236 F.3d 738 (D.C. Cir. 2001)
Wisconsin Valley Improvement Company, Petitionerv.Federal Energy Regulatory Commission, RespondentUnited States Department of the Interior and Department of Agriculture, Intervenors
No. 97-1557 & 99-1511.
United States Court of Appeals  FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 1, 2000Decided January 26, 2001

[Copyrighted Material Omitted]
On Petitions for Review of Orders of the Federal Energy Regulatory Commission
Naikang Tsao argued the cause for petitioner.  With him  on the briefs were Michael D. Fischer and Bradley D.  Jackson.
Larry D. Gasteiger, Attorney, Federal Energy Regulatory  Commission, argued the cause for respondent.  With him on  the briefs was John H. Conway, Acting Solicitor.
Ronald M. Spritzer, Attorney, U.S. Department of Justice,  argued the cause for intervenors.  With him on the briefs  were Lois J. Schiffer, Assistant Attorney General, and John  T. Stahr, Attorney.
Before:  Edwards, Chief Judge, Sentelle and Randolph,  Circuit Judges.
Opinion for the Court filed by Circuit Judge Sentelle.
Sentelle, Circuit Judge:


1
Wisconsin Valley Improvement  Company ("WVIC" or "the company") petitions for review of  Federal Energy Regulatory Commission ("FERC") orders  imposing conditions on its license to operate a hydropower  project.  In addition to charging WVIC an annual fee for  "use" of submerged federal lands, the licensing order requires  petitioner to implement a "wild rice enhancement plan." FERC imposed the latter condition at the instance of intervenors United States Forest Service and Department of the  Interior ("the agencies"), which hold federal lands overflowed  by WVIC's reservoir.  Petitioner argues, inter alia, that the  conditions imposed exceed the scope of FERC's authority  under the Federal Power Act ("FPA"), 16 U.S.C. S 791a et  seq. (1994), as they govern areas that are not part of any  "reservations" of the United States.  Petitioner further argues that the enhancement plan is arbitrary and capricious as  the required reduction in reservoir's water level would not  result in wild rice growth, and challenges the requirement  that it pay fees for its "use" of the submerged agency land. We conclude that FERC lawfully could require the wild rice  implementation plan under the FPA and further, since it is  impossible to confine reductions in the water level to federally  controlled land, that FERC was entitled to impose water-level  conditions on the entire project.  We further hold that the agencies' decisions concerning the wild rice plan were not  arbitrary and capricious, but that FERC's decision to charge  annual fees was.

I. BACKGROUND

2
Subchapter I of the FPA, 16 U.S.C. S S 791a-823a (1994),  confers on FERC the authority to award licenses for the  operation of hydropower projects on the navigable waters of  the United States.  In particular, FPA S 4(e) requires FERC  to include in licenses for projects that operate "within" a  "reservation" of the United States, any "such conditions as  the Secretary of the department under whose supervision  such reservation falls shall deem necessary for the adequate  protection and utilization of such reservation."  Id. S 797(e). That is, if a FERC-licensed project is located "within" an  agency-supervised "reservation," that agency may require  FERC to impose conditions on the manner in which the  licensee may operate it.  The FPA further defines "reservation" to include "national forests, tribal lands embraced within  Indian reservations, military reservations, and other lands  and interests in lands owned by the United States, and  withdrawn, reserved, or withheld from private appropriation  and disposal under the public land laws;  also lands and  interests in lands acquired and held for any public purposes; but shall not include national monuments or national parks." Id. S 796(2) (emphases added).


3
For the better part of a century, WVIC has operated a  project--known as the Wisconsin River Headwaters System--consisting of dams and reservoirs on the Wisconsin and  Tomahawk Rivers.  WVIC was chartered by Wisconsin's  legislature in 1907.  In the same year, the company acquired  the Lac Vieux Desert reservoir, a natural drainage lake on  the Wisconsin-Michigan border that had been dammed for  logging operations in 1870.  Since 1907, WVIC has operated  the reservoir and dam with the principal intent of producing  hydroelectric power, as well as providing flood control.  The  company in 1937 replaced Lac Vieux Desert's nineteenth century logging dam with a concrete reservoir dam.  And in  1959, WVIC acquired from FERC's predecessor agency, the  Federal Power Commission, a 50-year license for its project  (the project was licensed in 1959, but its license was retroactive to 1943).  At the time, the company was not charged fees  for "using, enjoying, or occupying" the nearby federally  owned lands that its reservoir overflowed.


