United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Submitted September 8, 2014 Decided September 26, 2014

Reissued January30, 2015

No. 13-1074

SMITH LAKE IMPROVEMENT AND STAKEHOLDERS

ASSOCIATION,

PETITIONER

v.

FEDERAL ENERGY REGULATORY COMMISSION, ET AL.,

RESPONDENTS

ALABAMA POWER COMPANY,

INTERVENOR

On Petition for Review of Orders 

of the Federal Energy Regulatory Commission

Richard Roos-Collins, Julie Gantenbein, and Nicholas T.

Niiro were on the briefs for petitioner Smith Lake Improvement

and Stakeholders Association.

Peter A. Harrison was on the brief for amici curiae

Alabama Rivers Alliance, et al. in support of petitioner.
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Gregory S. Farris was on the brief for amici curiae County

of Winston, Alabama and School System of Winston County,

Alabama.

David L. Morenoff, Acting General Counsel, Federal

Energy Regulatory Commission, Robert H. Solomon, Solicitor,

and Lisa B. Luftig, Attorney, were on the brief for respondent

Federal Energy Regulatory Commission. 

Robert G. Dreher, Acting Assistant Attorney General, U.S.

Department of Justice, and Michael T. Gray, Attorney, were on

the brief for respondents U.S. Secretary of the Interior and U.S.

Secretary of Agriculture. John D. Gunter II, Trial Attorney,

entered an appearance.

James A. Byram Jr., P. Stephen Gidiere III, James H.

Hancock Jr., and Jason B. Tompkins were on the brief for

intervenor Alabama Power Company.

Before: BROWN and WILKINS, Circuit Judges, and

SILBERMAN, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

SILBERMAN.

SILBERMAN, Senior Circuit Judge: Petitioner Smith Lake

Improvement and Stakeholder Association asserts various

claims against Respondents FERC, the Secretaryof Interior, and

the Secretary of Agriculture relating to the Commission’s

issuance of a license order. Intervenor Alabama Power moved

to dismiss the Association’s petition for review on the ground

that we lack jurisdiction because the appeal was untimely. We

agree and grant the motion.

I.
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FERC issued a new thirty-year license to Alabama Power to

continue to operate and maintain a hydroelectric generation

facility known as the Warrior Project. The Smith Development

is one of two hydroelectric developments encompassed by the

Warrior Project. The Development consists of Smith Dam and

Smith Lake, an intake structure, a powerhouse built into the

dam, and an emergency spillway. The Association, an

organization comprised mainly of Smith Lake property owners,

intervened in the licensing proceedings and specificallyobjected

to Alabama Power’s proposal to maintain lake levels as they had

existed under the earlier license.

The licensing proceedings lasted nearly five years and

generated an extensive Environmental Assessment. Pursuant to

the Endangered Species Act, FERC engaged in consultations

with the U.S. Fish and Wildlife Services to ensure that its action

was not likely to “jeopardize the continued existence of” a listed

species or critical habitats. 16 U.S.C. § 1536(a)(2). In addition,

the Commission adopted a condition that the U.S. Forest Service

placed on the license pursuant to the Federal Power Act. FERC

issued the new license on March 31, 2010, declining to adopt the

Association’s water level proposal and authorizing Alabama

Power to operate under existing water level benchmarks. 

The Association filed a timely request for rehearing of the

license order, arguing that the license was not best adapted to a

comprehensive plan of development, as required by Section

10(a)(1) of the Federal Power Act, and that the license order’s

comprehensive development findings were not supported by

substantial evidence, as required by Section 313(b) of the Act. 

The Commission issued a rehearing order affirming the license

order as it relates to the Association. The Association then filed

a second rehearing request, which the Commission summarily

denied on the grounds that the rehearing order did not modify

the license order, and the Association’s arguments were
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considered and denied in the first rehearing order. The

Association then filed its petition for judicial review on March

18, 2013 – 124 days after the first rehearing order but within

sixty days after the second rehearing order.

II.

We do not reach the merits of this petition because, as

noted, we grant Intervenor Alabama Power’s motion to dismiss

for lack of subject matter jurisdiction. Under Section 313(b) of

the Federal Power Act, a party “aggrieved by an order issued by

the Commission . . . may obtain a review of such order in the

United States Court of Appeals . . . by filing in such court,

within sixty days after the order of the Commission upon the

application for rehearing, a written petition praying that the

order of the Commission be modified . . . .” 

Our jurisdiction is thus limited to cases in which a petitioner

has first sought rehearing before the Commission (an exhaustion

requirement) and then promptly brings the petition to our court

after the order denying rehearing. We have made clear that a

second rehearing petition must be filed if – and only if – the first

rehearing order “modifie[d] the results of the earlier one in a

significant way.” Town of Norwood, Mass. v. FERC, 906 F.2d

772, 775 (D.C. Cir. 1990). We subsequently explained that

means a change in the “outcome,” not merely a change in

reasoning. Allegheny Power v. FERC, 437 F.3d 1215, 1222

(D.C. Cir. 2006). 

