                                                                           FILED
                            NOT FOR PUBLICATION                             AUG 02 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



COUNTY OF BUTTE, CALIFORNIA,                     No. 10-70140

              Petitioner,                        FERC Nos. EL09-55-000
                                                           EL09-55-001
THE METROPOLITAN WATER
DISTRICT OF SOUTHERN
CALIFORNIA,                                      MEMORANDUM *

              Intervenor,

  v.

FEDERAL ENERGY REGULATORY
COMMISSION,

              Respondent,

CALIFORNIA DEPARTMENT OF
WATER RESOURCES; STATE WATER
CONTRACTORS,

              Respondents-Intervenors.



                      On Petition for Review of Orders of the
                      Federal Energy Regulatory Commission




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                       Argued and Submitted July 19, 2011
                            San Francisco, California

Before: TASHIMA and RAWLINSON, Circuit Judges, and RAKOFF, Senior
District Judge.**

      Butte County, California (the County) petitions this court for review of the

Federal Energy Regulatory Commission’s (FERC) orders denying its complaint

and petition for rehearing against the California Department of Water Resources

(DWR), the licensee of a hydroelectric project located in Butte County. The

County sought reimbursement from the DWR for public safety services, including

law enforcement, fire, and rescue. The County contends that FERC acted

arbitrarily and capriciously by failing to find that the DWR violated the Federal

Power Act (FPA) and provisions of the license governing the hydroelectric project.

      “Under the Administrative Procedure Act, this court reviews decisions by

FERC to determine whether the agency action was arbitrary, capricious, an abuse

of discretion, or otherwise not in accordance with law.” Fall River Rural Elec.

Co-op., Inc. v. F.E.R.C., 543 F.3d 519, 525 (9th Cir. 2008) (citation omitted).

      “In accordance with Chevron, we must also give substantial deference to the

Commission’s interpretation of its own regulations. In other words, we must defer

       **
             The Honorable Jed S. Rakoff, Senior District Judge for the U.S.
District Court for Southern District of New York, sitting by designation.



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to the Commission’s interpretation unless an alternative reading is compelled by

the regulation’s plain language or by other indications of the Commission’s intent

at the time of the regulation’s promulgation. Likewise, we must give deference to

the Commission’s interpretation of its own orders.” Cal. Trout v. F.E.R.C., 572

F.3d 1003, 1012-13 (9th Cir. 2009) (citation, alterations and internal quotation

marks omitted).

      None of the statutory provisions or regulations relied on by the County

require the reimbursement of funds to a project’s host municipality. Importantly,

we are bound by FERC’s interpretation of its own regulations absent a showing of

contradictory language in the statutes and regulations or a different intent at the

time the governing rules were created. See California Trout, 572 F.3d at 1012-13.

The County pointed to none. Rather, the record reflects that FERC generally

discourages license provisions mandating reimbursement for services provided.

FERC’s preference is for concrete performance requirements in the license, as it

has no mechanism to confirm that proceeds paid to another entity actually serve a

project purpose. See Settlements in Hydropower Licensing Proceedings Under

Part I of the FPA, 116 FERC ¶ 61,270, 2006 WL 2709607, at *8 (2006). Local

authorities are responsible for law enforcement. See Yuba County Water Agency,

54 FERC ¶ 62,082, 63,140-41 (1991) (holding that the Sheriff’s office should be


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allowed to comment on a recreation plan because it is responsible for law

enforcement at the project). Thus, it would appear that this matter is more

appropriately resolved by state and local authorities rather than through an order

from FERC.

      We acknowledge the existence of Articles 7 and 14 of the Form L-6, which

was incorporated into the license by reference. See Cal. Dep’t of Water Res., 17

F.P.C. 262, 265 (1957), 16 F.P.C. 1117, 1121 (1953). Article 7 mandates the

licensee to allow the public free access to project waters and lands. See 16 F.P.C.

at 1123. Article 14 requires that the licensee “do everything reasonably within its

power . . . to prevent, make advanced preparations for suppression, and suppress

fires on lands occupied under the license.” Id. at 1124. However, neither clause

mandates any specific expenditures, either for law enforcement or fire and rescue.

It simply cannot be said that FERC acted arbitrarily or capriciously by declining to

expand these provisions to include compensation for County personnel and

services.

      PETITION FOR REVIEW DENIED.




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