4
WVIC sought to renew its license in 1991.  During the  relicensing proceedings, the agencies submitted to FERC,  pursuant to FPA S 4(e), a number of conditions that would  restrict the manner in which WVIC could operate its project. Those conditions were appropriate, the agencies explained,  because WVIC's reservoir overflows 617.3 acres of the Nicolet  and Ottawa National Forests, under the Forest Service's  jurisdiction, and one-half acre of the Lac Vieux Desert Indian  Reservation, administered by the Interior Department.  See  Wisconsin Valley Improvement Co., 80 FERC p 61,054,  61,170 (1997).  After administrative hearings over a five-year  period, FERC on July 18, 1996 issued an order that granted  WVIC's license application and included the agencies' proposed conditions, three of which the company now challenges. See Wisconsin Valley Improvement Co., 76 FERC p 61,050  (1996).


5
First, and most important, is Article 114, which requires  WVIC to implement at Lac Vieux Desert what FERC styles  a ten-year "wild rice enhancement plan."  The company is  obliged to reduce the reservoir's maximum water level by  about nine inches, and to contribute $200,000 toward the  planting and monitoring of wild rice.  See id. at 61,257-59. The agencies asserted that their "wild rice enhancement  plan" was necessary to reverse the depletion of wild rice at  the reservoir.  Although rice had once been abundant at Lac  Vieux Desert, they explained, it had almost completely disappeared by the 1950s.  The agencies attributed that decline to  the high water that resulted when WVIC rebuilt the reservoir's dam in 1937, and correspondingly concluded that decreasing the reservoir's water level would create conditions  favorable to the self-sustaining growth of wild rice.  See Final  Environmental Impact Statement at 3-37, 4-74 to 4-76, app.  J (June 1996).  WVIC estimates that, in addition to the $200,000 rice expenditure, it will suffer $400,000 in lost hydropower revenues over the ten-year period.  See Petitioner's  brief at 54;  WVIC Response to Draft Environmental Impact  Statement at 5-3 to 5-4 (April 13, 1995).


6
In addition, FERC included in WVIC's new license two  provisions--Articles 201 and 202--that require the company  to pay annual fees to the United States for its use of  submerged federally-owned land.  See Wisconsin Valley Improvement Co., 76 FERC at 61,237.  Such payments are  required, FERC submits, by FPA S 10(e), which obliges a  licensee to "pay to the United States reasonable annual  charges in an amount to be fixed by the Commission ... for  recompensing it for the use, occupancy, and enjoyment of its  lands or other property."  16 U.S.C. S 803(e) (1994).


7
WVIC sought an administrative rehearing and petitioned  for review in this Court.  Although FERC subsequently  issued several orders that modified its initial 1996 ruling, see  Wisconsin Valley Improvement Co., 80 FERC p 61,054  (1997);  Wisconsin Valley Improvement Co., 87 FERC  p 62,251 (1999);  Wisconsin Valley Improvement Co., 89  FERC p 61,057 (1999), it left intact the portions challenged  here.  WVIC's first petition for review, case number 97-1557,  was consolidated with its present petition by a January 10,  2000 order of this Court.

II. DISCUSSION
A. FPA S 4(e)

8
This Court reviews FERC's orders--including conditions  prescribed by agencies pursuant to FPA S 4(e)--under the  Administrative Procedure Act ("APA"), 5 U.S.C. S 551 et seq.  (1994), which obliges us to reverse any agency action that is  "arbitrary, capricious, an abuse of discretion, or otherwise not  in accordance with law."  Id. S 706(2)(A);  see Sithe/Independence Power Partners v. FERC, 165 F.3d 944, 948 (D.C. Cir.  1998).  As pertinent here, the APA's prohibition on arbitrary  and capricious agency action requires us to decide whether  FERC correctly concluded that the lands flooded by WVIC's reservoir are part of a "reservation" of the United States  within the meaning of the FPA.

