[00:00:00] Speaker 00: Case number 23-1342, Nevada Irrigation District Petitioner versus Federal Energy Regulatory Commission. [00:00:09] Speaker 00: Mr. McBride for the petitioner. [00:00:11] Speaker 00: Mr. Fish for the respondent. [00:00:12] Speaker 00: Ms. [00:00:13] Speaker 00: McCarthy for the interview. [00:00:14] Speaker 07: Good morning, counsel. [00:00:16] Speaker 04: Good morning. [00:00:17] Speaker 04: Mr. McBride, please. [00:00:18] Speaker 04: Thank you. [00:00:18] Speaker 04: When you're ready. [00:00:19] Speaker 04: May it please the court. [00:00:23] Speaker 04: No party in this case disputes, and I cite first brief at 20 for this, [00:00:30] Speaker 04: that a state can waive its right to issue a water quality certification under Section 401, regardless whether the state and the applicant have entered into a written agreement to avoid the Act's one-year deadline. [00:00:45] Speaker 04: Question presented in this case is what kind of evidence is sufficient to show coordination and thus waiver without an express agreement. [00:00:55] Speaker 04: Our position is if the evidence presented by an ID [00:01:00] Speaker 04: is not enough. [00:01:01] Speaker 04: Nothing ever could be. [00:01:04] Speaker 04: Before I turn to the evidence of waiver, a few points about FERC's brief. [00:01:11] Speaker 07: First of all, we know something could be because Hoopa already told us what the circumstances could be that established coordination that affects a waiver, right? [00:01:21] Speaker 04: It did, but some people have misconstrued it to say that it requires an express agreement and FERC concedes [00:01:29] Speaker 04: at page 20 of its brief that it does not, that it only requires a functional agreement or evidence of coordination. [00:01:38] Speaker 07: Of coordination, I take it what was going on in Hoopa was that there was coordination because the state was in on the effort to make sure that the state didn't resolve the matter within a year. [00:01:52] Speaker 07: So it didn't want to resolve it within a year. [00:01:57] Speaker 07: Whereas it seems like what's different about the circumstances like those at issue here are, there's no reason to think that there wasn't every ability and interest in resolving it in a year. [00:02:08] Speaker 07: It's just that instead of denying it and then having a reapplication, there was a withdrawal and a reapplication, which seems functionally equivalent at some level. [00:02:18] Speaker 04: Well, with all due respect, there is absolutely no evidence that the state ever was prepared to deny without prejudice. [00:02:26] Speaker 04: even though FERC claims that on its brief. [00:02:28] Speaker 04: You won't find that anywhere in any of the state's communications to us. [00:02:33] Speaker 04: It finally denied without prejudice, surprisingly, to PG&E in December of 2018 and to NID in January 2019. [00:02:43] Speaker 04: Now, let me tell you what was happening. [00:02:45] Speaker 04: The oral argument in Hoopa was on October 1, 2018. [00:02:49] Speaker 04: Everybody in the industry was following this. [00:02:52] Speaker 04: It was a very good chance this court was going to find waiver. [00:02:55] Speaker 04: It was apparent to anybody who was there to listen to the argument. [00:02:58] Speaker 04: And so the state board decided to change its MO and start denying without prejudice. [00:03:05] Speaker 04: And that's what it did in both of these projects. [00:03:07] Speaker 04: But before then, the relevant time period is 2012 through 2017 or 18 for these two projects. [00:03:14] Speaker 04: There was always a determination to withdraw and resubmit. [00:03:20] Speaker 04: And the question is whether the state elicited that, induced that, encouraged that, agreed to that. [00:03:26] Speaker 04: And our overwhelming evidence is that the state did so. [00:03:30] Speaker 04: That the state board kept encouraging the applicants in projects across the state, but in particular PG&E and NID, to withdraw and resubmit, to buy more time for the state to complete its CEQA process. [00:03:46] Speaker 04: That's what was going on. [00:03:47] Speaker 04: That was the functional agreement. [00:03:49] Speaker 04: That satisfies the holding and hoop. [00:03:51] Speaker 04: And in any event, even if you were to [00:03:54] Speaker 04: find some stray language that you construe to mean prepared to deny without prejudice. [00:03:59] Speaker 04: That is not a denial within the meaning of Turlock. [00:04:03] Speaker 04: That is not an action that satisfies Section 401. [00:04:05] Speaker 04: And therefore, this case does not fit under Turlock. [00:04:10] Speaker 04: There was no action by the state to cut off the one-year period and thus trigger waiver. [00:04:16] Speaker 04: The state induced these applicants to withdraw and resubmit. [00:04:24] Speaker 03: Council, at least as to the Yuba-Behr proceeding, the Ninth Circuit held, if you put aside the new evidence, which I completely understand that argument, are you disputing that we and you are bound by the Ninth Circuit's holding that the pre-existing evidence did not show the type of coordination that's required? [00:04:43] Speaker 04: Thank you for the clarification. [00:04:45] Speaker 04: That is the very narrow holding of the Ninth Circuit, that the evidence presented at that time was insufficient to support waiver. [00:04:52] Speaker 04: That's all [00:04:53] Speaker 04: Ninth Circuit held. [00:04:54] Speaker 03: So as to Yuba Baer, this case comes down to the new evidence and whether FERC properly deemed it late and then whether it's sufficient. [00:05:03] Speaker 03: Well not quite. [00:05:05] Speaker 04: The new evidence together with those earlier communications that the Ninth Circuit said in and of themselves were insufficient and I maintain in the totality of the evidence before you those communications the subsequent emails that we produce the new evidence as you refer to it [00:05:22] Speaker 04: the email traffic between PG&E and the state board that we didn't have until we filed for rehearing or our supplemental petition on remand below, and the declaration of the project manager for NID and the affidavit of NID's consultant, who is also consultant to many other projects, including drum spalding. [00:05:45] Speaker 04: became Deer Creek. [00:05:46] Speaker 03: All of that. [00:05:47] Speaker 03: All of that. [00:05:48] Speaker 03: I appreciate all that. [00:05:49] Speaker 03: And I'm just trying to figure out the scope of the arguments. [00:05:51] Speaker 03: Yes, sir. [00:05:51] Speaker 03: Is the same thing