in the united states court of appeals for the district of ... · certificate order tennessee gas...

ORAL ARGUMENT HAS NOT BEEN SCHEDULED

In the United States Court of Appeals for the District of Columbia Circuit

No. 19-1009

NARRAGANSETT INDIAN TRIBAL HISTORIC PRESERVATION OFFICE, Petitioner,

v. FEDERAL ENERGY REGULATORY COMMISSION,

Respondent.

ON PETITION FOR REVIEW OF ORDERS OF THE FEDERAL ENERGY REGULATORY COMMISSION

BRIEF FOR RESPONDENT FEDERAL ENERGY REGULATORY COMMISSION

JAMES P. DANLY GENERAL COUNSEL

ROBERT H. SOLOMON SOLICITOR

JARED B. FISH ATTORNEY

FOR RESPONDENT FEDERAL ENERGY REGULATORY

COMMISSION WASHINGTON, D.C. 20426

FINAL BRIEF: AUGUST 20, 2019

USCA Case #19-1009 Document #1802952 Filed: 08/20/2019 of 63

CIRCUIT RULE 28(a)(1) CERTIFICATE

A. Parties and Amici

The Parties before this Court are identified in Petitioner’s Rule 28(a)(1)

certificate. There are no amici.

B. Rulings Under Review

1. FERC Notice to Proceed with Tree Clearing and Construction (Apr.12, 2017) (“Notice to Proceed”), R. 828, JA 3–4;

2. Tennessee Gas Pipeline Co., L.L.C., Order Denying Request forRehearing and Late Interventions, 162 FERC ¶ 61,013 (2018)(“Rehearing Order I”), R. 949, JA 5–26;

and

3. Tennessee Gas Pipeline Co., L.L.C., Order Denying Rehearing, 165FERC ¶ 61,170 (2018) (“Rehearing Order II”), R. 971, JA 27–39.

C. Related Cases

The Narragansett Indian Tribal Historic Preservation Office filed a previous

petition for review, No. 18-1069 (D.C. Cir., filed Mar. 5, 2018), which the Court

dismissed for lack of jurisdiction on May 31, 2018.

/s/ Jared B. Fish Jared B. Fish

August 20, 2019


TABLE OF CONTENTS

STATEMENT OF THE ISSUE .................................................................................. 1

JURISDICTIONAL STATEMENT ........................................................................... 3

STATUTORY AND REGULATORY PROVISIONS ................................................ 4

STATEMENT OF FACTS.......................................................................................... 4

I. Background ...................................................................................................... 4

A. Tennessee’s Outreach and the Commission’s Notice of the Project ..... 4

B. The Commission’s National Historic Preservation Act Section 106 Consultation, Beginning in 2014 ........................................................... 6

C. The Commission’s Issuance of a Notice to Proceed with Tree Clearing and Construction .................................................................................. 11

II. The Commission Orders on Review .............................................................. 11

SUMMARY OF ARGUMENT ................................................................................ 15

ARGUMENT ........................................................................................................... 17

I. Standard of Review ........................................................................................ 17

II. The Commission Reasonably Denied Tribal Office’s Motion to Intervene, Filed Nearly 1.5 Years Late ........................................................................... 18

A. Tribal Office Fails to Show Good Cause for Its Delay Because It Knew Its Interests Could Be Affected Years Before Its Belated Intervention Request ............................................................................ 21

B. The Commission Reasonably Determined That Granting Late Intervention Would Delay, Prejudice, and Cause Additional Burdens to FERC and Tennessee ....................................................................... 25

C. Tribal Office’s Good Cause Arguments Misapprehend the Record and the Law ................................................................................................ 26

1. Tribal Office Cannot Avoid Its 1.5-Year Delay By Citing the Subsequently Issued Notice to Proceed .................................... 26


ii

2. The Commission’s Ex Parte Rules Did Not Prevent Tribal Office From Both Consulting And Intervening as a Party ........ 29

i. Tribal Office is Not Entitled to Off-the-Record Consultations .................................................................. 30

ii. Tribal Office Could and Did Meaningfully Consult On-the-Record ....................................................................... 33

III. The Court Lacks Jurisdiction to Consider Tribal Office’s Substantive Claims ........................................................................................ 36

IV. Even Were the Court to Consider Them, Tribal Office’s Substantive Claims Fail ................................................................................................................. 39

A. The Commission Led the Section 106 Consultation Process and Afforded Tribal Office a Meaningful Opportunity to Participate in Resolving Adverse Effects .................................................................. 39

B. The Commission Complied With the Preservation Act By Conditioning Construction on Completion of Section 106 Consultations ....................................................................................... 43

C. The Commission Properly Executed a “Two-Party” Memorandum of Agreement ........................................................................................... 46

CONCLUSION ........................................................................................................ 49


iii

TABLE OF AUTHORITIES

COURT CASES: PAGE Appalachian Voices v. FERC, 2019 WL 847199 (D.C. Cir. Feb. 19, 2019) (unpublished) ..................... 44, 45 Atl. Refining Co. v. Pub. Serv. Comm’n of State of N.Y., 360 U.S. 378 (1959)....................................................................................... 45 Brock v. Pierce Cnty., 476 U.S. 253 (1986)................................................................................. 45–46 Cal. Trout v. FERC, 573 F.3d 1003 (9th Cir. 2009) ........................................................................ 37 Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971)) ..................................................................................... 17 City of Grapevine v. Dep’t of Transp., 17 F.3d 1502 (D.C. Cir. 1994) ....................................................................... 44 City of Orrville v. FERC, 147 F.3d 979 (D.C. Cir. 1998) ................................................................. 17, 25 Cone v. Caldera, 223 F.3d 789 (D.C. Cir. 2000) ....................................................................... 34 Del. Riverkeeper Network v. FERC, 857 F.3d 388 (D.C. Cir. 2017) ....................................................................... 44 ExxonMobil Gas Mktg. Co. v. FERC, 297 F.3d 1071 (D.C. Cir. 2002) ..................................................................... 17 FERC v. Elec. Power Supply Ass’n, 136 S. Ct. 760 (2016) ............................................................................... 18, 24 _________________________

* Authorities chiefly relied upon are marked with an asterisk.


iv

TABLE OF AUTHORITIES COURT CASES: PAGE Friends of the Atglen-Susquehanna Trail, Inc. v. Surface Transp. Bd., 252 F.3d 246 (3d Cir. 2001) ........................................................................... 48 Gunpowder Riverkeeper v. FERC, 807 F.3d 267 (D.C. Cir. 2015) ....................................................................... 45 Hoopa Valley Tribe v. FERC, 913 F.3d 1099 (D.C. Cir. 2019) ..................................................................... 49 Hughes v. Talen Energy Mktg., 136 S. Ct. 1288 (2016) ................................................................................... 37 Lexmark Int’l v. Static Control Components, Inc., 527 U.S. 118 (2014)....................................................................................... 38 Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983)) ....................................................................................... 19 Myersville Citizens for a Rural Cmty., Inc. v. FERC, 783 F.3d 1301 (D.C. Cir. 2015) ............................................................... 44–45 *N. Colo. Water Conservancy Dist. v. FERC, 730 F.2d 1509 (D.C. Cir. 1984) ................................................................. 3, 37 Natural Res. Def. Council, Inc. v. EPA, 25 F.3d 1063 (D.C. Cir. 1994) ....................................................................... 38 *New Energy Capital Partners, LLC v. FERC, 671 Fed. App’x 802 (D.C. Cir. 2016) (unpublished) ................................. 3, 37 *Pub. Serv. Comm’n of State of N.Y. v. Fed’l Power Comm’n, 284 F.2d 200 (D.C. Cir. 1960) ................................................................... 3, 37 Sorenson Commc’ns, LLC v. FCC, 897 F.3d 214 (D.C. Cir. 2018) ....................................................................... 38


v

TABLE OF AUTHORITIES COURT CASES: PAGE Te-Moak Tribe of W. Shoshone of Nev. v. U.S. Dep’t of the Interior, 608 F.3d 592 (9th Cir. 2010) ........................................................................ 33 Tennessee Gas Pipeline Co. v. FERC, 871 F.2d 1099 (D.C. Cir. 1989) ..................................................................... 46 *United States v. Emor, 785 F.3d 671 (D.C. Cir. 2015) ................................................................. 37–38 Validus Reinsurance, Ltd. v. United States, 786 F.3d 1039 (D.C. Cir. 2015) ..................................................................... 48 ADMINISTRATIVE CASES: *Algonquin Gas Transmission, LLC, 154 FERC ¶ 61,048 (2016) ...................................................................... 20, 27 Algonquin Gas Transmission, LLC, 161 FERC ¶ 61,287 (2017) ............................................................................ 28 AmerenUE, 129 FERC ¶ 61027 (2009) ............................................................................. 27 *Broadwater Energy LLC, 125 FERC ¶ 61,369 (2008) ...................................................................... 20, 25 *Columbia Gas Transmission Corp., 113 FERC ¶ 61,066 (2005) ...................................................................... 21, 25 *Constitution Pipeline Co., LLC, 154 FERC ¶ 61,046 (2016) ................................................................ 21, 24, 27 Great Lakes Hydro American, LLC, 109 FERC ¶ 62,230 (2004) ............................................................................ 36 Hydroelectric Licensing Under the Federal Power Act, Order No. 2002, 104 FERC ¶ 61,109 (2003) ............................................................................ 31


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TABLE OF AUTHORITIES ADMINISTRATIVE CASES: PAGE Millennium Pipeline Co., L.L.C., 161 FERC ¶ 61,136 (2017) ............................................................................ 20 *Mountain Valley Pipeline, 163 FERC ¶ 61,197 (2018) ............................................................................ 27 *Policy Statement on Consultation With Indian Tribes in Commission Proceedings, 104 FERC ¶ 61,108 (2003), codified at 18 C.F.R. § 2.1c .............................. 31 Tennessee Gas Pipeline Co., L.L.C., 79 Fed. Reg. 49,296 (Aug. 20, 2014) .............................................................. 5 Tennessee Gas Pipeline Co., L.L.C., 154 FERC ¶ 61,191 (2016) .................................................................... 4, 8, 44 *Tennessee Gas Pipeline Co., L.L.C., 162 FERC ¶ 61,013 (2018) (“Rehearing Order I”) .............................................................. 5, 7–12, 22–24, 27, 32, 35, 40–44, 47 *Tennessee Gas Pipeline Co., L.L.C., 165 FERC ¶ 61,170 (2018) (“Rehearing Order II”) ............................................................ 5, 12–14, 18–20, 23, 25, 27, 29–32, 34 *Texas Eastern Transmission, LP, 141 FERC ¶ 61,043 (2012) ................................................................ 21, 24, 27 *Transcon. Gas Pipe Line, 126 FERC ¶ 61,097 (2009) (same) ................................................................ 25 *United States Dep’t of the Interior, 55 FERC ¶ 61,500 (1991) .............................................................................. 36 *Wisc. Power and Light Co., 79 FERC ¶ 61,181 (1997) .............................................................................. 36


