that the middle segment of the Cedar River in Washington State is not navigable under the Federal Power Act (FPA) and its decision that it therefore lacks licensing jurisdiction over a hydroelectric power plant on that segment of the river. An Indian tribe sought FERC's review of whether a municipal hydroelectric power plant required licensing under the FPA, and appeals FERC's decision that the segment of the river on which the power plant is located is not a navigable waterway. The court holds that FERC's decision was reasonable based on the evidence presented regarding the river's historical navigability. FERC properly concluded that a logging report introduced by the Indian tribe, which contains evidence of logging during the turn of the century above the river's middle segment, was not sufficient to support a finding of navigability of the entire river. Moreover, no evidence was introduced that harvested lumber was portaged around the middle segment and thereafter shipped downstream on its journey in interstate commerce. FERC properly discounted as evidence of the middle segment's navigability a 1977 raft trip on the middle segment by members of the Washington Department of Fisheries, because the raft capsized and rafters had to wade downstream pulling the raft alongside them. FERC also properly discounted longtime residents' testimony of floating cedar shingle bolts and Indian canoe races, because the extent and location of these activities was uncertain. The court holds that the evidence submitted does not specify where commerce occurred, and a finding of navigability for the middle segment may not be based on inferences of actual use elsewhere on the river.

The court holds that FERC correctly declined to infer that the middle segment had ever been circumvented or was suitable for use in interstate commerce, because the evidence does not support a finding that the middle segment is merely an interruption in an otherwise continuous highway for interstate commerce. The very length of the middle segment relative to the length of the river as a whole (21 miles out of, at most, 55) raises a presumption that this difficult stretch of the river is not simply a "mere interruption" but, rather, renders the river unsuitable for navigation. The court next holds that although the Indian tribe claims that an 1864 Washington territorial statute "explicitly demonstrates" that the river's middle segment was suitable for commerce, the tribe did not raise that argument before FERC and the court need not consider it. FPA §825l(b) precludes judicial review of an objection not raised before FERC unless the party offers reasonable grounds for failing to object. The tribe offers no such reasonable grounds for its failure to present the 1864 statute, and its attempt to argue that the statute is not new documentary evidence, but is a law, is belied by the tribe's attempt to use it to supplement evidence of navigability. Finally, the court holds that because the tribe is not the prevailing party, it is not entitled to reasonable attorney fees under the Equal Access to Justice Act.

Counsel for Petitioner
Robert L. Otsea Jr.
Office of the Tribal Attorney
39015 172d Ave. SE, Auburn WA 98002
(206) 939-3311 ext. 146

Counsel for Respondent
Randolph L. Elliott
Federal Energy Regulatory Commission
825 N. Capitol St. NE, Washington DC 20426
(202) 208-0200

Counsel for Respondent-Intervenor
Brian Faller, Ass't City Attorney
City Attorney's Office
600 4th Ave., 10th Fl., Seattle WA 98104
(206) 684-8200

Wright, J. (before Canby and Reinhardt, JJ.):