1. Existence of S 4(e) authority

9
WVIC argues that FERC cannot impose the conditions  submitted by the agencies under S 4(e) as the facts of the  present licensing procedure do not come within the rationale  of that section.  As petitioner views it, the mandatory conditioning authority under that section, giving as it does carte  blanche authority to impose conditions on projects located  within federal reservations, see Escondido Mut. Water Co. v.  La Jolla Band of Mission Indians, 466 U.S. 765 (1984), could  not have been intended to provide that sort of authority to  otherwise uninvolved agencies over the regulation of license  projects no more connected to reservation land than WVIC is  to the lands under consideration.  WVIC argues that its  project cannot be "within" the relevant reservations because  "[t]he Agencies have no protectable property interests that  conflict with WVIC's prescriptive water rights, and its operation of the Reservoir does not depend on the use or occupancy of any federal property right."  Petitioner's brief at 11. That is a non sequitur.


10
The question whether WVIC owns flowage easements over  the lands is irrelevant to whether the lands themselves are  part of a federal reservation.  As we stated above, the FPA  defines the term "reservation" to include "national forest,  tribal lands embraced within Indian reservations, military  reservations, and other lands and interests in lands owned  by the United States, and withdrawn, reserved, or withheld  from private appropriation and disposal under the public land  laws;  also lands and interests in lands acquired and held for  any public purposes;  ... not includ[ing] national monuments  or national parks."  16 U.S.C. S 796(2) (emphases added). By the terms of the statute, the United States need not even  hold land in fee simple absolute for it to operate a "reservation."  It is enough that the government own an "interest" in  the land.  See Escondido, 466 U.S. at 781 ("There is no doubt  that 'reservations' include 'interests in lands owned by the  United States....' ").  And on the record before us, there  can be no dispute that the United States owns at least an  "interest" in the lands flooded by WVIC's reservoir, perhaps  even the fee simple, whether or not subject to a prescriptive  easement by WVIC.


11
Indeed, FERC consistently has affirmed its jurisdiction  over land that the federal government owns subject to a  citizen's easement.  In South Carolina Elec. & Gas Co., 75  FERC p 61,308 n.9 (1996), FERC reasoned that "even if we  assume that SCE&G holds the easements it describes, that  fact does not make the land in questionany less a reservation  for purposes of section 4(e) of the FPA," since "the term  ['reservation'] is not limited to fee title."  And in Town of  Estes Park, 75 FERC p 61,245 (1996), the Commission concluded that "if the federal government holds fee title to  certain lands, the lands qualify as lands owned by the United  States for FPA purposes, even if someone else has a continuing right to use them pursuant to an easement."


12
But while the question of whether WVIC holds flowage  easements is immaterial to the lands' status as federal "reservations," it remains quite relevant to the possibility that  FERC's licensing order has "taken" the company's property  in violation of the Fifth Amendment.  See U.S. Const. amend.  V ("[N]or shall private property be taken for public use  without just compensation.").  If WVIC does indeed own  easements to flow the agencies' lands, and if FERC's order  has prevented it from using its property rights, the government may well have affected an unconstitutional taking.  See  National Wildlife Federation v. ICC, 850 F.2d 694, 703 (D.C.  Cir. 1988) (recognizing that property rights in easements "do  implicate the takings clause");  cf. Nollan v. California Coastal Comm'n, 483 U.S. 825, 831 (1987):


13
Had California simply required the Nollans to make an easement across their beachfront available to the public on a permanent basis in order to increase public access to the beach ... we have no doubt there would have been a taking.  To say that the appropriation of a public easement across a landowner's premises does not constitute the taking of a property interest but rather ... "a  mere restriction on its use," is to use words in a manner that deprives them of all their ordinary meaning.