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TABLE OF AUTHORITIES STATUTES: PAGE Administrative Procedure Act: 5 U.S.C. § 706(2)(A) ..................................................................................... 18 National Historic Preservation Act 54 U.S.C. § 302706(b) ................................................................................... 32 54 U.S.C. § 306108.......................................................................................... 6 Natural Gas Act: 15 U.S.C. § 717f(e) ........................................................................................ 20 15 U.S.C. § 717n(c) ....................................................................................... 43 15 U.S.C. § 717r(b).............................................................................. 3, 37, 46 REGULATIONS: 18 C.F.R. § 2.1c(a)–(g) ............................................................................ 31–32 18 C.F.R. § 2.1c(d) ......................................................................................... 31 18 C.F.R. § 380.12(f) ............................................................................... 28, 44 18 C.F.R. § 385.214 ....................................................................................... 19 18 C.F.R. § 385.214(b) .................................................................................. 19 18 C.F.R. § 385.214(d) ...................................................................... 12, 19, 25 18 C.F.R. § 2201(c) ........................................................................................ 29 18 C.F.R. § 2201(e) ........................................................................................ 29 18 C.F.R. § 2201(g) ....................................................................................... 30


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TABLE OF AUTHORITIES REGULATIONS: PAGE 36 C.F.R. § 800.1(a) ................................................................................... 6, 42 36 C.F.R. § 800.1(c) ....................................................................................... 40 36 C.F.R. § 800.2(b) ........................................................................................ 6 36 C.F.R. § 800.2(c) ....................................................................... 6, 32–34, 39 36 C.F.R. § 800.3(b) ........................................................................................ 7 36 C.F.R. § 800.4 ........................................................................................... 34 36 C.F.R. § 800.5 ........................................................................................... 34 36 C.F.R. § 800.6 ........................................................................................... 34 36 C.F.R. § 800.6(a) ............................................................................. 7, 34, 47 36 C.F.R. § 800.6(b) ............................................................................ 7, 34, 47 36 C.F.R. § 800.6(c) ................................................................................. 10, 47 36 C.F.R. § 800.7(a) ........................................................................... 10, 46–47 36 C.F.R. § 800.16(f) ..................................................................................... 32 OTHER AUTHORITIES: Advisory Council Mission Statement, available at https://www.achp.gov/about (last accessed July 3, 2019) ............................................................................. 6 Commission-Advisory Council-Tennessee Memorandum of Agreement (Feb. 24, 2017) ................................................................................... 10, 47–48 D.C. Circuit Rule 28(a)(7) ....................................................................................... 34


https://www.achp.gov/about

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TABLE OF AUTHORITIES OTHER AUTHORITIES: PAGE Exec. Order No. 13175, Consultation and Coordination With Indian Tribal

Governments (Nov. 6, 2000), reprinted at 65 Fed. Reg. 67,249 ............. 30–31 FERC Notice to Proceed with Tree Clearing and Construction (Apr. 12, 2017) ............................................................................................... 11 FERC Staff Order, Partial Authorization to Commence Service—Connecticut

Expansion Project (Oct. 31, 2017)................................................................. 11 Notice of Intent to Prepare an Environmental Assessment (Oct. 10, 2014) ..................................................................................... 7, 22, 35


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GLOSSARY Advisory Council Advisory Council on Historic Preservation

Br. Final opening brief of Petitioner Narragansett Indian Tribal Historic Preservation Office

Certificate Order Tennessee Gas Pipeline Co., LLC, Order Issuing Certificate, 154 FERC ¶ 61,191 (2016), R. 510, JA 108–71

Commission or FERC Respondent Federal Energy Regulatory Commission

Memorandum of Agreement Commission-Advisory Council-Tennessee Memorandum of Agreement (Feb. 24, 2017), R. 807, JA 263–78

Notice to Proceed FERC Notice to Proceed with Tree Clearing and Construction (Apr. 12, 2017), R. 828, JA 3–4

P Internal paragraph number in a FERC order

Preservation Act National Historic Preservation Act

Project Connecticut Expansion Project

R. Record item

Rehearing Order I Tennessee Gas Pipeline Co., L.L.C., Order Denying Request for Rehearing and Late Interventions, 162 FERC ¶ 61,013 (2018), R. 949, JA 5–26

Rehearing Order II Tennessee Gas Pipeline Co., L.L.C., Order Denying Rehearing, 165 FERC ¶ 61,170 (2018), R. 971, JA 27–39

Tennessee Tennessee Gas Pipeline Company, LLC

Tribe Narragansett Indian Tribe

Tribal Office Narragansett Indian Tribal Historic Preservation Office


In the United States Court of Appeals for the District of Columbia Circuit

No. 19-1009

NARRAGANSETT INDIAN TRIBAL HISTORIC PRESERVATION OFFICE, Petitioner,

v. FEDERAL ENERGY REGULATORY COMMISSION,

Respondent.

ON PETITION FOR REVIEW OF ORDERS OF THE FEDERAL ENERGY REGULATORY COMMISSION

BRIEF FOR RESPONDENT FEDERAL ENERGY REGULATORY COMMISSION

____________________

STATEMENT OF THE ISSUE

Any person may seek to intervene in a Federal Energy Regulatory

Commission (“Commission” or “FERC”) proceeding by filing a motion with the

Commission within a prescribed deadline. Intervention confers the rights and

privileges of party status, and is a statutory prerequisite to seeking judicial review

of a Commission order in this Court.

This case involves Petitioner Narragansett Indian Tribal Historic

Preservation Office’s (“Tribal Office”) motion to intervene out-of-time, filed nearly

1.5 years after the November 2015 deadline. The Commission found this delay to


2

be unjustified, as the Narragansett Indian Tribe (the “Tribe”) had notice as early as

September 2013 that its interests in protecting cultural and historic resources—

specifically, ceremonial stone landscapes—could be affected. That was when

Tennessee Gas Pipeline Company, L.L.C. (“Tennessee”) informed the Tribe of a

proposal to build and operate the natural gas pipeline at issue in this case, the

Connecticut Expansion Project (the “Project”).

The Commission also sought the Tribe’s input early in its review of the

Project, and informed the Tribe of potential impacts to ceremonial stone

landscapes. In October 2014 and February 2015, the Commission opened

consultations with the Tribe by inviting it to participate in a review of the Project,

and to assist in “identifying properties of traditional, religious, or cultural

importance to the Narragansett Indian Tribe.” And it made a finding, also in

October 2014, that “it would be appropriate to survey the Tennessee Gas Pipeline

Connecticut Expansion Project … for ceremonial stone landscapes.” That finding

was publicly noticed and known to the Tribe.

The Tribe did not respond to the Commission’s outreach. And while it

eventually—nearly a year later—engaged the Commission in consultations to

identify and mitigate impacts to ceremonial stone landscapes, at no point during

the consultation process did it seek to intervene as a party. Nor did it seek

intervention for more than a year after the Commission approved the Project in

March 2016. Instead, it waited until April 2017 to do so.


3

The Commission denied Tribal Office’s belated motion. It explained that

Tribal Office should have intervened, at the latest, by December 2015, when it

participated in consultations on impacts to ceremonial stone landscapes. It

concluded that Tribal Office lacked good cause to intervene nearly 1.5 years later.

The question presented is:

Did the Commission abuse its discretion in denying Tribal Office’s late

motion to intervene?

JURISDICTIONAL STATEMENT

This Court has jurisdiction to review the Commission’s denial of Tribal

Office’s motion to intervene out-of-time. However, Tribal Office is wrong that the

Court has jurisdiction to consider any additional claims, including alleged

violations of the Natural Gas Act, National Historic Preservation Act, due process

clause, and the federal trust doctrine. Cf. Br. 1, 20–47. As discussed more fully

below (see infra, Argument, Section III), because Tribal Office was not a party to

the agency proceeding, this Court lacks jurisdiction to consider any issues beyond

the Commission’s denial of Tribal Office’s late intervention motion. See 15 U.S.C.

§ 717r(b); N. Colo. Water Conservancy Dist. v. FERC, 730 F.2d 1509, 1515 (D.C.

Cir. 1984); Pub. Serv. Comm’n of State of N.Y. v. Fed. Power Comm’n, 284 F.2d

200, 204 (D.C. Cir. 1960); New Energy Capital Partners, LLC v. FERC, 671 Fed.

App’x 802, 804 (D.C. Cir. 2016) (unpublished).


4

STATUTORY AND REGULATORY PROVISIONS

Pertinent statutes and regulations are included in the Addendum. Also

included is a timeline of significant filings, orders, and events.

STATEMENT OF FACTS

I. Background

On September 4, 2013—more than 3.5 years before seeking intervention—

the Narragansett Indian Tribe received notice from Tennessee that the pipeline

planned to construct and operate natural gas pipeline facilities in New York,

Massachusetts, and Connecticut (the “Connecticut Expansion Project” or

“Project”). January 2017 Advisory Council Letter to FERC at 2 (Jan. 27, 2017),

R. 643, JA 220. In that notice, Tennessee requested input from Indian tribes in the

region about potential impacts to properties of cultural and historic significance

caused by the Project. December 2016 FERC Letter to Advisory Council at 7

(Dec. 29, 2016), R. 620, JA 214. The Narragansett Indian Tribe did not respond to

Tennessee’s request. Id. at 8, JA 215.

