FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

COLUMBIA RIVERKEEPER;

COLUMBIA-PACIFIC COMMONSENSE;

WAHKIAKUM FRIENDS OF THE

RIVER,

Petitioners,

v.

UNITED STATES COAST GUARD,

Respondent,

LNG DEVELOPMENT COMPANY,

LLC, DBA Oregon LNG,

Respondent-Intervenor.

No. 12-73385

OPINION

On Petition for Review of an Order of the

United States Coast Guard

Argued and Submitted

May 12, 2014—Portland, Oregon

Filed August 5, 2014

Before: Arthur L. Alarcón, A. Wallace Tashima,

and Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Ikuta
2 COLUMBIA RIVERKEEPER V. U.S. COAST GUARD

SUMMARY*

Jurisdiction / U.S. Coast Guard

The panel dismissed due to lack of jurisdiction a petition

for review of the U.S. Coast Guard’s issuance of a letter of

recommendation to the Federal Energy Regulatory

Commission regarding the suitability of the Columbia River

for vessel traffic associated with a proposed liquified gas

facility and pipeline.

The panel concluded that the court lacked jurisdiction

because the Coast Guard’s letter of recommendation was not

in practice a final agency action under 15 U.S.C. § 717r(d)(1)

of the Natural Gas Act, which authorizes judicial review of

final agency orders and actions that “issue, condition, or deny

any permit, license, concurrence, or approval.”

COUNSEL

Thomas C. Buchele (argued) and Aubrey Baldwin, Earthrise

Law Center, Portland, Oregon; Lauren Goldberg, Columbia

Riverkeeper, Hood River, Oregon, for Petitioners.

Brian C. Toth (argued) and Robert J. Lundman, Attorneys,

Appellate Section; Robert G. Dreher, Acting Assistant

Attorney General, United States Department of Justice,

Environment & Natural Resources Division, Washington,

D.C.; John T. Dewey, Curtis E. Borland, Frank G. Nolan, and

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
COLUMBIA RIVERKEEPER V. U.S. COAST GUARD 3

Bronwyn Douglass, United States Coast Guard, Washington,

D.C., for Respondent.

Charles Scott, Fulbright & Jaworski, New York, New York,

for Respondent-Intervenor.

OPINION

IKUTA, Circuit Judge:

This appeal addresses one of the several administrative

proceedings in which Columbia Riverkeeper, ColumbiaPacific Common Sense, and Wahkiakum Friends of the River

(collectively Riverkeeper) have attempted to intervene in an

effort to prevent LNG Development Company, LLC (doing

business as Oregon LNG), from constructing a liquefied

natural gas facility and pipeline along the Columbia River in

Oregon. As part of the lengthy terminal siting process, the

Coast Guard provided the Federal Energy Regulatory

Commission (FERC) with a letter of recommendation

(sometimes referred to as a LOR) regarding the suitability of

the waterway for vessel traffic associated with the proposed

facility. Riverkeeper petitions for review of the Coast

Guard’s issuance of the letter of recommendation, contending

that we have jurisdiction under 15 U.S.C. § 717r(d)(1), which

authorizes judicial review of agency orders and actions that

“issue, condition, or deny any permit, license, concurrence,

or approval.” Because the letter of recommendation is not

such an order or action, we conclude we lack jurisdiction and

dismiss the petition for review.
4 COLUMBIA RIVERKEEPER V. U.S. COAST GUARD

I

Liquefied natural gas (LNG) is natural gas that has been

“supercooled into liquid form” and “reheated back into gas

form at natural gas terminals” for transport to customers. 

Wash. Gas Light Co. v. FERC, 532 F.3d 928, 929 n.1 (D.C.

Cir. 2008). Although the process for liquefying natural gas

has been known since the 19th Century and used

commercially since the 1950s, interest in transporting LNG

for commercial use increased first in the 1970s due to

declines in gas reserves, and again more recently. See Jacob

Dweck, David Wochner, & Michael Brooks, Liquefied

Natural Gas (LNG) Litigation After the Energy Policy Act of

2005: State Powers in LNG Terminal Siting, 27 Energy L.J.

473, 473 (2006). The supercooling process reduces the

volume of the natural gas to 1/600th of natural gas in vapor

form, and, according to the Coast Guard, makes transporting

liquefied natural gas “the most economical way to import

natural gas from overseas.” Once natural gas has been

liquefied, it can be transported in an LNG tanker to an LNG

import terminal, which receives, stores and processes the

LNG. These facilities are “typically sited in coastal areas

with shipping access.” AES Sparrows Point LNG, LLC v.

Smith, 527 F.3d 120, 124 (4th Cir. 2008). Because activities

involving LNG have a potential for explosions, fires, and

spills, federal, state, and local governments have taken steps

to regulate the siting and operation of LNG terminal facilities.

A

To understand the role of the Coast Guard’s letter of

recommendation in the regulatory process, it is necessary to

review the historical development of the legal framework for

siting LNG terminal facilities. Prior to 2005, different federal
COLUMBIA RIVERKEEPER V. U.S. COAST GUARD 5

agencies allocated responsibility for regulatingLNG terminal

facilities amongst themselves by means of interagency

agreements, with little guidance from Congress. The Natural

Gas Act of 1938 (NGA) authorized FERC’s predecessor

agency (the Federal Power Commission) to approve the

import and export of natural gas, 15 U.S.C. § 717b (1938),

and the extension and improvement of transportation

facilities, 15 U.S.C. § 717f (1938), but did not reference LNG

terminal facility siting responsibility. Beginning in 1968,

Congress enacted a series of pipeline safety statutes that gave

the Department of Transportation (DOT) authority to issue

minimum safetystandards for siting new liquefied natural gas

pipeline facilities, 49 U.S.C. § 60103. DOT and FERC

ultimately entered into an interagency agreement to allocate

their respective responsibilities. See Memorandum of

Understanding between the Department of Transportation and

the Federal Energy Regulatory Commission regarding

Liquefied Natural Gas Transportation Facilities (1985).

