See 16 U.S.C. § 1540(g)(1). The law is clear that any attempt to challenge a license issued by the FERC, however artfully pleaded, will fall under the exclusive jurisdiction of the Federal Courts of Appeal under the FPA. California Save Our Streams Council, Inc. v. Yeutter, 887 F.2d 908, 910-11 (9th Cir. 1989); See also, Alabama Power Company v. FERC, 979 F.2d 1561 (D.C. Cir. 1992) (Jurisdictional statute of FPA applied in evaluating Commission's actions under Sections 7(a)(2) or 7(a)(4) of the ESA, 16 U.S.C. § 1536(a)(2, 4)). Plaintiff urges two reasons why this Court should not construe this action as a challenge to the license falling under the FPA. First, Plaintiff argues that to determine whether the jurisdictional provision of the FPA applies, the Court should apply a "practical test" adopted by the Ninth Circuit decisions interpreting the jurisdictional requirements of the Pacific Northwest Electric Power and Planning Act ("Northwest Power Act"), 16 U.S.C. § 839; See Northwest Resource Information Center v. National Marine Fisheries Service, 25 F.3d 872, 874 (9th Cir. 1994) ("NRIC II"), aff'g 818 F. Supp. 1399 (W.D.Wash.
Indeed, a courier who possesses drugs for distribution as part of a trafficking scheme may be substantially less culpable than a defendant who possesses the same amount of drugs for distribution but has no ties to a trafficking scheme.United States v. Olbrices, 979 F.2d 1561 (D.C. Cir. 1992), is not contrary to our holding in this case. In Olbrices, the court held that a defendant who pled guilty to involvement in a conspiracy to distribute narcotics could not receive a mitigating role adjustment based on her minor role in a larger conspiracy because the drugs that were part of the larger conspiracy were not included in her base offense level.
Tacoma II , 460 F.3d at 76 (internal citations omitted) (emphasis added); accordAla. Power Co. v. FERC , 979 F.2d 1561 (D.C.Cir.1992) (exercising jurisdiction under the FPA to review claims that FERC's orders violated Sections 7(a)(2) or 7(a)(4) of the ESA). Furthermore, Tacoma I and Tacoma II mirror Ninth Circuit caselaw that concluded, by its express language, § 825l(b) of the FPA provides exclusive jurisdiction for the Courts of Appeals to review BiOps issued for consideration in FERC licensing orders.
If after the informal consultation, the agency concludes no adverse impact is likely, then no formal consultation with FWS would be required. 50 C.F.R. § 402.14(b); Alabama Power Co. v. Federal Energy Regulatory Comm'n, 979 F.2d 1561, 1564 (D.C. Cir. 1992).
Should the agency determine from this informal consultation that the proposed action is not likely to adversely affect any listed species, and the FWS concurs, the agency need not initiate formal consultation. Id. § 402.14(b); Ala. Power Co. v. Fed. Energy Regulatory Comm'n, 979 F.2d 1561, 1564 (D.C. Cir. 1992). At that point, "the consultation process is terminated, and no further action is necessary."