On July 31, 2014, Tennessee filed an application with the Commission under

section 7(c) of the Natural Gas Act, 15 U.S.C. § 717f(c), seeking a certificate of

public convenience and necessity authorizing the Project. Tennessee Gas Pipeline

Co., L.L.C., 154 FERC ¶ 61,191, at P 1 (2016) (“Certificate Order”), R. 510,

JA 108. On August 20, 2014, the Commission issued a Notice of Application, in


5

which it invited comments on the Project and intervention by interested persons,

and set a September 4, 2014 deadline for both. Tennessee Gas Pipeline Co.,

L.L.C., 79 Fed. Reg. 49,296. The Commission later extended the deadline to

intervene to November 23, 2015. Tennessee Gas Pipeline Co., L.L.C., Order

Denying Rehearing, 165 FERC ¶ 61,170, at P 2 (2018) (“Rehearing Order II”),

R. 971, JA 27–28.

On August 22, 2014 and September 3, 2014, the United Southern and

Eastern Tribes, Inc.—of which the Narragansett Indian Tribe is a member—filed

letters with the Commission expressing concern that the Project could adversely

affect ceremonial stone landscapes of cultural and historic importance to its

member tribes. August and September 2014 United South and Eastern Tribes

Letters to FERC (Aug. 22, 2014 & Sept. 3, 2014), R. 175, JA 54, 56. It also held a

meeting on September 29, 2014, where it discussed ceremonial stone landscapes

along the Project route. Rehearing Order II P 22, JA 36. Concerns over

ceremonial stone landscapes—the subject of this case—implicate the area

impacted by the 3.81-mile Massachusetts Loop of the Project. Tennessee Gas

Pipeline Co., L.L.C., Order Denying Request for Rehearing and Late Interventions,

162 FERC ¶ 61,013, at P 5 (2018) (“Rehearing Order I”), R. 949, JA 6.


6

Section 106 of the National Historic Preservation Act (“Preservation Act”)

requires the Commission to “take into account the effect of [an] undertaking”

involving “any [Federal] license … on any historic property.” 54 U.S.C. § 306108;

see also 36 C.F.R. § 800.1(a). In doing so, the Commission must consult with

parties “with an interest in the effects of the undertaking on historic properties,” in

order to “identify historic properties potentially affected by the undertaking, assess

[the undertaking’s] effects and seek ways to avoid, minimize or mitigate any

adverse effects on historic properties.” 36 C.F.R. § 800.1(a).

Consultation involves several parties: the Commission, Indian tribes, State

Historic Preservation Offices, and, if it chooses to participate, the Advisory Council

on Historic Preservation (“Advisory Council”).1 Id. § 800.2(b), (c). Preservation

Act regulations require the Commission “to make a reasonable and good faith

effort to identify Indian tribes … that shall be consulted in the section 106 process.

Consultation should commence early in the planning process, in order to identify

and discuss relevant preservation issues ….” Id. § 800.2(c)(2)(ii)(A).

1 The Advisory Council is “an independent federal agency that promotes the preservation, enhancement, and productive use of our nation’s historic resources ….” Advisory Council Mission Statement, available at https://www.achp.gov/about (last accessed July 3, 2019). Among other things, it issues regulations implementing section 106 and oversees the section 106 process. 36 C.F.R § 800.2(b).


https://www.achp.gov/about

7

In addition, the Commission must “provide[] the Indian tribe … a reasonable

opportunity to identify its concerns about historic properties, advise on the

identification and evaluation of historic properties, including those of traditional

religious and cultural importance, articulate its views on the undertaking’s effects

on such properties, and participate in the resolution of adverse effects.” Id.; see

also id. § 800.6(a)–(b). Finally, “as appropriate,” the Commission coordinates its

section 106 review with its environmental analysis, conducted pursuant to the

National Environmental Policy Act. Id. § 800.3(b).

The Commission initiated consultation with the Narragansett Indian Tribe

approximately two months after receiving Tennessee’s application. On October 10,

2014, it sent the Tribe a Notice of Intent to Prepare an Environmental Assessment

and invited comments. Rehearing Order I P 30, JA 17; Notice of Intent at 1–2, 6,

R. 204, JA 58–59, 63. That notice expressly “initiat[ed] consultation” under

section 106 of the Preservation Act. Notice of Intent at 5, JA 62. The Commission

followed up with a consultation letter on February 27, 2015, requesting the

Narragansett Indian Tribe’s assistance in, among other things, “identifying

properties of traditional, religious, or cultural importance to the Narragansett

Indian Tribe that may be affected by the proposed Project.” Rehearing Order I

P 30 & n.60 (quoting February 2015 FERC Letter to Narragansett Indian Tribe at 2

(Feb. 27, 2015), R. 292, JA 73), JA 17. The consultation letter followed an October

2014 Commission determination, filed in the Project docket in November 2014,


8

that “it would be appropriate to survey the Tennessee Gas Pipeline Connecticut

Expansion Project (CP14-529) for ceremonial stone landscapes.” October 2014

Section 106 Consultation Meeting Notes (Nov. 5, 2014), R. 212, JA 65; see also

Rehearing Order I P 30 n.60, JA 17. The Tribe did not respond to the

Commission’s notices or solicitations.

On October 23, 2015, the Commission issued an Environmental Assessment

of the Project. Certificate Order P 31, JA 117. Weeks later, on December 8, 2015,

the Commission held a section 106 consultation meeting with interested tribes,

including the Narragansett Indian Tribe. Rehearing Order I P 30, JA 17. At that

meeting, Narragansett Indian Tribal Historic Preservation Office (“Tribal Office”)

staff and representatives of other tribes walked the Massachusetts Loop route,

decided that a ceremonial stone landscape survey was necessary, and agreed that

Tennessee would work with the tribes to create a survey protocol and schedule.

Id.; December 2015 Section 106 Consultation Meeting Notes at 2 (Dec. 28, 2015)

(“December 2015 Meeting Notes”), R. 409, JA 107. Three months later, on March

11, 2016, the Commission issued a certificate of public convenience and necessity

approving the Project, conditioned on, among other things, completing section 106

consultations. Certificate Order, Ordering Paragraph A, Conditions 9 & 26,

JA 167, 171.

With the help of a consultant, four Tribal Historic Preservation Offices—

including the Narragansett Tribal Office—conducted a ceremonial stone landscape


9

survey between August 24 and September 15, 2016, and completed a privileged

survey report on September 30, 2016, pursuant to 36 C.F.R. §§ 800.3, 800.4.

Rehearing Order I P 31, JA 17–18. The survey revealed 73 ceremonial stone

landscapes of significance to tribes along the Massachusetts Loop. Id.

Shortly thereafter, on December 5, 2016, and pursuant to 36 C.F.R.

§ 800.2(c)(2)(ii), the Commission consulted with the Advisory Council, Tribal

Office, and other interested tribes to discuss Tennessee’s proposed Treatment Plan

to resolve adverse effects to the identified properties. Id. at PP 33, 36, JA 18–20.

The Treatment Plan proposed avoiding entirely more than two-thirds of the

ceremonial stone landscapes, and mitigating impacts to the rest. Id. at P 45, JA 23–

24; January 2017 Advisory Council Letter to FERC at 2–3, JA 220–21. The

December meeting was followed by a teleconference with tribes in early January

2017 to discuss the Treatment Plan and propose next steps. January 2017 Advisory

Council Letter to FERC at 2, JA 220; Rehearing Order I P 33, JA 18–19.

Further, on December 29, 2016, the Commission sent a letter to the Advisory

Council, notifying it of the adverse effects finding and requesting its participation

in the consultation process. Rehearing Order I P 33, JA 18; December 2016 FERC

Letter to Advisory Council at 1, JA 204. Tribal Office was copied on the letter and

filed comments with the Commission and Advisory Council. Rehearing Order I

P 33, JA 18; January 2017 Tribal Office Comments (Jan. 3, 2017), R. 621, JA 217–

18. Pursuant to 36 C.F.R. § 800.6(a), the Commission also sought consultation


10

with the Massachusetts State Historic Preservation Office (the “Massachusetts

Preservation Office” or “Massachusetts”), but the State declined to participate.

December 2016 FERC Letter to Advisory Council at 1, JA 204; Commission-

Advisory Council-Tennessee Memorandum of Agreement at 3 (Feb. 24, 2017)

(“Memorandum of Agreement”) (appended in addendum), R. 807, JA 265; Br. 33

(acknowledging “Massachusetts[’] refusal to participate”).

Without Massachusetts’ participation, the Commission and Advisory

Council moved forward with a “two-party” Memorandum of Agreement, which

established a procedure for addressing adverse effects to the ceremonial stone

landscapes. Memorandum of Agreement at 3–4, JA 265–66; see also Rehearing

Order I P 33, JA 18–19. The Agreement was signed by the Commission, Advisory

Council, and Tennessee. See Memorandum of Agreement at 7–9, JA 269–71.

While section 800.6(b) generally requires the relevant State Historic Preservation

Office to be a signatory, its signature is not required where the State withdraws

from consultation. 36 C.F.R. §§ 800.6(c)(iii), 800.7(a)(2). Because Massachusetts

“chose[] not to participate” in the consultation in the first place, the Commission

found that the regulations’ two-party consultation provision applied. See

December 2016 FERC Letter to Advisory Council at 1, JA 204; Memorandum of

Agreement at 3, JA 265; see also January 2017 Advisory Council Letter to FERC

at 1 (agreeing to a two-party Memorandum of Agreement), JA 219.


11

With section 106 consultation complete, and after receiving all other

necessary permit approvals, on April 6, 2017 Tennessee filed a request for a notice

to proceed with tree clearing and construction activities. Rehearing Order I P 1,

JA 5. Tribal Office then filed a motion to intervene out-of-time on April 10, 2017.

Id. at P 2, JA 5. On April 12, 2017, Commission staff issued Tennessee’s requested

Notice to Proceed. Id. at P 1, JA 5; FERC Notice to Proceed with Tree Clearing

and Construction (“Notice to Proceed”), R. 828, JA 3–4. On May 9, 2017, Tribal

Office filed a request for rehearing of the Notice to Proceed.2 Rehearing Order I

P 3, JA 5. Tennessee then began construction activities, and the Massachusetts

Loop of the Project became operational in late 2017. See FERC Staff Order,

Partial Authorization to Commence Service—Connecticut Expansion Project (Oct.

31, 2017), R. 930, JA 346.

II. The Commission Orders on Review

The Commission denied Tribal Office’s motion to intervene out-of-time and

rejected its request for rehearing of the April 12 Notice to Proceed. Rehearing

Order I P 4, JA 6. It explained that the original deadline to intervene was

September 4, 2014—later extended to November 23, 2015 to allow intervention

2 The Massachusetts PipeLine Awareness Network, which was a party to the proceeding, also sought rehearing of the Notice to Proceed, which the Commission denied in Rehearing Order I. See Rehearing Order I P 4, JA 6.


12

after the Commission issued its October 2015 Environmental Assessment—and

that Tribal Office had missed both deadlines. Rehearing Order II P 2, JA 27–28.

In assessing Tribal Office’s belated motion, the Commission weighed several

factors, as set forth in its regulations: whether Tribal Office had good cause for

intervening late, whether other parties to the proceeding could represent Tribal

Office’s interests, whether granting late intervention might disrupt the proceeding,

and whether doing so would prejudice, or cause additional burdens to, existing

parties. Id. at P 8 (citing 18 C.F.R. § 385.214(d)), JA 29. Citing its own precedent,

the Commission explained that an entity seeking late intervention bears an even

heavier burden to show good cause where, as here, it filed its motion after the

Commission issued a certificate order. Id.; Rehearing Order I P 10, JA 7–8.