In addition, the Coast Guard asserted authority over siting

decisions affecting the safety and security of port areas and

navigable waterways under the Ports and Waterways Safety

Act, 33 U.S.C. §§ 1221–1236, the Magnuson Act of 1950,

50 U.S.C. § 191, and Executive Order No. 10173, 15 Fed.

Reg. 7005 (Oct. 18, 1950). In early 1978, the Coast Guard

and a DOT subagency (the Office of Pipeline Safety

Operation of the Materials Transportation Bureau) entered

into a memorandum of understanding regarding the division

of regulatory responsibility over LNG terminals. Believing

that the agreement gave it broad regulatory authority, the

Coast Guard commenced a rulemaking proceeding and

proposed regulations that would require any person siting an

LNG facility to obtain a “use permit” from the Coast Guard. 

Liquefied Natural Gas Facilities, 43 Fed. Reg. 34362, 34365
6 COLUMBIA RIVERKEEPER V. U.S. COAST GUARD

(Aug. 3, 1978) (proposed 33 C.F.R. § 126.2012). After

further congressional action suggested that the Coast Guard’s

view of its regulatory authority was too broad, the Coast

Guard reduced its ambition. Pursuant to a revised

memorandum of understanding with DOT, signed in 1986,

the Coast Guard proposed revised regulations replacing its

proposed “use permit” requirement with a requirement that a

project proponent merely secure a letter of recommendation

from the Coast Guard. Liquefied Natural Gas Waterfront

Facilities, 53 Fed. Reg. 3370, 3377 (Feb. 5, 1988) (proposed

33 C.F.R. § 127.009).

Beginning in the 1990s, there was a rapid increase in

efforts to site LNG import terminals. In response to growing

safety and environmental concerns, a number of states

claimed authority to regulate LNG facilities under specific

state LNG statutes or under general environmental, zoning, or

construction laws. See Parfomake & Vann, Congressional

Research Service, Liquefied Natural Gas (LNG) Import

Terminals: Siting, Safety, and Regulation, at 16–17 (Dec. 14,

2009); see also, e.g., Weaver’s Cove Energy, LLC v. R.I.

Coastal Res. Mgmt. Council, 589 F.3d 458, 472–73 (1st Cir.

2009); AES Sparrows Point LNG, 527 F.3d at 124. California

also asserted exclusive authority to regulate LNG facilities

that did not impact interstate commerce, claiming that FERC

lacked authority under the NGA to regulate such sites. See,

e.g., Re: Sound Energy Solutions, Notice of Intervention and

Protest of the Public Utilities Commission of the State of

California, at 7–9, FERC Docket No. CP04-58-000 (Feb. 23,

2004).

In 2004, FERC, the Coast Guard, and a DOT subagency

(the Research and Special Programs Administration)

responded to the terrorist events of September 11, 2001 by
COLUMBIA RIVERKEEPER V. U.S. COAST GUARD 7

entering into another interagency agreement to divide

regulatory responsibility for the safety and security review of

waterfront LNG facilities. This agreement confirmed that

FERC had lead regulatory authority for the siting and

construction of onshore LNG facilities. The agencies also

agreed that FERC would be the lead agency for preparing an

environmental impact statement (EIS) under the National

Environmental Policy Act (NEPA),

1

42 U.S.C.

§§ 4321–4370h.

In 2005, consistent with this 2004 interagency agreement,

the Coast Guard issued a “Navigation and Vessel Inspection

Circular,” NVIC 05-05, providing guidance for persons

“seeking a permit to build and operate a shore-side LNG

terminal.” The circular confirmed that FERC was responsible

for authorizing the siting and construction of onshore LNG

facilities, and was the lead agency for the NEPA process. 

The circular stated that the Coast Guard would serve as a

cooperating agency under NEPA, see 40 C.F.R. § 1501.6, and

would provide FERC with a letter of recommendation (as

required in the Coast Guard’s 1988 regulations) that set forth

its formal evaluation of the suitability of the waterway for

LNG marine traffic. According to the Coast Guard, issuing

such a letter of recommendation was a “federal action which

1 For all “major Federal actions significantly affecting the quality of the

human environment” the responsible official must conduct environmental

analyses pursuant to NEPA. 42 U.S.C. § 4332(C). Such analysis must

include a “full and fair discussion of [the action’s] significant

environmental impacts and shall inform decisionmakers and the public of

the reasonable alternatives which would avoid or minimize adverse

impacts or enhance the quality of the human environment.” 40 C.F.R.

§ 1502.1. “Major federal actions” include “projects and programs entirely

or partly financed, assisted, conducted, regulated, or approved by federal

agencies.” 40 C.F.R. § 1508.18(a).
8 COLUMBIA RIVERKEEPER V. U.S. COAST GUARD

requires compliance with NEPA” to the same extent as

FERC’s authorization for construction and operation of an

LNG facility.

Just a few months later, Congress enacted the Energy

Policy Act (EPAct) of 2005, Pub. L. No. 109-58, 119 Stat.

