National Parks Conservation Association v. Federal Energy Regulatory Commission

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NATIONAL PARKS CONSERVATION
ASSOCIATION,
Petitioner,
v.
FEDERAL ENERGY REGULATORY
COMMISSION,
Respondent,
EAGLE CREST ENERGY COMPANY,
Respondent-Intervenor.
No. 19-72915
FERC No. 13123-002
MEMORANDUM*
On Petition for Review of an Order of the
Federal Energy Regulatory Commission
In re: NATIONAL PARKS
CONSERVATION ASSOCIATION,
______________________________
NATIONAL PARKS CONSERVATION
ASSOCIATION,
Petitioner,
v.
No. 19-73079
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
JUL 28 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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FEDERAL ENERGY REGULATORY
COMMISSION,
Respondent,
EAGLE CREST ENERGY COMPANY,
Respondent-Intervenor.
Petition for Writ of Mandamus
Argued and Submitted October 13, 2020
San Francisco, California
Before: McKEOWN and NGUYEN, Circuit Judges, and WHALEY,** District
Judge.
National Parks Conservation Association (the “Association”) petitions for
review of orders of the Federal Energy Regulatory Commission (the
“Commission”) denying the Association’s motion to intervene in proceedings to
extend the deadlines to commence and complete construction in Eagle Crest
Energy Company’s (“Eagle Crest”) license for the Eagle Mountain Pumped
Storage Hydroelectric Project and concluding that the Commission did not violate
the Federal Power Act (“FPA”) in failing to provide public notice of the extension-
of-time proceedings. The Association also petitions for a writ of mandamus
** The Honorable Robert H. Whaley, United States District Judge for the
Eastern District of Washington, sitting by designation.

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pursuant to the All Writs Act. 28 U.S.C. § 1651. We have jurisdiction under 16
U.S.C. § 825l(b) (denial of intervention and failure to provide notice) and 28
U.S.C. § 1651 (mandamus relief), and we deny the petitions.1
We conclude the Association has Article III standing. The constitutional
requirement for standing commands a petitioner to show that it has (1) suffered a
concrete and particularized, actual or imminent injury in fact, “(2) that is fairly
traceable to the challenged conduct of the defendant, and (3) that is likely to be
redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct.
1540, 1547 (2016). The Association’s injuries are fairly traceable to the 2019
orders on review and, more specifically, to the Commission’s denial of
intervention as determined in those orders. See Citizens for Better Forestry v.
USDA, 341 F.3d 961, 975 (9th Cir. 2003) (explaining that traceability “is only
implicated where the concern is that an injury caused by a third party is too
tenuously connected to the acts of the defendant”). It does not matter that any
injuries may also be traced to the original 2014 licensing order. Wash. Env’t
Council v. Bellon, 732 F.3d 1131, 1142 (9th Cir. 2013) (holding that standing does
not require a defendant’s action to be the “sole source” of the injury).
1 We address the merits of the Association’s challenges to the Commission’s denial
of its motion to intervene and failure to provide notice in a concurrently filed
opinion.

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The Association’s claims are also sufficiently distinct from the original
licensing order such that they do not constitute an impermissible collateral attack.
Pac. Gas & Elec. Co. v. FERC, 464 F.3d 861, 868 (9th Cir. 2006) (holding that a
court “may not entertain a petition for review that collaterally attacks a prior
[Commission] order”). At their core, the Association’s petitions concern its ability
to intervene in licensing extension proceedings and, in the case of mandamus, the
extension itself.
The Association is not entitled to mandamus relief. The writ of mandamus
“is a drastic and extraordinary remedy reserved for really extraordinary causes.”
United States v. Guerrero, 693 F.3d 990, 999 (9th Cir. 2012). “The party seeking
mandamus relief must establish that its right to issuance of the writ is clear and
indisputable.” Cal. Power Exch. Corp. v. FERC, 245 F.3d 1110, 1120 (9th Cir.
2001) (internal quotations omitted). We consider five factors to assess whether
mandamus relief is warranted: (1) whether the petitioner has no other means to
obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced
in any way not correctable on appeal; (3) whether the district court’s order is
clearly erroneous as a matter of law; (4) whether the district court’s order is an oft-
repeated error or manifests a persistent disregard of the federal rules; and (5)
whether the district court’s order raises new and important problems or issues of
first impression. Bauman v. U.S. Dist. Ct., 557 F.2d 650, 654–55 (9th Cir. 1977).

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The Association has other means to obtain its desired relief: it can challenge—as it
has—the denial of intervention and failure to provide notice. The Association’s
right to the writ is therefore not “clear and indisputable.” See Cal. Power, 245
F.3d at 1120.
Petitions for review DENIED.

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