United States Department of Commerce v. Federal Energy Regulatory Commission

Opinion by Judge THOMPSON; Dissent by Judge TROTT.

Chinook salmon and steelhead trout are anadromous fish. 1 They are an important natural resource, exploited by commercial, sport and Indian tribal fishermen fishing in the Columbia and Salmon River Basins and in the Pacific Ocean from Oregon, California, Washington, Alaska and British Columbia.

Anadromous fish spawn, among other places, in tributaries of the Salmon River. One such tributary is Allison Creek, a non-navigable body of water. In 1955, Guy M. Carlson built a small hydroelectric project on Allison Creek next to his property. The project generates a modest amount of electricity which is wholly consumed on Carlson’s property and used for his ranch house and outbuildings. The project’s dam, a 3-foot-high structure, blocks the migration of ana-dromous fish, preventing them from spawning in the portion of Allison Creek above the dam.

In 1985, Carlson filed with the Federal Energy Regulatory Commission (FERC) a declaration of intention to continue operating his hydroelectric project. FERC requires such a declaration in connection with its investigation and determination whether a project requires a license under § 23(b)(1)…

Dissenting:

Today, we conscript an unwilling Federal Energy Regulatory Commission (“FERC”) into the laudable battle to save the salmon even though the tiny private dam in question impacts neither navigability nor interstate electrical power. We do so notwithstanding FERC’s reasonable declination of jurisdiction in this case based on FERC’s interpretation of Section 23(b)(1) of the Federal Power Act. In so doing, we disregard the rule of law that requires us to defer to an agency’s interpretation of its primary enabling statute under circumstances where (1) the intent of Congress manifestly requires interpretation, and (2) the agency’s construction of the statute is reasonable. See Transpacific Westbound Rate Agreement v. FMC, 951 F.2d 950, 952-53 (9th Cir.1991); see also Mississippi Power and Light v. Moore, 487 U.S. 354, 380-82 , 108 S.Ct. 2428, 2443-45 , 101 L.Ed.2d 322 (1988) (Scalia, J., concurring); Chevron U.S.A, Inc. v. Nat’l Res. Dev. Council, 467 U.S. 837, 842-45 , 104 S.Ct. 2778, 2781-83 , 81 L.Ed.2d 694 (1984).

By giving the term “commerce” its full-blown meaning in this context, we simply permit an unforeseen cart to run away with the horse. Nowhere does Congress…