United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Decided February 26, 2010 

No. 08-1268 

RESOLUTE NATURAL RESOURCES COMPANY AND RESOLUTE 

ANETH, LLC, 

PETITIONERS

v. 

FEDERAL ENERGY REGULATORY COMMISSION AND UNITED 

STATES OF AMERICA, 

RESPONDENTS

NAVAJO NATION, ET AL., 

INTERVENORS

On Petition for Review of Orders 

of the Federal Energy Regulatory Commission 

Sheila Slocum Hollis and Blaine Yamagata were on the 

briefs for petitioners Resolute Natural Resources Company 

and Resolute Aneth, LLC. 

Howard Eliot Shapiro was on the brief for intervenors the 

Navajo Nation and Navajo Nation Oil and Gas Company in 

support of petitioners. Pamela J. Anderson entered an 

appearance. 
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John J. Powers III and Robert J. Wiggers, Attorneys, 

U.S. Department of Justice, Thomas R. Sheets, General 

Counsel, Federal Energy Regulatory Commission, Robert H. 

Solomon, Solicitor, and Beth G. Pacella, Senior Attorney, 

were on the brief for respondents. 

Lowery Barfield, Steven H. Brose, and Daniel J. Poynor

were on the brief for intervenor Western Refining Pipeline 

Company in support of respondent. 

Before: GINSBURG and KAVANAUGH, Circuit Judges, and 

SILBERMAN, Senior Circuit Judge. 

Opinion for the Court filed by Circuit Judge GINSBURG. 

GINSBURG, Circuit Judge: Resolute Natural Resources 

Co. and Resolute Aneth, LLC (collectively “Resolute”) 

petition for review of certain orders of the Federal Energy 

Regulatory Commission declining to investigate allegedly 

anticompetitive conduct by Western Refining Pipeline Co. 

involving oil pipelines in New Mexico; intervenors the 

Navajo Nation and the Navajo Nation Oil and Gas Co. 

(collectively “the Navajo”) bring substantially the same 

petition. We dismiss the petition for review because the 

Commission’s decision not to open an investigation is not 

reviewable by a court.* 

I. Background 

Western filed two tariffs with the FERC in order to 

establish service and set rates for the transportation of crude 

 

* This case was considered upon the record from the Federal 

Energy Regulatory Commission and upon the briefs submitted by 

parties. See Fed. R. App. P. 34(a)(2); D.C. Cir. R. 34(j). 
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oil to northwestern New Mexico from west Texas and 

southeastern New Mexico. See FERC Docket Nos. IS08-131-

000 and IS08-131-001. Resolute and the Navajo moved to 

intervene and to protest the tariffs, alleging “Western is 

attempting to use the tariff it filed on February 8, 2008 to 

secure Commission validation of Western’s exercise of 

market power by illegally preferring its affiliates and 

discriminating against third parties such as Resolute who [sic] 

seek access to competitive markets for their crude oil.” 

Resolute, Protest and Motion to Intervene, FERC Docket Nos. 

IS08-131-000 and IS08-131-001 (Feb. 25, 2008). In the 

orders now under review, the Commission denied the motions 

and subsequent petitions for rehearing. See 122 FERC ¶ 

61,210 at ¶¶ 13, 14 (Mar. 7, 2008) (“Resolute and the Navajo 

Protestors lack standing because they are not shippers on 

Western, they do not intend to ship on Western, and they have 

not made a valid transportation request to Western for 

shipments.” Their allegations of anticompetitive conduct “are 

speculative[,] ... unsupported ... [and] beyond the 

Commission’s jurisdiction.”), and reh’g denied, 123 FERC ¶ 

61,271 (June 19, 2008). 

II. Analysis 

The Commission’s authority to investigate a new rate 

derives from § 15(7) of the Interstate Commerce Act. See 

ICA § 15(7); Frontier Pipeline Co. v. FERC, 452 F.3d 774, 

776 (D.C. Cir. 2006). In 1978, one year after the Congress 

had transferred authority over oil pipelines from the Interstate 

Commerce Commission to the FERC, see Department of 

Energy Reorganization Act, Pub. L. No. 95-91, § 402(b), 91 

Stat. 565, 584, it repealed much of the ICA but provided that 

transportation of oil by pipeline would be subject to “[t]he 

laws ... as they existed on October 1, 1977.” Act of Oct. 17, 

1978, Pub. L. No. 95-473, § 4(c), 92 Stat. 1337, 1470; see 49 
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U.S.C. § 60502 (“The Federal Energy Regulatory 

Commission has the duties and powers related to the 

establishment of a rate or charge for the transportation of oil 

by pipeline or the valuation of that pipeline that were vested 

on October 1, 1977, in the Interstate Commerce Commission 

or an officer or component of the Interstate Commerce 

Commission”); see also Frontier Pipeline, 452 F.3d at 776; 

Exxon Pipeline Co. v. United States, 725 F.2d 1467, 1468 n.1 

(D.C. Cir. 1984). Accordingly, we apply the version of § 

15(7) in force in 1977, which was reprinted most recently in 

the appendix to title 49 of the 1988 version of the U.S. Code. 

We have held repeatedly — and in no uncertain terms — 

that in a case of this sort ICA § 15(7) “precludes judicial 

review. The Commission’s decision not to investigate is 

therefore not reviewable.” ExxonMobil Oil Corp. v. FERC, 

219 Fed. Appx. 3 (D.C. Cir. 2007) (internal quotation marks 

and citations deleted); accord Mo. Pub. Serv. Comm’n v. 

FERC, No. 07-1304, 2007 U.S. App. LEXIS 26581 (D.C. Cir. 

Nov. 13, 2007); Arctic Slope Reg’l Corp. v. FERC, 832 F.2d 

158, 164–65 (D.C. Cir. 1987); see also So. Ry. Co. v. 

Seaboard Allied Milling Corp., 442 U.S. 444, 454 (1979) 

(decision not to investigate protested rate filing under § 15(8), 

a derivative of § 15(7), “not judicially reviewable”). 

Against this body of precedent, we instructed the parties 

to address reviewability in their briefs. Nonetheless, neither 

the petitioners nor the intervenors in support of the petitioners 

did so in their opening briefs. In their reply brief the 

petitioners, with good reason, do not dispute the 

Commission’s showing that its decision not to investigate a 

new rate is, as a rule, unreviewable. Instead they claim to 

come within two possible exceptions to the rule, but it is the 

work of a moment to see that neither applies here. 
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In Exxon Pipeline we said a decision of the Commission 

whether to suspend a rate pending an investigation is 

unreviewable “[1] at least as long as the agency complies with 

its statutory obligation to give a reason and [2] in no other 

way oversteps the bounds of its authority.” 725 F.2d at 1470 

(internal footnote deleted). The first possible exception is 

inapplicable here because under § 15(7) the Commission has 

no “obligation to give a reason” except when it suspends a 

rate, which it did not do in this case. See ICA § 15(7). The 

second is inapplicable because the Commission did not 

“overstep the bounds of its authority” when it refused to 

initiate an investigation into Western’s proposed rates; as we 

have seen, the decision whether to initiate an investigation is 

within the discretion of the Commission. 

III. Conclusion 

For the foregoing reason, the petition for review is 

Dismissed.