true as to drum spalding? [00:05:54] Speaker 03: In other words, without the new evidence, you would agree that pre-existing evidence on its own is insufficient. [00:06:01] Speaker 03: No. [00:06:02] Speaker 04: And because drum spalding was not before the Ninth Circuit. [00:06:05] Speaker 04: Ninth Circuit's holding never reached that evidence. [00:06:09] Speaker 04: And we didn't have that evidence until we were back before FERC. [00:06:13] Speaker 04: And the email traffic, I think, unmistakably in Deer Creek, it was with PG&E at the time, demonstrates the project engineer at the state board said, you know, as done in the past, please withdraw and resubmit. [00:06:28] Speaker 04: And then he thanked them for coordinating with him on this. [00:06:31] Speaker 04: This is JA 527 and 529, if I recall from memory. [00:06:36] Speaker 04: Both emails are there. [00:06:37] Speaker 04: And so the point of all this was, Judge Garcia, [00:06:44] Speaker 04: the State Board induced the withdrawal and resubmittal. [00:06:50] Speaker 04: And in FERC decisions, including Village of Morrisville, I know Judge Katz was on the panel, I'm not trying to re-argue the merits there, but in FERC's decisions in Village of Morrisville, at 173 FERC and 174 FERC, especially in the latter at footnote 27, FERC cites a series of [00:07:09] Speaker 04: in which email traffic between a state board and applicants in those proceedings included language very much like the language here, Judge Garcia, please withdraw and resubmit. [00:07:22] Speaker 04: And there are variations on the theme. [00:07:25] Speaker 04: There was even one in the South Feather. [00:07:27] Speaker 04: proceeding in which they said, you know the drill. [00:07:29] Speaker 03: It seems to me one difficulty for your case is that there were materially identical emails before the Ninth Circuit. [00:07:37] Speaker 03: Not as to, you know, drum spalding, but one of them says, please submit, they withdraw, resubmit, and I trust you know the rest of it, but it looks very similar to the Choi emails here. [00:07:47] Speaker 04: Well, we don't really agree with that because there may be some language that is similar. [00:07:53] Speaker 04: I'm not going to say there isn't any language that is similar. [00:07:56] Speaker 04: But again, if you go back to 527 and 529 of the Joint Appendix, you'll see that there is language that didn't appear in the emails or communications before the Ninth Circuit as done in the past. [00:08:12] Speaker 04: So this is part of a pattern or practice. [00:08:14] Speaker 04: This is in 2018, in January. [00:08:18] Speaker 04: And then at 20J529, the person who sent that email from the state board then gets the letter back [00:08:27] Speaker 04: from PG&E saying that they would resubmit their application. [00:08:33] Speaker 04: And he says, thanks for coordinating with me on this. [00:08:37] Speaker 04: That kind of language was never before the Ninth Circuit as to any of the three projects that were there, either the as done in the past or thanks for coordinating with me on this. [00:08:47] Speaker 04: And Mr. Lynch's affidavit demonstrates beyond a shadow of a doubt [00:08:51] Speaker 04: that in every major hydro project, because he's involved in many of them in the state of California, this was the MO the state board was following, encouraging withdrawal and resubmittal until the gig was up, until this court's oral argument in Hoopa Valley, and then suddenly they decided to start denying without prejudice. [00:09:10] Speaker 05: What's wrong with that? [00:09:12] Speaker 05: What's wrong with that? [00:09:13] Speaker 05: They deny without prejudice, or they ask you to withdraw and resubmit. [00:09:18] Speaker 05: It's the same effect. [00:09:20] Speaker 04: Nothing wrong with that. [00:09:22] Speaker 04: They were entitled, as Turlock held, to deny, and that that constitutes action. [00:09:28] Speaker 04: I'm not quarreling with the Turlock holding. [00:09:31] Speaker 04: Our point is the waiver occurred years before, in 2013 or 2014, depending on how you view it. [00:09:38] Speaker 04: Because just like Hoopa Valley, [00:09:41] Speaker 04: our clients, PG&E also, and NID, applied for water quality certification, and then the state board encouraged them to withdraw on recent. [00:09:51] Speaker 05: And you withdrew. [00:09:53] Speaker 05: Well, we withdrew, but with coordination. [00:09:55] Speaker 04: There's no application for them to act on. [00:09:59] Speaker 04: Well, there's no application for them to act on once we withdraw. [00:10:03] Speaker 04: I'm not disputing that, Judge Katz. [00:10:06] Speaker 05: It's a perfectly obvious [00:10:10] Speaker 05: reading of the test and we made an exception on extreme facts in Hoopa where the agreement in advance to serially withdraw and resubmit the exact same application made it reasonable to think of it's just the same application. [00:10:35] Speaker 05: It's effectively pending the whole time. [00:10:37] Speaker 05: Same here. [00:10:38] Speaker 05: We don't have that here. [00:10:40] Speaker 04: Pardon me? [00:10:40] Speaker 04: Yes, the applications never changed. [00:10:43] Speaker 04: If you look at the correspondence, they applied in 2012 and then they keep withdrawing and resubmitting the same application year after year after year. [00:10:51] Speaker 04: That fact is the same, okay? [00:10:53] Speaker 04: And then also, may I remind you that what FERC cited in the Village of Morrisville decision, for example, a whole series of emails that it held constituted coordination [00:11:08] Speaker 04: Things like I'm checking with you about to withdraw and resubmit a letter. [00:11:11] Speaker 07: Can I ask you to suppose that the way that the agency responds is just to say, look, there's no practical difference at the end of the day. [00:11:22] Speaker 07: And I'm not sure what the practical difference is just parenthetically between your withdrawing it [00:11:27] Speaker 07: and then resubmitting it, and us denying it, and you're resubmitting it, honestly, it doesn't matter all that much. [00:11:34] Speaker 07: So just do whichever you'd prefer. [00:11:36] Speaker 07: And then the applicant chooses to withdraw and resubmit. [00:11:40] Speaker 07: I think you would agree that there'd be no waiver in that situation. [00:11:43] Speaker 04: Well, if the state encourages the withdrawal and resubmit, I'll defer. [00:11:47] Speaker 07: But just on the facts as I lay them out, which is that the state in correspondence says, [00:11:52] Speaker 07: Yeah, it doesn't matter to us either