HUFSTEDLER, Circuit Judge:
The present appeal gives renewed vitality to the long-time dispute over the delivery of hydroelectric power from the Hetch Hetchy Valley to the Bay Area. Appellants, residents, taxpayers, and consumers of electricity in San Francisco, allege that San Francisco's present "wheeling" arrangement with the Pacific Gas and Electric Company violates Section 6 of the Raker Act of December 19, 1913, ch. 4, 38 Stat. 242, establishing the Hetch Hetchy Valley as a resource of water and electric power. Appellees are the City and County of San Francisco ["San Francisco"], Pacific Gas and Electric Company ["PG&E"] and the Secretary of The Interior ["the Secretary"]. The district court granted San Francisco's and PG & E's motion to dismiss for failure to state a claim because it concluded that the Raker Act did not create a private cause of action in favor of appellants. It also granted summary judgment in favor of the Secretary with respect to appellants' claims under the Administrative Procedure Act, 5 U.S.C. §§ 701, 702 (1967), and the mandamus statute, 28 U.S.C. § 1361 (1976). The district court determined that these claims were barred by the doctrine of sovereign immunity and were unreviewable decisions within the Secretary's discretion. We affirm the lower court's result, but we disagree with its reasoning.
Appellants' claims arise in the context of a unique statutory framework. The Raker Act opened the doors of the Hetch Hetchy Valley's abundant water and hydroelectric resources to the residents of the Bay Area. Many groups were involved in the drafting of this legislation including the Bay Cities, environmentalists, local water and utility companies, and California farmers and irrigation districts. The culmination of their efforts was a statute that creates a delicate balance between federal interests in the use of federal public lands and state interests in the supply and distribution of water and energy to its citizens. Although appellants' Raker Act allegations raise a potpourri of complex federal jurisdictional issues,
The Raker Act does not expressly authorize consumers and residents of San Francisco to enforce its provisions. This omission does not foreclose the implication of a private cause of action. The Supreme Court has recently considered the question of the propriety of implying a private cause
Appellants' basic complaint is that San Francisco's use of PG&E's transmission lines to deliver Hetch Hetchy power to its residents violates Section 6 of the Raker Act.
The fact that Congress may have included the inhabitants of San Francisco among the beneficiaries of the Act does not imply that Congress intended to create a private cause of action in favor of those inhabitants. The legislative history of the Act reveals a careful consideration of the enforcement mechanism for the many conditions in the Hetch Hetchy grant. The primary concern of the debates was the relationship of the Federal Government vis-a-vis the State of California. That is, how should the Federal Government ensure that California would comply with the conditions to its grant of federal lands? Many congressmen suggested that an automatic forfeiture provision should be included in the grant. (See, 50 Cong.Rec. 4103-04 (1913).) But the suggestion was rejected as too harsh. (See, id. at 4105 ["[F]or heaven's sake, let us not add a clause so that if a horse takes a drink out of a creek or some one uses a little water or does something it may afford an excuse for some superserviceable United States attorney to jump in and declare forfeiture." (remarks by Rep. Taylor).).) The compromise that evolved was an amendment offered by Senator Raker himself which became Section 9(u) of the Act. That section provides that the Attorney General, at the request of the Secretary, may commence suit to enforce the Act if the grantee violates any of the conditions to the grant.
Parallel to the legislative development of Section 9(u) was the concern over the protection of the pre-existing rights of certain irrigation districts. (See, 51 Cong.Rec. 297 (1913) (remarks by Sen. Borah); 50 Cong.Rec. 4109-11 (1913).) Section 10 of the Act
Appellants discount Representative Mondell's comments by arguing that his remarks arose in the context of an automatic forfeiture proposal; and as such, do not indicate any congressional intent to preclude their cause of action. The argument gives too little significance to Representative Mondell's assertions. While automatic forfeiture was considered as a device to enforce the Act, it was only one of several such devices. Senator Raker's amendment represents a compromise in light of all the possible means of enforcing the Act that were considered.
Appellants' averments, read in the light of historical events that followed the passage of the Raker Act, reveal that appellants cannot meet the third and fourth criteria of Cort v. Ash. In 1913, Congress anticipated that San Francisco would shortly build its own transmission lines and that direct service to consumers would provide consumers with abundant power more cheaply than that supplied by private utilities. The congressional assumptions might have come true had the taxpayers seen it Congress' way in the decades that followed the Raker Act. But the taxpayers repeatedly refused to approve bond issues that would have supplied the revenue to build the transmission facilities.
Of perhaps greater moment, the Act establishes a cooperative effort of the
Appellants alternatively seek review under the Administrative Procedure Act ["APA"], which provides that a person "adversely affected or aggrieved by agency action within the meaning of a relevant statute" (5 U.S.C. § 702 (1967)) may seek judicial review of the agency action, unless such review is expressly precluded by statute or the "agency action is committed to agency discretion by law." (Id. at § 701(a).) Appellants claim that they are entitled to APA review of the Secretary's decision not to commence a suit against San Francisco under the enforcement powers given him by Section 9(u) of the Act. Appellants rely on the holding in United States v. City and County of San Francisco, supra, to allege that San Francisco is violating Section 6 of the Act and that the Secretary has no discretion; he has solely the duty to enforce the conditions in Section 6.
