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ORAL ARGUMENT HAS NOT BEEN SCHEDULED
In the United States Court of Appeals for the District of Columbia Circuit
No. 19-1009
NARRAGANSETT INDIAN TRIBAL HISTORIC PRESERVATION OFFICE, Petitioner,
v. FEDERAL ENERGY REGULATORY COMMISSION,
Respondent.
ON PETITION FOR REVIEW OF ORDERS OF THE FEDERAL ENERGY REGULATORY COMMISSION
BRIEF FOR RESPONDENT FEDERAL ENERGY REGULATORY COMMISSION
JAMES P. DANLY GENERAL COUNSEL
ROBERT H. SOLOMON SOLICITOR
JARED B. FISH ATTORNEY
FOR RESPONDENT FEDERAL ENERGY REGULATORY
COMMISSION WASHINGTON, D.C. 20426
FINAL BRIEF: AUGUST 20, 2019
USCA Case #19-1009 Document #1802952 Filed: 08/20/2019 Page 1 of 63
CIRCUIT RULE 28(a)(1) CERTIFICATE
A. Parties and Amici
The Parties before this Court are identified in Petitioner’s Rule 28(a)(1)
certificate. There are no amici.
B. Rulings Under Review
1. FERC Notice to Proceed with Tree Clearing and Construction (Apr.12, 2017) (“Notice to Proceed”), R. 828, JA 3–4;
2. Tennessee Gas Pipeline Co., L.L.C., Order Denying Request forRehearing and Late Interventions, 162 FERC ¶ 61,013 (2018)(“Rehearing Order I”), R. 949, JA 5–26;
and
3. Tennessee Gas Pipeline Co., L.L.C., Order Denying Rehearing, 165FERC ¶ 61,170 (2018) (“Rehearing Order II”), R. 971, JA 27–39.
C. Related Cases
The Narragansett Indian Tribal Historic Preservation Office filed a previous
petition for review, No. 18-1069 (D.C. Cir., filed Mar. 5, 2018), which the Court
dismissed for lack of jurisdiction on May 31, 2018.
/s/ Jared B. Fish Jared B. Fish
August 20, 2019
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TABLE OF CONTENTS
STATEMENT OF THE ISSUE .................................................................................. 1
JURISDICTIONAL STATEMENT ........................................................................... 3
STATUTORY AND REGULATORY PROVISIONS ................................................ 4
STATEMENT OF FACTS.......................................................................................... 4
I. Background ...................................................................................................... 4
A. Tennessee’s Outreach and the Commission’s Notice of the Project ..... 4
B. The Commission’s National Historic Preservation Act Section 106 Consultation, Beginning in 2014 ........................................................... 6
C. The Commission’s Issuance of a Notice to Proceed with Tree Clearing and Construction .................................................................................. 11
II. The Commission Orders on Review .............................................................. 11
SUMMARY OF ARGUMENT ................................................................................ 15
ARGUMENT ........................................................................................................... 17
I. Standard of Review ........................................................................................ 17
II. The Commission Reasonably Denied Tribal Office’s Motion to Intervene, Filed Nearly 1.5 Years Late ........................................................................... 18
A. Tribal Office Fails to Show Good Cause for Its Delay Because It Knew Its Interests Could Be Affected Years Before Its Belated Intervention Request ............................................................................ 21
B. The Commission Reasonably Determined That Granting Late Intervention Would Delay, Prejudice, and Cause Additional Burdens to FERC and Tennessee ....................................................................... 25
C. Tribal Office’s Good Cause Arguments Misapprehend the Record and the Law ................................................................................................ 26
1. Tribal Office Cannot Avoid Its 1.5-Year Delay By Citing the Subsequently Issued Notice to Proceed .................................... 26
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2. The Commission’s Ex Parte Rules Did Not Prevent Tribal Office From Both Consulting And Intervening as a Party ........ 29
i. Tribal Office is Not Entitled to Off-the-Record Consultations .................................................................. 30
ii. Tribal Office Could and Did Meaningfully Consult On-the-Record ....................................................................... 33
III. The Court Lacks Jurisdiction to Consider Tribal Office’s Substantive Claims ........................................................................................ 36
IV. Even Were the Court to Consider Them, Tribal Office’s Substantive Claims Fail ................................................................................................................. 39
A. The Commission Led the Section 106 Consultation Process and Afforded Tribal Office a Meaningful Opportunity to Participate in Resolving Adverse Effects .................................................................. 39
B. The Commission Complied With the Preservation Act By Conditioning Construction on Completion of Section 106 Consultations ....................................................................................... 43
C. The Commission Properly Executed a “Two-Party” Memorandum of Agreement ........................................................................................... 46
CONCLUSION ........................................................................................................ 49
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TABLE OF AUTHORITIES
COURT CASES: PAGE Appalachian Voices v. FERC, 2019 WL 847199 (D.C. Cir. Feb. 19, 2019) (unpublished) ..................... 44, 45 Atl. Refining Co. v. Pub. Serv. Comm’n of State of N.Y., 360 U.S. 378 (1959)....................................................................................... 45 Brock v. Pierce Cnty., 476 U.S. 253 (1986)................................................................................. 45–46 Cal. Trout v. FERC, 573 F.3d 1003 (9th Cir. 2009) ........................................................................ 37 Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971)) ..................................................................................... 17 City of Grapevine v. Dep’t of Transp., 17 F.3d 1502 (D.C. Cir. 1994) ....................................................................... 44 City of Orrville v. FERC, 147 F.3d 979 (D.C. Cir. 1998) ................................................................. 17, 25 Cone v. Caldera, 223 F.3d 789 (D.C. Cir. 2000) ....................................................................... 34 Del. Riverkeeper Network v. FERC, 857 F.3d 388 (D.C. Cir. 2017) ....................................................................... 44 ExxonMobil Gas Mktg. Co. v. FERC, 297 F.3d 1071 (D.C. Cir. 2002) ..................................................................... 17 FERC v. Elec. Power Supply Ass’n, 136 S. Ct. 760 (2016) ............................................................................... 18, 24 _________________________
* Authorities chiefly relied upon are marked with an asterisk.
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TABLE OF AUTHORITIES COURT CASES: PAGE Friends of the Atglen-Susquehanna Trail, Inc. v. Surface Transp. Bd., 252 F.3d 246 (3d Cir. 2001) ........................................................................... 48 Gunpowder Riverkeeper v. FERC, 807 F.3d 267 (D.C. Cir. 2015) ....................................................................... 45 Hoopa Valley Tribe v. FERC, 913 F.3d 1099 (D.C. Cir. 2019) ..................................................................... 49 Hughes v. Talen Energy Mktg., 136 S. Ct. 1288 (2016) ................................................................................... 37 Lexmark Int’l v. Static Control Components, Inc., 527 U.S. 118 (2014)....................................................................................... 38 Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983)) ....................................................................................... 19 Myersville Citizens for a Rural Cmty., Inc. v. FERC, 783 F.3d 1301 (D.C. Cir. 2015) ............................................................... 44–45 *N. Colo. Water Conservancy Dist. v. FERC, 730 F.2d 1509 (D.C. Cir. 1984) ................................................................. 3, 37 Natural Res. Def. Council, Inc. v. EPA, 25 F.3d 1063 (D.C. Cir. 1994) ....................................................................... 38 *New Energy Capital Partners, LLC v. FERC, 671 Fed. App’x 802 (D.C. Cir. 2016) (unpublished) ................................. 3, 37 *Pub. Serv. Comm’n of State of N.Y. v. Fed’l Power Comm’n, 284 F.2d 200 (D.C. Cir. 1960) ................................................................... 3, 37 Sorenson Commc’ns, LLC v. FCC, 897 F.3d 214 (D.C. Cir. 2018) ....................................................................... 38
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TABLE OF AUTHORITIES COURT CASES: PAGE Te-Moak Tribe of W. Shoshone of Nev. v. U.S. Dep’t of the Interior, 608 F.3d 592 (9th Cir. 2010) ........................................................................ 33 Tennessee Gas Pipeline Co. v. FERC, 871 F.2d 1099 (D.C. Cir. 1989) ..................................................................... 46 *United States v. Emor, 785 F.3d 671 (D.C. Cir. 2015) ................................................................. 37–38 Validus Reinsurance, Ltd. v. United States, 786 F.3d 1039 (D.C. Cir. 2015) ..................................................................... 48 ADMINISTRATIVE CASES: *Algonquin Gas Transmission, LLC, 154 FERC ¶ 61,048 (2016) ...................................................................... 20, 27 Algonquin Gas Transmission, LLC, 161 FERC ¶ 61,287 (2017) ............................................................................ 28 AmerenUE, 129 FERC ¶ 61027 (2009) ............................................................................. 27 *Broadwater Energy LLC, 125 FERC ¶ 61,369 (2008) ...................................................................... 20, 25 *Columbia Gas Transmission Corp., 113 FERC ¶ 61,066 (2005) ...................................................................... 21, 25 *Constitution Pipeline Co., LLC, 154 FERC ¶ 61,046 (2016) ................................................................ 21, 24, 27 Great Lakes Hydro American, LLC, 109 FERC ¶ 62,230 (2004) ............................................................................ 36 Hydroelectric Licensing Under the Federal Power Act, Order No. 2002, 104 FERC ¶ 61,109 (2003) ............................................................................ 31
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TABLE OF AUTHORITIES ADMINISTRATIVE CASES: PAGE Millennium Pipeline Co., L.L.C., 161 FERC ¶ 61,136 (2017) ............................................................................ 20 *Mountain Valley Pipeline, 163 FERC ¶ 61,197 (2018) ............................................................................ 27 *Policy Statement on Consultation With Indian Tribes in Commission Proceedings, 104 FERC ¶ 61,108 (2003), codified at 18 C.F.R. § 2.1c .............................. 31 Tennessee Gas Pipeline Co., L.L.C., 79 Fed. Reg. 49,296 (Aug. 20, 2014) .............................................................. 5 Tennessee Gas Pipeline Co., L.L.C., 154 FERC ¶ 61,191 (2016) .................................................................... 4, 8, 44 *Tennessee Gas Pipeline Co., L.L.C., 162 FERC ¶ 61,013 (2018) (“Rehearing Order I”) .............................................................. 5, 7–12, 22–24, 27, 32, 35, 40–44, 47 *Tennessee Gas Pipeline Co., L.L.C., 165 FERC ¶ 61,170 (2018) (“Rehearing Order II”) ............................................................ 5, 12–14, 18–20, 23, 25, 27, 29–32, 34 *Texas Eastern Transmission, LP, 141 FERC ¶ 61,043 (2012) ................................................................ 21, 24, 27 *Transcon. Gas Pipe Line, 126 FERC ¶ 61,097 (2009) (same) ................................................................ 25 *United States Dep’t of the Interior, 55 FERC ¶ 61,500 (1991) .............................................................................. 36 *Wisc. Power and Light Co., 79 FERC ¶ 61,181 (1997) .............................................................................. 36