594, which finally clarified Congress’s intent regarding the

division of responsibility for siting and operating LNG

terminal facilities. The EPAct resolved a number of

important issues. First, the Act amended the applicable

section of the Natural Gas Act to give FERC “the exclusive

authority to approve or deny an application for the siting,

construction, expansion, or operation of an LNG terminal,”

id., § 311, 119 Stat. at 686, codified at 15 U.S.C. § 717b(e)(1)

(emphasis added), thereby precluding other federal or state

agencies from asserting such authority.

Second, in response to the states’ interest in having some

control over LNG import terminals within their jurisdiction,

Congress took a compromise position. Although Congress’s

grant of “exclusive authority” to FERC in siting decisions

precluded the states’ imposition of state law requirements, the

EPAct preserved the states’ authority under several federal

environmental laws to require project proponents to obtain a

state compliance certification. Id., § 311, 119 Stat. at 686,

codified at 15 U.S.C. § 717b(d). But to prevent states from

using this authority to block LNG projects completely, see

Dweck, Wochner, & Brooks, supra, at 483–85 (examining

Connecticut’s successful efforts to block the Islander East

pipeline project using its water quality certification authority

under the CWA), the EPAct allowed for federal judicial

review of an order or action of a “State administrative agency

acting pursuant to Federal law to issue, condition, or deny any

permit, license, concurrence, or approval,” Pub. L. No. 109-
COLUMBIA RIVERKEEPER V. U.S. COAST GUARD 9

58, § 313, 119 Stat. at 689–90, codified at 15 U.S.C.

§ 717r(d)(1); see Islander E. Pipeline Co. v. Conn. Dep’t of

Envtl. Prot., 482 F.3d 79, 85 (2d Cir. 2006) (stating that

legislative history confirms that this provision was enacted to

allow expedited federal judicial review of a state’s denial of

a required federal permit); see also Dweck, Wochner, &

Brooks, supra, at 482–83 (noting that the conflict between

Islander East and Connecticut led Congress to enact

§ 717r(d)).

Finally, the EPAct confirmed that FERC was the “lead

agency for the purposes of coordinating all applicable Federal

authorizations and for the purposes of complying with”

NEPA. Pub. L. No. 109-58, § 313, 119 Stat. at 689, codified

at 15 U.S.C. § 717n(b)(1). It required FERC to promulgate

regulations for NEPA compliance that require a pre-filing of

LNG import terminal siting applications. Id., § 311, 119 Stat.

at 687, codified at 15 U.S.C. § 717b-1(a).

Although the EPAct did not speak directly to the Coast

Guard’s role in siting LNG facilities, after the EPAct’s

enactment, the Coast Guard revisited its internal procedures,

and issued a new “Navigation and Vessel Inspection

Circular,” NVIC 05-08, on December 22, 2008. Now

understanding that its letter of recommendation was not a

final decision, but rather mere advice to FERC (the agency

with exclusive authority to make all siting decisions under the

EPAct), the Coast Guard determined its letter of

recommendation did not “constitute a permitting action and

must not impose requirements or conditions mandated by the

Coast Guard.” Accordingly, the Coast Guard no longer

deemed its letter of recommendation to require separate

compliance with NEPA. In 2010, Congress confirmed this

approach. In § 813 of the Coast Guard Authorization Act of
10 COLUMBIA RIVERKEEPER V. U.S. COAST GUARD

2010, Congress required “the Secretary of the department in

which the Coast Guard is operating” to “make a

recommendation, after considering recommendations made

by the States, to the Federal Energy Regulatory Commission

as to whether the waterway to a proposed waterside liquefied

natural gas facility is suitable or unsuitable for the marine

traffic associated with such facility.” Pub. L. No. 111-281,

§ 813, 124 Stat. 2905, 2999. This language confirmed

Congress’s intent to limit the Coast Guard’s role in licensing

LNG facilities to issuing letters of recommendation.

B

Accordingly, by 2009 (the year the Coast Guard issued

the letter of recommendation in this case), the regulatory

framework for a party seeking to site an LNG facility was as

follows. FERC was the exclusive siting authority and “lead

agency” under NEPA. 15 U.S.C. § 717n(b)(1). FERC

required an applicant to engage in a pre-filing procedure

before filing an application. See 18 C.F.R. §§ 153.12, 157.21

(2009). Among other pre-filing steps, the applicant had to

file a letter of intent and waterwaysuitability assessment with

the captain of the port2of the zone in which the facility would

be located, pursuant to 33 C.F.R. § 127.007 (2009) and 18

C.F.R. § 157.21 (2009). After reviewing the letter of intent

and accompanying assessment, the captain of the port would

issue a letter of recommendation regarding the proposed

facility. 33 C.F.R. § 127.009 (2009). Under Coast Guard

regulations, a person “directly affected” by the letter of

recommendation could “request reconsideration by the Coast

Guard officer responsible,” id. § 127.015(a) (2009), and

2 A “captain of the port” is the officer so designated by the

Commandant of the Coast Guard. 14 U.S.C. § 634(a).
COLUMBIA RIVERKEEPER V. U.S. COAST GUARD 11

pursue two additional levels of administrative review, id.

§ 127.015 (2009).3

After the project proponent filed an application with

FERC, FERC would undertake an extensive review and

consultation process with various federal, state, and local

agencies, as well as private parties, and also convene public

hearings. See 15 U.S.C. §§ 717b(e)(2)(B), 717b-1. This

process included the work necessary to comply with NEPA. 

