14 ELR 20592 | Environmental Law Reporter | copyright © 1984 | All rights reserved

Escondido Mutual Water Co. v. La Jolla Band of Mission Indians

No. 82-2056 (U.S. May 15, 1984)

ELR Digest

The Court rules that § 4(e) of the Federal Power Act (FPA) requires the Federal Energy Regulatory Commission (FERC) to impose any conditions on hydropower projects on reserved federal lands that the secretary in charge of the land requests. Escondido and others sought renewal of a license to operate a water diversion and hydropower project, part of which was on three Mission Indian reservations, and the operation of which potentially would affect water supplies for three other Mission reservations. The Secretary of the Interior requested that FERC impose conditions to protect the six reservations. FERC held (1) it need not impose all the conditions requested by the Secretary; (2) it need not impose any conditions to protect lands not physically occupied by the project; and (3) Escondido did not need the consent of the Indians before the license could issue. The Ninth Circuit reversed FERC on all three points.

The Court first rules that FPA § 4(e) requires FERC to include in hydropower licenses for projects on federal reservations all conditions requested by the Secretary to protect such lands. The plain language of § 4(e) imposes such a requirement. The legislative history suggests that although Congress wished to centralize hydropower licensing to make it uniform, coordinated, and efficient, Congress did not intend to deprive the secretaries of protective control of their lands. Further, contrary to FERC's contention, the Court holds that its reading of § 4(e) is consistent with the rest of the FPA, including a passage requiring FERC to make a determination that the licensed project will not interfere or be inconsistent with the purpose for which federal reservations were created.

The Court agrees with FERC, however, that FERC need not accept the Secretary's proposed conditions to protect lands that contain no part of the project. According to the language of § 4(e), the Secretary may impose conditions only on projects "within" a reservation to protect "such" reservation. The Court rejects the Ninth Circuit's argument that since federal lands include such incorporeal things as water rights, the word "within" was ambiguous. The Court reads "reservation" in a concrete, geographical sense. Other parts of the FPA protect the water rights of potentially affected, nearby lands. When a project is not located on reserved lands, FERC has no obligation to include conditions requested by a secretary, though FERC must consider whether the project is in the public interest and to that end may consider the project's effect on reserved lands.

Finally, the Court rules that § 8 of the Mission Indians Relief Act of 1891 does not require the hydropower applicants to have the consent of the Indians. Although § 8 allows the Indians to grant rights-of-way over the reservation, it does not limit the federal government's sovereign authority to do the same, upon payment of just compensation. The FPA expressly requires FERC to assess compensation for projects that take tribal lands, and nothing in the Act or its history suggest that Congress intended to give tribes authority to limit FERC's power to take Indian lands.

The Court unanimously reverses in part the decision of the Ninth Circuit and remands the case for further proceedings.

The full text of this opinion is available from ELR (24 pp. $3.50, ELR Order No. C-1326).

Counsel for Petitioners
Paul D. Engstrand, Donald R. Lincoln, Henry E. Heater
Jennings, Engstrand & Henrickson
2255 Camino Del Rio S., San Diego CA 92108
(619) 291-0840

Leroy A. Wright, Kent H. Foster
Glenn, Wright, Jacobs & Schell
Rm. 300, 2320 5th Ave., San Diego CA 92101
(619) 239-1211

C. Emerson Duncan II
Duncan, Allen & Mitchell
1575 I St. NW, Washington DC 20005
(202) 289-8400

Counsel for Respondents
Robert C. Pelcyger, Scott B. McElroy
Fredericks & Pelcyger
1007 Pearl St., Boulder CO 80302
(303) 449-3263

Jeanne S. Whiteing, Arthur J. Gajarsa
Wender, Murase & White
Suite 650, 1120 20th St. NW, Washington DC 20036
(202) 452-8950

Jerome M. Feit, Solicitor; Joseph S. Davies Jr., Arlene P. Groner
Federal Energy Regulatory Commission, 825 N. Capitol St. NE, Washington DC 20426
(202) 357-8440

Stephen R. Melton, Acting General Counsel; Kristina Nygaard
Federal Energy Regulatory Commission, 825 N. Capitol St. NE, Washington DC 20426
(202) 357-8000

Elliott Schulder; Rex E. Lee, Solicitor General; Louis F. Claiborne
Department of Justice, Washington DC 20530
(202) 633-4132

Dirk D. Snel, James C. Kilbourne; F. Henry Habicht II, Ass't Attorney General
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-4400

White, J.


14 ELR 20592 | Environmental Law Reporter | copyright © 1984 | All rights reserved