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TABLE OF AUTHORITIES STATUTES: PAGE Administrative Procedure Act: 5 U.S.C. § 706(2)(A) ..................................................................................... 18 National Historic Preservation Act 54 U.S.C. § 302706(b) ................................................................................... 32 54 U.S.C. § 306108.......................................................................................... 6 Natural Gas Act: 15 U.S.C. § 717f(e) ........................................................................................ 20 15 U.S.C. § 717n(c) ....................................................................................... 43 15 U.S.C. § 717r(b).............................................................................. 3, 37, 46 REGULATIONS: 18 C.F.R. § 2.1c(a)–(g) ............................................................................ 31–32 18 C.F.R. § 2.1c(d) ......................................................................................... 31 18 C.F.R. § 380.12(f) ............................................................................... 28, 44 18 C.F.R. § 385.214 ....................................................................................... 19 18 C.F.R. § 385.214(b) .................................................................................. 19 18 C.F.R. § 385.214(d) ...................................................................... 12, 19, 25 18 C.F.R. § 2201(c) ........................................................................................ 29 18 C.F.R. § 2201(e) ........................................................................................ 29 18 C.F.R. § 2201(g) ....................................................................................... 30
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TABLE OF AUTHORITIES REGULATIONS: PAGE 36 C.F.R. § 800.1(a) ................................................................................... 6, 42 36 C.F.R. § 800.1(c) ....................................................................................... 40 36 C.F.R. § 800.2(b) ........................................................................................ 6 36 C.F.R. § 800.2(c) ....................................................................... 6, 32–34, 39 36 C.F.R. § 800.3(b) ........................................................................................ 7 36 C.F.R. § 800.4 ........................................................................................... 34 36 C.F.R. § 800.5 ........................................................................................... 34 36 C.F.R. § 800.6 ........................................................................................... 34 36 C.F.R. § 800.6(a) ............................................................................. 7, 34, 47 36 C.F.R. § 800.6(b) ............................................................................ 7, 34, 47 36 C.F.R. § 800.6(c) ................................................................................. 10, 47 36 C.F.R. § 800.7(a) ........................................................................... 10, 46–47 36 C.F.R. § 800.16(f) ..................................................................................... 32 OTHER AUTHORITIES: Advisory Council Mission Statement, available at https://www.achp.gov/about (last accessed July 3, 2019) ............................................................................. 6 Commission-Advisory Council-Tennessee Memorandum of Agreement (Feb. 24, 2017) ................................................................................... 10, 47–48 D.C. Circuit Rule 28(a)(7) ....................................................................................... 34
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TABLE OF AUTHORITIES OTHER AUTHORITIES: PAGE Exec. Order No. 13175, Consultation and Coordination With Indian Tribal
Governments (Nov. 6, 2000), reprinted at 65 Fed. Reg. 67,249 ............. 30–31 FERC Notice to Proceed with Tree Clearing and Construction (Apr. 12, 2017) ............................................................................................... 11 FERC Staff Order, Partial Authorization to Commence Service—Connecticut
Expansion Project (Oct. 31, 2017)................................................................. 11 Notice of Intent to Prepare an Environmental Assessment (Oct. 10, 2014) ..................................................................................... 7, 22, 35
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GLOSSARY Advisory Council Advisory Council on Historic Preservation
Br. Final opening brief of Petitioner Narragansett Indian Tribal Historic Preservation Office
Certificate Order Tennessee Gas Pipeline Co., LLC, Order Issuing Certificate, 154 FERC ¶ 61,191 (2016), R. 510, JA 108–71
Commission or FERC Respondent Federal Energy Regulatory Commission
Memorandum of Agreement Commission-Advisory Council-Tennessee Memorandum of Agreement (Feb. 24, 2017), R. 807, JA 263–78
Notice to Proceed FERC Notice to Proceed with Tree Clearing and Construction (Apr. 12, 2017), R. 828, JA 3–4
P Internal paragraph number in a FERC order
Preservation Act National Historic Preservation Act
Project Connecticut Expansion Project
R. Record item
Rehearing Order I Tennessee Gas Pipeline Co., L.L.C., Order Denying Request for Rehearing and Late Interventions, 162 FERC ¶ 61,013 (2018), R. 949, JA 5–26
Rehearing Order II Tennessee Gas Pipeline Co., L.L.C., Order Denying Rehearing, 165 FERC ¶ 61,170 (2018), R. 971, JA 27–39
Tennessee Tennessee Gas Pipeline Company, LLC
Tribe Narragansett Indian Tribe
Tribal Office Narragansett Indian Tribal Historic Preservation Office
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In the United States Court of Appeals for the District of Columbia Circuit
No. 19-1009
NARRAGANSETT INDIAN TRIBAL HISTORIC PRESERVATION OFFICE, Petitioner,
v. FEDERAL ENERGY REGULATORY COMMISSION,
Respondent.
ON PETITION FOR REVIEW OF ORDERS OF THE FEDERAL ENERGY REGULATORY COMMISSION
BRIEF FOR RESPONDENT FEDERAL ENERGY REGULATORY COMMISSION
____________________
STATEMENT OF THE ISSUE
Any person may seek to intervene in a Federal Energy Regulatory
Commission (“Commission” or “FERC”) proceeding by filing a motion with the
Commission within a prescribed deadline. Intervention confers the rights and
privileges of party status, and is a statutory prerequisite to seeking judicial review
of a Commission order in this Court.
This case involves Petitioner Narragansett Indian Tribal Historic
Preservation Office’s (“Tribal Office”) motion to intervene out-of-time, filed nearly
1.5 years after the November 2015 deadline. The Commission found this delay to
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be unjustified, as the Narragansett Indian Tribe (the “Tribe”) had notice as early as
September 2013 that its interests in protecting cultural and historic resources—
specifically, ceremonial stone landscapes—could be affected. That was when
Tennessee Gas Pipeline Company, L.L.C. (“Tennessee”) informed the Tribe of a
proposal to build and operate the natural gas pipeline at issue in this case, the
Connecticut Expansion Project (the “Project”).
The Commission also sought the Tribe’s input early in its review of the
Project, and informed the Tribe of potential impacts to ceremonial stone
landscapes. In October 2014 and February 2015, the Commission opened
consultations with the Tribe by inviting it to participate in a review of the Project,
and to assist in “identifying properties of traditional, religious, or cultural
importance to the Narragansett Indian Tribe.” And it made a finding, also in
October 2014, that “it would be appropriate to survey the Tennessee Gas Pipeline
Connecticut Expansion Project … for ceremonial stone landscapes.” That finding
was publicly noticed and known to the Tribe.
The Tribe did not respond to the Commission’s outreach. And while it
eventually—nearly a year later—engaged the Commission in consultations to
identify and mitigate impacts to ceremonial stone landscapes, at no point during
the consultation process did it seek to intervene as a party. Nor did it seek
intervention for more than a year after the Commission approved the Project in
March 2016. Instead, it waited until April 2017 to do so.
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The Commission denied Tribal Office’s belated motion. It explained that
Tribal Office should have intervened, at the latest, by December 2015, when it
participated in consultations on impacts to ceremonial stone landscapes. It
concluded that Tribal Office lacked good cause to intervene nearly 1.5 years later.
The question presented is:
Did the Commission abuse its discretion in denying Tribal Office’s late
motion to intervene?
JURISDICTIONAL STATEMENT
This Court has jurisdiction to review the Commission’s denial of Tribal
Office’s motion to intervene out-of-time. However, Tribal Office is wrong that the
Court has jurisdiction to consider any additional claims, including alleged
violations of the Natural Gas Act, National Historic Preservation Act, due process
clause, and the federal trust doctrine. Cf. Br. 1, 20–47. As discussed more fully
below (see infra, Argument, Section III), because Tribal Office was not a party to
the agency proceeding, this Court lacks jurisdiction to consider any issues beyond
the Commission’s denial of Tribal Office’s late intervention motion. See 15 U.S.C.
§ 717r(b); N. Colo. Water Conservancy Dist. v. FERC, 730 F.2d 1509, 1515 (D.C.
Cir. 1984); Pub. Serv. Comm’n of State of N.Y. v. Fed. Power Comm’n, 284 F.2d
200, 204 (D.C. Cir. 1960); New Energy Capital Partners, LLC v. FERC, 671 Fed.
App’x 802, 804 (D.C. Cir. 2016) (unpublished).
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STATUTORY AND REGULATORY PROVISIONS
Pertinent statutes and regulations are included in the Addendum. Also
included is a timeline of significant filings, orders, and events.
STATEMENT OF FACTS
I. Background
On September 4, 2013—more than 3.5 years before seeking intervention—
the Narragansett Indian Tribe received notice from Tennessee that the pipeline
planned to construct and operate natural gas pipeline facilities in New York,
Massachusetts, and Connecticut (the “Connecticut Expansion Project” or
“Project”). January 2017 Advisory Council Letter to FERC at 2 (Jan. 27, 2017),
R. 643, JA 220. In that notice, Tennessee requested input from Indian tribes in the
region about potential impacts to properties of cultural and historic significance
caused by the Project. December 2016 FERC Letter to Advisory Council at 7
(Dec. 29, 2016), R. 620, JA 214. The Narragansett Indian Tribe did not respond to
Tennessee’s request. Id. at 8, JA 215.
On July 31, 2014, Tennessee filed an application with the Commission under
section 7(c) of the Natural Gas Act, 15 U.S.C. § 717f(c), seeking a certificate of
public convenience and necessity authorizing the Project. Tennessee Gas Pipeline
Co., L.L.C., 154 FERC ¶ 61,191, at P 1 (2016) (“Certificate Order”), R. 510,
JA 108. On August 20, 2014, the Commission issued a Notice of Application, in
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which it invited comments on the Project and intervention by interested persons,
and set a September 4, 2014 deadline for both. Tennessee Gas Pipeline Co.,
L.L.C., 79 Fed. Reg. 49,296. The Commission later extended the deadline to
intervene to November 23, 2015. Tennessee Gas Pipeline Co., L.L.C., Order
Denying Rehearing, 165 FERC ¶ 61,170, at P 2 (2018) (“Rehearing Order II”),
R. 971, JA 27–28.
On August 22, 2014 and September 3, 2014, the United Southern and
Eastern Tribes, Inc.—of which the Narragansett Indian Tribe is a member—filed
letters with the Commission expressing concern that the Project could adversely
affect ceremonial stone landscapes of cultural and historic importance to its
member tribes. August and September 2014 United South and Eastern Tribes
Letters to FERC (Aug. 22, 2014 & Sept. 3, 2014), R. 175, JA 54, 56. It also held a
meeting on September 29, 2014, where it discussed ceremonial stone landscapes
along the Project route. Rehearing Order II P 22, JA 36. Concerns over
ceremonial stone landscapes—the subject of this case—implicate the area
impacted by the 3.81-mile Massachusetts Loop of the Project. Tennessee Gas
Pipeline Co., L.L.C., Order Denying Request for Rehearing and Late Interventions,
162 FERC ¶ 61,013, at P 5 (2018) (“Rehearing Order I”), R. 949, JA 6.
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Section 106 of the National Historic Preservation Act (“Preservation Act”)
requires the Commission to “take into account the effect of [an] undertaking”
involving “any [Federal] license … on any historic property.” 54 U.S.C. § 306108;
see also 36 C.F.R. § 800.1(a). In doing so, the Commission must consult with
parties “with an interest in the effects of the undertaking on historic properties,” in
order to “identify historic properties potentially affected by the undertaking, assess
[the undertaking’s] effects and seek ways to avoid, minimize or mitigate any
adverse effects on historic properties.” 36 C.F.R. § 800.1(a).