14
(citation omitted).


15
Both FERC and the agencies deny that WVIC has any  cognizable property interest in the flooded lands, and repeatedly insist that the company has not demonstrated that it  owns any recorded easements.  Quite the contrary, they point  out, for the government has introduced evidence that "only  7.63% of the total quantified National Forest System land  within the Project is burdened with recorded flowage rights." Intervenors' brief at 14 n.5 (emphasis added);  see also Respondent's brief at 16.


16
Of course, formal recordation is only one way--not, crucially, the exclusive way--by which a party in Wisconsin or  Michigan may establish a flowage easement.  Rather, both  jurisdictions recognize that one may obtain an easement to  flow water over another's land through prescription.  See,  e.g., Chippewa & Flambeau Improvement Co. v. R.R.  Comm'n, 159 N.W. 739, 745 (Wis. 1916);  Cook v. Grand River  Hydroelectric Power Co., 346 N.W.2d 881, 884 (Mich. Ct. App.  1984).  WVIC's inability to point to recorded flowage easements is hardly the "fatal flaw" FERC takes it to be.  Respondent's brief at 20.


17
But while WVIC may be able to advance a colorable  Takings-Clause claim, it is not within our jurisdiction to  adjudicate it.  It is fixed law that, "[i]f there is a taking, and a  claim for just compensation, then that is a Tucker Act matter  to be pursued in the Court of Federal Claims, and not before  us."  Transmission Access Policy Study Group v. FERC, 225  F.3d 667, 690 (D.C. Cir. 2000).  So far as the underlying  questions of which property interests are owned by which  parties, neither FERC nor this Court have jurisdiction to try  title.  Either the state courts or the United States District  Court of appropriate jurisdiction acting pursuant to the Quiet  Title Act, 28 U.S.C. § 2409a (1994), could adjudicate the  factual questions such as whether WVIC's operations have  been sufficient to give rise to prescriptive easements, and  apply the appropriate law.  If WVIC proves successful in its title actions, it could potentially pursue a takings claim in the  Court of Federal Claims, which has exclusive jurisdiction over  such actions.  28 U.S.C. S 1491 (1994).  None of this, however, prevents either FERC or this Court on review from  applying the conditions sought by the affected agencies.  We  therefore cannot grant a petition for review on that basis.

2. Scope of S 4(e) authority

18
Slightly more complicated than whether FERC has authority under S 4(e) to impose license conditions, is the extent of  that authority.  The parties dispute whether the FPA--under  which FERC must attach license conditions to projects located "within any reservation" of the United States, 16 U.S.C.  S 797(e) (1994) (emphasis added)--permits FERC to prescribe conditions with respect to the entire Lac Vieux Desert  project, or only as to those portions of the project that  actually occupy reservation lands.  The agencies propose that  the government's "section 4(e) conditioning authority applies  to the license, and therefore to all of the project works  covered by that license, so long as ... part of the licensed  project is within the reservation."  Intervenors' brief at 18  (emphasis added).  WVIC responds with what it supposes is  a reductio ad absurdum, and points out that the agencies'  interpretation would permit FERC to impose project-wide  license conditions "if any portion of the project touches a  reservation (even if the overlap is the size of a postage  stamp)."


19
We need not, however, decide the precise scope of the  government's power to prescribe conditions for projects located "within" reservations.  Rather, we resolve this issue on the  narrow ground that on the facts of this case it would be  impossible to attach a condition as to the reservation lands  without simultaneously imposing it with respect to the entire  project.  As FERC points out, there simply is no way to  require WVIC to reduce the water level of Lac Vieux Desert  only over federal lands.  A lake can have only one level.  See  Respondent's brief at 32 n.8 ("As the condition imposes  maximum water levels on the entire project reservoir, it is unclear how WVIC could be required to limit the maximum  water level on only those portions of the project reservoir  occupying the reservations, without affecting the water level  throughout the project reservoir.").  WVIC does not dispute  that FERC could not reduce the level of the water that  overflows the reservation lands without lowering the entire  reservoir, and we therefore find that its order requiring  WVIC to do so was not arbitrary and capricious.