Tribal Office argued that the Commission’s ex parte rules—which proscribe

off-the-record communications between the Commission and Indian tribes that

have intervened as parties in the proceeding—prevented it from consulting on the

Project as a party. Rehearing Order II PP 10–11, JA 30–31. It reasoned that it was

put to an unlawful, coercive choice between (1) consulting on the Project, which is

a right protected by the Preservation Act, and (2) intervening as a party, which is

necessary to confer legal standing to challenge the Commission’s orders. Id. at

P 11, JA 31.

The Commission rejected Tribal Office’s argument, finding it had conflated

ex parte communications with consultations. See id. at P 12, JA 31–32. It


13

explained that “nothing in the ex parte rule prevents any party from filing written

comments regarding the merits of a proposed project, including cultural resource

issues.” Id. The Commission cited several other proceedings where a tribe

assumed the dual roles of intervenor and consulting party. Id. at P 12 n.24, JA 31.

Tribal Office made various other arguments in support of late intervention,

none of which the Commission found persuasive. First, the Commission rejected

Tribal Office’s argument that its special status as a governmental body with

statutory rights under the Preservation Act entitled it to late intervention. Id. at

P 14, JA 33. It explained that the cases Tribal Office relied upon—where the

Commission granted late intervention to government officials—were inapposite

because they involved (1) intervention before a Commission order had issued

establishing rights and obligations, (2) intervention before the Commission’s

environmental review was complete, (3) intervention that occurred after a potential

conflict-of-interest by the would-be intervenor had been resolved, or (4)

intervention by government agencies with statutory duties implicated by the

proceedings. See id. at P 16 (citing FERC cases), JA 34–35. Those circumstances

are not present here. See id.

The Commission also rejected Tribal Office’s analogy of its intervention

request, which purports to challenge the Notice to Proceed in order to enforce the

Certificate Order, with intervention in a hydroelectric post-licensing proceeding,

which involves compliance with an already granted license. Id. at PP 18–20,


14

JA 35–36. It explained that a hydroelectric post-licensing proceeding is a new

proceeding, whereas a notice to proceed is simply a “continuation[] of the

underlying certification proceeding[], not [an] entirely new proceeding[].” Id. at

P 20, JA 36. For all these reasons, the Commission found that Tribal Office lacked

good cause to intervene nearly 1.5 years after the deadline. See id. at PP 9–22,

JA 30–36.

The Commission also found that, besides lacking good cause, by filing its

motion 13 months after the Certificate Order issued, granting intervention would

“delay, prejudice, and put additional burdens on the Commission and [Tennessee].”

Id. at P 23, JA 37. It reasoned that the Certificate Order concluded the

Commission’s evaluation of the Project. Id. Allowing late intervention would

therefore amount to a collateral attack on the Certificate Order. See id.

Finally, the Commission rejected Tribal Office’s arguments that the

Commission had violated its federal trust obligations and denied Tribal Office due

process. Id. at PP 25–26, JA 37–38. Those claims flowed from the Commission’s

alleged violations of the Preservation Act and its allegedly unlawful ex parte rules.

Id. Because the Commission found it had complied with its Preservation Act

obligations and that its ex parte rules did not prevent Tribal Office from both

consulting and intervening, it rejected both claims. Id.


15

SUMMARY OF ARGUMENT

Tribal Office’s brief focuses primarily on the adequacy of the Commission’s

consultation with Indian tribes under section 106 of the Preservation Act. It lacks

statutory standing to press this claim, however, because the Natural Gas Act limits

judicial review to parties to the agency proceeding. Tribal Office was not a party to

the agency proceeding, and so the Court lacks jurisdiction to consider its

substantive claims.

Tribal Office also challenges the Commission’s denial of its untimely motion

to intervene as a party. The Natural Gas Act does not foreclose judicial review of

this discrete issue, but Tribal Office’s argument fails on the merits. The

Commission reasonably concluded that Tribal Office failed to show good cause for

intervening nearly 1.5 years after the intervention deadline, and more than a year

after the Certificate Order issued approving the Project. It is the movant’s burden

to explain why it could not have intervened earlier, and that burden is enhanced

where the movant seeks late intervention after a certificate order issues approving

pipeline construction and operations. Indeed, because the risk of prejudice is acute

in those situations, it is Commission policy to deny late intervention after a

certificate order issues.

No extraordinary circumstances exist here to justify departing from

Commission policy. Tribal Office knew the Project could impact its interests in

cultural and historic resources as early as September 2013, when Tennessee


16

reached out to the Narragansett Indian Tribe to inform it of the Project and request

its input. Indeed, as Tribal Office asserted (belatedly) in its motion to intervene,

the portion of the Project at issue “is located in territory historically associated with

the Narragansett Indian Tribe.” Further, Tribal Office had notice that ceremonial

stone landscapes in particular—the focus of its petition—were implicated because

the United South and Eastern Tribes—of which the Narragansett Indian Tribe is a

member—stated as much on two occasions in August and September 2014. And

the Commission agreed, concluding in an October 2014 meeting—attended by

Tribal Office representatives—that “it would be appropriate to survey the

Tennessee Gas Pipeline Connecticut Expansion Project (CP14-529) for ceremonial

stone landscapes.”

Yet Tribal Office did not seek to intervene as a party for another 2.5 years.

In fact, it did not even engage in consultations with the Commission until

December 2015, despite the Commission’s solicitations in October 2014 and

February 2015. Tribal Office cannot now claim good cause for intervening late

when it sat on its rights for years despite knowing that the Project could affect its

interests.

Tribal Office argues it cannot be faulted for any delay because the

Commission’s ex parte rules force an Indian tribe to choose between consulting on

a project and intervening in the proceeding. But this misreads the pertinent

regulations. As the Commission explained, the ex parte rules do not prevent a tribe


17

from consulting through public channels. Tribal Office could have sought to

intervene even as it engaged in on-the-record consultations, just as tribes have done

in other matters; it simply failed to do so.

Finally, while the Court lacks jurisdiction to consider Tribal Office’s

substantive claims, those claims nevertheless fail. Contrary to its arguments on

appeal, the Commission (1) satisfied its obligation under section 106 of the

Preservation Act to lead the consultation on cultural and historic resources,

(2) engaged in meaningful consultations with the Narragansett Indian Tribe, and

(3) properly entered into a Memorandum of Agreement addressing adverse effects

to those resources that involved only the Commission, Advisory Council, and

Tennessee as signatories.

ARGUMENT

I. Standard of Review

The Commission’s denial of a motion to intervene out-of-time is reviewed

under the deferential abuse-of-discretion standard. City of Orrville v. FERC, 147

F.3d 979, 991 (D.C. Cir. 1998). Under that standard, the Court considers whether

the Commission committed a “clear error of judgment.” Id. (quoting Citizens to

Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971)). Disagreement

with the agency’s judgment alone does not meet this standard. See ExxonMobil

Gas Mktg. Co. v. FERC, 297 F.3d 1071, 1083–84 (D.C. Cir. 2002).


18

This Court reviews Commission orders under the Administrative Procedure

Act’s deferential “arbitrary and capricious” standard. 5 U.S.C. § 706(2)(A); FERC

v. Elec. Power Supply Ass’n, 136 S. Ct. 760, 782 (2016). Review under this

standard is narrow. Elec. Power Supply Ass’n, 136 S. Ct. at 782. “A court is not to

ask whether a regulatory decision is the best one possible or even whether it is

better than the alternatives.” Id. “Rather, the court must uphold a[n] [order] if the

agency has ‘examine[d] the relevant [considerations] and articulate[d] a

satisfactory explanation for its action[,] including a rational connection between

the facts found and the choice made.’” Id. (alterations added and in original)

(quoting Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co.,

463 U.S. 29, 43 (1983)).

II. The Commission Reasonably Denied Tribal Office’s Motion to Intervene, Filed Nearly 1.5 Years Late

Tribal Office filed its late motion to intervene on April 10, 2017. Rehearing

Order II P 4, JA 28. That was more than 2.5 years after the original intervention

deadline (September 4, 2014), nearly 1.5 years after the extended deadline

(November 23, 2015), and more than a year after the Certificate Order issued

(March 11, 2016). Id. at PP 2–3, JA 27–28. The Commission disfavors late

interventions because they risk disrupting and prejudicing agency proceedings. See

id. at PP 8, 23, JA 29, 37. Accordingly, a would-be late-intervenor must “show


19

good cause why the time limitation should be waived.” 18 C.F.R. § 385.214(b)(3);

see also Rehearing Order II P 8, JA 29.

Commission regulations set forth discretionary factors it “may” weigh in

considering a request for late intervention: (1) whether the movant had good cause

for filing late, (2) whether any disruption of the proceeding might result from

allowing late intervention, (3) whether the movant’s interests are adequately

represented by other parties to the proceeding, and (4) whether prejudice to, or

additional burdens on, existing parties might result from late intervention. 18

C.F.R. § 385.214(d)(1)3; see also Rehearing Order II P 8, JA 29.

A movant must clear an even higher hurdle if it seeks late intervention after

the Commission has approved a project—here, through the Certificate Order. See

Rehearing Order II P 8, JA 29. The Commission has a longstanding policy of

denying late interventions at this stage due to the acute risk of prejudice to existing

parties. Id. at P 8 & n.17, JA 29–30 (collecting cases). As it has previously

explained, “when late intervention is sought after the issuance of a dispositive

order … the prejudice to other parties and the burden upon the Commission of

granting late intervention is substantial, and thus movants bear a higher burden to

3 Tribal Office argues the regulation governing late interventions applies only to applications filed under the Federal Power Act, not, as here, under the Natural Gas Act. Br. 48. Not so. The pertinent regulation—18 C.F.R. § 385.214—is part of the Commission’s “Procedural Rules” (Chapter I, subch. X), and is not specific to either statute.


20

demonstrate good cause for granting such intervention.” Millennium Pipeline Co.,

L.L.C., 161 FERC ¶ 61,136, at 1 (2017)); see also Rehearing Order II P 8 n.17,

JA 29–30.

The Commission’s policy makes sense. A certificate order confers rights

and obligations—for example, the right of the pipeline to commence construction

once it has complied with all certificate conditions. See 15 U.S.C. § 717f(e)

(explaining that a certificate order authorizes, among other things, pipeline

construction and operation, and may attach conditions). Allowing intervention

after the certificate order issues undermines this process. See Rehearing Order II

P 23, JA 37. It would permit an entity that could have intervened earlier to

leverage its own delay to attack the Commission’s determination. See id. As the

Commission has explained, those “entities with interests they intend to protect are

not entitled to wait until the outcome of a proceeding and then file a motion to

intervene once they discover the outcome conflicts with their interests.” Rehearing

Order II P 23 (quoting Broadwater Energy LLC, 125 FERC ¶ 61,369, at P 12

(2008)), JA 37.