Consultation involves several parties: the Commission, Indian tribes, State
Historic Preservation Offices, and, if it chooses to participate, the Advisory Council
on Historic Preservation (“Advisory Council”).1 Id. § 800.2(b), (c). Preservation
Act regulations require the Commission “to make a reasonable and good faith
effort to identify Indian tribes … that shall be consulted in the section 106 process.
Consultation should commence early in the planning process, in order to identify
and discuss relevant preservation issues ….” Id. § 800.2(c)(2)(ii)(A).
1 The Advisory Council is “an independent federal agency that promotes the preservation, enhancement, and productive use of our nation’s historic resources ….” Advisory Council Mission Statement, available at https://www.achp.gov/about (last accessed July 3, 2019). Among other things, it issues regulations implementing section 106 and oversees the section 106 process. 36 C.F.R § 800.2(b).
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In addition, the Commission must “provide[] the Indian tribe … a reasonable
opportunity to identify its concerns about historic properties, advise on the
identification and evaluation of historic properties, including those of traditional
religious and cultural importance, articulate its views on the undertaking’s effects
on such properties, and participate in the resolution of adverse effects.” Id.; see
also id. § 800.6(a)–(b). Finally, “as appropriate,” the Commission coordinates its
section 106 review with its environmental analysis, conducted pursuant to the
National Environmental Policy Act. Id. § 800.3(b).
The Commission initiated consultation with the Narragansett Indian Tribe
approximately two months after receiving Tennessee’s application. On October 10,
2014, it sent the Tribe a Notice of Intent to Prepare an Environmental Assessment
and invited comments. Rehearing Order I P 30, JA 17; Notice of Intent at 1–2, 6,
R. 204, JA 58–59, 63. That notice expressly “initiat[ed] consultation” under
section 106 of the Preservation Act. Notice of Intent at 5, JA 62. The Commission
followed up with a consultation letter on February 27, 2015, requesting the
Narragansett Indian Tribe’s assistance in, among other things, “identifying
properties of traditional, religious, or cultural importance to the Narragansett
Indian Tribe that may be affected by the proposed Project.” Rehearing Order I
P 30 & n.60 (quoting February 2015 FERC Letter to Narragansett Indian Tribe at 2
(Feb. 27, 2015), R. 292, JA 73), JA 17. The consultation letter followed an October
2014 Commission determination, filed in the Project docket in November 2014,
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that “it would be appropriate to survey the Tennessee Gas Pipeline Connecticut
Expansion Project (CP14-529) for ceremonial stone landscapes.” October 2014
Section 106 Consultation Meeting Notes (Nov. 5, 2014), R. 212, JA 65; see also
Rehearing Order I P 30 n.60, JA 17. The Tribe did not respond to the
Commission’s notices or solicitations.
On October 23, 2015, the Commission issued an Environmental Assessment
of the Project. Certificate Order P 31, JA 117. Weeks later, on December 8, 2015,
the Commission held a section 106 consultation meeting with interested tribes,
including the Narragansett Indian Tribe. Rehearing Order I P 30, JA 17. At that
meeting, Narragansett Indian Tribal Historic Preservation Office (“Tribal Office”)
staff and representatives of other tribes walked the Massachusetts Loop route,
decided that a ceremonial stone landscape survey was necessary, and agreed that
Tennessee would work with the tribes to create a survey protocol and schedule.
Id.; December 2015 Section 106 Consultation Meeting Notes at 2 (Dec. 28, 2015)
(“December 2015 Meeting Notes”), R. 409, JA 107. Three months later, on March
11, 2016, the Commission issued a certificate of public convenience and necessity
approving the Project, conditioned on, among other things, completing section 106
consultations. Certificate Order, Ordering Paragraph A, Conditions 9 & 26,
JA 167, 171.
With the help of a consultant, four Tribal Historic Preservation Offices—
including the Narragansett Tribal Office—conducted a ceremonial stone landscape
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survey between August 24 and September 15, 2016, and completed a privileged
survey report on September 30, 2016, pursuant to 36 C.F.R. §§ 800.3, 800.4.
Rehearing Order I P 31, JA 17–18. The survey revealed 73 ceremonial stone
landscapes of significance to tribes along the Massachusetts Loop. Id.
Shortly thereafter, on December 5, 2016, and pursuant to 36 C.F.R.
§ 800.2(c)(2)(ii), the Commission consulted with the Advisory Council, Tribal
Office, and other interested tribes to discuss Tennessee’s proposed Treatment Plan
to resolve adverse effects to the identified properties. Id. at PP 33, 36, JA 18–20.
The Treatment Plan proposed avoiding entirely more than two-thirds of the
ceremonial stone landscapes, and mitigating impacts to the rest. Id. at P 45, JA 23–
24; January 2017 Advisory Council Letter to FERC at 2–3, JA 220–21. The
December meeting was followed by a teleconference with tribes in early January
2017 to discuss the Treatment Plan and propose next steps. January 2017 Advisory
Council Letter to FERC at 2, JA 220; Rehearing Order I P 33, JA 18–19.
Further, on December 29, 2016, the Commission sent a letter to the Advisory
Council, notifying it of the adverse effects finding and requesting its participation
in the consultation process. Rehearing Order I P 33, JA 18; December 2016 FERC
Letter to Advisory Council at 1, JA 204. Tribal Office was copied on the letter and
filed comments with the Commission and Advisory Council. Rehearing Order I
P 33, JA 18; January 2017 Tribal Office Comments (Jan. 3, 2017), R. 621, JA 217–
18. Pursuant to 36 C.F.R. § 800.6(a), the Commission also sought consultation
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with the Massachusetts State Historic Preservation Office (the “Massachusetts
Preservation Office” or “Massachusetts”), but the State declined to participate.
December 2016 FERC Letter to Advisory Council at 1, JA 204; Commission-
Advisory Council-Tennessee Memorandum of Agreement at 3 (Feb. 24, 2017)
(“Memorandum of Agreement”) (appended in addendum), R. 807, JA 265; Br. 33
(acknowledging “Massachusetts[’] refusal to participate”).
Without Massachusetts’ participation, the Commission and Advisory
Council moved forward with a “two-party” Memorandum of Agreement, which
established a procedure for addressing adverse effects to the ceremonial stone
landscapes. Memorandum of Agreement at 3–4, JA 265–66; see also Rehearing
Order I P 33, JA 18–19. The Agreement was signed by the Commission, Advisory
Council, and Tennessee. See Memorandum of Agreement at 7–9, JA 269–71.
While section 800.6(b) generally requires the relevant State Historic Preservation
Office to be a signatory, its signature is not required where the State withdraws
from consultation. 36 C.F.R. §§ 800.6(c)(iii), 800.7(a)(2). Because Massachusetts
“chose[] not to participate” in the consultation in the first place, the Commission
found that the regulations’ two-party consultation provision applied. See
December 2016 FERC Letter to Advisory Council at 1, JA 204; Memorandum of
Agreement at 3, JA 265; see also January 2017 Advisory Council Letter to FERC
at 1 (agreeing to a two-party Memorandum of Agreement), JA 219.
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With section 106 consultation complete, and after receiving all other
necessary permit approvals, on April 6, 2017 Tennessee filed a request for a notice
to proceed with tree clearing and construction activities. Rehearing Order I P 1,
JA 5. Tribal Office then filed a motion to intervene out-of-time on April 10, 2017.
Id. at P 2, JA 5. On April 12, 2017, Commission staff issued Tennessee’s requested
Notice to Proceed. Id. at P 1, JA 5; FERC Notice to Proceed with Tree Clearing
and Construction (“Notice to Proceed”), R. 828, JA 3–4. On May 9, 2017, Tribal
Office filed a request for rehearing of the Notice to Proceed.2 Rehearing Order I
P 3, JA 5. Tennessee then began construction activities, and the Massachusetts
Loop of the Project became operational in late 2017. See FERC Staff Order,
Partial Authorization to Commence Service—Connecticut Expansion Project (Oct.
31, 2017), R. 930, JA 346.
II. The Commission Orders on Review
The Commission denied Tribal Office’s motion to intervene out-of-time and
rejected its request for rehearing of the April 12 Notice to Proceed. Rehearing
Order I P 4, JA 6. It explained that the original deadline to intervene was
September 4, 2014—later extended to November 23, 2015 to allow intervention
2 The Massachusetts PipeLine Awareness Network, which was a party to the proceeding, also sought rehearing of the Notice to Proceed, which the Commission denied in Rehearing Order I. See Rehearing Order I P 4, JA 6.
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after the Commission issued its October 2015 Environmental Assessment—and
that Tribal Office had missed both deadlines. Rehearing Order II P 2, JA 27–28.
In assessing Tribal Office’s belated motion, the Commission weighed several
factors, as set forth in its regulations: whether Tribal Office had good cause for
intervening late, whether other parties to the proceeding could represent Tribal
Office’s interests, whether granting late intervention might disrupt the proceeding,
and whether doing so would prejudice, or cause additional burdens to, existing
parties. Id. at P 8 (citing 18 C.F.R. § 385.214(d)), JA 29. Citing its own precedent,
the Commission explained that an entity seeking late intervention bears an even
heavier burden to show good cause where, as here, it filed its motion after the
Commission issued a certificate order. Id.; Rehearing Order I P 10, JA 7–8.
Tribal Office argued that the Commission’s ex parte rules—which proscribe
off-the-record communications between the Commission and Indian tribes that
have intervened as parties in the proceeding—prevented it from consulting on the
Project as a party. Rehearing Order II PP 10–11, JA 30–31. It reasoned that it was
put to an unlawful, coercive choice between (1) consulting on the Project, which is
a right protected by the Preservation Act, and (2) intervening as a party, which is
necessary to confer legal standing to challenge the Commission’s orders. Id. at
P 11, JA 31.