20
Besides requiring WVIC to reduce the water level at Lac  Vieux Desert, FERC's "wild rice enhancement plan" further  calls for the company to fund the agencies' efforts to plant  wild rice.  Unlike changes in water level, it is possible to  confine rice-planting to the federally owned reservations. Hence the rationale that permits the reduction of the reservoir's water level over non-reservation lands--that the government cannot lower the water over reservation lands without doing so as to the entire reservoir--would not justify a  requirement that rice be planted on non-reservation lands. But it appears that the agencies have imposed no such  condition.  FERC's order calls for rice to be planted, not  throughout the Lac Vieux Desert reservoir, but only on  reservation lands--for example at Misery Bay and the suitably-named Rice Bay, both of which are on Forest Service or  Indian Reservation land.  See Final Environmental Impact  Statement at 4-76 to 4-77 (June 1996).  "In any event,"  FERC explains, "it is clear that the planned wild rice seeding  is to occur on both the Indian and Forest Service reservations," and FERC has given no indication that it will require  the planting of rice on non-reservation lands.  Wisconsin  Valley Improvement Co., 76 FERC p 61,050, 61,227 (1996).

3. Conclusion

21
In sum, FERC has the authority to attach conditions to  WVIC's license to operate a project at Lac Vieux Desert,  because the agencies own at least an "interest" in the lands  flowed by the reservoir.  The lands therefore are part of a  "reservation" within the meaning of FPA S 4(e). FERC's  S 4(e) authority extends to areas outside the reservation's  geographic boundaries, because it is impossible to lower the  water level over the federal lands without reducing the entire  reservoir.


22
B. The "wild rice enhancement plan"


23
We review FERC and the agencies' decision to require that  WVIC undertake a "wild rice enhancement plan" under the  APA's arbitrary-and-capricious standard.  See 5 U.S.C.  S 706(2)(A) (1994).  A party seeking to have a court declare  an agency action to be arbitrary and capricious carries "a  heavy burden indeed." Transmission Access Policy Study  Group v. FERC, 225 F.3d 667, 714 (D.C. Cir. 2000).  We will  not substitute our own judgment for that of the agency, but  will examine only "whether the decision was based on a  consideration of the relevant factors and whether there has  been a clear error of judgment," Citizens to Preserve Overton  Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971), whether the  agency's policy choice is supported by "substantial evidence,"  and "whether there is a rational connection between the facts  and the choice made."  Bangor Hydro-Electric Co. v. FERC,  78 F.3d 659, 663 n.3 (D.C. Cir. 1996).


24
At first blush, this case seemingly requires that we review  two distinct actions:  first, the agencies' conclusion that the  "wild rice enhancement plan" would lead to the revitalization  of wild rice at Lac Vieux Desert;  and second, FERC's  decision to include that condition in WVIC's project license. In fact only the agencies' action is relevant to our inquiry. FPA S 4(e) obliges FERC to include the conditions that are  prescribed by agencies that have jurisdiction over reservation  lands:  Project licenses "shall be subject to and contain such  conditions as" the agencies deem necessary.  16 U.S.C.  S 797(e) (1994) (emphasis added).  FERC has no discretion  to decide whether or not to include a proposed condition in a  project license;  if an agency proposes a condition, FERC  must include it.  The Commission was not acting arbitrarily  and capriciously when it included the agencies' wild-rice  condition;  it simply was following the law.


25
Therefore, we review only the underlying decision of the  agencies, and in that analysis must determine whether it was  arbitrary and capricious for the agencies to conclude that (1)


26
high water levels were responsible for the decline of wild rice  at Lac Vieux Desert;  (2) WVIC's 1937 construction of a  reservoir dam caused those high water levels;  (3) a reduction  in water level will create conditions favorable to selfsustaining wild rice growth;  and (4) the use of "detritus  mats" would be an effective way of reintroducing wild rice to  the reservoir.  We conclude--given "the very limited scope of  our review," Transmission Access, 225 F.3d at 713--that the  evidence before the agencies adequately supports each of  their four conclusions.