way. [00:11:54] Speaker 07: It's functionally the same thing. [00:11:56] Speaker 07: Either you withdraw and resubmit, or we deny because your application is incomplete or because we can't, we don't have the evidence that we need right now, and you resubmit. [00:12:04] Speaker 07: Either way, it's going to matter the same thing. [00:12:06] Speaker 07: Just do what-ish everyone you want. [00:12:08] Speaker 07: It's not going to matter. [00:12:08] Speaker 07: You would agree in that situation there's been no waiver. [00:12:11] Speaker 07: Even if the applicant chooses to withdraw. [00:12:13] Speaker 04: First of all, those aren't our facts, but I'm going to answer your question anyway. [00:12:20] Speaker 04: The state board encouraged the withdrawal and resubmittal. [00:12:23] Speaker 04: FERC has said over and over again. [00:12:25] Speaker 07: I'm trying to get away from encouraging. [00:12:29] Speaker 07: I'm just saying suppose the state says we don't care what you do. [00:12:33] Speaker 07: You could either withdraw and resubmit or we can deny it because it's incomplete right now and you can resubmit. [00:12:40] Speaker 07: No, take your choice. [00:12:41] Speaker 07: And then suppose this happens every year for four years in a row and every time the applicant makes the choice to withdraw and resubmit. [00:12:48] Speaker 07: If it's in that situation, would you say that the state has waived? [00:12:52] Speaker 04: I'm sorry. [00:12:53] Speaker 04: If it's unilateral, which we don't dispute, that is not coordination. [00:12:58] Speaker 04: But I don't agree with your hypothetical that those facts would be unilateral. [00:13:03] Speaker 04: If the state were encouraging [00:13:05] Speaker 04: They were coordinating. [00:13:07] Speaker 07: Now, we don't have those facts. [00:13:09] Speaker 07: You could still call that coordination because the state is in on the scheme, so to speak, of allowing withdrawal. [00:13:15] Speaker 07: They're communicating with the applicant, and they're just saying, you could withdraw it. [00:13:19] Speaker 07: Sure, you can withdraw it and resubmit it, or we'll deny it. [00:13:22] Speaker 04: Your choice, whatever you'd like to do. [00:13:24] Speaker 04: But in a whole series of proceedings, cited in Village of Morrisville and in our brief, every time the state board said, please withdraw and resubmit, nothing more than that. [00:13:35] Speaker 04: The FERC held that that was evidence of coordination in and of itself, and therefore that's the basis for finding waiver. [00:13:43] Speaker 07: Right, no, I understand that. [00:13:44] Speaker 07: I'm just trying, what FERC has said before and what they say now, I mean, we can talk to the agency about that, but I'm just trying to understand your theory. [00:13:51] Speaker 07: Under your theory, there would have been a back and forth between the state and the applicant. [00:13:55] Speaker 07: Yes. [00:13:55] Speaker 07: And the state would have said, sure, withdraw it and resubmit it, or we'll deny it and you resubmit it. [00:14:01] Speaker 07: It doesn't matter. [00:14:02] Speaker 07: I mean, I take it in that situation, there wouldn't be a waiver. [00:14:04] Speaker 04: Well, I'm not prepared to concede there wouldn't be because those aren't our facts. [00:14:08] Speaker 07: You would say in that situation that the state might have waived even though the state just left it up to the applicant. [00:14:13] Speaker 04: No, no, no. [00:14:14] Speaker 04: I didn't say the state wouldn't waive. [00:14:16] Speaker 04: I thought you were asking me if that would not constitute evidence of coordination. [00:14:19] Speaker 04: What I'm saying is that if the state encouraged the withdrawal and resubmittal, that's evidence of coordination. [00:14:25] Speaker 04: And those are our facts. [00:14:27] Speaker 04: If the state had said you can withdraw and resubmit or will be prepared to deny, which I think is your hypothetical. [00:14:34] Speaker 04: I'd have to think more about that. [00:14:37] Speaker 04: But I think at that point, the applicant would have had to decide which route it preferred to go. [00:14:43] Speaker 04: And there might have been a reason to go denial without prejudice. [00:14:47] Speaker 04: They could challenge what the board did. [00:14:49] Speaker 04: Which anybody could. [00:14:51] Speaker 07: But they couldn't. [00:14:53] Speaker 04: No, there was no bar against doing that. [00:14:55] Speaker 04: No, but I was going to say, but they couldn't if they withdrew and resubmitted. [00:14:59] Speaker 04: And everybody withdrew and resubmitted across the entire state. [00:15:03] Speaker 04: because the state board is the regulator and had everyone in a vice. [00:15:08] Speaker 04: They had everyone in a position where they had no choice but to go along with the regulator. [00:15:14] Speaker 04: You don't tell your regulator, I'm not gonna do what you just asked me to do. [00:15:18] Speaker 04: Nobody did that. [00:15:19] Speaker 04: Not one applicant did that. [00:15:22] Speaker 04: Sure, but that doesn't mean there wasn't a choice to do that. [00:15:25] Speaker 04: Well, but there wasn't presented a choice here. [00:15:27] Speaker 04: We do not have those facts. [00:15:29] Speaker 04: I defy them to point you to any place in the record where the state board said, [00:15:33] Speaker 04: You can withdraw and resubmit, or we'll deny without prejudice. [00:15:37] Speaker 07: I'm just wondering about the breadth of your theory, whether you think that even in that situation, we would say that the state has waived. [00:15:48] Speaker 04: If the state were still encouraging the withdrawal and resubmittal, I would argue it's coordination. [00:15:53] Speaker 04: If it truly was, it's up to you, then I suppose that would be unilateral. [00:15:59] Speaker 04: That's the question. [00:16:01] Speaker 04: And in the facts that we have, we never have that choice. [00:16:04] Speaker 04: It's always please withdraw and resubmit. [00:16:07] Speaker 07: So if the state got back and said, look, it's a particular state officer and state officers is look, I don't honestly, I don't care that much whether you withdraw and resubmit or whether we deny and you submit. [00:16:17] Speaker 07: Honestly, I'm supposed to go on vacation next week. [00:16:19] Speaker 07: All else be equal. [00:16:20] Speaker 07: I just assumed you withdraw it because then I wouldn't have to issue a denial order. [00:16:23] Speaker 07: But you know, would you is that coordination that elicits a withdrawal? [00:16:27] Speaker 04: I believe so. [00:16:28] Speaker 04: Yeah, because they're saying please withdraw and resubmit. [00:16:31] Speaker 04: We even have one email that says I'm getting ready to go on vacation for the holidays. [00:16:35] Speaker 04: So could you resubmit early? [00:16:37] Speaker 04: But this is the pattern all the way through the state board encouraging the withdrawal and resubmit. [00:16:41] Speaker 04: Those are our facts. [00:16:44] Speaker 05: What sense does your rule make? [00:16:49] Speaker 05: I mean, if we announce it, you get a waiver, which is great for you, but going forward, [00:16:55] Speaker 05: the state agencies are just going to deny without prejudice. [00:16:59] Speaker 04: Okay, then there shouldn't be any widespread concern about it. [00:17:03] Speaker 04: They can do that. [00:17:03] Speaker 04: I'm not fighting you on the fact that the agency can deny without prejudice if so chooses. [00:17:09] Speaker 04: And then that would satisfy Turla. [00:17:12] Speaker 04: But what I'm saying is on this record. [00:17:14] Speaker 05: How is it functionally, how is it relevantly different from [00:17:18] Speaker 05: They do that except they're effectively doing that except they're giving you a sort of more gracious way of proceeding. [00:17:34] Speaker 05: Because you pull it rather than they deny it and things move forward. [00:17:40] Speaker 04: Well, again, none of these applicants were ever presented with the either or that I know of. [00:17:44] Speaker 04: Everyone was asked to withdraw and resubmit. [00:17:47] Speaker 05: It's an either or because you could have refused and they would have denied it and you could have sought review. [00:17:54] Speaker 04: As I said before to the Chief Judge, I can't point you to a single applicant for a single project in the entire state where anybody said, we're not withdrawing and resubmit, do what you have to do. [00:18:06] Speaker 04: People don't do that with their regulator. [00:18:08] Speaker 04: I wouldn't do that with FERC. [00:18:11] Speaker 04: We have to get licenses from them. [00:18:13] Speaker 04: We have to keep them satisfied. [00:18:15] Speaker 04: I mean, Your Honor, [00:18:17] Speaker 04: If I may tell you a little story. [00:18:19] Speaker 04: When we were brief in this case, we put in the first round of briefs and then the JA, then we submitted the paper copies. [00:18:26] Speaker 04: With the JA says, I get a call from your clerk's office the next day. [00:18:29] Speaker 04: Mr. McBride said, yes. [00:18:31] Speaker 04: Said, you submitted two sided copies of the paper briefs. [00:18:34] Speaker 04: The judges prefer one sided copies. [00:18:36] Speaker 04: Would you please withdraw and resubmit? [00:18:39] Speaker 04: What do you think I was going to say? [00:18:40] Speaker 04: No. [00:18:41] Speaker 04: She didn't have to say you're ordered to. [00:18:43] Speaker 04: I did it because you have the authority in the matter. [00:18:46] Speaker 04: And she has your delegated authority and sustained with the state board. [00:18:50] Speaker 04: When they asked us to withdraw and resubmit, that's the regulator talking to us. [00:18:56] Speaker 05: And you want a rule that would effectively force our clerk's office to bounce that brief and make you refile it. [00:19:04] Speaker 04: No, I'm not asking for that rule. [00:19:06] Speaker 04: I voluntarily. [00:19:07] Speaker 04: That will be the rule. [00:19:08] Speaker 04: I mean, I didn't want to antagonize you, obviously. [00:19:11] Speaker 04: And if you want one-sided copies, of course I'll get you one-sided copies. [00:19:15] Speaker 05: One more question from me. [00:19:16] Speaker 05: Assume, hypothetically, that FERC prevails in Morrisville. [00:19:22] Speaker 05: Do you have any distinction? [00:19:25] Speaker 04: I do. [00:19:25] Speaker 04: Would you like to push on us? [00:19:26] Speaker 04: I do. [00:19:27] Speaker 04: Thank you for the question. [00:19:30] Speaker 04: In Village of Morrisville, the applicant is, I understand the facts. [00:19:34] Speaker 04: saw that it was in its interest to withdraw unilaterally, as I understand it. [00:19:40] Speaker 04: That was the characterization. [00:19:41] Speaker 04: That's the argument. [00:19:43] Speaker 04: I'm not trying to tell you. [00:19:44] Speaker 04: I know for sure, Judge, what the facts are. [00:19:46] Speaker 04: They're before you. [00:19:48] Speaker 04: All I understand is what I just said to you, that the applicant voluntarily withdrew and resubmitted for its own purposes. [00:19:56] Speaker 04: That did not happen for NID or PG&E. [00:19:59] Speaker 04: That's the distinction. [00:20:01] Speaker 04: And FERC claims at page two that [00:20:03] Speaker 04: We unilaterally withdrew. [00:20:05] Speaker 04: There's no evidence of that whatsoever. [00:20:07] Speaker 04: FERC, by the way, also claims that the applications were not complete. [00:20:11] Speaker 04: Every single one of the communications from the State Board says they were. [00:20:15] Speaker 04: I know I'm over my opening time. [00:20:16] Speaker 04: I had reserved three minutes, but I don't want to cut off your questions. [00:20:19] Speaker 04: Feel free if you have more. [00:20:20] Speaker 04: I appreciate it. [00:20:21] Speaker 04: Thank you. [00:20:21] Speaker 04: Thank you very much. [00:20:24] Speaker 04: Okay. [00:20:24] Speaker 07: Thank you, Council. [00:20:24] Speaker 04: We'll give you some time for rebuttal. [00:20:26] Speaker 04: Thank you very much. [00:20:37] Speaker 02: Mr. Fish. [00:20:40] Speaker 06: Good morning, Your Honors. [00:20:41] Speaker 06: Mr. Chief Judge, and may it please the Court, Jared Fish for the Commission. [00:20:45] Speaker 06: I'd like to bring this back to the statutory text, if I may, at the beginning, because I think that's gotten a little lost here. [00:20:51] Speaker 06: Under Section 401 of the Clean Water Act, a state retains its water quality certification power so long as it does not fail or refuse to act on request for certification within one year of receipt. [00:21:04] Speaker 06: As a matter of law, where an applicant chooses to withdraw its request before the one year deadline, thereby depriving the state of the power to act on that request, the state has not failed to refuse to act on that request when it doesn't act on something it has no power to act on at the one year mark. [00:21:23] Speaker 06: All parties agree the state lacks the power to do so. [00:21:26] Speaker 06: So under my friend's proposed test on the other side, [00:21:32] Speaker 06: An applicant could withdraw its request at day 10, at day 50, at day 200, depriving the