Other state and federal cooperating agencies assist FERC in

preparing an EIS. The project proponent was required to

obtain all necessary permits and approvals from state and

other federal bodies, and could challenge the denial of any

permits or approvals required under federal law in a federal

court of appeals. See id. § 717r(d)(1). Once this process was

completed, FERC could issue a final decision approving or

denying the application. See id. § 717b(e)(2). FERC could

approve the application “in whole or part, with such

modifications and upon such terms and conditions” as it

found necessary and appropriate. Id. § 717b(e)(3).

Upon FERC’s issuance of the order, any person could

apply for rehearing within 30 days. Id. § 717r(a). Within 60

days of FERC’s order on the application for rehearing, an

aggrieved party could obtain review of the order in the court

3

In 2012, the Coast Guard amended its regulations to provide that the

letter of recommendation is not appealable because it “is a

recommendation from the [captain of the port] to the agency having

jurisdiction” and “does not constitute agency action for the purpose of

§ 127.015 or the Administrative Procedure Act.” 33 C.F.R. § 127.009(b)

(2012). That regulation does not apply retroactively. See id. § 127.009(e)

(2012).
12 COLUMBIA RIVERKEEPER V. U.S. COAST GUARD

of appeals “wherein the natural-gas company to which the

order relates is located” by filing a written petition. Id.

§ 717r(b).

II

We now turn to the facts of this case. In 2007, Oregon

LNG began the pre-filing process: It made an initial filing

with FERC and filed a letter of intent and a preliminary

waterway suitability assessment with the captain of the port

for Portland for a proposed LNG terminal and pipeline. The

letter stated that Oregon LNG intended to construct an LNG

facility on the East Skipanon Peninsula, near the confluence

of the Skipanon and the Columbia River in Warrenton,

Oregon. In August 2007, FERC published a notice of intent

to prepare an EIS for the East Skipanon LNG terminal. LNG

Development Company, LLC and Oregon PipelineCompany;

Notice of Intent, 72 Fed. Reg. 50356 (Aug. 31, 2007).

Oregon LNG filed its formal application for the East

Skipanon LNG terminal with FERC in October 2008,

prompting FERC to issue a notice of application. LNG

Development Company, LLC (d/b/a Oregon LNG); Oregon

Pipeline Company, LLC; Notice of Applications, 73 Fed.

Reg. 65301 (Nov. 3, 2008). Riverkeeper and other

environmental organizations intervened in the FERC

proceedings pursuant to 18 C.F.R. § 385.214 on November

17, 2008.4

On April 24, 2009, the captain of the port issued the letter

of recommendation at issue in this case, and the

accompanying analysis for Oregon LNG’s East Skipanon

 

4

 The FERC proceedings are ongoing.
COLUMBIA RIVERKEEPER V. U.S. COAST GUARD 13

LNG terminal, pursuant to 33 C.F.R. § 127.009. The letter

stated the captain’s determination “that the applicable

portions of the Columbia River and its approaches are not

currently suitable, but could be made suitable for the type and

frequency of LNG marine traffic associated with this

project.” The letter of recommendation included the

following statement:

While this letter has no enforcement status,

the determinations, analysis, and ultimate

recommendation as to the suitability of this

waterway, as contained in this letter, would be

referenced in concert with a Captain of the

Port Order, should an LNG transit be

attempted along this waterway without full

implementation of the risk mitigation

measures.

The analysis accompanying the letter listed additional

mitigation measures that were recommended “to responsibly

manage the safety and security risks” of the project, while

acknowledging that the specifics of each suggested mitigation

measure would require “further development through the

creation of an Emergency Response Plan as well as a Transit

Management Plan.”

On May 22, 2009, Riverkeeper and other intervenors

requested reconsideration of the letter of recommendation

under 33 C.F.R. § 127.015(a) (2009), on the ground that the

Coast Guard had failed to comply with NEPA and the
14 COLUMBIA RIVERKEEPER V. U.S. COAST GUARD

Endangered Species Act (ESA),516 U.S.C. §§ 1531–44. The

captain of the port denied the motion for reconsideration on

July 9, 2009, and Riverkeeper filed an administrative appeal,

see 33 C.F.R. § 127.015(b)(1) (2009), which was denied by

a district commander on December 2, 2010.

Thereafter, an assistant commandant denied

Riverkeeper’s second administrative appeal, see 33 C.F.R.

§ 127.015(c), on August 25, 2012. In his August 25th

decision letter, the assistant commandant stated that issuance

of the letter of recommendation was not an agency action

under the ESA or Administrative Procedure Act (APA), or a

“major federal action” under NEPA, because its issuance

“carries no legal significance in and of itself,” The letter of

recommendation was “not a condition precedent for and does

not bar FERC” from authorizing the East Skipanon LNG

terminal without adopting the captain of the port’s

recommendations or incorporating any of the mitigation

measures. The letter does not “impose any legal requirement

on any party to comply with” its recommendations; it is not

legally binding on the Coast Guard, any other government

agency, or Oregon LNG. Nor does the letter have an impact

on vessel traffic, because “[t]he issuance of an LOR neither

authorizes, nor prohibits, an LNG carrier from conducting a

transit of the waterway” and vessels are not required to obtain

Coast Guard transit permits. Rather, the issuance of a captain

of the port letter “is separate and distinct from the

5 The ESA requires each federal agency to “insure that any action

authorized, funded, or carried out by such agency . . . is not likely to

jeopardize the continued existence of any endangered species or

threatened species or result in the destruction or adverse modification of

habitat of such species which is determined by the Secretary.” 16 U.S.C.