Despite the sympathetic appeal of appellants' claim, appellants cannot prevail. They are not within the class of persons encompassed by the term of art, "a person aggrieved." The concept of "a person aggrieved" is a close relative of the doctrine of standing. (See Ass'n of Data Processing Organizations, Inc. v. Camp (1970) 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184; Sierra Club v. Morton (1972) 405 U.S. 727, 731-32,
Assuming, arguendo, that appellants can satisfy the "zone of interests" test as consumers of electric energy, they cannot allege an "injury-in-fact." Appellants claim that they have been injured by the Secretary's refusal
Appellants have not made any showing that their rates would decrease if they were successful in this action. For the reasons that we have previously stated, we do not believe that the essential showing can be made. "Plaintiffs may not rely on `the remote possibility, unsubstantiated by allegations of fact, that their situation . . might improve were the court to afford relief.'" (Bowker v. Morton (9th Cir.1976) 541 F.2d 1347, 1349.)
Similarly, appellants cannot show the essential causal link between their injury and the Secretary's alleged inaction. As the Supreme Court has recently said: "[T]he
Our holding does not foreclose all avenues of relief from the Secretary's alleged inaction or from the claimed violation of the Raker Act. As we have seen in the Palo Alto case (9th Cir.1977) 548 F.2d 1374, the Bay Cities may bring suit to enforce the Act if they otherwise present a justiciable claim.
Section 1: "... [t]hat there is hereby granted to the city and county of San Francisco, a municipal corporation in the State of California, all necessary rights of way along such locations and such width, not to exceed two hundred and fifty feet, as in the judgment of the Secretary of the Interior may be required for the purposes of this Act, in, over, and through the public lands of the United States ...."
Section 2: "[t]hat within three years after the passage of this Act said grantee shall file with the registers of the United States land offices, in the districts where said rights of way or lands are located, a map or maps showing the boundaries, locations, and extent of said proposed rights of way and lands required for the purposes stated in section one of this Act; but no permanent construction work shall be commenced on said land until such map or maps shall have been filed as herein provided and approved by the Secretary of the Interior[.]"
Section 9(e): "[t]hat such minimum and maximum amounts of such stored water to be so released during any calendar year as hereinbefore provided and the price to be paid therefor by the said irrigation districts are to be determined and fixed by the Secretary of the Interior in accordance with the provisions of the preceding paragraph."
Section 9(n): "[t]hat after the period of twenty years hereinbefore provided for the development, transmission, use, and sale of electric power, the Secretary of the Interior, under authorization hereby given, may require the grantee, within a time fixed by the Secretary, to develop, transmit, and use, or offer for sale, such additional power, and also such power less than sixty thousand horsepower as the grantee may have failed to develop, transmit, use, or sell, within the twenty years aforesaid, as in the judgment of said Secretary the grantee may or ought to develop under this grant, and which in his judgment the public interest demands or convenience requires; and in case of the failure of the grantee to carry out any such requirements of the Secretary of the Interior the latter is hereby authorized so to do, and he may, in such manner and form and upon such terms and conditions as he may determine, provide for the development, transmission, use, and sale of such additional power and such power not so developed, transmitted or used by the grantee at the end of said twenty years up to sixty thousand horsepower; and for that purpose the Secretary of the Interior may take possession of and lease to such person or persons as he may designate such portion of the rights of way, structures, dams, conduits, and other property acquired or constructed by the grantee hereunder as may be necessary for the development, transmission, use and sale of such power."
Appellants' reliance on the alleged res judicata effect of the Supreme Court's judgment in United States v. City and County of San Francisco, supra, is also misplaced. Without expressing any opinion on the merits of appellants' Raker Act claim, it is sufficient to say that the present case is not an effort to relitigate the cause of action adjudicated in that case. (See, 1B Moore's Federal Practice at ¶ 0.410.)
Appellants could more clearly have stated the precise nature of their claim under the APA. Certainly, appellants are not alleging that the Secretary has completely failed to enforce the conditions of the Hetch Hetchy grant. The Secretary himself stated in his motion for summary judgment that, among other things, he receives quarterly reports from his staff as to San Francisco's compliance with the Act and the order in United States v. City and County of San Francisco, supra. Nevertheless, appellants' allegations are sufficient to remove the bar of sovereign immunity.
Appellants state a third injury derived from the Secretary's acts. Namely, they allege that because a future Secretary might seek a reversion of the entire Hetch Hetchy grant for breach of the Act's conditions, appellants' rates would increase if they would have to rely totally on PG & E power. This claim raises serious questions of ripeness and is too speculative upon which to base standing under the APA. (See, Warth v. Seldin (1975) 422 U.S. 490, 509, 95 S.Ct. 2197, 45 L.Ed.2d 343 ("`of course, pleading must be something more than an ingenious academic exercise in the conceivable.'"); Simon v. Eastern Kentucky Welfare Rights Organization (1976) 426 U.S. 26, 44, 96 S.Ct. 1917, 1927, 48 L.Ed.2d 450 ("[U]nadorned speculation will not suffice to invoke the federal judicial power.").)
Appellants' claim for relief under the mandamus statute, 28 U.S.C. § 1361 (1976), is equally unfounded. That statute does not provide an independent ground for jurisdiction (see, Wright, Handbook of the Law of Federal Courts, p. 84 (3d ed. 1976)). Since appellants have failed to make out a claim under the Raker Act, and lack sufficient standing to invoke the APA, they cannot avail themselves of the more extraordinary mandamus remedy.