state of the power to act on the request, and then cry waiver once the one-year mark has elapsed. [00:21:45] Speaker 03: I think they've conceded in the reply brief and now at argument. [00:21:50] Speaker 03: Mr. McBride can dispute this in rebuttal if he wants. [00:21:52] Speaker 03: I think they've conceded that some form of coordination is required. [00:21:56] Speaker 03: and just a withdrawal wouldn't do the job. [00:21:58] Speaker 03: So I think what I would want to know is what type of coordination, is there anything short of Hoopa Valley that FERC thinks would amount to a waiver? [00:22:09] Speaker 06: I'm not sure that we would need the exact same facts as Hoopa Valley, but I think the key part of Hoopa Valley is what the state did or didn't do, not what the applicant did or didn't do. [00:22:20] Speaker 06: So in Hoopa Valley, the states bound themselves to not act on certification requests within a year, over and over and over again. [00:22:28] Speaker 06: They put that in writing in a contract. [00:22:30] Speaker 06: They said they were going to refuse to act. [00:22:32] Speaker 06: That qualifies as waiver under the plain text of Section 401. [00:22:36] Speaker 06: Further, the applications for certification [00:22:39] Speaker 06: They were complete and ready for review. [00:22:41] Speaker 06: The states had asked for no additional information that they said they needed in order to complete the state-level analyses. [00:22:50] Speaker 06: under any definition of failure or refusal to act, uh, qualifies and triggers waiver here. [00:22:57] Speaker 06: Uh, the states did not have all the information or California board did not have all the information it needed to complete its analysis. [00:23:03] Speaker 06: Uh, it required the CEQA review that was to be conducted by the Nevada irrigation district in Yuba bear. [00:23:10] Speaker 06: The district was the lead agency for CEQA purposes in that matter. [00:23:16] Speaker 06: The district didn't even start the CEQA analysis until June of 2024. [00:23:21] Speaker 06: And in Drum Spalding, where PG&E was the licensee, the state of California required information on endangered species at consultation between FERC [00:23:32] Speaker 06: and the National Marine Fisheries Service before it could complete its CEQA analysis. [00:23:36] Speaker 06: Those facts are materially identical to the facts that this court considered in the Turlock case. [00:23:42] Speaker 06: There, just as here, the California board did not have all the information it needed to complete its CEQA analysis. [00:23:49] Speaker 06: There, as here, the board indicated that it was prepared to deny without prejudice if the applications were not withdrawn, and this court found no waiver. [00:23:57] Speaker 06: Mr. McBride says there was no evidence here that the board was actually, in fact, willing to deny. [00:24:03] Speaker 06: There is ample evidence of that. [00:24:05] Speaker 06: At J.A. [00:24:06] Speaker 06: 296, 298, 300, 579, with respect to the drum spalding matter, each time, I think almost every time that the California board acknowledged receipt of a certification request, it said that under California law, [00:24:25] Speaker 06: 23 CCR 3836 and 3837. [00:24:29] Speaker 06: It would deny without prejudice if the sequel analysis was not complete. [00:24:35] Speaker 06: So it was completely within the district's control to force that denial. [00:24:39] Speaker 06: The fact that there was a pattern in practice of what's drawn recent middle doesn't change the fact that the state did not fail or refuse to act where it was prepared to act in the first place. [00:24:49] Speaker 06: Do you know why? [00:24:51] Speaker 07: We can ask the state. [00:24:54] Speaker 07: What is the reason to do, even if everything's in equipoise but on balance, I'd rather have a withdrawal than a denial. [00:25:04] Speaker 06: That's a good question, Judge Srinivasan. [00:25:06] Speaker 06: And by their own declarations in their briefing, it seems the district would actually prefer a denial without prejudice. [00:25:14] Speaker 06: As they note at page two of their reply brief, [00:25:17] Speaker 06: a denial gives them the state action they can challenge in state court. [00:25:20] Speaker 06: Right. [00:25:21] Speaker 07: I think they could have done that. [00:25:23] Speaker 07: But you know, you've heard that there's practical interest in cooperating with the regulator. [00:25:28] Speaker 07: And I think it's a practical matter. [00:25:29] Speaker 07: We can appreciate that as well. [00:25:31] Speaker 06: Well, but usually, I mean, what I take from what Mr. McBride is saying is there was some element of coercion or inducement. [00:25:38] Speaker 06: Usually where there's like a coercive ask, it's you should do this or else something worse will happen on [00:25:45] Speaker 06: If you don't, well, here, that other thing that would have happened was denial without prejudice, which would have given the district and PG&E an opportunity to challenge that denial in state court and perhaps get a determination that the denial was unlawful. [00:25:59] Speaker 07: Other than the possibility of review in the state system, do you know of any practical difference between withdrawal and resubmission and denial without prejudice and resubmission? [00:26:11] Speaker 06: I don't. [00:26:14] Speaker 06: Under FERC regulations, for an original license, we're not dealing with an original license here, we're dealing with relicensing. [00:26:21] Speaker 06: For an original license, if an applicant receives at least two denials from a state, then there's a possibility that the commission will abandon the licensing. [00:26:32] Speaker 06: But that's not a policy that applies to relicensing proceedings. [00:26:35] Speaker 06: The whole idea there is the commission wants to make sure that land that is not already committed to a project [00:26:41] Speaker 06: is freed up for useful purposes. [00:26:43] Speaker 06: Here, the land is already committed. [00:26:44] Speaker 06: The dams are already built. [00:26:45] Speaker 06: The projects are already operating. [00:26:47] Speaker 03: Let me think about a different situation. [00:26:49] Speaker 03: So imagine that the applicant had done everything that was required of it under state law, but the board was delaying for whatever reason. [00:26:57] Speaker 03: Maybe it just takes a long time on the state side to get this done. [00:27:01] Speaker 03: Would FERC have a different position about waiver in that kind of situation? [00:27:05] Speaker 06: We took a different position