United States v. 2012-09-18 | 10-72838 | CLATSKANIE PEOPLE'S UTILITY DI V. BPA | nonprecedential |…

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CLATSKANIE PEOPLE’S UTILITY
DISTRICT,
Petitioner,
GEORGIA-PACIFIC, LLP,
v.
BONNEVILLE POWER
ADMINISTRATION,
Respondent.
No. 10-72838
BPA Nos. EL09-12-000
EL09-12-001
MEMORANDUM*
On Petition for Review of an Order of the
Bonneville Power Administration
Argued and Submitted July 11, 2012
Portland, Oregon
FILED
SEP 18 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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The Honorable Donald E. Walter, Senior District Judge for the U.S.**
District Court for Western Louisiana, sitting by designation.
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Before: B. FLETCHER and PREGERSON, Circuit Judges, and WALTER, District
Judge.**
Clatskanie People’s Utility District (“Clatskanie”) petitions for review of the
Bonneville Power Administration’s (“Bonneville”) Tiered Rate Methodology
Record of Decision. We have original subject matter jurisdiction to review
justiciable final actions taken by Bonneville under the Pacific Northwest Electric
Power Planning and Conservation Act of 1980, 16 U.S.C. §§ 839–839h
(“Northwest Power Act”). 16 U.S.C. § 839f(e)(5); U.S. CONST. art. III, § 2, cl. 1.
We dismiss the petition in part because Clatskanie’s claim that the Tiered Rate
Methodology violates the Northwest Power Act is not yet ripe. We deny
Clatskanie’s remaining arguments as barred by res judicata.
The Tiered Rate Methodology sets a new method that Bonneville will use to
calculate future rates charged to public utilities and other public entities. We
previously considered a challenge to it by Clatskanie and other petitioners in ICNU
v. BPA, 388 F. App’x 586 (9th Cir. 2010). In ICNU, the petitioners claimed that
the Tiered Rate Methodology will result in Bonneville charging rates that violate
the Northwest Power Act. We held that because the challenge was based on future
rate-making and cost allocation decisions, it would not be ripe for review until

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Bonneville completed a tiered rate-making proceeding and the Federal Energy
Regulatory Commission (“FERC”) approved the rates. Id. at 589. We rejected on
the merits the petitioner’s challenge that the Tiered Rate Methodology arbitrarily
discriminated in favor of a Department of Energy facility in Richland, Washington.
Id. at 589–90.
Clatskanie again petitions for review on substantially the same grounds.
Clatskanie argues that its statutory challenge is now ripe, even though rates have
not yet been approved, because the FERC issued a declaratory order confirming
the Tiered Rate Methodology. Order Granting Petition for Declaratory Order,
131 FERC ¶61,244 (June 17, 2010). We review issues of law, such as jurisdiction
and justiciability, de novo. See Renee v. Duncan, 623 F.3d 787, 795 (9th Cir.
2010).
Clatskanie contends that it may challenge any rate-making methodology
confirmed by the FERC even before Bonneville sets rates using the methodology.
Clatskanie mistakenly relies upon cases that discuss finality and ripeness after
FERC review of an “average system cost” methodology. See Pacificorp v. FERC,
795 F.2d 816, 818 (9th Cir. 1986); Pub. Util. Comm’r v. BPA, 767 F.2d 622, 629
(9th Cir. 1985). An average system cost methodology is part of the Northwest
Power Act’s power exchange program, in which investor-owned utilities exchange

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electric power with BPA. See § 839c(c). Under the administrative scheme created
by Congress in the Northwest Power Act, the FERC must confirm and approve the
average system cost methodology before it is final and subject to judicial review.
Pub. Util. Comm’r, 767 F.2d at 629. The Northwest Power Act contains no
requirement for the FERC to review a methodology to set rates under § 839e. To
the contrary, § 839f(e)(4)(D) states that such rates are only deemed final and ripe
for review after confirmation and approval by FERC. See Pac. Nw. Generating
Co-op. v. Dep’t of Energy, 580 F.3d 792, 805 & n.20 (9th Cir. 2008); Cal. Energy
Res. Conserv. & Dev. Comm’n v. Johnson, 807 F.2d 1456, 1463 (9th Cir. 1986).
Further, the FERC declaratory order does not support Clatskanie’s
contention that the statutory challenge to the Tiered Rate Methodology is ripe. The
FERC expressly states in the order that Bonneville had not yet established specific
rates, and declared that the Tiered Rate Methodology should not prevent
Bonneville from meeting its statutory obligation to recover costs. 131 FERC
¶61,244, at 62,189–90. Because Bonneville may revise the methodology, and the
rate-making proceeding and rates are subject to FERC review, the statutory
challenge is not yet fit for resolution. We lack jurisdiction and must dismiss this

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Georgia-Pacific, LLC, Clatskanie’s largest customer, filed an untimely1
motion to intervene. In addition to joining Clatskanie’s statutory challenge,
Georgia-Pacific raised a regulatory takings claim based on the likely impact of the
Tiered Rate Methodology on future rates. Because neither of these claims are ripe,
we deny Georgia-Pacific’s motion to intervene.
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portion of Clatskanie’s petition. Once Bonneville sets rates using the Tiered Rate1
Methodology and the FERC approves those rates, Clatskanie and other parties with
standing to petition may challenge the rates and the methodology used to set those
rates.
Clatskanie additionally claims that the Tiered Rate Methodology (1)
arbitrarily and capriciously discriminates in favor of the United States Department
of Energy facility in Richland, Washington; and (2) unlawfully delegates rate-
making authority to interested private parties. The first claim was actually raised
by Clatskanie and other petitioners in ICNU and decided by the court, and the
second claim would have been ripe and could have been raised. See ICNU, 388 F.
App’x at 589 (holding that petitioners’ claim was ripe if it challenged neither rates
nor hypothetical characteristics of future rates). These claims are barred by res
judicata. See Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency,
322 F.3d 1064, 1078 (9th Cir. 2003) (holding that a new claim is subject to res
judicata if the new claim could have been brought in the earlier suit).
PETITION 10-72838 DENIED IN PART and DISMISSED IN PART.

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