Further, because intervention post-certification categorically carries a high

risk of prejudice, the Commission has denied a late intervention motion filed as

early as the date the certificate order issued. See Algonquin Gas Transmission,

LLC, 154 FERC ¶ 61,048, at PP 9–12 (2016). Elsewhere, the Commission has

denied late intervention filed approximately one month after certification. See


21

Constitution Pipeline Co., LLC, 154 FERC ¶ 61,046, at PP 4–6 (2016); Texas

Eastern Transmission, LP, 141 FERC ¶ 61,043, at PP 4–8 (2012); Columbia Gas

Transmission Corp., 113 FERC ¶ 61,066, at PP 1–6 (2005).

Here, Tribal Office seeks to intervene more than a year after the Commission

certificated the Project. Tribal Office cites no case in which the Commission

granted late intervention even approaching the length of its delay, let alone one in

which the Commission granted intervention after a certificate order issued. It

therefore faces a particularly steep climb to compel reversal of the Commission’s

decision.

The Commission did not abuse its discretion in finding that Tribal Office

lacked good cause to intervene late. Tribal Office reasonably knew its interests

could be affected more than three years before intervening, and definitely nearly

1.5 years before it finally filed its motion. See Timeline of Significant Filings,

Orders, and Events (appended in addendum).

Tribal Office first became aware of the Project in September 2013 when

Tennessee—though its cultural resource contractor—reached out to the

Narragansett Indian Tribe (and other tribes) to inform it of the schedule for the

Project, to solicit information, and to invite the Tribe’s engagement in conducting

fieldwork. Answer of Tennessee Gas Pipeline Co., L.L.C. to Motion to Intervene


22

Out-of-Time at Att. A, p. 1 (Apr. 12, 2017) (“Tennessee Answer”), R. 831, JA 307;

December 2016 FERC Letter to Advisory Council at 7, JA 214. Tennessee

followed up its initial outreach in July 2014, when its contractor submitted

archeological survey reports to the Narragansett Indian Tribe and other tribes.

Tennessee Answer at Att. A, p. 1, JA 307. The Tribe offered no response.

The Tribe received additional notice about the Project and potential impacts

to its interests in mid-2014. In August and September of that year, the United

South and Eastern Tribes—of which the Narragansett Indian Tribe is a member—

filed letters with the Commission expressing concern that the Project could

adversely affect ceremonial stone landscapes of significance to its tribal members.

August and September 2014 United South and Eastern Tribes Letters to FERC,

JA 54, 56. Then, on September 4, 2014, Tennessee sent project notification letters

to the Narragansett and other tribes. Tennessee Answer at Att. A, p. 2, JA 308.

And on October 10, 2014, the Commission issued its Notice of Intent to Prepare an

Environmental Assessment of the Project—which was sent to the Tribe—in which

it invited consultation on cultural and historic resources. Notice of Intent at 1–2,

5–6, JA 58–59, 62–63; see also Rehearing Order I P 30, JA 17. In short, by Fall

2014, the Narragansett Indian Tribe was well-aware of the Project.

Tribal Office also knew its interests in preserving cultural and historic

resources could be affected. In its motion to intervene out-of-time, it asserted that

“[t]he Massachusetts loop of the Project is located in territory historically


23

associated with the Narragansett Indian Tribe.” Tribal Office Motion to Intervene

Out-of-Time at 3 (Apr. 10, 2017), R. 825, JA 297; Rehearing Order II P 22, JA 36.

And it knew the Commission thought so, too. At an October 2014 meeting that

was attended by Tribal Office representatives, the Commission found that “it would

be appropriate to survey the Tennessee Gas Pipeline Connecticut Expansion

Project (CP14-529) for ceremonial stone landscapes.” Rehearing Order I P 30 n.60

(quoting October 2014 Section 106 Consultation Notes, JA 65), JA 17.

Despite knowing about the Project and its potential impacts to the

Narragansett Indian Tribe’s interests, Tribal Office sat on its rights for years. It did

not, for example, respond to the Commission’s February 27, 2015 letter inviting it

to participate in a review of the Project. Rehearing Order I P 30 & n.60, JA 17. In

that letter, the Commission expressly solicited comments and assistance in

identifying cultural and historic resources of significance to the Tribe, stating that it

was “interested in receiving your comments on the Project to ensure that the

concerns of the Narragansett Indian Tribe are identified and properly considered in

our environmental analysis.” Id. (quoting February 2015 FERC Letter to

Narragansett Indian Tribe at 2, JA 73). It also included a specific “request [for]

your assistance in identifying properties of traditional, religious, or cultural

importance to the Narragansett Indian Tribe that may be affected by the proposed

Project.” Id. (emphasis added).


24

Tribal Office’s first recorded participation occurred some 10 months later, on

December 8, 2015, when it joined a section 106 consultation meeting with the

Commission and representatives of other Indian tribes. Rehearing Order I P 30,

JA 17. At that meeting, Tribal Office staff walked the Massachusetts Loop route,

determined that a survey of ceremonial stone landscapes was necessary, and agreed

that Tennessee would coordinate with the tribes to work out a survey protocol and

schedule. Id.; December 2015 Meeting Notes at 2, JA 107.

Yet even after the survey—completed in September 2016—revealed that the

Project would affect 73 ceremonial stone landscapes, Tribal Office still did not

seek to intervene. See Rehearing Order I P 31, JA 17–18. Nor did it do so after

Commission staff met with Tribal Office on December 5, 2016 to discuss

Tennessee’s draft Treatment Plan to address adverse effects to those resources. See

id. at P 33, JA 18–19.

In short, Tribal Office knew its interests could be affected by the Project, yet

it did not seek party status until well past the deadline for doing so. Accordingly,

the Commission did not abuse its discretion in concluding that Tribal Office failed

to show good cause for its delay in seeking to intervene, see Elec. Power Supply

Ass’n, 136 S. Ct. at 782—a conclusion that accords with its precedent, see, e.g.,

Constitution Pipeline, 154 FERC ¶ 61,046, at P 6 (denying late intervention sought

approximately one month after the certificate order issued where the movant “had

notice of the application and the proceeding”); Texas Eastern, 141 FERC ¶ 61,043,


25

at P 8 (same); Transcon. Gas Pipe Line, 126 FERC ¶ 61,097, at PP 10–11 (2009)

(same); Columbia Gas, 113 FERC ¶ 61,066, at P 4 (same).

While the Commission’s regulations set forth a multi-factor inquiry for

deciding late motions to intervene, the test is discretionary. City of Orrville, 147

F.3d at 991 (explaining that “18 C.F.R. § 385.214(d)(1) does not compel

consideration of each of the factors; it merely states that the Commission ‘may

consider’ them”). Indeed, the Commission could have ended its analysis after it

concluded that Tribal Office lacked good cause—one of the factors—to intervene.

But it went further, also finding that granting late intervention would cause

unreasonable delay, while also prejudicing and putting additional burdens on the

Commission and Tennessee. Rehearing Order II P 23, JA 37; see also 18 C.F.R.

§ 385.214(d)(1). It explained that it would be inequitable to allow Tribal Office to

abstain from intervening in the proceeding earlier, only to attack the Commission’s

approval of the Project “once [it] discover[ed] the outcome conflict[ed] with [its]

interests.” Rehearing Order II P 23 (quoting Broadwater, 125 FERC ¶ 61,369, at

P 12), JA 37.


26

Tribal Office argues it nevertheless has good cause to intervene late because,

it insists, it seeks to enforce the Certificate Order rather than challenge it, because

the Commission’s regulations forced it to choose between intervening and

consulting, and because the Commission did not survey ceremonial stone

landscapes until after the second deadline for intervening had passed.

These arguments rest on a fundamental misapprehension of the facts and the

law, are internally inconsistent, and obscure the fact that Tribal Office knew its

interests could be affected as early as mid-2013.

Tribal Office argues it is entitled to late intervention because it “seek[s] to

enforce the Certificate Order, not challenge it.” Br. 49. It reasons that the

Commission’s consistent policy of denying late intervention post-certification is

inapposite because it intervened before the Commission issued the Notice to

Proceed. Br. 49. Thus, it argues this case presents a wholly novel question for the

Court against the backdrop of “extraordinary circumstances.” Br. 49.

Contrary to Tribal Office’s framing, the procedural posture of this case is

neither novel nor extraordinary. The Commission has previously denied late

intervention in situations like this one—namely, where, as here, intervention was

sought after the Commission issued a conditional certificate, which, as here,


27

required subsequent agency action before construction could begin. See, e.g.,

Mountain Valley Pipeline, 163 FERC ¶ 61,197, at PP 10–12, 81–83 (2018);

Algonquin Gas, 154 FERC ¶ 61,048, at PP 9–11, 26; Constitution Pipeline, 154

FERC ¶ 61,046, at PP 4–6, 36; Texas Eastern, 141 FERC ¶ 61,043, at PP 4–8, 10.

And, at any rate, that the Certificate Order did not immediately green-light

construction activities does not absolve Tribal Office of its obligation to timely

intervene to protect its interests once it had notice they could be affected. See

Rehearing Order II PP 6, 8, JA 29.

Tribal Office’s argument also misapprehends FERC procedures under the

Natural Gas Act. Tribal Office analogizes its late-intervention request to

intervention in post-licensing proceedings in hydroelectric cases. Br. 49 n.15. But

as the Commission explained, the two types of proceedings differ in a crucial way.

Hydroelectric post-licensing proceedings are entirely new matters, triggering a new

round of public notice and intervention. Rehearing Order II P 19, JA 35; see also

AmerenUE, 129 FERC ¶ 61,027, at P 14 (2009). By contrast, a notice to proceed is

a continuation of the underlying certificate proceeding. Rehearing Order II P 20,

JA 36. The only question is whether the conditions set forth in the certificate order

are satisfied, not what conditions the Commission should impose in the first place.

See Rehearing Order I P 22, JA 12–13. Thus, Commission policy is that “issuance

of notices to proceed … are not among the types of proceedings that afford

interested parties an opportunity to intervene ….” Rehearing Order II P 20


28

(quoting Algonquin Gas Transmission, LLC, 161 FERC ¶ 61,287, at P 24 n.42

(2017)), JA 36.