in the Placer County case. [00:27:08] Speaker 06: So that's a matter that also involved with thronery submittal. [00:27:11] Speaker 06: where the California Board had all the information that it said it needed, and withdrawal and resubmittal happened in the context of the Board doing nothing for several years, and we found waiver. [00:27:22] Speaker 06: So sure, that's a different circumstance. [00:27:25] Speaker 03: But this court... Would the same go for denials without prejudice? [00:27:28] Speaker 03: The package is pending and the state each year just denies it without prejudice? [00:27:32] Speaker 06: That's a harder question, Your Honor, because as this court in Turlock has already held, a denial, for whatever reason, [00:27:40] Speaker 06: is an action for purposes of defeating waiver under Section 401. [00:27:44] Speaker 06: And this court has also said in its Keating decision at page 622, in its City of Tacoma decision, which I don't think we mentioned our brief, so I'll give you the site, 460, F3rd, 53, page 67, where this court said FERC's only role is to determine whether the state has actually acted on a request for certification, grant or denied, and not peel that back. [00:28:09] Speaker 06: and determine the legitimacy of that grant or denial. [00:28:12] Speaker 06: That's generally a question of state law for state courts. [00:28:15] Speaker 06: And that's the recourse that an aggrieved licensee. [00:28:19] Speaker 03: It may not be this case. [00:28:20] Speaker 03: I guess what I'm getting at is Turlock sure emphasized a lot that the applicant had not done what was required a bit. [00:28:27] Speaker 03: And you could end up in a very similar situation with a state for whatever reason, not wanting to issue a final action and just issue repeated hollow denials without prejudice. [00:28:39] Speaker 03: Seems like that's not been resolved. [00:28:40] Speaker 06: I understand Judge Garcia. [00:28:41] Speaker 06: So I have two responses. [00:28:43] Speaker 06: First, the score doesn't have to reach that question here because the facts here are materially identical to Turla. [00:28:49] Speaker 06: It was the same sequel review that was pending. [00:28:51] Speaker 06: It was the same situation where the applicants hadn't submitted all the information. [00:28:54] Speaker 06: However, as we note at page 32, footnote two of our brief, we're not prejudicing a future case where the state does issue seriatim denials without prejudice, without taking any action on the request. [00:29:08] Speaker 06: And I'm spitballing here, but you could imagine an interpretation of the statute [00:29:16] Speaker 06: that might conceivably not allow that. [00:29:18] Speaker 06: So the statute requires that the state act on a request for certification. [00:29:24] Speaker 06: Query whether a state's refusal to even consider a request, notwithstanding its denial, but refusal to even consider the request constitutes an action on that request when it denies it. [00:29:38] Speaker 06: That would be a more difficult case. [00:29:42] Speaker 06: it might present legal issues that are closer to the line. [00:29:46] Speaker 06: But the court certainly doesn't need to wait into that question here. [00:29:50] Speaker 06: And I would just add, Mr. McBride said that it wasn't really voluntary here. [00:29:55] Speaker 06: It was absolutely voluntary for the applicant to withdraw. [00:30:00] Speaker 06: The Ninth Circuit already held that, page 933 of its opinion, that there was a choice that the district could withdraw. [00:30:08] Speaker 06: or could subject its certification request to a denial. [00:30:12] Speaker 06: And I'll note that argument is forfeited in any event because the district doesn't present, doesn't argue in its brief that it lacked a choice. [00:30:21] Speaker 06: This was a voluntary action. [00:30:23] Speaker 06: And where the applicant chooses to withdraw, thereby depriving the state of the power to act, then that withdrawal can't be imputed to the state to find that the state failed to refuse to act, where there's evidence here, [00:30:36] Speaker 06: that the state was prepared to act. [00:30:37] Speaker 06: And I'll just add, I gave you the citations for drum spalding project where the state in its acknowledgement of receipt of certification requests said it would deny if the CEQA review was not completed. [00:30:49] Speaker 06: As for the Yuba Bear project, that's also a holding of the Ninth Circuit at page 933 finding that the state of California was prepared to deny absent the withdrawals. [00:31:01] Speaker 06: And that issue was certainly [00:31:02] Speaker 06: uh, issue precluded because that was a factual finding by the Ninth Circuit. [00:31:07] Speaker 06: Finally, I'd add, uh, the district has completely abandoned. [00:31:11] Speaker 06: I believe in their reply brief and certainly here at argument abandoned any contest with our interpretation of Section 401 of the statute. [00:31:19] Speaker 06: They're completely arguing that this is a substantial evidence case. [00:31:23] Speaker 06: Well, we substantial evidence findings are reviewed for abuse of discretion. [00:31:28] Speaker 06: Uh, and here [00:31:30] Speaker 06: The commission found substantial evidence that the board did not fail or refuse to act for the reasons I already stated, because the facts are materially identical to Turlock, and the board said that it was prepared to deny absent the withdrawals. [00:31:44] Speaker 06: That is sufficient to resolve this case. [00:31:48] Speaker 06: Judge Katzis, as for the distinctions with Morrisville, in all relevant [00:31:54] Speaker 06: context. [00:31:56] Speaker 06: This case is just like Morrisville. [00:31:58] Speaker 06: Mr McBride likes to focus on what the applicant's interests were, what the applicant did. [00:32:03] Speaker 06: In Morrisville, there was evidence that the applicant sought withdrawal and resubmittal so that it could buy itself more time to negotiate better water quality conditions from the state of Vermont. [00:32:14] Speaker 06: True, there's not evidence that the district was trying to do the same here, but the question is in what the applicant's interests were or what the applicant was doing, [00:32:21] Speaker 06: The question under 401 is what the state did or what the state did do. [00:32:25] Speaker 06: And in both cases, the point is the state was prepared to act. [00:32:29] Speaker 06: The state of Vermont was prepared to grant water quality certification in that case, absent withdrawal and resubmittal. [00:32:35] Speaker 06: The state of California