The Commission rejected Tribal Office’s argument, finding it had conflated
ex parte communications with consultations. See id. at P 12, JA 31–32. It
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explained that “nothing in the ex parte rule prevents any party from filing written
comments regarding the merits of a proposed project, including cultural resource
issues.” Id. The Commission cited several other proceedings where a tribe
assumed the dual roles of intervenor and consulting party. Id. at P 12 n.24, JA 31.
Tribal Office made various other arguments in support of late intervention,
none of which the Commission found persuasive. First, the Commission rejected
Tribal Office’s argument that its special status as a governmental body with
statutory rights under the Preservation Act entitled it to late intervention. Id. at
P 14, JA 33. It explained that the cases Tribal Office relied upon—where the
Commission granted late intervention to government officials—were inapposite
because they involved (1) intervention before a Commission order had issued
establishing rights and obligations, (2) intervention before the Commission’s
environmental review was complete, (3) intervention that occurred after a potential
conflict-of-interest by the would-be intervenor had been resolved, or (4)
intervention by government agencies with statutory duties implicated by the
proceedings. See id. at P 16 (citing FERC cases), JA 34–35. Those circumstances
are not present here. See id.
The Commission also rejected Tribal Office’s analogy of its intervention
request, which purports to challenge the Notice to Proceed in order to enforce the
Certificate Order, with intervention in a hydroelectric post-licensing proceeding,
which involves compliance with an already granted license. Id. at PP 18–20,
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JA 35–36. It explained that a hydroelectric post-licensing proceeding is a new
proceeding, whereas a notice to proceed is simply a “continuation[] of the
underlying certification proceeding[], not [an] entirely new proceeding[].” Id. at
P 20, JA 36. For all these reasons, the Commission found that Tribal Office lacked
good cause to intervene nearly 1.5 years after the deadline. See id. at PP 9–22,
JA 30–36.
The Commission also found that, besides lacking good cause, by filing its
motion 13 months after the Certificate Order issued, granting intervention would
“delay, prejudice, and put additional burdens on the Commission and [Tennessee].”
Id. at P 23, JA 37. It reasoned that the Certificate Order concluded the
Commission’s evaluation of the Project. Id. Allowing late intervention would
therefore amount to a collateral attack on the Certificate Order. See id.
Finally, the Commission rejected Tribal Office’s arguments that the
Commission had violated its federal trust obligations and denied Tribal Office due
process. Id. at PP 25–26, JA 37–38. Those claims flowed from the Commission’s
alleged violations of the Preservation Act and its allegedly unlawful ex parte rules.
Id. Because the Commission found it had complied with its Preservation Act
obligations and that its ex parte rules did not prevent Tribal Office from both
consulting and intervening, it rejected both claims. Id.
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SUMMARY OF ARGUMENT
Tribal Office’s brief focuses primarily on the adequacy of the Commission’s
consultation with Indian tribes under section 106 of the Preservation Act. It lacks
statutory standing to press this claim, however, because the Natural Gas Act limits
judicial review to parties to the agency proceeding. Tribal Office was not a party to
the agency proceeding, and so the Court lacks jurisdiction to consider its
substantive claims.
Tribal Office also challenges the Commission’s denial of its untimely motion
to intervene as a party. The Natural Gas Act does not foreclose judicial review of
this discrete issue, but Tribal Office’s argument fails on the merits. The
Commission reasonably concluded that Tribal Office failed to show good cause for
intervening nearly 1.5 years after the intervention deadline, and more than a year
after the Certificate Order issued approving the Project. It is the movant’s burden
to explain why it could not have intervened earlier, and that burden is enhanced
where the movant seeks late intervention after a certificate order issues approving
pipeline construction and operations. Indeed, because the risk of prejudice is acute
in those situations, it is Commission policy to deny late intervention after a
certificate order issues.
No extraordinary circumstances exist here to justify departing from
Commission policy. Tribal Office knew the Project could impact its interests in
cultural and historic resources as early as September 2013, when Tennessee
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reached out to the Narragansett Indian Tribe to inform it of the Project and request
its input. Indeed, as Tribal Office asserted (belatedly) in its motion to intervene,
the portion of the Project at issue “is located in territory historically associated with
the Narragansett Indian Tribe.” Further, Tribal Office had notice that ceremonial
stone landscapes in particular—the focus of its petition—were implicated because
the United South and Eastern Tribes—of which the Narragansett Indian Tribe is a
member—stated as much on two occasions in August and September 2014. And
the Commission agreed, concluding in an October 2014 meeting—attended by
Tribal Office representatives—that “it would be appropriate to survey the
Tennessee Gas Pipeline Connecticut Expansion Project (CP14-529) for ceremonial
stone landscapes.”
Yet Tribal Office did not seek to intervene as a party for another 2.5 years.
In fact, it did not even engage in consultations with the Commission until
December 2015, despite the Commission’s solicitations in October 2014 and
February 2015. Tribal Office cannot now claim good cause for intervening late
when it sat on its rights for years despite knowing that the Project could affect its
interests.
Tribal Office argues it cannot be faulted for any delay because the
Commission’s ex parte rules force an Indian tribe to choose between consulting on
a project and intervening in the proceeding. But this misreads the pertinent
regulations. As the Commission explained, the ex parte rules do not prevent a tribe
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from consulting through public channels. Tribal Office could have sought to
intervene even as it engaged in on-the-record consultations, just as tribes have done
in other matters; it simply failed to do so.
Finally, while the Court lacks jurisdiction to consider Tribal Office’s
substantive claims, those claims nevertheless fail. Contrary to its arguments on
appeal, the Commission (1) satisfied its obligation under section 106 of the
Preservation Act to lead the consultation on cultural and historic resources,
(2) engaged in meaningful consultations with the Narragansett Indian Tribe, and
(3) properly entered into a Memorandum of Agreement addressing adverse effects
to those resources that involved only the Commission, Advisory Council, and
Tennessee as signatories.
ARGUMENT
I. Standard of Review
The Commission’s denial of a motion to intervene out-of-time is reviewed
under the deferential abuse-of-discretion standard. City of Orrville v. FERC, 147
F.3d 979, 991 (D.C. Cir. 1998). Under that standard, the Court considers whether
the Commission committed a “clear error of judgment.” Id. (quoting Citizens to
Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971)). Disagreement
with the agency’s judgment alone does not meet this standard. See ExxonMobil
Gas Mktg. Co. v. FERC, 297 F.3d 1071, 1083–84 (D.C. Cir. 2002).
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This Court reviews Commission orders under the Administrative Procedure
Act’s deferential “arbitrary and capricious” standard. 5 U.S.C. § 706(2)(A); FERC
v. Elec. Power Supply Ass’n, 136 S. Ct. 760, 782 (2016). Review under this
standard is narrow. Elec. Power Supply Ass’n, 136 S. Ct. at 782. “A court is not to
ask whether a regulatory decision is the best one possible or even whether it is
better than the alternatives.” Id. “Rather, the court must uphold a[n] [order] if the
agency has ‘examine[d] the relevant [considerations] and articulate[d] a
satisfactory explanation for its action[,] including a rational connection between
the facts found and the choice made.’” Id. (alterations added and in original)
(quoting Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co.,
463 U.S. 29, 43 (1983)).
II. The Commission Reasonably Denied Tribal Office’s Motion to Intervene, Filed Nearly 1.5 Years Late
Tribal Office filed its late motion to intervene on April 10, 2017. Rehearing
Order II P 4, JA 28. That was more than 2.5 years after the original intervention
deadline (September 4, 2014), nearly 1.5 years after the extended deadline
(November 23, 2015), and more than a year after the Certificate Order issued
(March 11, 2016). Id. at PP 2–3, JA 27–28. The Commission disfavors late
interventions because they risk disrupting and prejudicing agency proceedings. See
id. at PP 8, 23, JA 29, 37. Accordingly, a would-be late-intervenor must “show
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good cause why the time limitation should be waived.” 18 C.F.R. § 385.214(b)(3);
see also Rehearing Order II P 8, JA 29.
Commission regulations set forth discretionary factors it “may” weigh in
considering a request for late intervention: (1) whether the movant had good cause
for filing late, (2) whether any disruption of the proceeding might result from
allowing late intervention, (3) whether the movant’s interests are adequately
represented by other parties to the proceeding, and (4) whether prejudice to, or
additional burdens on, existing parties might result from late intervention. 18
C.F.R. § 385.214(d)(1)3; see also Rehearing Order II P 8, JA 29.
A movant must clear an even higher hurdle if it seeks late intervention after
the Commission has approved a project—here, through the Certificate Order. See
Rehearing Order II P 8, JA 29. The Commission has a longstanding policy of
denying late interventions at this stage due to the acute risk of prejudice to existing
parties. Id. at P 8 & n.17, JA 29–30 (collecting cases). As it has previously
explained, “when late intervention is sought after the issuance of a dispositive
order … the prejudice to other parties and the burden upon the Commission of
granting late intervention is substantial, and thus movants bear a higher burden to
3 Tribal Office argues the regulation governing late interventions applies only to applications filed under the Federal Power Act, not, as here, under the Natural Gas Act. Br. 48. Not so. The pertinent regulation—18 C.F.R. § 385.214—is part of the Commission’s “Procedural Rules” (Chapter I, subch. X), and is not specific to either statute.
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demonstrate good cause for granting such intervention.” Millennium Pipeline Co.,
L.L.C., 161 FERC ¶ 61,136, at 1 (2017)); see also Rehearing Order II P 8 n.17,
JA 29–30.
The Commission’s policy makes sense. A certificate order confers rights
and obligations—for example, the right of the pipeline to commence construction
once it has complied with all certificate conditions. See 15 U.S.C. § 717f(e)
(explaining that a certificate order authorizes, among other things, pipeline
construction and operation, and may attach conditions). Allowing intervention
after the certificate order issues undermines this process. See Rehearing Order II
P 23, JA 37. It would permit an entity that could have intervened earlier to
leverage its own delay to attack the Commission’s determination. See id. As the
Commission has explained, those “entities with interests they intend to protect are
not entitled to wait until the outcome of a proceeding and then file a motion to
intervene once they discover the outcome conflicts with their interests.” Rehearing
Order II P 23 (quoting Broadwater Energy LLC, 125 FERC ¶ 61,369, at P 12
(2008)), JA 37.