Tribal Office is also wrong on the facts. It argues for purposes of

timelineness that it seeks to enforce rather than challenge the Certificate Order, but

its petition contradicts this assertion. Tribal Office’s entire case—that the

Commission violated its section 106 consultation obligations under the

Preservation Act—is rooted in the claim that the Commission should not have

approved the Project, not that the Certificate Order’s conditions were not met. Its

theory turns on the timing of the Commission’s section 106 consultation, and aims

squarely at the Commission’s alleged delay in studying ceremonial stone

landscapes until after the Certificate Order issued. See, e.g., Br. 26 (“[T]he

Commission’s failure to initiate Tribal consultations early in the process … created

unreasonable delays ….”); 27 (“FERC issued the Environmental Assessment on

time, but failed to complete the Section 106 review by January 21, 2016 ….”);

28 (“FERC also failed to enforce its own regulations, which state ‘survey report[s]

must be filed with the application.’” (quoting 18 C.F.R. § 380.12(f)(2))); 30–

31 (“FERC lacks discretion to postpone surveys that are required to take place

early in the process and then use the delay it created as an excuse for non-

avoidance.”).

In short, Tribal Office’s grievance is all about the sufficiency of the

Commission’s consultation obligations in certificating the Project. This case is


29

therefore no different from any other matter in which a would-be intervenor sought

to attack the Commission’s determination after a certificate order issued.

Tribal Office also argues good cause for intervening late based on a

perceived regulatory conundrum. It reasons that the Commission’s ex parte rules

unlawfully prevented it from both consulting and intervening, and so it chose to

consult. Br. 41–47, 50–51. Tribal Office’s argument is meritless because nothing

in the ex parte rules prevents an Indian tribe from both consulting under the

Preservation Act and intervening as a party under the Natural Gas Act. Rehearing

Order II P 12, JA 31–32. Its argument is based on an erroneous conflation of the

government-to-government relationship Indian tribes have with the Federal

government with ex parte communications.

An ex parte communication is an “off-the-record communication” that, “if

written, is not filed with the [Commission] and not served on the parties to the

proceeding,” “or if oral, is made without reasonable prior notice to the parties to

the proceeding and without the opportunity for such parties to be present when the

communication is made.” 18 C.F.R. § 2201(c)(4). The Commission’s ex parte

rules generally prohibit off-the-record communications, but exempt non-party

tribes. Id. § 2201(e)(v); Rehearing Order II P 10, JA 30–31. The rules allow such

communications with non-party tribes provided any such communications are


30

disclosed on the public record in the relevant proceeding. 18 C.F.R. § 2201(g)(1);

Rehearing Order II P 10, JA 30. Tribal Office seeks relief in the form of an

amendment to the Commission’s rules to allow tribal parties to the agency

proceeding to engage in off-the-record consultations. Br. 57.

Tribal Office begins by arguing it has a Constitutional, statutory, and

regulatory right to engage in government-to-government consultations with the

Commission. Br. 41. It reasons that government-to-government consultations are

necessarily off-the-record, and so the Commission’s ex parte rules prohibiting

those communications for tribal parties violate its rights. Br. 44.

Tribal Office’s argument misapprehends the nature of government-to-

government consultations. Indeed, none of Tribal Office’s cited authorities—the

Constitution, statutes, regulations, and an executive order, Br. 41—supports the

premise grounding its entire claim: that government-to-government consultations

are synonymous with off-the-record communications, cf. Br. 44. Executive Order

13175, for example, states only that agencies “shall have an accountable process to

ensure meaningful and timely input by tribal officials in the development of

regulatory policies that have tribal implications.”4 Exec. Order No. 13175,

4 Executive Order 13175 is not binding on the Commission, which, as an independent agency, is only “encouraged to comply with the provisions of th[e] order.” Exec. Order No. 13175, § 8, reprinted at 65 Fed. Reg. at 67,251.


31

Consultation and Coordination With Indian Tribal Governments, § 5(a) (Nov. 6,

2000), reprinted at 65 Fed. Reg. 67,249, 67,250 (appended in addendum).

Commission policy is in accord. The Commission’s policy statement on

tribal consultations states that tribal consultation should “recognize[] the

government-to-government relationship between … agencies and tribes.” Policy

Statement on Consultation With Indian Tribes in Commission Proceedings, 104

FERC ¶ 61,108 (2003), codified at 18 C.F.R. § 2.1c(a). This means consultations

“should involve direct contact between agencies and tribes and should recognize

the status of the tribes as governmental sovereigns.” Id.; see also Rehearing Order

II P 25 & n.59, JA 37–38 (explaining that the Commission here recognized the

sovereign rights of the Narragansett Indian Tribe, as described in the policy

statement). But the policy statement also cautions that, because the Commission is

a “quasi-judicial body, rendering decisions on applications filed with it,” its “rules

concerning off-the-record communications … place some limitations on the nature

and type of consultation that the Commission may engage in with any party in a

contested case.” 18 C.F.R. § 2.1c(d); see also Hydroelectric Licensing Under the

Federal Power Act, Order No. 2002, 104 FERC ¶ 61,109, at P 276 n.256 (2003)

(explaining that “government-to-government consultation must be consistent with

the Commission’s ex parte regulations”).

In other words, the Commission can respect its government-to-government

relationship with Indian tribes while consulting through public channels. See 18


32

C.F.R. § 2.1c(a)–(g); see also Rehearing Order II P 26, JA 38. As the Commission

explained, the ex parte rules did not prevent Tribal Office from “engag[ing] in

government-to-government consultation” as an intervenor-party, because the

Commission’s rules and the Preservation Act “afford tribes many avenues for

participation in proceedings where they have an interest they wish to protect.”

Rehearing Order II P 26, JA 38.

Nor do Preservation Act section 106 regulations require off-the-record

communications. See Rehearing Order II P 12 (explaining that a tribal party may

both consult under the Preservation Act and intervene as a party), JA 31–32. The

regulations define “[c]onsultation” as simply “the process of seeking, discussing,

and considering the views of other participants ….” 36 C.F.R. § 800.16(f). And

the specific provision Tribal Office relies on says nothing about permitting ex parte

communications. Instead, it requires only that “the agency official … consult with

any Indian tribe … that attaches religious and cultural significance to historic

properties that may be affected by an undertaking …. Such Indian tribe … shall be

a consulting party.” Id. § 800.2(c)(2)(ii); see also Rehearing Order I P 27

(explaining the Commission’s Preservation Act consultation duties), JA 15;

54 U.S.C. § 302706(b) (“[A] Federal agency shall consult with any Indian tribe

….”); cf. Br. 45.

To be sure, the regulations acknowledge that “[c]onsultation with an Indian

tribe must recognize the government-to-government relationship between the


33

Federal Government and Indian tribes.” 36 C.F.R. § 800.2(c)(2)(ii)(C). But the

next two sentences explain what this means: “The agency official shall consult

with representatives designated or identified by the tribal government,” and

“[c]onsultation with Indian tribes … should be conducted in a manner sensitive to

the concerns and needs of the Indian tribe ….” Id. Neither sentence contains any

suggestion that an agency must engage in off-the-record communications with

Indian tribes. Indeed, “[w]hile … the [Preservation Act’s] implementing

regulations ‘recognize the government-to-government relationship between the

Federal Government and Indian tribes,’ they do so to ensure that consultation ‘be

conducted in a manner sensitive to the concerns and needs of the Indian tribe ….’”

Te-Moak Tribe of W. Shoshone of Nev. v. U.S. Dep’t of the Interior, 608 F.3d 592,

610 (9th Cir. 2010) (quoting 36 C.F.R. § 800.2(c)(2)(ii)(C)).

Without a textual anchor to ground its assertion that Indian tribes have a

Constitutional, statutory, and regulatory right to off-the-record consultations, Tribal

Office instead appeals to due process. It argues Indian tribes cannot meaningfully

consult without engaging in off-the-record communications, and so the

Commission’s ex parte rules deprive it of a protected property interest.5 Br. 42–47.

5 Tribal Office’s argument on this point—and, in fact, on many others throughout its opening brief—cites evidence submitted for the first time on appeal—namely, the April 29, 2019 Declaration of Doug Harris. E.g., Br. 25, 30,


34

It asks the Court to remedy the alleged Constitutional harm by jettisoning the

offending provisions of the ex parte rules. Br. 57.

Such a drastic measure is unwarranted. As the Commission explained, the

Preservation Act’s consultation procedures allow Indian tribes to meaningfully

participate in Commission proceedings. See Rehearing Order II P 12, JA 31–32.

The Commission must “provide[] the Indian tribe … a reasonable opportunity to

identify its concerns about historic properties, advise on the identification and

evaluation of historic properties, including those of traditional religious and

cultural importance, articulate its views on the undertaking’s effects on such

properties, and participate in the resolution of adverse effects.”6 36 C.F.R.

§ 800.2(c)(2)(ii)(A); see also 36 C.F.R. § 800.6(a)–(b) (explaining that Indian

tribes shall be consulted in resolving adverse effects). All these requirements allow

for meaningful consultation, and none necessitates off-the-record communications.

See Rehearing Order II PP 10, 26 (explaining that the Preservation Act “afford[s]

33, 42, 47, 51–52. The Court should not credit this new evidence except to the extent it establishes Tribal Office’s standing. See Cone v. Caldera, 223 F.3d 789, 795 (D.C. Cir. 2000) (“Because the affidavits were not part of the administrative record, we may not consider them on appeal.”); see also D.C. Circuit Rule 28(a)(7).

6 The regulations similarly require consultation with the relevant State Historic Preservation Offices in identifying historic properties (36 C.F.R. § 800.4), assessing adverse effects (id. § 800.5), and resolving adverse effects (id. § 800.6).


35

tribes many avenues for participation” in government-to-government

consultations), JA 30–31, 38.

Here, the Narragansett Indian Tribe had an opportunity to—and did—

meaningfully consult on the Project. The Commission reached out to the Tribe

seeking its input on multiple occasions: with its October 2014 Notice of Intent to

Prepare an Environmental Assessment, and its February 27, 2015 consultation

letter. Rehearing Order I P 30 n.60, JA 17; Notice of Intent at 5, JA 62; see supra

pp. 7, 22–23. And when Tribal Office eventually expressed interest in the Project

at the December 2015 consultation meeting, it identified its concerns. See

December 2015 Meeting Notes, JA 106–07; Rehearing Order I P 30, JA 17.

Further, in early 2017, Tribal Office participated in addressing potential adverse

effects to ceremonial stone landscapes by filing comments with the Commission.

Rehearing Order I P 33, JA 18; January 2017 Tribal Office Comments, JA 217–18.

These consultations were public and on-the-record.7 See January 2017 Advisory

Council Letter to FERC at 3 (discussing comments by the Narragansett Indian

Tribe), JA 221; January 2017 Tribal Office Comments, JA 217–18; December 2015

Meeting Notes, JA 106–07.

7 Tribal Office cites off-the-record communications with Commission staff, but makes no argument that those communications had any material effect beyond its on-the-record consultations. Br. 51. And even if it did make such an argument, the result would be the same because it had an opportunity to—and did—meaningfully consult through on-the-record proceedings.