was prepared to deny water quality certification here, absent withdrawal and resubmittal. [00:32:41] Speaker 06: So for all material purposes, Morrisville is just like this case. [00:32:48] Speaker 05: Is there a back story to Hoopa Valley? [00:32:54] Speaker 05: I'm just trying to think why we need to police this kind of situation where one would think that the state has every incentive to move things along and get updated standards in place rather than 50-year-old standards under the one-year license. [00:33:18] Speaker 05: So it's like something very strange must have [00:33:21] Speaker 05: Either I'm not understanding the incentives or something really strange was going on there. [00:33:26] Speaker 05: Can you help me? [00:33:27] Speaker 06: Sure, Judge Katz. [00:33:28] Speaker 06: Pretty much everything was different about Hoopa Valley. [00:33:31] Speaker 06: The back story is that the state... Why would the state have done that? [00:33:36] Speaker 06: Because the dams in question were [00:33:39] Speaker 06: there was a proposal to decommission the dams. [00:33:42] Speaker 06: And so instead of going through the laborious relicensing process, issuing water quality certifications, getting a new license from FERC, the states thought it was more expedient to try to stall that relicensing process, securing federal funding to decommission the dams rather than relicense them. [00:34:01] Speaker 06: So in that case, these setups were different. [00:34:03] Speaker 07: In other words, in that case, I went back and tried to look at this a little bit. [00:34:08] Speaker 07: We did. [00:34:09] Speaker 07: There was a state interest in being part of a scheme that assured that the state wouldn't issue a decision within a year because there was a funding stream that could potentially come through. [00:34:21] Speaker 07: There were not a denial if there were a withdrawal instead. [00:34:24] Speaker 07: And so the state was part of this joint enterprise to make sure that a decision wasn't issued within a year. [00:34:30] Speaker 06: Exactly, Judge Srinivasan. [00:34:32] Speaker 06: So the incentives were that. [00:34:34] Speaker 06: But there's nothing like that here. [00:34:37] Speaker 06: But if we're looking at actus reus versus mens rea, at the end of the day, it's what the state actually did or didn't do. [00:34:43] Speaker 06: And the key holding of Hoopa Valley is that the state entered into a contractual agreement to prevent itself from actually acting within a year. [00:34:54] Speaker 06: So that's a significant distinction in that matter. [00:35:00] Speaker 06: But I would say I think we can place too much emphasis on the relative motivations of the parties. [00:35:07] Speaker 06: Motive can be a relevant piece of evidence in helping determine whether the state failed to refuse to act in hard cases. [00:35:18] Speaker 06: In Morrisville, the motivation of the applicant helped substantiate the finding that the state actually wasn't failing or refusing to act. [00:35:25] Speaker 06: But at the end of the day, as the commission found here, what mattered was lack of evidence that the states failed to refuse to act because, again, they were ready to deny. [00:35:34] Speaker 06: And the applications for certification were not complete because the CEQA analyses had not been conducted. [00:35:44] Speaker 07: Thank you, Kevin. [00:35:44] Speaker 07: Thank you, Your Honors. [00:35:57] Speaker 01: Good morning and may it please the court. [00:36:00] Speaker 01: Kristen McCarthy on behalf of the intervener California State Water Resources Control Board. [00:36:06] Speaker 01: Here the applicants withdrew and resubmitted their applications. [00:36:10] Speaker 01: No party disputes that a state has no obligation and indeed no authority to act on a withdrawn request for certification. [00:36:18] Speaker 01: So the only question presented here is whether the narrow exception that this court identified [00:36:24] Speaker 01: in the extreme circumstances of Hoopa Valley applies to the facts of this case. [00:36:31] Speaker 01: The question is whether the evidence in these cases compelled FERC to have found that the applicant's decisions to withdraw and resubmit were not the applicant's decisions themselves, but were because the California State Board was engaged in a coordinated scheme, as in Hoopa Valley. [00:36:46] Speaker 01: Here FERC was not compelled to find that. [00:36:48] Speaker 01: FERC found that there was not substantial evidence in the record of the State Board engaging in such a coordinated scheme. [00:36:54] Speaker 07: So it may be that there wasn't the same evidence of a coordinated scheme. [00:36:58] Speaker 07: I mean, I think there's there's force to your submission in that respect. [00:37:02] Speaker 07: I'm just curious, just as a practical, factual matter, it does look like the state on balance would just as soon have applicants withdraw instead of the state denying. [00:37:14] Speaker 07: Is there a reason the state? [00:37:16] Speaker 01: Thank you for the question. [00:37:17] Speaker 01: The state has no preference. [00:37:19] Speaker 01: Withdraw and resubmit versus deny without prejudice is functionally the same thing. [00:37:23] Speaker 01: There was a practice that developed, at least prior to the Hoopa Valley decision, where withdrawal and resubmit was just kind of the common practice that was happening. [00:37:33] Speaker 01: And so... How was that then? [00:37:35] Speaker 07: I mean, if that's a practice... Why did that practice develop instead of a denial and then resubmittal practice? [00:37:43] Speaker 01: To be perfectly honest, Your Honor, I have no idea. [00:37:45] Speaker 01: But it was the practice that was in existence. [00:37:49] Speaker 01: And so... [00:37:50] Speaker 01: What you can see from the emails, when the emails from, for example, the state board staff that NID's council is pointing to at JA 527 and 529, reminding the applicant of the one-year deadline coming up and saying, please withdraw and resubmit. [00:38:06] Speaker 01: He quoted as done in the past. [00:38:08] Speaker 01: That's simply acknowledging that this was the common practice. [00:38:11] Speaker 01: And no one disputes that it was a common practice, at least prior to the Huba Valley decision. [00:38:18] Speaker 01: Substantial evidence in the record here supports FERC's finding that there was no waiver in these cases. [00:38:24] Speaker 01: And indeed, the evidence, which was simply letters confirming receipt of refilings and those courtesy emails that I just referenced, were basically