Further, because intervention post-certification categorically carries a high
risk of prejudice, the Commission has denied a late intervention motion filed as
early as the date the certificate order issued. See Algonquin Gas Transmission,
LLC, 154 FERC ¶ 61,048, at PP 9–12 (2016). Elsewhere, the Commission has
denied late intervention filed approximately one month after certification. See
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Constitution Pipeline Co., LLC, 154 FERC ¶ 61,046, at PP 4–6 (2016); Texas
Eastern Transmission, LP, 141 FERC ¶ 61,043, at PP 4–8 (2012); Columbia Gas
Transmission Corp., 113 FERC ¶ 61,066, at PP 1–6 (2005).
Here, Tribal Office seeks to intervene more than a year after the Commission
certificated the Project. Tribal Office cites no case in which the Commission
granted late intervention even approaching the length of its delay, let alone one in
which the Commission granted intervention after a certificate order issued. It
therefore faces a particularly steep climb to compel reversal of the Commission’s
decision.
The Commission did not abuse its discretion in finding that Tribal Office
lacked good cause to intervene late. Tribal Office reasonably knew its interests
could be affected more than three years before intervening, and definitely nearly
1.5 years before it finally filed its motion. See Timeline of Significant Filings,
Orders, and Events (appended in addendum).
Tribal Office first became aware of the Project in September 2013 when
Tennessee—though its cultural resource contractor—reached out to the
Narragansett Indian Tribe (and other tribes) to inform it of the schedule for the
Project, to solicit information, and to invite the Tribe’s engagement in conducting
fieldwork. Answer of Tennessee Gas Pipeline Co., L.L.C. to Motion to Intervene
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Out-of-Time at Att. A, p. 1 (Apr. 12, 2017) (“Tennessee Answer”), R. 831, JA 307;
December 2016 FERC Letter to Advisory Council at 7, JA 214. Tennessee
followed up its initial outreach in July 2014, when its contractor submitted
archeological survey reports to the Narragansett Indian Tribe and other tribes.
Tennessee Answer at Att. A, p. 1, JA 307. The Tribe offered no response.
The Tribe received additional notice about the Project and potential impacts
to its interests in mid-2014. In August and September of that year, the United
South and Eastern Tribes—of which the Narragansett Indian Tribe is a member—
filed letters with the Commission expressing concern that the Project could
adversely affect ceremonial stone landscapes of significance to its tribal members.
August and September 2014 United South and Eastern Tribes Letters to FERC,
JA 54, 56. Then, on September 4, 2014, Tennessee sent project notification letters
to the Narragansett and other tribes. Tennessee Answer at Att. A, p. 2, JA 308.
And on October 10, 2014, the Commission issued its Notice of Intent to Prepare an
Environmental Assessment of the Project—which was sent to the Tribe—in which
it invited consultation on cultural and historic resources. Notice of Intent at 1–2,
5–6, JA 58–59, 62–63; see also Rehearing Order I P 30, JA 17. In short, by Fall
2014, the Narragansett Indian Tribe was well-aware of the Project.
Tribal Office also knew its interests in preserving cultural and historic
resources could be affected. In its motion to intervene out-of-time, it asserted that
“[t]he Massachusetts loop of the Project is located in territory historically
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associated with the Narragansett Indian Tribe.” Tribal Office Motion to Intervene
Out-of-Time at 3 (Apr. 10, 2017), R. 825, JA 297; Rehearing Order II P 22, JA 36.
And it knew the Commission thought so, too. At an October 2014 meeting that
was attended by Tribal Office representatives, the Commission found that “it would
be appropriate to survey the Tennessee Gas Pipeline Connecticut Expansion
Project (CP14-529) for ceremonial stone landscapes.” Rehearing Order I P 30 n.60
(quoting October 2014 Section 106 Consultation Notes, JA 65), JA 17.
Despite knowing about the Project and its potential impacts to the
Narragansett Indian Tribe’s interests, Tribal Office sat on its rights for years. It did
not, for example, respond to the Commission’s February 27, 2015 letter inviting it
to participate in a review of the Project. Rehearing Order I P 30 & n.60, JA 17. In
that letter, the Commission expressly solicited comments and assistance in
identifying cultural and historic resources of significance to the Tribe, stating that it
was “interested in receiving your comments on the Project to ensure that the
concerns of the Narragansett Indian Tribe are identified and properly considered in
our environmental analysis.” Id. (quoting February 2015 FERC Letter to
Narragansett Indian Tribe at 2, JA 73). It also included a specific “request [for]
your assistance in identifying properties of traditional, religious, or cultural
importance to the Narragansett Indian Tribe that may be affected by the proposed
Project.” Id. (emphasis added).
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Tribal Office’s first recorded participation occurred some 10 months later, on
December 8, 2015, when it joined a section 106 consultation meeting with the
Commission and representatives of other Indian tribes. Rehearing Order I P 30,
JA 17. At that meeting, Tribal Office staff walked the Massachusetts Loop route,
determined that a survey of ceremonial stone landscapes was necessary, and agreed
that Tennessee would coordinate with the tribes to work out a survey protocol and
schedule. Id.; December 2015 Meeting Notes at 2, JA 107.
Yet even after the survey—completed in September 2016—revealed that the
Project would affect 73 ceremonial stone landscapes, Tribal Office still did not
seek to intervene. See Rehearing Order I P 31, JA 17–18. Nor did it do so after
Commission staff met with Tribal Office on December 5, 2016 to discuss
Tennessee’s draft Treatment Plan to address adverse effects to those resources. See
id. at P 33, JA 18–19.
In short, Tribal Office knew its interests could be affected by the Project, yet
it did not seek party status until well past the deadline for doing so. Accordingly,
the Commission did not abuse its discretion in concluding that Tribal Office failed
to show good cause for its delay in seeking to intervene, see Elec. Power Supply
Ass’n, 136 S. Ct. at 782—a conclusion that accords with its precedent, see, e.g.,
Constitution Pipeline, 154 FERC ¶ 61,046, at P 6 (denying late intervention sought
approximately one month after the certificate order issued where the movant “had
notice of the application and the proceeding”); Texas Eastern, 141 FERC ¶ 61,043,
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at P 8 (same); Transcon. Gas Pipe Line, 126 FERC ¶ 61,097, at PP 10–11 (2009)
(same); Columbia Gas, 113 FERC ¶ 61,066, at P 4 (same).
While the Commission’s regulations set forth a multi-factor inquiry for
deciding late motions to intervene, the test is discretionary. City of Orrville, 147
F.3d at 991 (explaining that “18 C.F.R. § 385.214(d)(1) does not compel
consideration of each of the factors; it merely states that the Commission ‘may
consider’ them”). Indeed, the Commission could have ended its analysis after it
concluded that Tribal Office lacked good cause—one of the factors—to intervene.
But it went further, also finding that granting late intervention would cause
unreasonable delay, while also prejudicing and putting additional burdens on the
Commission and Tennessee. Rehearing Order II P 23, JA 37; see also 18 C.F.R.
§ 385.214(d)(1). It explained that it would be inequitable to allow Tribal Office to
abstain from intervening in the proceeding earlier, only to attack the Commission’s
approval of the Project “once [it] discover[ed] the outcome conflict[ed] with [its]
interests.” Rehearing Order II P 23 (quoting Broadwater, 125 FERC ¶ 61,369, at
P 12), JA 37.
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Tribal Office argues it nevertheless has good cause to intervene late because,
it insists, it seeks to enforce the Certificate Order rather than challenge it, because
the Commission’s regulations forced it to choose between intervening and
consulting, and because the Commission did not survey ceremonial stone
landscapes until after the second deadline for intervening had passed.
These arguments rest on a fundamental misapprehension of the facts and the
law, are internally inconsistent, and obscure the fact that Tribal Office knew its
interests could be affected as early as mid-2013.
Tribal Office argues it is entitled to late intervention because it “seek[s] to
enforce the Certificate Order, not challenge it.” Br. 49. It reasons that the
Commission’s consistent policy of denying late intervention post-certification is
inapposite because it intervened before the Commission issued the Notice to
Proceed. Br. 49. Thus, it argues this case presents a wholly novel question for the
Court against the backdrop of “extraordinary circumstances.” Br. 49.
Contrary to Tribal Office’s framing, the procedural posture of this case is
neither novel nor extraordinary. The Commission has previously denied late
intervention in situations like this one—namely, where, as here, intervention was
sought after the Commission issued a conditional certificate, which, as here,
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required subsequent agency action before construction could begin. See, e.g.,
Mountain Valley Pipeline, 163 FERC ¶ 61,197, at PP 10–12, 81–83 (2018);
Algonquin Gas, 154 FERC ¶ 61,048, at PP 9–11, 26; Constitution Pipeline, 154
FERC ¶ 61,046, at PP 4–6, 36; Texas Eastern, 141 FERC ¶ 61,043, at PP 4–8, 10.
And, at any rate, that the Certificate Order did not immediately green-light
construction activities does not absolve Tribal Office of its obligation to timely
intervene to protect its interests once it had notice they could be affected. See
Rehearing Order II PP 6, 8, JA 29.
Tribal Office’s argument also misapprehends FERC procedures under the
Natural Gas Act. Tribal Office analogizes its late-intervention request to
intervention in post-licensing proceedings in hydroelectric cases. Br. 49 n.15. But
as the Commission explained, the two types of proceedings differ in a crucial way.
Hydroelectric post-licensing proceedings are entirely new matters, triggering a new
round of public notice and intervention. Rehearing Order II P 19, JA 35; see also
AmerenUE, 129 FERC ¶ 61,027, at P 14 (2009). By contrast, a notice to proceed is
a continuation of the underlying certificate proceeding. Rehearing Order II P 20,
JA 36. The only question is whether the conditions set forth in the certificate order
are satisfied, not what conditions the Commission should impose in the first place.
See Rehearing Order I P 22, JA 12–13. Thus, Commission policy is that “issuance
of notices to proceed … are not among the types of proceedings that afford
interested parties an opportunity to intervene ….” Rehearing Order II P 20
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(quoting Algonquin Gas Transmission, LLC, 161 FERC ¶ 61,287, at P 24 n.42
(2017)), JA 36.
Tribal Office is also wrong on the facts. It argues for purposes of
timelineness that it seeks to enforce rather than challenge the Certificate Order, but
its petition contradicts this assertion. Tribal Office’s entire case—that the
Commission violated its section 106 consultation obligations under the
Preservation Act—is rooted in the claim that the Commission should not have
approved the Project, not that the Certificate Order’s conditions were not met. Its
theory turns on the timing of the Commission’s section 106 consultation, and aims
squarely at the Commission’s alleged delay in studying ceremonial stone
landscapes until after the Certificate Order issued. See, e.g., Br. 26 (“[T]he
Commission’s failure to initiate Tribal consultations early in the process … created
unreasonable delays ….”); 27 (“FERC issued the Environmental Assessment on
time, but failed to complete the Section 106 review by January 21, 2016 ….”);
28 (“FERC also failed to enforce its own regulations, which state ‘survey report[s]
must be filed with the application.’” (quoting 18 C.F.R. § 380.12(f)(2))); 30–
31 (“FERC lacks discretion to postpone surveys that are required to take place
early in the process and then use the delay it created as an excuse for non-
avoidance.”).
