FILED

NOT FOR PUBLICATION MAY 22 2015

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

PUBLIC POWER COUNCIL; No. 08-74811

NORTHWEST REQUIREMENTS

UTILITIES; PACIFIC NORTHWEST BPA No. WP-07-A-05

GENERATING COOPERATIVE,

Petitioners, MEMORANDUM*

ALCOA INC.,

Intervenor,

And

AVISTA CORPORATION; PUGET

SOUND ENERGY, INC; PACIFICORP;

IDAHO PUBLIC UTILITIES

COMMISSION; CITY OF TACOMA;

CITY OF SEATTLE; PACIFICORP;

PUBLIC UTILITY DISTRICT NO.1 OF

SNOHOMISH COUNTY,

WASHINGTON; CITIZENS’ UTILITY

BOARD OF OREGON; IDAHO POWER

COMPANY; PORTLAND GENERAL

ELECTRIC COMPANY; PUBLIC

UTILITY DISTRICT NO. 1 OF

COWLITZ COUNTY, WASHINGTON;

WASHINGTON UTILITIES AND

TRANSPORTATION COMMISSION;

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

ALCOA INC.,

v.

U.S. DEPARTMENT OF ENERGY;

BONNEVILLE POWER

ADMINISTRATION,

Respondents.

PUBLIC UTILITY DISTRICT NO. 1 OF No. 08-74900

COWLITZ COUNTY, WASHINGTON,

BPA No. WP-07-A-05 Petitioner,

PUBLIC UTILITY DISTRICT NO. 1,

Intervenor,

ALCOA INC.,

Intervenor,

And

PACIFICORP; PUGET SOUND

ENERGY, INC; AVISTA

CORPORATION; PORTLAND

GENERAL ELECTRIC COMPANY;

IDAHO POWER COMPANY; CITY OF

TACOMA; CITY OF SEATTLE;

TILLAMOOK PEOPLE’S UTILITY

DISTRICT; CITIZENS’ UTILITY

BOARD OF OREGON,

WASHINGTON UTILITIES AND

TRANSPORTATION COMMISSION;

ALCOA INC.,

v.

BONNEVILLE POWER

ADMINISTRATION,

Respondent.

BENTON RURAL ELECTRIC No. 08-75008

ASSOCIATION,

BPA No. WP-07-A-05 Petitioner,

ALCOA INC.,

Intervenor,

And

AVISTA CORPORATION; PUGET

SOUND ENERGY, INC; CITY OF

TACOMA; PACIFICORP; IDAHO

POWER COMPANY; CITY OF

SEATTLE; TILLAMOOK PEOPLE’S

UTILITY DISTRICT; CITIZENS’

UTILITY BOARD OF OREGON;

PORTLAND GENERAL ELECTRIC

COMPANY; ALCOA INC.,

v.

BONNEVILLE POWER

ADMINISTRATION; U.S.

DEPARTMENT OF ENERGY,

Respondents. CLATSKANIE PEOPLE’S UTILITY No. 08-75091

DISTRICT,

BPA No. WP-07-A-05 Petitioner,

PACIFICORP; AVISTA

CORPORATION; CITIZENS’ UTILITY

BOARD OF OREGON; ALCOA INC.,

Intervenors,

And

PUGET SOUND ENERGY, INC,

v.

BONNEVILLE POWER

ADMINISTRATION; U.S.

DEPARTMENT OF ENERGY,

Respondents.

AVISTA CORPORATION, No. 08-75098

Petitioner, BPA Nos. WP-07-A-05

WP-07-A-06

IDAHO POWER COMPANY; WP-07-A-07

PACIFICORP; CITIZENS’ UTILITY

BOARD OF OREGON; ALCOA INC.,

Intervenors,

And

PUGET SOUND ENERGY, INC; THE

CITY OF SEATTLE,

v.

BONNEVILLE POWER

ADMINISTRATION; U.S.

DEPARTMENT OF ENERGY,

Respondents.