identical to the evidence that the Ninth Circuit considered. [00:38:38] Speaker 01: And in California State Board versus FERC found that that evidence could not support a finding of waiver. [00:38:46] Speaker 01: The Fourth Circuit decision in North Carolina Department of Environmental Quality versus FERC was in accord under similar facts. [00:38:54] Speaker 01: And both of those Ninth and Fourth Circuit decisions stated the state's authority to issue conditions that will protect water quality and become part of these federal licenses is far too important to be waived under such just small courtesy emails that are just acknowledging the pattern and practice that existed at the time. [00:39:17] Speaker 01: I just also wanted to judge Katz's point that you made regarding the applicant here holds the keys. [00:39:25] Speaker 01: So if the applicant truly believed that the state board had some sort of motive, some sort of reason that it wanted to drag out the process or delay the one-year deadline, all it had to do was not withdraw its application. [00:39:39] Speaker 01: It simply could have forced the board to deny without prejudice, in which case that decision could have been challenged in state court. [00:39:48] Speaker 01: If there are no further questions, I will just say the State Board joins FERC's request that the court deny NID's petitions and affirm FERC's orders. [00:39:57] Speaker 07: Thank you, counsel. [00:40:05] Speaker 05: Mr. Chief Judge. [00:40:06] Speaker 04: We'll give you the three minutes that you asked for for rebuttal. [00:40:08] Speaker 04: Thank you. [00:40:09] Speaker 04: Very kind of you. [00:40:11] Speaker 04: First thing let me hit is why would the state want more time? [00:40:15] Speaker 04: That was your question. [00:40:16] Speaker 04: And then FERC addressed it and so did the State Board. [00:40:20] Speaker 04: And it was not only, in other words, and so asked to withdraw and resubmit instead of deny without prejudice. [00:40:26] Speaker 04: It's not just that there was a right to challenge. [00:40:30] Speaker 04: Let me submit to you that there was another very important reason. [00:40:33] Speaker 04: The state wanted more time, and we go into this on briefs, to impose conditions very, very significant to us. [00:40:40] Speaker 04: If you look at JA 49 to 50 and JA 136, these are the two certificates and conditions. [00:40:48] Speaker 04: The state board was proposing to impose on these applicants a duty to mitigate mercury, which we had nothing to do with. [00:40:57] Speaker 04: They even say it was based on historic gold mining activities. [00:41:02] Speaker 04: In other words, from the 1850s and the gold rush. [00:41:05] Speaker 04: There are estimates this could cost billions of dollars to remove the mercury that we had nothing to do with. [00:41:11] Speaker 04: There also is a condition 1D that the state board wanted the right to reopen effectively. [00:41:18] Speaker 04: They didn't use the word reopen, but to keep renewing and re-looking at various provisions throughout the tenure of the FERC license and [00:41:31] Speaker 04: The EPA has held the state can't do that. [00:41:33] Speaker 04: Once the state's conditions are included in the certificate and incorporated into the FERC license, it's solely up to FERC to impose those conditions. [00:41:44] Speaker 04: FERC tried once again to argue the facts are materially identical to Turlock. [00:41:48] Speaker 04: They're not. [00:41:49] Speaker 04: In Turlock, the state acted as this court has held. [00:41:52] Speaker 04: That didn't happen here. [00:41:54] Speaker 04: There was no denial without prejudice, saying prepared to deny. [00:41:58] Speaker 04: without prejudice is not acting within the meaning of Turlock. [00:42:02] Speaker 04: And then let me submit to you that the Placer County case that FERC tried hard on brief and again today to distinguish is, I think, on all fours with this case. [00:42:11] Speaker 04: In both Placer County, and we've cited the cases, but it's at 167 FERC 61156, I believe. [00:42:20] Speaker 04: It cites a whole series of proceedings before FERC in which similar emails, please withdraw and resubmit, [00:42:28] Speaker 04: constituted coordination. [00:42:31] Speaker 04: And in Village of Morrisville, in footnote 62 in the first decision, footnote 27 in the order under rehearing, similar proceedings were cited where FERC says that essentially identical emails to what happened to our clients here, please withdraw and resubmit, itself was sufficient to constitute coordination. [00:42:51] Speaker 04: That was FERC's holding as late as 2021 or even later in Placer County and in Morrisville. [00:42:57] Speaker 04: And FERC simply has failed to abide by its own prior precedent here. [00:43:02] Speaker 04: There's no distinction. [00:43:04] Speaker 04: There is no evidence we unilaterally withdrew and resubmitted. [00:43:07] Speaker 04: We did so. [00:43:09] Speaker 03: I think one thing the commission said about PLOSR is there, the evidence was, or at least FERC had found that the applicant had done everything it needed to do to complete the state review. [00:43:18] Speaker 03: And their position is that you hadn't in this case. [00:43:21] Speaker 04: Well, we did everything we needed to do. [00:43:24] Speaker 04: The applications were complete. [00:43:25] Speaker 04: That's what all the letters say. [00:43:27] Speaker 04: We were never in violation of CEQA. [00:43:30] Speaker 04: And in fact, there was no reason then to get into CEQA once FERC held waiver. [00:43:35] Speaker 04: Once the Ninth Circuit reversed, we have now instituted CEQA. [00:43:39] Speaker 04: But CEQA doesn't mean your application is not complete. [00:43:44] Speaker 04: In fact, under state law now, they can grant the certificate without satisfying CEQA. [00:43:48] Speaker 04: So CEQA is an [00:43:50] Speaker 04: additional issue, you're beyond the scope of the applications themselves. [00:43:55] Speaker 04: And the state consistently said that our applications were complete every single time. [00:44:03] Speaker 04: I think I'm out of time, but I'm happy to stand here and take any additional questions. [00:44:08] Speaker 05: You've answered mine. [00:44:10] Speaker 04: Thank you very much. [00:44:11] Speaker 04: It's a privilege to appear before you and Judge Garcia. [00:44:14] Speaker 04: I've had the privilege before Judge Katz has before. [00:44:17] Speaker 04: I thank you very much. [00:44:18] Speaker 07: Thank you, council. [00:44:18] Speaker 07: Thank you to all council will take this case under submission.