§ 1536(2).
COLUMBIA RIVERKEEPER V. U.S. COAST GUARD 15

recommendations provided in an LOR, which are not

enforceable, and the [captain of the port] is not bound by the

recommendations contained in the LOR.”

Riverkeeper then filed a petition for review here,

challenging the letter of recommendation and the August 25,

2012 decision pursuant to 15 U.S.C. § 717r(d)(1) of the

Natural Gas Act. Oregon LNG intervened in the proceedings.

III

As a threshold matter, we must determine whether

§ 717r(d)(1) gives us jurisdiction to review Riverkeeper’s

challenge to the letter of recommendation and the Coast

Guard’s final denial of Riverkeeper’s administrative appeal. 

Riverkeeper contends that in enacting § 717r(d)(1), Congress

intended to create an exception to the general rule that

“review of agency action is typically located in the district

courts under the APA absent a specific statutory provision to

the contrary,” Cal. Energy Comm’n v. Dep’t of Energy,

585 F.3d 1143, 1148 (9th Cir. 2009). We review questions

regarding our jurisdiction de novo. Sandoval-Luna v.

Mukasey, 526 F.3d 1243, 1245 (9th Cir. 2008) (per curiam). 

“It is to be presumed that a cause lies outside [of federal

courts’] limited jurisdiction, and the burden of establishing

the contrary rests upon the party asserting jurisdiction.” 

Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377

(1994) (citations omitted).

A

We begin with the text of the jurisdictional statute, which

provides in relevant part:
16 COLUMBIA RIVERKEEPER V. U.S. COAST GUARD

The United States Court of Appeals for the

circuit in which a facility subject to section

717b of this title . . . is proposed to be

constructed, expanded, or operated shall have

original and exclusive jurisdiction over any

civil action for the review of an order or

action of a Federal agency (other than the

Commission) or State administrative agency

acting pursuant to Federal law to issue,

condition, or deny any permit, license,

concurrence, or approval (hereinafter

collectively referred to as “permit”) required

under Federal law . . . .

15 U.S.C. § 717r(d)(1).

The statute does not define the terms “order or action” or

“permit, license, concurrence, or approval,” and so we

interpret these words according to “their ordinary,

contemporary, common meaning.” Transwestern Pipeline

Co. v. 17.19 Acres of Prop. Located in Maricopa Cnty.,

627 F.3d 1268, 1270 (9th Cir. 2010) (internal quotation marks

omitted). In making this interpretation, we give due

consideration to the context of these words “with a view to

their place in the overall statutory scheme.” Satterfield v.

Simon & Schuster, Inc., 569 F.3d 946, 953 (9th Cir. 2009)

(internal quotation marks omitted).

Neither we nor our sister circuits have defined the phrase

“order or action” in § 717r(d)(1). In interpreting statutes

authorizing judicial review of agency decisions, however, the

Supreme Court has held that “[t]he strong presumption is that

judicial review will be available only when agency action

becomes final.” Bell v. New Jersey, 461 U.S. 773, 778 (1983)
COLUMBIA RIVERKEEPER V. U.S. COAST GUARD 17

(holding that a statute allowing judicial review of “any

action” by the Secretary of Education gives federal courts

jurisdiction only over orders or actions that are final); see

also FPC v. Metro. Edison Co., 304 U.S. 375, 383–84 (1938)

(holding that the word “order” in a section of the Federal

Power Act substantially identical to § 717r(b) refers only to

final orders). This long-standing rule of construction reflects

the Supreme Court’s inference that Congress generally does

not intend to “afford[] opportunity for constant delays in the

course of the administrative proceeding,” such as would arise

if courts could review every interim agency order or action. 

Metro. Edison, 304 U.S. at 383.

Nothing in § 717r(d)(1) overcomes this “strong

presumption.” Bell, 461 U.S. at 778. Congress’s intent to

authorize judicial review over only final orders or actions is

strongly supported by the language of § 717r(d)(1), which

limits judicial review to those agency decisions that “issue,

condition, or deny any permit, license, concurrence, or

approval,” the sort of final decisions that occur at the

conclusion of an administrative process. Further, reading

§ 717r(d)(1) as limiting judicial review to final agency

decisions is consistent with the long-standing interpretation

of § 717r(b), a related section of the same statute. Although

§ 717r(b) permits federal court review of “an order” issued by

FERC, the Supreme Court (as well as our sister circuits and

our own precedents) read this language as authorizing judicial

review only over final orders. See Consol. Gas Supply Corp.

v. FERC, 611 F.2d 951, 958 (4th Cir. 1979) (considering

§ 717r(b)); Atlanta Gas Light Co. v. FPC, 476 F.2d 142, 147

(5th Cir. 1973) (same); cf. Metro. Edison Co., 304 U.S. at

383–84 (considering language in the Federal Power Act,

16 U.S.C. § 825l(b), which is substantially identical to

§ 717r(b)); The Steamboaters v. FERC, 759 F.2d 1382,
18 COLUMBIA RIVERKEEPER V. U.S. COAST GUARD

1387–88 (9th Cir. 1985) (same); Papago Tribal Util. Auth. v.

FERC, 628 F.2d 235, 238 (D.C. Cir. 1980) (same). In adding

§ 717r(d)(1) to § 717r when it enacted the EPAct, Congress

did not give any sign it intended federal courts to exercise a

broader scope of review over non-FERC decisions than over

FERC decisions. Finally, the presumption that Congress

intended to authorize judicial review over only final agency

decisions is supported by the same considerations relied on

by the Supreme Court in Metropolitan Edison Co.: 

construing § 717r(d)(1) as allowing judicial review of every

interim action of a state or federal agencywould “do violence

to the manifest purpose of the provision,” 304 U.S. at 384,

which was to expedite siting decisions, see Islander E.