PUGET SOUND ENERGY, INC, No. 08-75099

Petitioner, BPA Nos. WP-07-A-05

WP-07-A-06

IDAHO POWER COMPANY; WP-07-A-07

CITIZENS’ UTILITY BOARD OF

OREGON; ALCOA INC.,

Intervenors,

And

PACIFICORP; THE CITY OF SEATTLE,

v.

BONNEVILLE POWER

ADMINISTRATION; U.S.

DEPARTMENT OF ENERGY,

Respondents.

PACIFICORP, No. 08-75112 Petitioner, BPA Nos. WP-07-A-05

WP-07-A-06

ALCOA INC., WP-07-A-07

Intervenor,

And

PUGET SOUND ENERGY, INC; CITY

OF SEATTLE; IDAHO POWER

COMPANY; CITIZENS’ UTILITY

BOARD OF OREGON,

v.

BONNEVILLE POWER

ADMINISTRATION; U.S.

DEPARTMENT OF ENERGY,

Respondents.

IDAHO PUBLIC UTILITIES No. 08-75113

COMMISSION,

BPA Nos. WP-07-A-05 Petitioner, WP-07-A-06

WP-07-A-07

ALCOA INC.,

Intervenor,

And

PUGET SOUND ENERGY, INC; CITY

OF SEATTLE; IDAHO POWER

COMPANY; PACIFICORP; CITIZENS’

UTILITY BOARD OF OREGON,

v.

BONNEVILLE POWER

ADMINISTRATION; U.S.

DEPARTMENT OF ENERGY,

Respondents.

IDAHO POWER COMPANY, No. 08-75130

Petitioner, BPA Nos. WP-07-A-05

WP-07-A-06

THE CITY OF SEATTLE; PACIFICORP; WP-07-A-07

CITIZENS’ UTILITY BOARD OF

OREGON; ALCOA INC.,

Intervenors,

And

PUGET SOUND ENERGY, INC,

v.

BONNEVILLE POWER

ADMINISTRATION; U.S.

DEPARTMENT OF ENERGY,

Respondents.

OREGON PUBLIC UTILITY No. 08-75132

COMMISSION,

BPA Nos. WP-07-A-05 Petitioner, WP-07-A-06

WP-07-A-07

THE CITY OF SEATTLE; PACIFICORP;

CITIZENS’ UTILITY BOARD OF

OREGON; ALCOA INC.,

Intervenors,

And

PUGET SOUND ENERGY, INC,

v.

BONNEVILLE POWER

ADMINISTRATION; U.S.

DEPARTMENT OF ENERGY,

Respondents.

PUBLIC UTILITY DISTRICT NO.1 OF No. 08-75133

SNOHOMISH COUNTY,

WASHINGTON, BPA No. WP-07-A-05

Petitioner,

PACIFICORP; THE CITY OF SEATTLE;

AVISTA CORPORATION; CITIZENS’

UTILITY BOARD OF OREGON;

ALCOA INC.,

Intervenors,

And

PUGET SOUND ENERGY, INC,

v.

BONNEVILLE POWER

ADMINISTRATION,

Respondent.

PORTLAND GENERAL ELECTRIC No. 08-75161

COMPANY,

BPA Nos. WP-07-A-05 Petitioner, WP-07-A-06

WP-07-A-07

PUGET SOUND ENERGY, INC; CITY

OF SEATTLE; PACIFICORP; CITIZENS

UTILITY BOARD OF OREGON;

ALCOA INC.,

Intervenors,

v.

BONNEVILLE POWER

ADMINISTRATION; U.S.

DEPARTMENT OF ENERGY,

Respondents.

TILLAMOOK PEOPLE’S UTILITY No. 08-75165

DISTRICT,

Petitioner, BPA No. WP-07-A-05

PUGET SOUND ENERGY, INC; CITY

OF SEATTLE; AVISTA

CORPORATION; PACIFICORP;

CITIZENS UTILITY BOARD OF

OREGON; ALCOA INC.,

Intervenors,

v.