In short, Tribal Office’s grievance is all about the sufficiency of the
Commission’s consultation obligations in certificating the Project. This case is
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therefore no different from any other matter in which a would-be intervenor sought
to attack the Commission’s determination after a certificate order issued.
Tribal Office also argues good cause for intervening late based on a
perceived regulatory conundrum. It reasons that the Commission’s ex parte rules
unlawfully prevented it from both consulting and intervening, and so it chose to
consult. Br. 41–47, 50–51. Tribal Office’s argument is meritless because nothing
in the ex parte rules prevents an Indian tribe from both consulting under the
Preservation Act and intervening as a party under the Natural Gas Act. Rehearing
Order II P 12, JA 31–32. Its argument is based on an erroneous conflation of the
government-to-government relationship Indian tribes have with the Federal
government with ex parte communications.
An ex parte communication is an “off-the-record communication” that, “if
written, is not filed with the [Commission] and not served on the parties to the
proceeding,” “or if oral, is made without reasonable prior notice to the parties to
the proceeding and without the opportunity for such parties to be present when the
communication is made.” 18 C.F.R. § 2201(c)(4). The Commission’s ex parte
rules generally prohibit off-the-record communications, but exempt non-party
tribes. Id. § 2201(e)(v); Rehearing Order II P 10, JA 30–31. The rules allow such
communications with non-party tribes provided any such communications are
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disclosed on the public record in the relevant proceeding. 18 C.F.R. § 2201(g)(1);
Rehearing Order II P 10, JA 30. Tribal Office seeks relief in the form of an
amendment to the Commission’s rules to allow tribal parties to the agency
proceeding to engage in off-the-record consultations. Br. 57.
Tribal Office begins by arguing it has a Constitutional, statutory, and
regulatory right to engage in government-to-government consultations with the
Commission. Br. 41. It reasons that government-to-government consultations are
necessarily off-the-record, and so the Commission’s ex parte rules prohibiting
those communications for tribal parties violate its rights. Br. 44.
Tribal Office’s argument misapprehends the nature of government-to-
government consultations. Indeed, none of Tribal Office’s cited authorities—the
Constitution, statutes, regulations, and an executive order, Br. 41—supports the
premise grounding its entire claim: that government-to-government consultations
are synonymous with off-the-record communications, cf. Br. 44. Executive Order
13175, for example, states only that agencies “shall have an accountable process to
ensure meaningful and timely input by tribal officials in the development of
regulatory policies that have tribal implications.”4 Exec. Order No. 13175,
4 Executive Order 13175 is not binding on the Commission, which, as an independent agency, is only “encouraged to comply with the provisions of th[e] order.” Exec. Order No. 13175, § 8, reprinted at 65 Fed. Reg. at 67,251.
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Consultation and Coordination With Indian Tribal Governments, § 5(a) (Nov. 6,
2000), reprinted at 65 Fed. Reg. 67,249, 67,250 (appended in addendum).
Commission policy is in accord. The Commission’s policy statement on
tribal consultations states that tribal consultation should “recognize[] the
government-to-government relationship between … agencies and tribes.” Policy
Statement on Consultation With Indian Tribes in Commission Proceedings, 104
FERC ¶ 61,108 (2003), codified at 18 C.F.R. § 2.1c(a). This means consultations
“should involve direct contact between agencies and tribes and should recognize
the status of the tribes as governmental sovereigns.” Id.; see also Rehearing Order
II P 25 & n.59, JA 37–38 (explaining that the Commission here recognized the
sovereign rights of the Narragansett Indian Tribe, as described in the policy
statement). But the policy statement also cautions that, because the Commission is
a “quasi-judicial body, rendering decisions on applications filed with it,” its “rules
concerning off-the-record communications … place some limitations on the nature
and type of consultation that the Commission may engage in with any party in a
contested case.” 18 C.F.R. § 2.1c(d); see also Hydroelectric Licensing Under the
Federal Power Act, Order No. 2002, 104 FERC ¶ 61,109, at P 276 n.256 (2003)
(explaining that “government-to-government consultation must be consistent with
the Commission’s ex parte regulations”).
In other words, the Commission can respect its government-to-government
relationship with Indian tribes while consulting through public channels. See 18
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C.F.R. § 2.1c(a)–(g); see also Rehearing Order II P 26, JA 38. As the Commission
explained, the ex parte rules did not prevent Tribal Office from “engag[ing] in
government-to-government consultation” as an intervenor-party, because the
Commission’s rules and the Preservation Act “afford tribes many avenues for
participation in proceedings where they have an interest they wish to protect.”
Rehearing Order II P 26, JA 38.
Nor do Preservation Act section 106 regulations require off-the-record
communications. See Rehearing Order II P 12 (explaining that a tribal party may
both consult under the Preservation Act and intervene as a party), JA 31–32. The
regulations define “[c]onsultation” as simply “the process of seeking, discussing,
and considering the views of other participants ….” 36 C.F.R. § 800.16(f). And
the specific provision Tribal Office relies on says nothing about permitting ex parte
communications. Instead, it requires only that “the agency official … consult with
any Indian tribe … that attaches religious and cultural significance to historic
properties that may be affected by an undertaking …. Such Indian tribe … shall be
a consulting party.” Id. § 800.2(c)(2)(ii); see also Rehearing Order I P 27
(explaining the Commission’s Preservation Act consultation duties), JA 15;
54 U.S.C. § 302706(b) (“[A] Federal agency shall consult with any Indian tribe
….”); cf. Br. 45.
To be sure, the regulations acknowledge that “[c]onsultation with an Indian
tribe must recognize the government-to-government relationship between the
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Federal Government and Indian tribes.” 36 C.F.R. § 800.2(c)(2)(ii)(C). But the
next two sentences explain what this means: “The agency official shall consult
with representatives designated or identified by the tribal government,” and
“[c]onsultation with Indian tribes … should be conducted in a manner sensitive to
the concerns and needs of the Indian tribe ….” Id. Neither sentence contains any
suggestion that an agency must engage in off-the-record communications with
Indian tribes. Indeed, “[w]hile … the [Preservation Act’s] implementing
regulations ‘recognize the government-to-government relationship between the
Federal Government and Indian tribes,’ they do so to ensure that consultation ‘be
conducted in a manner sensitive to the concerns and needs of the Indian tribe ….’”
Te-Moak Tribe of W. Shoshone of Nev. v. U.S. Dep’t of the Interior, 608 F.3d 592,
610 (9th Cir. 2010) (quoting 36 C.F.R. § 800.2(c)(2)(ii)(C)).
Without a textual anchor to ground its assertion that Indian tribes have a
Constitutional, statutory, and regulatory right to off-the-record consultations, Tribal
Office instead appeals to due process. It argues Indian tribes cannot meaningfully
consult without engaging in off-the-record communications, and so the
Commission’s ex parte rules deprive it of a protected property interest.5 Br. 42–47.
5 Tribal Office’s argument on this point—and, in fact, on many others throughout its opening brief—cites evidence submitted for the first time on appeal—namely, the April 29, 2019 Declaration of Doug Harris. E.g., Br. 25, 30,
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It asks the Court to remedy the alleged Constitutional harm by jettisoning the
offending provisions of the ex parte rules. Br. 57.
Such a drastic measure is unwarranted. As the Commission explained, the
Preservation Act’s consultation procedures allow Indian tribes to meaningfully
participate in Commission proceedings. See Rehearing Order II P 12, JA 31–32.
The Commission must “provide[] the Indian tribe … a reasonable opportunity to
identify its concerns about historic properties, advise on the identification and
evaluation of historic properties, including those of traditional religious and
cultural importance, articulate its views on the undertaking’s effects on such
properties, and participate in the resolution of adverse effects.”6 36 C.F.R.
§ 800.2(c)(2)(ii)(A); see also 36 C.F.R. § 800.6(a)–(b) (explaining that Indian
tribes shall be consulted in resolving adverse effects). All these requirements allow
for meaningful consultation, and none necessitates off-the-record communications.
See Rehearing Order II PP 10, 26 (explaining that the Preservation Act “afford[s]
33, 42, 47, 51–52. The Court should not credit this new evidence except to the extent it establishes Tribal Office’s standing. See Cone v. Caldera, 223 F.3d 789, 795 (D.C. Cir. 2000) (“Because the affidavits were not part of the administrative record, we may not consider them on appeal.”); see also D.C. Circuit Rule 28(a)(7).
6 The regulations similarly require consultation with the relevant State Historic Preservation Offices in identifying historic properties (36 C.F.R. § 800.4), assessing adverse effects (id. § 800.5), and resolving adverse effects (id. § 800.6).
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tribes many avenues for participation” in government-to-government
consultations), JA 30–31, 38.
Here, the Narragansett Indian Tribe had an opportunity to—and did—
meaningfully consult on the Project. The Commission reached out to the Tribe
seeking its input on multiple occasions: with its October 2014 Notice of Intent to
Prepare an Environmental Assessment, and its February 27, 2015 consultation
letter. Rehearing Order I P 30 n.60, JA 17; Notice of Intent at 5, JA 62; see supra
pp. 7, 22–23. And when Tribal Office eventually expressed interest in the Project
at the December 2015 consultation meeting, it identified its concerns. See
December 2015 Meeting Notes, JA 106–07; Rehearing Order I P 30, JA 17.
Further, in early 2017, Tribal Office participated in addressing potential adverse
effects to ceremonial stone landscapes by filing comments with the Commission.
Rehearing Order I P 33, JA 18; January 2017 Tribal Office Comments, JA 217–18.
These consultations were public and on-the-record.7 See January 2017 Advisory
Council Letter to FERC at 3 (discussing comments by the Narragansett Indian
Tribe), JA 221; January 2017 Tribal Office Comments, JA 217–18; December 2015
Meeting Notes, JA 106–07.
7 Tribal Office cites off-the-record communications with Commission staff, but makes no argument that those communications had any material effect beyond its on-the-record consultations. Br. 51. And even if it did make such an argument, the result would be the same because it had an opportunity to—and did—meaningfully consult through on-the-record proceedings.