Pipeline Co., 482 F.3d at 85. Accordingly, we conclude that

§ 717r(d) authorizes judicial review only over orders or

actions that are “final.”6 An action or order is “final when it

imposes an obligation, denies a right, or fixes some legal

relationship.” City of Fremont, 336 F.3d at 914 (internal

quotation marks omitted); see also Or. Natural Desert Ass’n

v. U.S. Forest Serv., 465 F.3d 977, 986–87 (9th Cir. 2006)

(same); Atlanta Gas, 476 F.2d at 147 (noting an order

reviewable under § 717r(b) must be “unambiguous in legal

effect” and have “some substantial effect on the parties which

cannot be altered by subsequent administrative action”).

6

In construing the language of the Federal Power Act, which is

substantially identical to § 717r(b), Papago, 628 F.2d at 245, we imposed

additional requirements for judicial review, holding that a FERC order is

subject to judicial review under the Federal Power Act only if “(1) the

order is final; (2) the order, if unreviewed, would inflict irreparable harm

on the party seeking review; and (3) judicial review at this stage of the

process would not invade the province reserved to the discretion of the

agency,” City of Fremont v. FERC, 336 F.3d 910, 913–14 (9th Cir. 2003). 

We need not address here whether these requirements are also applicable

in the § 717r context.
COLUMBIA RIVERKEEPER V. U.S. COAST GUARD 19

Section 717r(d)(1) limits our review not only to final

actions and orders, but also to those that “issue, condition, or

deny any permit, license, concurrence, or approval

(hereinafter collectively referred to as ‘permit’) required

under Federal law.” Although the statute does not define

“permit, license, concurrence, or approval,” it collectively

refers to these terms as “permit,” indicating that Congress

intended to capture the type of agency determination that

grants or denies permission to take some action. See United

States v. Stevens, 559 U.S. 460, 474 (2010) (applying noscitur

a sociis canon). The dictionary definition of permit is “a

written warrant or license granted by one having authority,”

Merriam-Webster’s Collegiate Dictionary 923 (11th ed.

2003), which is similar to the definitions of the other statutory

terms.7Indeed, the terms are often defined by one another. 

See, e.g., Black’s Law Dictionary 1176 (8th ed. 2003)

(defining “permit” as “a certificate evidencing permission; a

license” (emphasis added)); id. at 938 (defining “license” as

“[a] permission, usu. revocable, to commit some act”

(emphasis added)).

Accordingly, 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.

7

See Merriam-Webster’s Collegiate Dictionary 717 (11th ed. 2003)

(defining “license” as “a permission to act”; “a permission granted by

competent authority to engage in . . . an activity otherwise unlawful”); id.

at 259 (defining “concurrence” as “an agreement or union in action”); id.

at 61 (defining “approval” as “an act or instance of approving” and

defining “approve” as “to give formal or official sanction to”).
20 COLUMBIA RIVERKEEPER V. U.S. COAST GUARD

B

Applying this interpretation, the letter of recommendation

for the East Skipanon LNG terminal is not a permitting action

or order under § 19 of the Natural Gas Act.

On its face, the Coast Guard’s letter of recommendation

for this terminal is not an agency determination granting or

denying permission to take some action. As early as 1986,

the Coast Guard recognized that its siting authority was

limited and retreated from its position that it was authorized

to issue a “use permit” for LNG terminal facilities. Instead,

it promulgated regulations allowing it to issue only a letter of

recommendation. Congress’s express grant of exclusive

siting authority to FERC, see 15 U.S.C. § 717b(e)(1), further

clarified that the Coast Guard lacks authority over siting

decisions. Congress is assumed to know existing law, and

Congress did not require FERC to obtain or comply with the

Coast Guard’s letter of recommendation, even though the

Coast Guard had begun issuing such letters long before the

EPAct was enacted. See Goodyear Atomic Corp. v. Miller,

486 U.S. 174, 184–85 (1988) (“We generally presume that

Congress is knowledgeable about existing law pertinent to the

legislation it enacts.”).

Congress subsequently confirmed that the Coast Guard’s

only obligation was to “make a recommendation” to FERC as

to the suitability of the waterway. Pub. L. No. 111-281,

§ 813, 124 Stat. at 2999.8 Because “recommendation” is not

8 Congress passed the 2010 Coast Guard Authorization Act after the

Coast Guard issued the letter of recommendation for the East Skipanon

LNG terminal but before the final administrative appeal denial. The

parties do not dispute that the 2010 statute applies here.
COLUMBIA RIVERKEEPER V. U.S. COAST GUARD 21

defined, we assume Congress adopted the common meaning

of the term “recommendation,” which is a suggestion or

advisement without decisive authority, see MerriamWebster’s Collegiate Dictionary 1039 (11th ed. 2003)

(defining “recommendation” as “the act of recommending”);

id. (defining “recommend” as “to present as worthy of

acceptance . . . . ; to endorse as fit worthy or competent . . . ;

advise”). Because nothing in the EPAct or the Coast Guard

Authorization Act suggests that the Coast Guard’s

“recommendation” is anythingmore than expert advicewhich

FERC will use to inform its decision of whether to approve

the proposed facility, we conclude the Coast Guard’s letter of

recommendation for the East Skipanon LNG terminal does

not have any conclusive legal effect.9 Cf. Revision of LNG

and LHG Waterfront Facility General Requirements, 75 Fed.