BONNEVILLE POWER

ADMINISTRATION; U.S.

DEPARTMENT OF ENERGY,

Respondents.

On Petition for Review of an Order of the Bonneville Power Administration

Submitted May 5, 2015** Portland, Oregon

Before: W. FLETCHER and HURWITZ, Circuit Judges and WALTER,*** Senior District Judge.

This litigation arises from the Bonneville Power Administration’s (“BPA’s”)

treatment of refunds owed to one class of customers following our opinions in

Portland General Electric Co. v. BPA (PGE), 501 F.3d 1009 (9th Cir. 2007), and

Golden Northwest Aluminum, Inc. v. BPA (Golden Northwest), 501 F.3d 1037 (9th

Cir. 2007). Following those decisions, BPA issued the Record of Decision

(“ROD”) in its WP-07 Supplemental Wholesale Power Rate Case (“WP-07S

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Donald E. Walter, Senior District Judge for the U.S. District Court for the Western District of Louisiana, sitting by designation. ROD”), in which it addressed our opinions and determined the amounts it would

pay in refunds, known in BPA documents as the “Lookback Amounts.”

The petitioners in this case filed a petition for review in this court

challenging various aspects of the WP-07S ROD. After filing the petition for

review, all of the petitioning parties except one, the Western Public Alliance Group

(“WPAG”), entered into a settlement with BPA known as the REP-12 Settlement

Agreement. After evaluating the settlement, the BPA Administrator issued a new

ROD, known as the REP-12 ROD,1 using the terms in the REP-12 Settlement

Agreement to calculate and distribute the Lookback Amount refunds required by

PGE and Golden Northwest. Ass’n of Public Agency Customers v. BPA (APAC),

733 F.3d 939, 943, 947 (9th Cir. 2013). WPAG did not challenge the terms of the

REP-12 ROD. We affirmed the REP-12 ROD, including the Lookback Amount

provisions, in APAC. Id. All parties except WPAG have jointly moved for

dismissal of this case as moot, arguing that the REP-12 ROD withdrew and

replaced the WP-07S ROD. We agree and dismiss the petition.

1 We grant the moving parties’ motion to take judicial notice of the REP-12 ROD. See Transmission Agency of N. Cal. v. Sierra Pac. Power Co., 295 F.3d 918, 924 n.3 (9th Cir. 2002). The ROD is available at https://www.bpa.gov/Finance/ResidentialExchangeProgram/Documents/REP-12-A -02.pdf.

2 WPAG makes several arguments supporting its assertion that its challenge to

the WP-07S ROD’s treatment of the Lookback Amounts survives the issuance of

the REP-12 ROD. Each of these arguments is unavailing.

WPAG argues that the REP-12 Settlement Agreement itself anticipated that

we could rule on the WP-07S ROD’s treatment of the Lookback Amounts

regardless of BPA’s later adoption of the settlement’s terms in the REP-12 ROD.

While the Settlement Agreement acknowledges that litigation could affect BPA’s

ability to abide by the settlement’s terms, the agreement was drafted prior to BPA’s

adoption of the REP-12 ROD, a time during which this litigation was pending.

Further, the REP-12 ROD several times stated BPA’s intent to replace the WP-07S

ROD Lookback Amounts remedy, demonstrating that BPA did not intend the terms

of the WP-07S ROD to remain relevant to claims related to the Lookback Amounts

after the REP-12 ROD was approved. See REP-12 ROD at 30–31, 293, 320–27,

344–49, 365–72.

WPAG further argues that it seeks damages for past wrongs rather than

prospective relief, in an attempt to distinguish case law providing that permanent

policy changes moot outstanding challenges to the prior policy. See, e.g., Smith v.