27
First, the agencies' conclusion that an increase in Lac  Vieux Desert's water depth was responsible for the decline in  wild rice was not arbitrary and capricious.  The agencies  concede that a number of factors influence the success of wild  rice, but point to abundant evidence indicating that water  depth is the most important.  To be sure, their experts  appear to disagree on just how deep water threatens rice  growth:  one suggests that deep water does not allow enough  sunlight to penetrate for photosynthesis to occur, while another proposes that deep water drowns the rice.  But the crucial  point is that the agencies have based their policy choice on  substantial evidence.


28
Relatedly, it was not arbitrary and capricious for the  agencies to conclude that WVIC's 1937 construction of a  reservoir dam--which replaced a nineteenth-century logging  dam--was responsible for so increasing the lake's depth as to  kill off the then-extant wild rice.  WVIC correctly points out  that Lac Vieux Desert had been dammed for some 60 years  before the rice began to decline in the 1940s.  But it wrongly  insinuates that, because wild rice thrived alongside the logging dam, the new dam cannot have been responsible for rice killing high water.  That argument fails to take account of the  crucial difference between logging dams and reservoir dams: While WVIC's reservoir dam maintains water depth at a  constant level, the logging dam was used to build up a head of  water that, when released, drove accumulated logs downstream.  As Wisconsin's Supreme Court has explained:


29
A log-driving dam is not built for storage purposes or for keeping a constant head of water during the year, but for the raising of a head of water in the early spring and immediately using such water in successive rapid miniature floods during the spring months.  The reservoir dam is built for the purpose of storing up a great quantity of water during the spring and conserving it for gradual depletion during the summer season.  In the one case the normal situation is that the dam is empty at the beginning of the summer and so remains, while in the other case it is full at the beginning of the summer and remains so subject only to slow reduction when it becomes necessary to supplement the natural flow of the river which has become lessened by long-continued dry weather.


30
Chippewa & Flambeau Improvement Co. v. R.R. Comm'n,  159 N.W. 739, 745 (Wis. 1916).  In fact, the two types of dams  "are practically the antitheses of each other."  Id.


31
As the agencies point out, because the logging dam would  have been opened in the spring, Lac Vieux Desert would have  returned to its normal depth by June and July, just in time  for the crucial "floating leaf stage" of wild rice growth.  See  Intervenors' brief at 35-36.  The nineteenth-century reservoir dam would not have produced the consistent flooding the  agencies propose was responsible for destroying Lac Vieux  Desert's rice crop.  It therefore was eminently reasonable for  them to conclude that WVIC's reservoir dam produced the  high water that in turn caused the decline in wild rice, even  though WVIC's old logging dam resulted in no similar reduction.


32
Third, the agencies's conclusion that reducing Lac Vieux  Desert's water level will enable the reservoir once again to  sustain wild rice was not arbitrary and capricious.  If high  water is the principal factor inhibiting the growth of wild rice,  it follows that reducing the reservoir's depth will create  conditions more favorable to rice growth.  WVIC attempts to  cast doubt on the agencies' conclusion by pointing to another  factor that, it submits, would continue to inhibit rice even if it


33
is made to reduce the reservoir's water level.  The company  proposes that Lac Vieux Desert will remain inhospitable to  wild rice due to the continued presence of highly flocculent  sediments which, it argues, will expose fragile rice shoots to  destructive wind and wave action.  But the company cannot  explain why the reservoir's sediments did not inhibit rice  growth before the 1940s.  In addition, the agencies have  introduced evidence demonstrating other highly flocculent  lakes--including the Pat Shay and Kaine lakes--have been  reseeded successfully.


