ELR Citation: ELR 21418
No(s). 95-70884 (9th Cir. Aug 5, 1997)

The court holds that the Federal Energy Regulatory Commission (FERC) was correct in denying the Skokomish Indian Tribe's application for a preliminary permit to develop a hydropower facility, because the intended project conflicted with a relicensing application submitted by the city of Tacoma, Washington. The court first holds that FERC's interpretations of its regulations are to be given deference unless plainly erroneous and FERC's findings of fact are conclusive if supported by substantial evidence. Also, the court determines that the Skokomish Indian Tribe is an aggrieved party by reasoning that if a grant of a permit is reviewable then a denial should be reviewable. The court next holds that FERC's regulations on their face require a denial of the Skokomish Indian Tribe's permit application on the ground that it conflicts with Tacoma's pending relicense application. FERC's regulations implementing its Federal Power Act authority state that "the Commission will not accept an application for a preliminary permit for project works that . . . would develop, conserve, and utilize, in whole or in part, the same water resources that would be developed, conserved, and utilized by a project for which an initial development application has been filed . . . ." Because the Skokomish Indian Tribe's proposed project would use the same water that Tacoma proposes to continue to use in its hydropower project, FERC correctly concluded that the tribe's permit application conflicts with Tacoma's filed relicense application.

Counsel for Petitioner
Mason D. Morisset
Morisset, Schlosser, Ayer & Jozwiak
801 Second Ave., Seattle WA 98104
(206) 386-5200

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

Before Wright, Wallace, and Hawkins, JJ.