36

In short, Tribal Office had a full opportunity to consult on the Project

irrespective of any ex parte communications. And because consultation does not

preclude intervention, it could have intervened at any time, just as tribes have done

in other matters. See, e.g., Great Lakes Hydro American, LLC, 109 FERC

¶ 62,230, at 64,506–07, 64,521–22 (2004) (explaining that intervenor

Passamaquoddy Tribe consulted on environmental impacts of a reservoir project);

Wisc. Power and Light Co., 79 FERC ¶ 61,181, at 61,844, 61,853 (1997)

(observing that intervenor Menominee Tribe “was fully included in …

consultation” in a hydroelectric re-licensing proceeding); United States Dep’t of

the Interior, 55 FERC ¶ 61,500, at 62,770–71 (1991) (granting Nlaka’pamux

Nation Advisory Council’s late-filed motion to intervene while the relicensing

proceeding was still pending and recognizing that the tribe should be consulted on

impacts to traditional cultural properties).

III. The Court Lacks Jurisdiction to Consider Tribal Office’s Substantive Claims

Tribal Office spends most of its brief challenging the Commission’s

execution of its Preservation Act section 106 consultation duties. Its substantive

challenges are not properly before the Court, however, because Tribal Office was

not a party to the agency proceeding below.

The Natural Gas Act limits those who may seek judicial review of

Commission orders to “[a]ny party to a proceeding … aggrieved by an order issued


37

by the Commission ….” 15 U.S.C. § 717r(b) (emphasis added). Thus, entities that

were not parties to a Commission proceeding may not petition for review of a

Commission order. Pub. Serv. Comm’n of State of N.Y. v. Fed. Power Comm’n, 284

F.2d 200, 204 (D.C. Cir. 1960); New Energy Capital Partners, LLC v. FERC, 671

Fed. App’x 802, 804 (D.C. Cir. 2016) (unpublished).8 This rule, however, is not

absolute. A non-party that sought party status through a (rejected) motion to

intervene is “a party to a proceeding in a limited sense,” and the Court may

consider whether the Commission abused its discretion in denying intervention.

Id.; see also N. Colo. Water Conservancy Dist. v. FERC, 730 F.2d 1509, 1515

(D.C. Cir. 1984) (holding that a non-party may seek judicial review “for the limited

purpose of reviewing the agency’s basis for denying party status”); Cal. Trout v.

FERC, 572 F.3d 1003, 1013 n.7 (9th Cir. 2009) (same).

Tribal Office was not a party to the agency proceeding below. It therefore

lacks statutory standing under the Natural Gas Act to challenge any substantive

aspect of the Commission’s orders, and may seek judicial review only to contest

the Commission’s denial of its belated motion to intervene. See Pub. Serv.

Comm’n, 284 F.2d at 204; New Energy, 671 Fed. App’x at 804; see also United

8 Public Service Commission involved the Natural Gas Act, whereas New Energy involved the Federal Power Act. Because “the relevant provisions of the two statutes are analogous,” courts “routinely rel[y] on [Natural Gas Act] cases in determining the scope of the [Federal Power Act], and vice versa.” Hughes v. Talen Energy Mktg., LLC, 136 S. Ct. 1288, 1298 n.10 (2016).


38

States v. Emor, 785 F.3d 671, 677 (D.C. Cir. 2015) (explaining that statutory

standing turns on “whether the statute at issue confer[s] a ‘cause of action’

encompassing ‘a particular plaintiff’s claim’” (quoting Lexmark Int’l, Inc. v. Static

Control Components, Inc., 572 U.S. 118, 127 (2014))).

Tribal Office completely ignores this controlling precedent. Instead, it

spends more than 20 pages challenging the merits of the Commission’s approval of

the Project, specifically the sufficiency of its Preservation Act section 106

consultations. See Br. 20–40. Because Tribal Office lacks statutory standing to do

so, the Court should not consider its substantive arguments.

Further, because Tribal Office failed to address its statutory standing to

challenge the Commission’s section 106 consultation process in its opening brief—

and compounded this error by failing to cite adverse authority—the Court should

not entertain any attempt by Tribal Office to shore up its standing in its reply brief.

See, e.g., Sorenson Commc’ns, LLC v. FCC, 897 F.3d 214, 224–25 (D.C. Cir. 2018)

(petitioner must demonstrate standing in its opening brief); see also Natural Res.

Def. Council, Inc. v. EPA, 25 F.3d 1063, 1071 n.4 (D.C. Cir. 1994) (“We have said

before, and we say again, that ordinarily we will not consider arguments raised for

the first time in a reply brief” (internal quotations omitted)).


39

IV. Even Were the Court to Consider Them, Tribal Office’s Substantive Claims Fail

Tribal Office challenges the Commission’s compliance with its consultation

obligations under section 106 of the Preservation Act. Even if the Court had

jurisdiction to consider these arguments (which it does not), they miss their target

because they are based on an erroneous reading of the law and the record in this

case. Further, because the Commission fulfilled its statutory duties, Tribal Office’s

argument that the Commission breached its fiduciary obligations to the

Narragansett Indian Tribe necessarily fails. Cf. Br. 35 (“FERC [b]reached [i]ts

[f]iduciary [d]uty by [v]iolating [s]tatutes and [r]egulations”).

The Preservation Act “requires [the Commission] to consult with any Indian

tribe … that attaches religious and cultural significance to historic properties that

may be affected by an undertaking.” 36 C.F.R. § 800.2(c)(2)(ii). Tribal Office

complains that the Commission failed to do so by delegating tribal consultation

outreach to Tennessee, by failing to timely initiate consultation, and by not

meaningfully engaging the Tribe in resolving adverse effects. Br. 20–31, 35–40.

Tribal Office is wrong on all three counts. The Commission did timely

“initiate consultation” under section 106 with its October 10, 2014 Notice of Intent

to Prepare an Environmental Assessment—issued approximately two months after


40

Tennessee filed its application for a certificate of public convenience and necessity.

Notice of Intent at 5, JA 62; see also Rehearing Order I P 30, JA 17. It followed up

with a consultation letter to the Narragansett Indian Tribe on February 27, 2015, in

which it expressly sought the Tribe’s “comments on the Project to ensure that the

concerns of the Narragansett Indian Tribe are identified and properly considered in

the environmental analysis.” Id. at P 30 n.60 (quoting February 2015 FERC Letter

to Narragansett Indian Tribe at 2, JA 73), JA 17. By failing to acknowledge the

Commission’s outreach, Tribal Office erroneously concludes that consultation was

delayed until December 2015 because the Commission “impermissibly delegate[d]

its responsibilities” to Tennessee. Br. 24.

Tribal Office’s corollary argument that the ceremonial stone landscape

survey occurred too late in the process to consider alternatives (Br. 21–22) is

similarly meritless. The Commission must engage in section 106 consultations in a

timely manner so that “alternatives may be considered during the planning process

for the undertaking.” 36 C.F.R. § 800.1(c). Contrary to Tribal Office’s allegations,

the Commission did so here. See Rehearing Order I P 45, JA 23–24. Once the

survey was completed in September 2016, the Commission engaged in

consultations on alternative strategies to resolve adverse effects to the 73 identified

ceremonial stone landscapes affected by the Project. Rehearing Order I PP 33, 36,

45, JA 18–20, 23–24. That process culminated in a new plan by Tennessee “to

alter the pipeline project to avoid as many of the [ceremonial stone landscapes] as


41

possible.”9 January 2017 Advisory Council Letter to FERC at 3, JA 221; see also

Rehearing Order I P 36 (explaining that “[t]he Commission … worked to avoid,

minimize, and mitigate the adverse effects to the ceremonial stone landscapes”),

JA 19–20. Tennessee’s ultimate proposal—in which the Advisory Council

concurred10—affected less than one-third of the identified landscapes, and

committed Tennessee to restoring them once pipeline construction was completed.

January 2017 Advisory Council Letter to FERC at 2–3, JA 220–21; see also

Rehearing Order I P 45, JA 23–24.

But, Tribal Office insists, even if Tennessee adopted alternative measures for

avoiding more than two-thirds of the landscapes, the Commission conducted the

survey too late to consider alternative pipeline routes. Br. 51. Not so. In fact, the

Commission found only that Tennessee’s “ability to adjust the pipeline route to

avoid [ceremonial stone landscape] features is limited.” December 2016 FERC

Letter to Advisory Council at 6, JA 213. And because Tennessee’s Treatment Plan

“mitigate[d] or resolve[d] the adverse effects on remaining ceremonial stone

9 The alternatives adopted by Tennessee are included in its Treatment Plan, which contains sensitive cultural and historic resource information, and was therefore filed as privileged material. See Supplemental Information/Request of Tennessee Gas Pipeline Co., L.L.C., (Mar. 6, 2017), R. 807. Accordingly, this brief does not discuss the particulars of Tennessee’s avoidance and mitigation measures.

10 The Stockbridge-Munsee Community Band of Mohican Indians, which claims ancestral ties to the territory in which the ceremonial stone landscapes are located, also found Tennessee’s resolution to be “reasonable and offered in good faith.” January 2017 Advisory Council Letter to FERC at 3, JA 221.


42

landscapes below a level of significance,” there is no basis for Tribal Office’s

assertion that the timing of the survey precluded preferable alternative routes. See

Rehearing Order I P 45, JA 23–24.

In any event, Tribal Office’s argument is based on an unreasonably narrow

interpretation of the law: there is no legal requirement that an agency preserve the

ability to require an applicant, following the issuance of a certificate order, to adopt

alternative routes that the agency did not select. The regulations provide only that

“[t]he goal of [section 106] consultation is to identify historic properties potentially

affected by the undertaking, assess its effects and seek ways to avoid, minimize or

mitigate any adverse effects on historic properties.” 36 C.F.R. § 800.1(a). Such

measures could include alternative routes, but just as reasonably might include

those measures adopted by Tennessee here, which avoided more than two-thirds of

the ceremonial stone landscapes and mitigated impacts to the rest. January 2017

Advisory Council Letter to FERC at 2–3, JA 220–21; see also Rehearing Order I

PP 36, 45, JA 19–20, 23–24.

Finally, Tribal Office argues that the consultations on resolving adverse

effects were not meaningful. Br. 29–31. The record, however, belies this claim.11

In fact, Tribal Office had several opportunities to offer its input on resolving

11 Tribal Office’s argument that 36 C.F.R. § 800.6(a) and not 36 C.F.R. § 800.2(c)(2)(ii)(A) applies is a red herring. Cf. Br. 39. Both provisions require the Commission to consult with Indian tribes in addressing adverse effects. The pertinent question is whether the Commission did so here.