Reg. 29420, 29423 (May 26, 2010) (“Recommendations

expressed in the [letter of recommendation] represent the

Coast Guard’s professional input and are provided in the

context of the Federal, State, or local jurisdictional agency’s

proceedings, which provide for participation and public

comments.”). Because a letter is not a “permit, license,

concurrence, or approval,” for purposes of § 717r(d)(1), it is

therefore not subject to judicial review.

9 To the extent Riverkeeper argues that the final administrative appeal

denial was a “final agency action” based on language in 33 C.F.R.

§ 127.015(d) (2009), we reject this argument, because nothing in the

record indicates that the Coast Guard’s final decision had the effect of

issuing, conditioning, or denying a permit, see 15 U.S.C. § 717r(d)(1). 

Because Riverkeeper did not appeal the action in district court asserting

jurisdiction under the APA, which provides for judicial review of final

agency actions, see 5 U.S.C. § 704, we need not address whether

Riverkeeper could have asserted a claim for relief in that context.
22 COLUMBIA RIVERKEEPER V. U.S. COAST GUARD

Riverkeeper raises several arguments against this

interpretation. First, Riverkeeper suggests that if § 717r(d)(1)

applies only to final actions relating to permits, and does not

apply to the Coast Guard’s letter of recommendation, it will

do no work in the statutory regime. Since we are to interpret

statutes to avoid making any provision superfluous, Corley v.

United States, 556 U.S. 303, 314 (2009), Riverkeeper argues

that such an interpretation cannot be correct. We disagree. 

The main purpose of § 717r(d)(1) was to allow judicial

review of state agencies’ denial of certifications required

under federal environmental laws. See Islander E. Pipeline

Co., 482 F.3d at 85–88 (reviewing state order denying

petitioner’s application for a Water Quality Certificate). 

Moreover, the NGA itself makes clear that certain federal

agency actions are subject to judicial review under this

section; for instance, FERC must “obtain the concurrence of

the Secretary of Defense before authorizing the siting,

construction, expansion, or operation of liquefied natural gas

facilities affecting the training or activities of an active

military installation.” 15 U.S.C. § 717b(f)(3) (emphasis

added).

Second, Riverkeeper argues that the term “letter of

recommendation” is misleading, and as a practical matter,

such a letter constitutes a final agency action or order under

§ 717r(d)(1). We agree that an agency’s characterization of

its action as being provisional or advisory is not necessarily

dispositive, and courts consider whether the practical effects

of an agency’s decision make it a final agency action,

regardless of how it is labeled. Under the APA, for instance,

even if the agency does not label its decision or action as

final, it may be reviewable if it “has the status of law or

comparable legal force” or if “immediate compliance with its

terms is expected.” Or. Natural Desert Ass’n, 465 F.3d at
COLUMBIA RIVERKEEPER V. U.S. COAST GUARD 23

987. In Bennett v. Spear, 520 U.S. 154 (1997), the Supreme

Court concluded that a biological opinion issued by the Fish

and Wildlife Service pursuant to the ESA was an appealable

final agency action under the APA because it effectively

authorized a federal agency to take endangered species if it

complied with the prescribed conditions. Id. at 177–78.

While styled as an “opinion,” the biological opinion had

“direct and appreciable legal consequences.” Id. at 178. 

Likewise, a document styled as a “guidance document” may

amount to a final agency action when it “reflect[s] a settled

agencyposition which has legal consequences.” Appalachian

Power Co. v. EPA, 208 F.3d 1015, 1023 (D.C. Cir. 2000). By

contrast, an agency determination that certain property

contains wetlands subject to the Clean Water Act is not a

reviewable action under the APA, because that decision does

not determine rights or obligations from which legal

consequences will flow. Fairbanks N. Star Borough v. U.S.

Army Corps of Eng’rs, 543 F.3d 586, 593–94 (9th Cir. 2008). 

We have followed the same approach in the NEPA and ESA

contexts as well. See Ramsey v. Kantor, 96 F.3d 434, 444

(9th Cir. 1996) (concluding an agency’s incidental take

statement was the functional equivalent of a permit and

therefore constituted a “major Federal action” triggering

NEPA obligations); cf. Karuk Tribe of Cal. v. U.S. Forest

Serv., 681 F.3d 1006, 1021–23 (9th Cir. 2012) (en banc)

(concluding the Forest Service’s decision authorized rather

than advised proposed mining activity and therefore triggers

ESA requirements), cert. denied, 133 S. Ct. 1579 (2013).

Relying on these precedents, Riverkeeper maintains that

the Coast Guard’s letter of recommendation for the East

Skipanon LNG terminal is the functional equivalent of a

permit because either (1) the letter of recommendation is in

practice a necessary prerequisite for siting of a facility or
24 COLUMBIA RIVERKEEPER V. U.S. COAST GUARD

(2) the letter of recommendation will effectively regulate

vessel traffic along the waterway after the facility’s

construction. We disagree with both assertions.

First, the record does not establish that obtaining the

Coast Guard’s approval of the proposed site for an LNG

terminal is a necessary prerequisite for siting an LNG facility. 

Here, the Coast Guard has no enforcement authority over

FERC’s siting decision, and its letter of recommendation does

not produce legal consequences. In Bennett and Appalachian

Power, by contrast, the agency action had a “virtually

determinative effect” on the project proponent. Bennett, 520

U.S. at 169; see also id. at 178 (stating that the Fish and

Wildlife Service’s biological opinion “alter[ed] the legal

regime” to which the federal agency was subject and had the

power to preclude the federal agency’s ability to go forward

with its water reclamation project); Appalachian Power,

208 F.3d at 1023 (stating that “through the Guidance, EPA

has given the States their ‘marching orders’”).