34
Finally, it was not arbitrary and capricious for the agencies  to conclude that the use of artificial "detritus mats"--layers  of floating vegetative residue on which, it is supposed, rice  can grow--would be an effective way of reintroducing wild  rice to Lac Vieux Desert.  WVIC has introduced evidence  from a scientific expert that such detritus mats simply do not  exist.  The foundational assumption of the detritus-mat theory, WVIC's expert explained, is that several years' worth of  undecomposed straw would amass on the lake's surface and  provide a bed for rice growth.  But it would be impossible for  vegetative detritus to accumulate given that "[m]ost of this  straw is swept to shore before germination of the seed the  next spring."


35
Given the presence of disputing expert witnesses, this  controversy parallels one described by the Supreme Court as  "a classic example of a factual dispute the resolution of which  implicates substantial agency expertise."  Marsh v. Oregon  Natural Resources Council, 490 U.S. 360, 376 (1989).  We in  this case, as the Supreme Court in that one, "must defer to  'the informed discretion of the responsible federal agencies.' "  Id. at 377 (quoting Kleppe v. Sierra Club, 427 U.S. 390, 412  (1976)).  Like the Supreme Court in Marsh, we hold that the  agency's decision concerning the evidence before it "involves  primarily issues of fact."  Id.  Accordingly, we hold that that  decision was not arbitrary and capricious, and we cannot set  it aside.


36
Here, the agencies had before them evidence that 10-14  inch-thick layers of vegetative detritus have been discovered  on the bed of the Wisconsin River.  It may be true, as WVIC  argues, that because the detritus was found submerged on  the river's bed, and not on its surface, it would be unlikely to  support rice growth.  If we were to decide the question as an  original matter, we might well agree.  But it is not our role to  engage in the de novo weighing of evidence.  As we recently  emphasized, "[i]t is not enough for petitioners to convince us  of the reasonableness of their views;  ... those arguments  should be presented to FERC, whose commissioners are  appointed by the President and confirmed by the Senate with  the expectation that they, not Article III courts, will make  policy judgments."  Transmission Access Policy Study  Group v. FERC, 225 F.3d 667, 714 (D.C. Cir. 2000).  The  agencies here have based their policy choice on substantial  scientific evidence and that is enough to survive arbitrary and-capricious review, whatever may be this Court's views as  to the persuasiveness of that evidence.


37
In sum, because the agencies have relied upon sufficient  expert evidence to establish "a rational connection between  the facts and the choice made," Bangor Hydro-Electric Co. v.  FERC, 78 F.3d 659, 663 n.3 (D.C. Cir. 1996), it was not  arbitrary and capricious for them to require WVIC to undertake a "wild rice enhancement plan."  To be sure, WVIC has  submitted evidence that casts some doubt on the soundness of  the agencies' conclusions.  But as the Supreme Court emphasized in Marsh, we are not called upon to weigh competing  experts' opinions "as an original matter."  Marsh, 490 U.S. at  378.  We only inquire whether the agencies have based their  policy choices on reasonable expert evidence.  They have  done so here.

C. Usage fees under FPA S 10(e)

38
In addition to obliging WVIC to implement a "wild rice  enhancement plan" pursuant to FPA S 4(e), FERC's order  also charges the company annual fees for its "use" of the  reservation lands flooded by its reservoir.  See Wisconsin  Valley Improvement Co., 76 FERC at 61,237.  FERC imposed that condition pursuant to FPA S 10(e), which establishes that a "licensee shall pay to the United States reasonable annual charges in an amount to be fixed by the  Commission for the purpose of reimbursing the United  States ... for the use, occupancy, and enjoyment of its  lands or other property."  16 U.S.C. S 803(e) (1994). WVIC challenges the usage-fee condition by claiming that it  does not, in fact, "use, occupy, or enjoy" any federal property, since it holds easements entitling it to flow water over  the agencies' lands--and, indeed, acquired those easements  many years before the agencies came to own the burdened  land.  In essence, the company attempts to defeat the  S 10(e) conditions with the same argument it advanced  against the S 4(e) conditions.