43

adverse effects. On December 5, 2016, the Commission met with Tribal Office and

other Indian tribes to discuss Tennessee’s draft Treatment Plan. Rehearing Order I

P 33, JA 18–19. The Commission followed-up with a teleconference with the

tribes in January 2017 to discuss the Plan and propose next steps. Id. Further, on

December 29, 2016, the Commission sent a letter to the Advisory Council

notifying it of the adverse effects finding and requesting its participation in

addressing them as a signatory to a Memorandum of Agreement. Id. The

Commission copied Tribal Office on the letter and Tribal Office filed comments

with the Commission and Advisory Council. Id.; see also January 2017 Tribal

Office Comments, JA 217–18. Accordingly, the Commission reasonably

concluded that Tribal Office was afforded “a reasonable opportunity to participate

in the resolution of the adverse effects and fulfilled its consultation

responsibilities.” Rehearing Order I P 33, JA 18–19.

The Natural Gas Act requires the Commission to “establish a schedule for all

Federal authorizations.” 15 U.S.C. § 717n(c)(1). Tribal Office adopts a narrow

interpretation of “schedule,” and faults the Commission for not meeting its own

January 21, 2016 deadline for completing section 106 consultations. Br. 27.

Similarly, Tribal Office argues the Commission violated the regulatory timing


44

provision requiring survey reports to be filed with the pipeline’s application. Br. 28

(citing 18 C.F.R. § 380.12(f)(2)).

Both contentions are meritless. The first is factually incorrect because the

Commission did set a schedule for completing the section 106 review by

conditioning pipeline construction on completion of the ceremonial stone

landscape survey in its Certificate Order. See Certificate Order, Conditions 9, 26,

JA 167, 171.

Tribal Office’s timing arguments are also wrong on the law. As this Court

recently explained, the Commission “d[oes] not violate the [Preservation Act] by

issuing the Certificate Order subject to the condition that it would complete the

[Preservation Act] section 106 consultation process prior to construction.”

Appalachian Voices v. FERC, 2019 WL 847199, at *3 (D.C. Cir. Feb. 19, 2019)

(unpublished) (citing City of Grapevine v. Dep’t of Transp., 17 F.3d 1502, 1509

(D.C. Cir. 1994)); see also Rehearing Order I P 38 (explaining the Commission’s

practice of issuing certificates conditioned on completion of Preservation Act

consultations), JA 20.

Similarly, this Court has approved other pipeline certifications that condition

construction on future compliance with responsibilities under other federal statutes.

See Del. Riverkeeper Network v. FERC, 857 F.3d 388, 397 (D.C. Cir. 2017)

(explaining that the Commission may lawfully issue a pipeline certificate

conditioned on obtaining Clean Water Act certification); Myersville Citizens for a


45

Rural Cmty., Inc. v. FERC, 783 F.3d 1301, 1320 (D.C. Cir. 2015) (upholding a

FERC pipeline certificate order conditioned on obtaining a Clean Air Act permit);

see also Gunpowder Riverkeeper v. FERC, 807 F.3d 267, 279–80 (D.C. Cir. 2015)

(Rogers, J., dissenting in part and concurring in the judgment) (discussing FERC

conditioning authority under the Preservation Act and Clean Water Act and citing

Grapevine, 17 F.3d at 1508–09). This conditional approach is consistent with

Congress’ statutory plan, which allows the Commission to attach to its certificates

“such reasonable terms and conditions as the public convenience and necessity

may require.” 15 U.S.C. § 717f(e); see also Atl. Refining Co. v. Pub. Serv. Comm’n

of State of N.Y., 360 U.S. 378, 391 (1959) (“Congress … has authorized the

Commission to condition certificates in such manner as the public convenience and

necessity may require.”); Appalachian Voices, 2019 WL 847199 at *1 (recognizing

FERC’s broad conditioning authority).

Finally, the Court should not invalidate the Commission’s approval of the

Project in any event because, even if Tribal Office were correct that the

Commission missed a timing deadline, that is not a valid basis for rejecting the

Commission’s approval of the Project. See Brock v. Pierce Cnty., 476 U.S. 253,

260 (1986) (explaining that courts generally do not “assume that Congress

intended the agency to lose its power to act” simply because of a “failure of an

agency to observe a procedural requirement”). That is especially true where, as


46

here, “less drastic remedies [are] available,” id.—in this case, Congress’ express

approval of certificates conditioned on completion of outstanding regulatory tasks.

Tribal Office next argues the Commission erred in entering into a

Memorandum of Agreement resolving adverse effects to ceremonial stone

landscapes because the Massachusetts Preservation Office did not terminate its

own consultation. Br. 32–35. Tribal Office is wrong because the regulations apply

where a State participates in consultation but later withdraws; here, Massachusetts

refused to participate at all. See 36 C.F.R. § 800.7(a).

Besides the fact that the Court lacks jurisdiction to consider this claim due to

Tribal Office’s lack of party status below, it also lacks jurisdiction to consider it

because Tribal Office failed to raise this claim in either of its requests for

rehearing. See Tennessee Gas Pipeline Co. v. FERC, 871 F.2d 1099, 1107 (D.C.

Cir. 1989) (explaining that “[n]o objection to the order of the Commission shall be

considered by the court unless such objection shall have been urged before the

Commission in the application for rehearing unless there is reasonable ground for

failure to do so” (quoting 15 U.S.C. § 717r(b)). At most, Tribal Office made the

confusing argument in its first rehearing request that the two-party Memorandum

of Agreement was unlawful because “there was no ‘termination of consultation,’”

and because Tribal Office specifically did not terminate consultation. Rehearing


47

Request I at 11 (May 10, 2017), R. 860, JA 330. Nowhere did Tribal Office

contend the Agreement was unlawful because Massachusetts did not terminate

consultation. The Commission addressed the argument Tribal Office did make—

that it had not terminated consultation—in Rehearing Order I (at P 48, JA 25),

which Tribal Office now abandons on appeal.

In any event, Tribal Office’s new argument fails on the merits. The

Preservation Act requires the Commission to consult with Indian tribes and the

relevant State Historic Preservation Office—here, the Massachusetts Preservation

Office—to resolve adverse effects. 36 C.F.R. § 800.6(a). The Advisory Council

may also join the consultation. Id. § 800.6(a)(1). Once consultation is complete, a

plan for addressing adverse effects is executed though a memorandum of

agreement. Id. § 800.6(b)(2), (c). Typically, the State Historic Preservation Office

is a signatory to the agreement, along with the Commission and the Advisory

Council if the latter chooses to participate. See id. § 800.6(c)(1)(ii). However,

where the State terminates consultation, the Commission and Advisory Council

“may execute a memorandum agreement without the [State Historic Preservation

Office]’s involvement.” Id. § 800.7(a)(2); see also id. § 800.6(c)(1)(iii).

Here, only the Commission and Advisory Council, along with Tennessee,

signed the Memorandum of Agreement. Memorandum of Agreement at 7–9,

JA 269–71. The Advisory Council—the agency that promulgated the above

regulations—concurred in entering into a “two-party” Memorandum of Agreement


48

with the Commission. January 2017 Advisory Council Letter to FERC at 1,

JA 219. Tribal Office argues on appeal that because the Massachusetts

Preservation Office did not terminate consultation, the condition precedent to a

“two-party” Commission-Advisory Council agreement was not met. Br. 32–35.

But the Massachusetts Preservation Office “chose[] not to participate” in the first

place, a fact that Tribal Office acknowledges. December 2016 FERC Letter to

Advisory Council at 1, JA 204; Memorandum of Agreement at 3, JA 265; Br. 33

(referencing “Massachusetts[’] refusal to participate”). Indeed, Massachusetts

represented to the Advisory Council “that in the interests of efficiency of the

Section 106 review process, the [Massachusetts Preservation Office] will not

comment on the results of the [ceremonial stone landscape] survey.” January 2017

Advisory Council Letter to FERC at 1–2, JA 219–20.

The regulations do not address this precise circumstance, but they do chart a

path forward. Cf. Friends of the Atglen-Susquehanna Trail, Inc. v. Surface Transp.

Bd., 252 F.3d 246, 266–67 (3d Cir. 2001) (case cited by Tribal Office (Br. 34), in

which a federal agency acted contrary to the regulations’ express requirements by

terminating consultation without seeking comments of the Advisory Council). If a

State’s signature to a memorandum of agreement is not required where it

participated in consultation but later withdrew, 36 C.F.R. § 800.7(a)(2), it makes no

sense to find that a State’s signature is required where it refused to participate from

the start, see Validus Reinsurance, Ltd. v. United States, 786 F.3d 1039, 1045–46


49

(D.C. Cir. 2015) (courts should avoid interpretations “that bring about an

anomalous result when other interpretations are available” (internal quotations

omitted)). This conclusion is particularly reasonable in the larger context of the

Natural Gas Act, which reflects Congress’ charge that the Commission “control

whether and when a federal [certification] will issue”—not States that decline to

engage in the consultation process. See Hoopa Valley Tribe v. FERC, 913 F.3d

1099, 1104 (D.C. Cir. 2019) (concluding in the hydroelectric licensing context that

allowing states to block federal license approval by withholding state water-quality

certifications would “undermine FERC’s jurisdiction to regulate” those

proceedings).

CONCLUSION

For the foregoing reasons, the Court should deny the petition for judicial

review.

Respectfully submitted,

James P. Danly General Counsel

Robert H. Solomon Solicitor

/s/ Jared B. Fish Jared B. Fish Attorney

Federal Energy Regulatory Commission Washington, DC 20426 Tel.: (202) 502-8101 Fax: (202) 273-0901 E-mail: [email protected]

August 20, 2019


mailto:[email protected]

CERTIFICATE OF COMPLIANCE

Pursuant to Fed. R. App. P. 32(a) and Circuit Rules 35 and 40, I certify

that this brief complies with the type-volume limitation in Fed. R. App. P. 35(b)

and 40(b) because this brief contains 11,521 words, excluding the parts of the

brief exempted by Fed. R. App. P. 32(f).

I further certify that this brief complies with the typeface requirements of

Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P.

32(a)(6) because this brief has been prepared in Times LT Std 14-point font

using Microsoft Word 2013.



August 20, 2019


mailto:[email protected]

Narragansett Indian Tribal Historic Preservation Office v. FERC D.C. Cir. No. 19-1009

CERTIFICATE OF SERVICE

In accordance with Fed. R. App. P. 25(d), and the Court’s Administrative

Order Regarding Electronic Case Filing, I hereby certify that I have, this 20th day

of August 2019, served the foregoing upon the counsel listed in the Service

Preference Report via email through the Court’s CM/ECF system.




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