Univ. of Wash., Law Sch., 233 F.3d 1188, 1193–95 (9th Cir. 2000) (challenge to

university policy mooted by permanent replacement of that policy); White v. Lee,

3 227 F.3d 1214, 1243–44 (9th Cir. 2000) (challenge to agency policy mooted by

permanent change); see also Theodore Roosevelt Conservation P’ship v. Salazar,

661 F.3d 66, 78–79 (D.C. Cir. 2011) (new agency ROD mooted challenge to

superseded ROD); Wyoming v. U.S. Dep’t of Agric., 414 F.3d 1207, 1211–13 (10th

Cir. 2005) (challenge to agency rule mooted by issuance of new replacement rule).

We disagree with WPAG’s characterization. BPA withdrew the ROD providing

the initial remedy owed to its customers following our decisions in PGE and

Golden Northwest and replaced it with a new remedy for the same conduct. Such

action falls squarely within the traditional scope of agency authority to fashion

remedies. See United Gas Improvements Co. v. Callery Props., Inc., 382 U.S. 233,

229 (1965) (upholding the Federal Power Commission’s decision to order refunds

because “an agency, like a court, can undo what is wrongfully done by virtue of its

order”); Pub. Utils. Comm’n of Cal. v. FERC, 462 F.3d 1027, 1053 (9th Cir. 2006)

(“An agency’s discretion is at its zenith when it is fashioning policies, remedies

and sanctions . . . .” (alteration and internal quotation marks omitted)); Pub. Utils.

Comm’n of Cal. v. FERC, 988 F.2d 154, 162–63 (D.C. Cir. 1993) (holding that on

remand FERC had the authority to “order[] recoupment of losses caused by its

errors”). This is not a case in which WPAG is entitled to damages arising from

past agency conduct prior to the policy change at issue, see White, 227 F.3d at

4 1240–41, or conduct not addressed by the new policy, see Atl. Richfield Co. v.

BPA, 818 F.2d 701, 705 (9th Cir. 1987).

Even if the REP-12 ROD replaced the WP-07S ROD, WPAG argues, its

terms cannot be applied to moot WPAG’s claims because (1) BPA unlawfully

applied to nonsettling parties terms in the REP-12 Settlement Agreement and (2) a

partial settlement cannot moot claims by nonsettling parties. It is true, as WPAG

notes, that the challenged aspect of the WP-07S ROD (failure to include certain

payments to PacifiCorp and Puget Sound Energy in the Lookback Amount

refunds) is also a feature of the REP-12 ROD, although the overall treatment of the

refunds is not precisely the same. See REP-12 ROD at 253. But, as we recognized

in APAC, BPA had the legal authority to establish the remedy ordered by this court

in PGE and Golden Northwest for all of its customers so long as that remedy did

not exceed its statutory authority. See 733 F.3d at 967–68. BPA exercised this

authority not by entering into a partial settlement with some of its customers, but

by adopting the terms of the settlement as the policy of the agency via an ROD.

See REP-12 ROD at 292; see also Mobil Oil Corp. v. Fed. Power Comm’n, 417

U.S. 283, 297, 312–14 (1974) (upholding Federal Power Commission rates based

on a private settlement because the adopted rates complied with the agency’s

statutory obligations and were supported by the record). As BPA explained in the

5 REP-12 ROD, “[n]on-signers are bound [by the settlement] only in the sense that

they will pay in rates the REP benefits provided under the Settlement, but only

after BPA has independently found that the Settlement satisfies the requirements

and protections set forth in the Northwest Power Act.” REP-12 ROD at 348.

We conclude that the REP-12 ROD withdrew and replaced the WP-07S

ROD as to the remedy owed by BPA under our decisions in PGE and Golden

Northwest. WPAG did not challenge the REP-12 ROD. Because the REP-12

ROD represents BPA’s operative policy on the issue, WPAG’s challenge to the

WP-07S ROD is moot. The outstanding motions to strike portions of APAC’s

reply brief and for judicial notice of BPA’s WP-10-A-02 ROD are accordingly

denied as moot.

DISMISSED as moot.

6