Recently, in Western Area Power Admin. v. FERC, we dealt

with the logical converse of a petitioner’s obligation to file a

second rehearing petition. 525 F.3d 40, 52-53 (D.C. Cir. 2008). 

There we faced a petition to our court that followed a second

rehearing order that responded to an unnecessary second

rehearing petition. Unfortunately for the petitioner, we held that

the second rehearing petition – because it was not based on any
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change in result in the first rehearing order – was not required. 

Therefore, it did not toll the sixty-day period. Consequently the

petition to our court arrived beyond the sixty-day limit, too late

to grant us jurisdiction. 

Our case is on all fours with Western. Still the Commission

asserts that our case law is inconsistent and suggests as a

“resolution” that we allow a subsequent petition for rehearing to

toll the sixty-day period regardless of whether it is prompted by

a change in result in the first rehearing order unless the

subsequent petition is deemed “vexatious.” Presumably, under

FERC’s view, it would be up to FERC to determine (at least in

the first instance)the petitioner’s motivation, which would then,

in turn, affect our jurisdiction. That would surely be an

extraordinarymannerto construe Congress’s efforts to insist that

FERC cases be promptly brought to us. Petitioner, agreeing

with the Commission that our cases are in conflict, also asserts

that the exhaustion requirement of the statute – requiring a party

to make an “objection” to the Commission's order before

seeking judicial review – creates a “trap” if we conclude that a

second rehearing request was not necessary because the “result”

did not change. In other words, petitioner points out that a party

might be required to object to an element of reasoning or logic

for exhaustion purposes that did not affect the result. 

We reject the premise that our cases are inconsistent. To be

sure there appears to be some tension but there is no necessary

conflict. Some time ago, in Tennessee Gas Pipeline Co. v.

FERC, we dismissed a petition because the party had filed a

second pending rehearing petition with the Commission. 9 F.3d

980 (D.C. Cir. 1993) (per curiam). We did so notwithstanding

our recognition that the petitioner was “not required” to file the

second petition. Id. at 981. 1

 We did not explain why the second petition was unnecessary.

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We reiterated that position in Clifton Power Corp. v. FERC,

holding that a party could not “simultaneously seek both agency

reconsideration and judicial review of an agency’s order.” 294

F.3d 108, 111 (D.C. Cir. 2002) (citing Tennessee Gas Pipeline

Co., 9 F.3d at 980). FERC and petitioner assume that if a

second rehearing petition is not required, and therefore does not

toll the statute, it should not be a bar to our review. Yet that a

second rehearing petition is not required does not necessarily

mean that it would not affect the Commission’s thinking. 

Conceivably a party might come up with a new consideration

that would influence the Commission and modify the result. If

so, that would surely interfere with our review. 

In sum, Tennessee and Clifton stand for the proposition that

we will not hear a case if the petitioner has a rehearing petition

pending before the Commission at the time of filing in this

court, whether it was required or not. It follows that a party

must choose whether to seek an optional petition for rehearing

before the Commission, or a petition for review to our court; it

cannot proceed simultaneously.

There remains petitioner’s “trap” argument. Although we

did not previously respond to that argument in a Federal Power

Act case, we did in a Natural Gas Act case which has an

identical provision for judicial review, Columbia Gas

Transmission Corp. v. FERC, 477 F.3d 739, 741-42 (D.C. Cir.

2007). We observed there that when a party seeks judicial

review following a rehearing order that changes the reasoning

without altering the result, “it may have a ‘reasonable ground’

for not having earlier raised its objections to the rationale

underpinning the rehearing order” and therefore be entitled to
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consideration of those arguments. Id. (quoting 15 U.S.C. §

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717r(b)). 

It is conceivable that an erstwhile petitioner would be

unsure whether any change in result worked by a Commission

rehearing order would be thought “significant” or not, in which

case the safer course clearly is to file a petition in our court,

relying on the “reasonable grounds” exception in Section 313(b)

to allow us to review FERC's decision if the significance of any

change in result is objectively unclear. See Town of Norwood,

906 F.2d at 775 (defining key question as whether “the later

order modifies the results of the earlier one in a significant

way”) (emphasis added). But in this case, where the result did

not change on first rehearing and petitioner sought a second

rehearing nonetheless, there can be no dispute that Western Area

Power precludes judicial review of an untimely petition.

For the foregoing reasons, we grant Intervenor Alabama

Power’s motion to dismiss the Association’s petition for review

in its entirety.

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So ordered.

It could be thought that challenging reasoning that does not change 2

the result is not a required “objection.”

This includes all claims asserted against the Secretaries of the 3

Interior and Agriculture because “the order on review is undeniably

that of the Commission.” Bangor Hydro-Elec. Co. v. FERC, 78 F.3d

659, 662 (D.C. Cir. 1996).