39
Though, as we already have explained, the issue whether  WVIC owns rights to flow water over the agencies' lands is  immaterial to the lands' status as federal "reservations," it  remains relevant to the subsequent question of whether the  agencies may impose annual charges for the company's use of  federal lands pursuant to FPA S 10(e).  And, again as we  have already explained, WVIC has not yet demonstrated that  it has flooded the agencies' lands pursuant to its own flowage  easements.  However, WVIC's failure conclusively to establish that it owns the asserted easements does not end our  inquiry.  This Court must further determine whether the agencies have proffered a satisfactory explanation for now  deciding to assess S 10(e) usage fees, given that WVIC's old  license included no such charges.


40
Section 706(2)(A) of the APA requires agencies to, among  other things, "consider the relevant factors and draw a rational connection between the facts found and the choice made." Missouri Public Serv. Comm'n v. FERC, 215 F.3d 1, 3 (D.C.  Cir. 2000) (citation and quotation marks omitted).  In particular, an agency acts arbitrarily and capriciously when it  abruptly departs from a position it previously held without  satisfactorily explaining its reason for doing so.  "Indeed,  where an agency departs from established precedent without  a reasoned explanation, its decision will be vacated as arbitrary and capricious."  ANR Pipeline Co. v. FERC, 71 F.3d  897, 901 (D.C. Cir. 1995);  see also AT & T v. FCC, 974 F.2d  1351, 1355 (D.C. Cir. 1992) (faulting the FCC for failing to explain why it "changed the original price cap rules" and  concluding that the Commission's "Reconsideration Order is  arbitrary and capricious for want of an adequate explanation").  As the Supreme Court has put it, "an agency changing its course must supply a reasoned analysis...."  Motor  Vehicles Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463  U.S. 29, 57 (1983) (citation omitted).


41
The requirements imposed by FERC's order mark a sharp  departure from WVIC's 1959 license, which contained no  obligation to reimburse the federal government for flooding  its lands.  In its 1959 licensing order, the Commission found  that the company's project occupied lands of the United  States.  See Wisconsin Valley Improvement Co., 21 FPC 785,  788 (1959).  It concluded, however, that it could not impose  usage fees until then-ongoing land studies revealed the extent  of the United States' property rights.  See id.  ("However,  land studies, now in progress, must be completed before we  can make a final determination as to the amount of lands of  the United States occupied by the project and as to the  amount of annual charges due the United States for the use,  occupancy and enjoyment of such lands.").


42
FERC no longer holds that it may impose user fees only  after a land study establishes the extent of the United States'  property interests.  Its new position is that it may charge  such fees "unless and until [WVIC's property] rights are  confirmed by an appropriate state or federal authority." Wisconsin Valley Improvement Co., 80 FERC p 61,054,  61,174 (1997).  Whereas the United States formerly bore the  burden of establishing that WVIC "used, occupied, or enjoyed" various of its property interests, FERC's new license  places the burden on the company to demonstrate that it does  not use the government's land.  FERC has offered no explanation--far less a "reasoned" one--for this abrupt departure. Because it has failed to do so, we find that FERC's sudden  imposition of usage fees under FPA S 10(e) was arbitrary and  capricious.


43
We therefore grant WVIC's petition for review, in part, and  remand to FERC with instructions that the Commission remove the usage-fee provisions from the company's project  license.

III. CONCLUSION

44
With one exception, we uphold FERC's licensing orders. FPA S 4(e) authorized FERC to attach "wild rice enhancement" conditions to WVIC's project license because the United States owned at least an "interest" in the flooded lands. FERC further was entitled to impose those conditions with  respect to the entire project, as it would be impossible to  reduce the reservoir's water level over just the federally  controlled land.  The agencies reasonably concluded that a  reduction in the reservoir's water level would allow wild rice  again to flourish.  However, it was arbitrary and capricious  for FERC to begin charging WVIC fees for "using, occupying, and enjoying" submerged federal lands, without providing any explanation for its sudden change in policy.  The  petition for review is granted in part and denied in part, and  we remand to FERC so that it may eliminate the usage-fees  requirement from WVIC's project license.


45
It is so ordered.

