The Ninth Circuit Lacks Jurisdiction to Review Coast Guard Letter of Recommendation

The Ninth Circuit Lacks Jurisdiction to Review Coast Guard Letter of Recommendation

By: Daniel Berger

Edited by: Molly MacKenzie

Columbia Riverkeeper v. United States Coast Guard, 761 F.3d 1084 (9th Cir. Aug. 5, 2014).

Columbia Riverkeeper (herein “Riverkeeper”) sought to invoke the jurisdiction of the Ninth Circuit Court of Appeals in asserting that a Letter of Recommendation issued by the Coast Guard concerning a liquefied natural gas facility constituted agency action under the Natural Gas Act, 15 U.S.C. § 717 et seq. Riverkeeper was seeking to prevent LNG Development Company (d/b/a Oregon LNG) from constructing a liquid natural gas facility (LNG) and pipeline along the Columbia River.Oregon LNG filed an application to review the suitability of the Columbia River for marine traffic servicing a proposed LNG terminal. The United States Coast Guard issued a Letter of Recommendation (herein “LOR”), stating that the port was not currently suitable for such traffic. The LOR also identified mitigation measures that could reduce potential security risks, while noting that the implementation of such measures would require further review.Riverkeeper filed two administrative appeals with the Coast Guard. The second appeal was denied on the basis that the Coast Guard’s LOR was not agency action under either the Endangered Species Act or the Administrative Procedure Act, nor major federal action under the National Environmental Policy Act. Riverkeeper filed this appeal with the U.S. Court of Appeals for the Ninth Circuit asserting that the LOR was a final agency action. The issue in this case was thus whether the Coast Guard LOR regarding the LNG facility was an agency order or action to "issue, condition, or deny any permit, license, concurrence, or approval,” in which case it could be reviewed on appeal by the Ninth Circuit.The court was tasked with determining the meaning of the words “order or action" and "permit, license, concurrence, or approval," which had not been addressed by any other federal appeals court. It held that “Congress contemplated that an order or action reviewable under § 717r(d)(1) would be (1) a final agency action or order (2) issuing, conditioning or denying (3) an agency determination (of a sort analogous to a permit) that has the legal effect of granting or denying permission to take some action.” The LOR was not an agency action granting or denying permission to perform some specified act, and it did not create any legal obligation for any party. The court found that the Coast Guard’s LOR could eventually be reviewed if the Federal Energy Regulatory Commission were to adopt it in an eventual approval of an LNG site on the Columbia River. Because that had not occurred, the Court of Appeals for the Ninth Circuit lacked jurisdiction to review the LOR and thus dismissed the appeal.