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In short, Tribal Office had a full opportunity to consult on the Project
irrespective of any ex parte communications. And because consultation does not
preclude intervention, it could have intervened at any time, just as tribes have done
in other matters. See, e.g., Great Lakes Hydro American, LLC, 109 FERC
¶ 62,230, at 64,506–07, 64,521–22 (2004) (explaining that intervenor
Passamaquoddy Tribe consulted on environmental impacts of a reservoir project);
Wisc. Power and Light Co., 79 FERC ¶ 61,181, at 61,844, 61,853 (1997)
(observing that intervenor Menominee Tribe “was fully included in …
consultation” in a hydroelectric re-licensing proceeding); United States Dep’t of
the Interior, 55 FERC ¶ 61,500, at 62,770–71 (1991) (granting Nlaka’pamux
Nation Advisory Council’s late-filed motion to intervene while the relicensing
proceeding was still pending and recognizing that the tribe should be consulted on
impacts to traditional cultural properties).
III. The Court Lacks Jurisdiction to Consider Tribal Office’s Substantive Claims
Tribal Office spends most of its brief challenging the Commission’s
execution of its Preservation Act section 106 consultation duties. Its substantive
challenges are not properly before the Court, however, because Tribal Office was
not a party to the agency proceeding below.
The Natural Gas Act limits those who may seek judicial review of
Commission orders to “[a]ny party to a proceeding … aggrieved by an order issued
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by the Commission ….” 15 U.S.C. § 717r(b) (emphasis added). Thus, entities that
were not parties to a Commission proceeding may not petition for review of a
Commission order. Pub. Serv. Comm’n of State of N.Y. v. Fed. Power Comm’n, 284
F.2d 200, 204 (D.C. Cir. 1960); New Energy Capital Partners, LLC v. FERC, 671
Fed. App’x 802, 804 (D.C. Cir. 2016) (unpublished).8 This rule, however, is not
absolute. A non-party that sought party status through a (rejected) motion to
intervene is “a party to a proceeding in a limited sense,” and the Court may
consider whether the Commission abused its discretion in denying intervention.
Id.; see also N. Colo. Water Conservancy Dist. v. FERC, 730 F.2d 1509, 1515
(D.C. Cir. 1984) (holding that a non-party may seek judicial review “for the limited
purpose of reviewing the agency’s basis for denying party status”); Cal. Trout v.
FERC, 572 F.3d 1003, 1013 n.7 (9th Cir. 2009) (same).
Tribal Office was not a party to the agency proceeding below. It therefore
lacks statutory standing under the Natural Gas Act to challenge any substantive
aspect of the Commission’s orders, and may seek judicial review only to contest
the Commission’s denial of its belated motion to intervene. See Pub. Serv.
Comm’n, 284 F.2d at 204; New Energy, 671 Fed. App’x at 804; see also United
8 Public Service Commission involved the Natural Gas Act, whereas New Energy involved the Federal Power Act. Because “the relevant provisions of the two statutes are analogous,” courts “routinely rel[y] on [Natural Gas Act] cases in determining the scope of the [Federal Power Act], and vice versa.” Hughes v. Talen Energy Mktg., LLC, 136 S. Ct. 1288, 1298 n.10 (2016).
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States v. Emor, 785 F.3d 671, 677 (D.C. Cir. 2015) (explaining that statutory
standing turns on “whether the statute at issue confer[s] a ‘cause of action’
encompassing ‘a particular plaintiff’s claim’” (quoting Lexmark Int’l, Inc. v. Static
Control Components, Inc., 572 U.S. 118, 127 (2014))).
Tribal Office completely ignores this controlling precedent. Instead, it
spends more than 20 pages challenging the merits of the Commission’s approval of
the Project, specifically the sufficiency of its Preservation Act section 106
consultations. See Br. 20–40. Because Tribal Office lacks statutory standing to do
so, the Court should not consider its substantive arguments.
Further, because Tribal Office failed to address its statutory standing to
challenge the Commission’s section 106 consultation process in its opening brief—
and compounded this error by failing to cite adverse authority—the Court should
not entertain any attempt by Tribal Office to shore up its standing in its reply brief.
See, e.g., Sorenson Commc’ns, LLC v. FCC, 897 F.3d 214, 224–25 (D.C. Cir. 2018)
(petitioner must demonstrate standing in its opening brief); see also Natural Res.
Def. Council, Inc. v. EPA, 25 F.3d 1063, 1071 n.4 (D.C. Cir. 1994) (“We have said
before, and we say again, that ordinarily we will not consider arguments raised for
the first time in a reply brief” (internal quotations omitted)).
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IV. Even Were the Court to Consider Them, Tribal Office’s Substantive Claims Fail
Tribal Office challenges the Commission’s compliance with its consultation
obligations under section 106 of the Preservation Act. Even if the Court had
jurisdiction to consider these arguments (which it does not), they miss their target
because they are based on an erroneous reading of the law and the record in this
case. Further, because the Commission fulfilled its statutory duties, Tribal Office’s
argument that the Commission breached its fiduciary obligations to the
Narragansett Indian Tribe necessarily fails. Cf. Br. 35 (“FERC [b]reached [i]ts
[f]iduciary [d]uty by [v]iolating [s]tatutes and [r]egulations”).
The Preservation Act “requires [the Commission] to consult with any Indian
tribe … that attaches religious and cultural significance to historic properties that
may be affected by an undertaking.” 36 C.F.R. § 800.2(c)(2)(ii). Tribal Office
complains that the Commission failed to do so by delegating tribal consultation
outreach to Tennessee, by failing to timely initiate consultation, and by not
meaningfully engaging the Tribe in resolving adverse effects. Br. 20–31, 35–40.
Tribal Office is wrong on all three counts. The Commission did timely
“initiate consultation” under section 106 with its October 10, 2014 Notice of Intent
to Prepare an Environmental Assessment—issued approximately two months after
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Tennessee filed its application for a certificate of public convenience and necessity.
Notice of Intent at 5, JA 62; see also Rehearing Order I P 30, JA 17. It followed up
with a consultation letter to the Narragansett Indian Tribe on February 27, 2015, in
which it expressly sought the Tribe’s “comments on the Project to ensure that the
concerns of the Narragansett Indian Tribe are identified and properly considered in
the environmental analysis.” Id. at P 30 n.60 (quoting February 2015 FERC Letter
to Narragansett Indian Tribe at 2, JA 73), JA 17. By failing to acknowledge the
Commission’s outreach, Tribal Office erroneously concludes that consultation was
delayed until December 2015 because the Commission “impermissibly delegate[d]
its responsibilities” to Tennessee. Br. 24.
Tribal Office’s corollary argument that the ceremonial stone landscape
survey occurred too late in the process to consider alternatives (Br. 21–22) is
similarly meritless. The Commission must engage in section 106 consultations in a
timely manner so that “alternatives may be considered during the planning process
for the undertaking.” 36 C.F.R. § 800.1(c). Contrary to Tribal Office’s allegations,
the Commission did so here. See Rehearing Order I P 45, JA 23–24. Once the
survey was completed in September 2016, the Commission engaged in
consultations on alternative strategies to resolve adverse effects to the 73 identified
ceremonial stone landscapes affected by the Project. Rehearing Order I PP 33, 36,
45, JA 18–20, 23–24. That process culminated in a new plan by Tennessee “to
alter the pipeline project to avoid as many of the [ceremonial stone landscapes] as
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possible.”9 January 2017 Advisory Council Letter to FERC at 3, JA 221; see also
Rehearing Order I P 36 (explaining that “[t]he Commission … worked to avoid,
minimize, and mitigate the adverse effects to the ceremonial stone landscapes”),
JA 19–20. Tennessee’s ultimate proposal—in which the Advisory Council
concurred10—affected less than one-third of the identified landscapes, and
committed Tennessee to restoring them once pipeline construction was completed.
January 2017 Advisory Council Letter to FERC at 2–3, JA 220–21; see also
Rehearing Order I P 45, JA 23–24.
But, Tribal Office insists, even if Tennessee adopted alternative measures for
avoiding more than two-thirds of the landscapes, the Commission conducted the
survey too late to consider alternative pipeline routes. Br. 51. Not so. In fact, the
Commission found only that Tennessee’s “ability to adjust the pipeline route to
avoid [ceremonial stone landscape] features is limited.” December 2016 FERC
Letter to Advisory Council at 6, JA 213. And because Tennessee’s Treatment Plan
“mitigate[d] or resolve[d] the adverse effects on remaining ceremonial stone
9 The alternatives adopted by Tennessee are included in its Treatment Plan, which contains sensitive cultural and historic resource information, and was therefore filed as privileged material. See Supplemental Information/Request of Tennessee Gas Pipeline Co., L.L.C., (Mar. 6, 2017), R. 807. Accordingly, this brief does not discuss the particulars of Tennessee’s avoidance and mitigation measures.
10 The Stockbridge-Munsee Community Band of Mohican Indians, which claims ancestral ties to the territory in which the ceremonial stone landscapes are located, also found Tennessee’s resolution to be “reasonable and offered in good faith.” January 2017 Advisory Council Letter to FERC at 3, JA 221.
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landscapes below a level of significance,” there is no basis for Tribal Office’s
assertion that the timing of the survey precluded preferable alternative routes. See
Rehearing Order I P 45, JA 23–24.
In any event, Tribal Office’s argument is based on an unreasonably narrow
interpretation of the law: there is no legal requirement that an agency preserve the
ability to require an applicant, following the issuance of a certificate order, to adopt
alternative routes that the agency did not select. The regulations provide only that
“[t]he goal of [section 106] consultation is to identify historic properties potentially
affected by the undertaking, assess its effects and seek ways to avoid, minimize or
mitigate any adverse effects on historic properties.” 36 C.F.R. § 800.1(a). Such
measures could include alternative routes, but just as reasonably might include
those measures adopted by Tennessee here, which avoided more than two-thirds of
the ceremonial stone landscapes and mitigated impacts to the rest. January 2017
Advisory Council Letter to FERC at 2–3, JA 220–21; see also Rehearing Order I
PP 36, 45, JA 19–20, 23–24.
Finally, Tribal Office argues that the consultations on resolving adverse
effects were not meaningful. Br. 29–31. The record, however, belies this claim.11
In fact, Tribal Office had several opportunities to offer its input on resolving
11 Tribal Office’s argument that 36 C.F.R. § 800.6(a) and not 36 C.F.R. § 800.2(c)(2)(ii)(A) applies is a red herring. Cf. Br. 39. Both provisions require the Commission to consult with Indian tribes in addressing adverse effects. The pertinent question is whether the Commission did so here.
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adverse effects. On December 5, 2016, the Commission met with Tribal Office and
other Indian tribes to discuss Tennessee’s draft Treatment Plan. Rehearing Order I
P 33, JA 18–19. The Commission followed-up with a teleconference with the
tribes in January 2017 to discuss the Plan and propose next steps. Id. Further, on
December 29, 2016, the Commission sent a letter to the Advisory Council
notifying it of the adverse effects finding and requesting its participation in
addressing them as a signatory to a Memorandum of Agreement. Id. The
Commission copied Tribal Office on the letter and Tribal Office filed comments
with the Commission and Advisory Council. Id.; see also January 2017 Tribal
Office Comments, JA 217–18. Accordingly, the Commission reasonably
concluded that Tribal Office was afforded “a reasonable opportunity to participate
in the resolution of the adverse effects and fulfilled its consultation
responsibilities.” Rehearing Order I P 33, JA 18–19.