Nor does the record support Riverkeeper’s argument that,

as a practical matter, FERC always complies with the Coast

Guard’s letter of recommendation, which effectively gives it

the force of law. In making this claim, Riverkeeper relies

primarily on the First Circuit’s decision in City of Fall River

v. FERC, 507 F.3d 1 (1st Cir. 2007). But Riverkeeper’s

reliance on Fall Riveris misplaced because in that case FERC

gave the person seeking to construct an LNG terminal facility

a conditional approval that was subject to the Coast Guard’s

approval of a vessel transportation plan. Id. at 3–5. Under

these circumstances, the Coast Guard’s approval did have

binding effect, because FERC had the plenary authority to

make a siting order subject to such a requirement. See

15 U.S.C. § 717b(e). But nothing in Fall River suggests that
COLUMBIA RIVERKEEPER V. U.S. COAST GUARD 25

FERC has a firm internal policy to condition its approval

upon the Coast Guard’s decision, and there is no evidence in

the record before us suggesting that FERC has such an

entrenched policygenerallyor imposed such a condition here.

Second, we reject Riverkeeper’s claim that the Coast

Guard’s letter of recommendation will effectively regulate

vessel traffic along the waterway after the facility’s

construction. For this claim, Riverkeeper relies on the

captain of the port’s statement in the letter of

recommendation that “should an LNG transit be attempted

along this waterway without full implementation of the risk

mitigation measures” the Coast Guard would reference the

letter of recommendation’s “determinations, analysis, and

ultimate recommendation as to the suitability of this

waterway” in a “Captain of the Port Order.” On its face, this

language suggests that the Coast Guard intends to prevent the

East Skipananon LNG facility from receiving vessels unless

the project proponent complies with the letter’s requirements. 

But the record establishes that the Coast Guard has not taken

this position. Most important, the Coast Guard’s final

administrative decision, dated August 25, 2012, states that

mitigation measures in the letter of recommendation are not

binding on the captain of the port, and that as a practical

matter, the Coast Guard does not and could not regulate the

waterways by preventing vessel transit to LNG terminals that

failed to obtain an approval letter. In considering the effect

of the letter of recommendation, we are bound by the final

determination at the higher level of the agency. Cf. Nat’l

Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S.

644, 659 (2007) (“[T]he fact that a preliminary determination

by a local agency representative is later overruled at a higher

level within the agency does not render the decisionmaking

process arbitrary and capricious.”); Bechtel v. Admin. Review
26 COLUMBIA RIVERKEEPER V. U.S. COAST GUARD

Bd., U.S. Dep’t of Labor, 710 F.3d 443, 449 (2d Cir. 2013)

(concluding ALJ’s error was “beside the point” where the

Administrative Review Board recognized the error and

explained that it did not affect the case’s outcome).10

Accordingly, we conclude that the letter of recommendation

is not in practice a final agency action.11

C

Although the record does not establish that the Coast

Guard’s letter of recommendation is a final agency order or

action “to issue, condition, or deny any permit, license,

concurrence, or approval” required under Federal law,

15 U.S.C. § 717r(d)(1), this does not mean that the Coast

Guard’s recommendations are immune from judicial review. 

10 The Coast Guard press release and public relations documents, which

also state that Oregon LNG must implement the risk mitigation measures

in the Coast Guard’s letter of recommendation, merely track the language

of the letter, and so do not provide any additional support for

Riverkeeper’s interpretation. The April 13, 2009 “Executive Brief”cited

in Riverkeeper’s reply suffers from the same infirmity.

11Riverkeeper points to two other documents to support its interpretation

of the import of the letter of recommendation, but its arguments are

meritless. First, Riverkeeper claims that language in the Bradwood

project’s final environmental impact statement indicates that LNG tankers

must complywith mitigation measures set forth in the Coast Guard’s letter

of recommendation. Even if we interpreted the Bradwood environmental

documents as Riverkeeper urges, the Coast Guard analyzed the Bradwood

project under its pre-EPAct guidance document (NVIC 05-05), which is

no longer applicable here. Riverkeeper’s reliance on a May 2009 letter

from the Coast Guard to FERC is likewise misplaced; that letter merely

explains that the Coast Guard, not FERC, has jurisdiction over design and

equipment requirements on vessels. Nothing in the Coast Guard’s letter

indicates that the advice contained in a letter of recommendation is

binding.
COLUMBIA RIVERKEEPER V. U.S. COAST GUARD 27

Rather, any Coast Guard recommendation adopted by FERC

in its final order, or any failure to adopt such a

recommendation, would be reviewable under 15 U.S.C.

§ 717r(b). In addition, any final orders regarding vessel

traffic issued by the Coast Guard pursuant to its own

independent authority will be subject to judicial review as

final agency action. See, e.g., Wong v. Bush, 542 F.3d 732,

735 (9th Cir. 2008) (considering challenges to rule

establishing security zone); Wilmina Shipping AS v. U.S.

Dep’t of Homeland Sec., 934 F. Supp. 2d 1, 4, 19 (D.D.C.

2013) (considering challenge to a captain of the port’s order). 

But because Riverkeeper has not carried its burden of

showing that the letter of recommendation for the East

Skipanon LNG terminal is a final agency order or action to

issue a permit we lack jurisdiction to consider it or the August

25, 2012 decision affirming the letter.

DISMISSED.