On July 20, 2009, a split panel from the United States Court of Appeals for the Ninth Circuit (“Ninth Circuit”) voted 2-1 to uphold the Commission’s decision to deny two environmental groups’ untimely attempt to intervene in proceedings to amend the flow requirements at Pyramid Dam in Los Angeles County. The Ninth Circuit concluded that the Commission reasonably determined that California Trout and Friends of the River (collectively, the “petitioners”) lacked good cause in their untimely attempt to intervene.
On March 17, 2005, Pyramid Dam’s operator, the California Department of Water Resources, originally filed an amendment at the Commission to eliminate all minimum flow requirements. The proposed amendment allowed for the release of water from the Pyramid Dam in order to achieve the natural flow pattern at the Middle Piru Creek and help endangered species. While the Commission set July 8, 2005 as the final date for making motions or comments, the petitioners only filed comments and not a motion to intervene. It was not until a couple of months after the Commission issued its Environmental Assessment (“EA”) on March 1, 2007, that the petitioners filed such motions to intervene. The Commission rejected the petitioners’ motions, as well as their petitions for rehearing. Petitioners then filed an appeal with the Ninth Circuit.
The Court provided two main reasons why the Commission’s decision should be upheld. First, the Ninth Circuit concluded that the mere issuance of an EA does not demonstrate good cause for an untimely intervention. If it did, the Commission would have issued a rule stating so, just as it has done for the issuance of an Environmental Impact Statement. Furthermore, new information released on Middle Piru Creek and its endangered species did not create a new issue for the proposed license amendment. Second, the Court disagreed with the petitioners’ claim of arbitrary and capricious decision making when the Commission ruled that petitioners’ late interventions would be prejudicial. Instead, the Ninth Circuit concluded that the Commission clearly found that petitioners lacked good cause, and thus, did not need to consider any prejudicial factors that would result from an untimely motion to intervene.
Circuit Judge Ronald Gould dissented from the majority, stating that he would have allowed the petitioners’ late motions to intervene. Judge Gould claimed that the Commission’s own precedent has shown that the Commission grants untimely motions to intervene when there is no risk of prejudice. Judge Gould concluded that the Commission has gone against its own precedent and raised the bar to show good cause for late intervention to an unreasonably high bar. As such, he said, the Commission’s decision should be reversed.
The Ninth Circuit’s decision can be found under Case No. 07-73664 at the Ninth Circuit’s website at http://www.ca9.uscourts.gov/.