The Natural Gas Act requires the Commission to “establish a schedule for all
Federal authorizations.” 15 U.S.C. § 717n(c)(1). Tribal Office adopts a narrow
interpretation of “schedule,” and faults the Commission for not meeting its own
January 21, 2016 deadline for completing section 106 consultations. Br. 27.
Similarly, Tribal Office argues the Commission violated the regulatory timing
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provision requiring survey reports to be filed with the pipeline’s application. Br. 28
(citing 18 C.F.R. § 380.12(f)(2)).
Both contentions are meritless. The first is factually incorrect because the
Commission did set a schedule for completing the section 106 review by
conditioning pipeline construction on completion of the ceremonial stone
landscape survey in its Certificate Order. See Certificate Order, Conditions 9, 26,
JA 167, 171.
Tribal Office’s timing arguments are also wrong on the law. As this Court
recently explained, the Commission “d[oes] not violate the [Preservation Act] by
issuing the Certificate Order subject to the condition that it would complete the
[Preservation Act] section 106 consultation process prior to construction.”
Appalachian Voices v. FERC, 2019 WL 847199, at *3 (D.C. Cir. Feb. 19, 2019)
(unpublished) (citing City of Grapevine v. Dep’t of Transp., 17 F.3d 1502, 1509
(D.C. Cir. 1994)); see also Rehearing Order I P 38 (explaining the Commission’s
practice of issuing certificates conditioned on completion of Preservation Act
consultations), JA 20.
Similarly, this Court has approved other pipeline certifications that condition
construction on future compliance with responsibilities under other federal statutes.
See Del. Riverkeeper Network v. FERC, 857 F.3d 388, 397 (D.C. Cir. 2017)
(explaining that the Commission may lawfully issue a pipeline certificate
conditioned on obtaining Clean Water Act certification); Myersville Citizens for a
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Rural Cmty., Inc. v. FERC, 783 F.3d 1301, 1320 (D.C. Cir. 2015) (upholding a
FERC pipeline certificate order conditioned on obtaining a Clean Air Act permit);
see also Gunpowder Riverkeeper v. FERC, 807 F.3d 267, 279–80 (D.C. Cir. 2015)
(Rogers, J., dissenting in part and concurring in the judgment) (discussing FERC
conditioning authority under the Preservation Act and Clean Water Act and citing
Grapevine, 17 F.3d at 1508–09). This conditional approach is consistent with
Congress’ statutory plan, which allows the Commission to attach to its certificates
“such reasonable terms and conditions as the public convenience and necessity
may require.” 15 U.S.C. § 717f(e); see also Atl. Refining Co. v. Pub. Serv. Comm’n
of State of N.Y., 360 U.S. 378, 391 (1959) (“Congress … has authorized the
Commission to condition certificates in such manner as the public convenience and
necessity may require.”); Appalachian Voices, 2019 WL 847199 at *1 (recognizing
FERC’s broad conditioning authority).
Finally, the Court should not invalidate the Commission’s approval of the
Project in any event because, even if Tribal Office were correct that the
Commission missed a timing deadline, that is not a valid basis for rejecting the
Commission’s approval of the Project. See Brock v. Pierce Cnty., 476 U.S. 253,
260 (1986) (explaining that courts generally do not “assume that Congress
intended the agency to lose its power to act” simply because of a “failure of an
agency to observe a procedural requirement”). That is especially true where, as
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here, “less drastic remedies [are] available,” id.—in this case, Congress’ express
approval of certificates conditioned on completion of outstanding regulatory tasks.
Tribal Office next argues the Commission erred in entering into a
Memorandum of Agreement resolving adverse effects to ceremonial stone
landscapes because the Massachusetts Preservation Office did not terminate its
own consultation. Br. 32–35. Tribal Office is wrong because the regulations apply
where a State participates in consultation but later withdraws; here, Massachusetts
refused to participate at all. See 36 C.F.R. § 800.7(a).
Besides the fact that the Court lacks jurisdiction to consider this claim due to
Tribal Office’s lack of party status below, it also lacks jurisdiction to consider it
because Tribal Office failed to raise this claim in either of its requests for
rehearing. See Tennessee Gas Pipeline Co. v. FERC, 871 F.2d 1099, 1107 (D.C.
Cir. 1989) (explaining that “[n]o objection to the order of the Commission shall be
considered by the court unless such objection shall have been urged before the
Commission in the application for rehearing unless there is reasonable ground for
failure to do so” (quoting 15 U.S.C. § 717r(b)). At most, Tribal Office made the
confusing argument in its first rehearing request that the two-party Memorandum
of Agreement was unlawful because “there was no ‘termination of consultation,’”
and because Tribal Office specifically did not terminate consultation. Rehearing
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Request I at 11 (May 10, 2017), R. 860, JA 330. Nowhere did Tribal Office
contend the Agreement was unlawful because Massachusetts did not terminate
consultation. The Commission addressed the argument Tribal Office did make—
that it had not terminated consultation—in Rehearing Order I (at P 48, JA 25),
which Tribal Office now abandons on appeal.
In any event, Tribal Office’s new argument fails on the merits. The
Preservation Act requires the Commission to consult with Indian tribes and the
relevant State Historic Preservation Office—here, the Massachusetts Preservation
Office—to resolve adverse effects. 36 C.F.R. § 800.6(a). The Advisory Council
may also join the consultation. Id. § 800.6(a)(1). Once consultation is complete, a
plan for addressing adverse effects is executed though a memorandum of
agreement. Id. § 800.6(b)(2), (c). Typically, the State Historic Preservation Office
is a signatory to the agreement, along with the Commission and the Advisory
Council if the latter chooses to participate. See id. § 800.6(c)(1)(ii). However,
where the State terminates consultation, the Commission and Advisory Council
“may execute a memorandum agreement without the [State Historic Preservation
Office]’s involvement.” Id. § 800.7(a)(2); see also id. § 800.6(c)(1)(iii).
Here, only the Commission and Advisory Council, along with Tennessee,
signed the Memorandum of Agreement. Memorandum of Agreement at 7–9,
JA 269–71. The Advisory Council—the agency that promulgated the above
regulations—concurred in entering into a “two-party” Memorandum of Agreement
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with the Commission. January 2017 Advisory Council Letter to FERC at 1,
JA 219. Tribal Office argues on appeal that because the Massachusetts
Preservation Office did not terminate consultation, the condition precedent to a
“two-party” Commission-Advisory Council agreement was not met. Br. 32–35.
But the Massachusetts Preservation Office “chose[] not to participate” in the first
place, a fact that Tribal Office acknowledges. December 2016 FERC Letter to
Advisory Council at 1, JA 204; Memorandum of Agreement at 3, JA 265; Br. 33
(referencing “Massachusetts[’] refusal to participate”). Indeed, Massachusetts
represented to the Advisory Council “that in the interests of efficiency of the
Section 106 review process, the [Massachusetts Preservation Office] will not
comment on the results of the [ceremonial stone landscape] survey.” January 2017
Advisory Council Letter to FERC at 1–2, JA 219–20.
The regulations do not address this precise circumstance, but they do chart a
path forward. Cf. Friends of the Atglen-Susquehanna Trail, Inc. v. Surface Transp.
Bd., 252 F.3d 246, 266–67 (3d Cir. 2001) (case cited by Tribal Office (Br. 34), in
which a federal agency acted contrary to the regulations’ express requirements by
terminating consultation without seeking comments of the Advisory Council). If a
State’s signature to a memorandum of agreement is not required where it
participated in consultation but later withdrew, 36 C.F.R. § 800.7(a)(2), it makes no
sense to find that a State’s signature is required where it refused to participate from
the start, see Validus Reinsurance, Ltd. v. United States, 786 F.3d 1039, 1045–46
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(D.C. Cir. 2015) (courts should avoid interpretations “that bring about an
anomalous result when other interpretations are available” (internal quotations
omitted)). This conclusion is particularly reasonable in the larger context of the
Natural Gas Act, which reflects Congress’ charge that the Commission “control
whether and when a federal [certification] will issue”—not States that decline to
engage in the consultation process. See Hoopa Valley Tribe v. FERC, 913 F.3d
1099, 1104 (D.C. Cir. 2019) (concluding in the hydroelectric licensing context that
allowing states to block federal license approval by withholding state water-quality
certifications would “undermine FERC’s jurisdiction to regulate” those
proceedings).
CONCLUSION
For the foregoing reasons, the Court should deny the petition for judicial
review.
Respectfully submitted,
James P. Danly General Counsel
Robert H. Solomon Solicitor
/s/ Jared B. Fish Jared B. Fish Attorney
Federal Energy Regulatory Commission Washington, DC 20426 Tel.: (202) 502-8101 Fax: (202) 273-0901 E-mail: Jared.Fish@ferc.gov
August 20, 2019
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CERTIFICATE OF COMPLIANCE
Pursuant to Fed. R. App. P. 32(a) and Circuit Rules 35 and 40, I certify
that this brief complies with the type-volume limitation in Fed. R. App. P. 35(b)
and 40(b) because this brief contains 11,521 words, excluding the parts of the
brief exempted by Fed. R. App. P. 32(f).
I further certify that this brief complies with the typeface requirements of
Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P.
32(a)(6) because this brief has been prepared in Times LT Std 14-point font
using Microsoft Word 2013.
/s/ Jared B. Fish Jared B. Fish Attorney
Federal Energy Regulatory Commission Washington, DC 20426 Tel.: (202) 502-8101 Fax: (202) 273-0901 E-mail: Jared.Fish@ferc.gov
August 20, 2019
USCA Case #19-1009 Document #1802952 Filed: 08/20/2019 Page 62 of 63
Narragansett Indian Tribal Historic Preservation Office v. FERC D.C. Cir. No. 19-1009
CERTIFICATE OF SERVICE
In accordance with Fed. R. App. P. 25(d), and the Court’s Administrative
Order Regarding Electronic Case Filing, I hereby certify that I have, this 20th day
of August 2019, served the foregoing upon the counsel listed in the Service
Preference Report via email through the Court’s CM/ECF system.
/s/ Jared B. Fish Jared B. Fish Attorney
Federal Energy Regulatory Commission Washington, DC 20426 Tel.: (202) 502-8101 Fax: (202) 273-0901 E-mail: Jared.Fish@ferc.gov
USCA Case #19-1009 Document #1802952 Filed: 08/20/2019 Page 63 of 63
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