# Unit ed State s Co urt of Appeals

F O R T H E D I S T R

I C T O F C O L U M B I A

C I R C U I T

Submit ted September

8, 2014 Dec ided September 26, 2014 R e i s s u e d Ja

n u a r y 3 0
, 2 0 1 5

No. 13-1074

S M I TH L A K

E I M P R O V E M E N T A N D S TA K E H O L D E R S A S S O C I A TI O N , P E TI TI O N E R

v.

F E D E R A L E N E R

G Y R E G U L A TO R Y C O M M I S S I O N , E T A L ., R E S P O N D E

N TS

A L A B A M A P O W E R C O M P A

N Y , I N TE R V E N O R

On Petition for Review of O rder s of the F eder al Ener g y

Reg ulatory

Commi ssion

Richard Roos-Collins
, Julie Gantenbein
, and Nicholas T. Niiro wer e on the briefs for petitioner Smit h L ake I mprovement and Stakeholder s Association.

Pet er A

. Harrison was on the brief for amici curiae Alabama Rivers Alliance , et al. in support of pe titioner.2

Gregory S. Farris was on the brief for amici curiae County of Wins ton, Alabama and School Sy stem of Wins ton C o u n ty , Alabama

.

David L. Morenoff

, Acting Gene ral Counsel, Fe dera l Energ y Reg ulatory Commi ssion, Robert H. Solomon
, Solicitor, and Lisa B. L u

f t i g , Attorney
, wer e on the brief for responde nt Fe dera l Energ y

Reg ulatory

Commi ssion.

Robert G. Drehe r , Acting Assistant Attorney Gene ral, U.S. Depa rtment of J ustice, and Michae l T. Gray
, Attorney
, wer e on the brief for responde nts U.S. Secre tary of the I nterior and U.S. Secre tary of Ag ricult u re. John D. Gunter II
, Trial Attorney
, enter ed an a

ppear ance

.

Jame s A. Byram Jr.
, P. Stephen Gidiere III
, Jame s H. Hancoc k Jr.
, and Jason B. Tompkins wer e on the brief for intervenor

Alabama Power Company

.

Be fore : B R

O W N and W I L K

I N S , Circuit Judges
, and S I L B E R M A N , Senior Circuit Judge

. Opinion for the Court filed by Senior Circuit Judge S I L B E R M A N

.

S I L B E R M A N , Senior Circuit Judge : Petitioner Smit h L ak e I mp ro v ement and Stakeholder Association asser ts various claims ag ainst Respondents FERC, the Secre tary of I nterior, and the Secre tary of Ag ricult u re rela ting to the Commi ssion’s issuance of a li cense order

. I nterve nor Alabama Power move d
to dismiss the Association’s petition for revi ew on the g round that we lac k jurisdiction because the appe al was untim ely . We ag ree and g rant the motion.

I.3

FERC issued a new thirty -y ear license to Alabama Power to continue to opera t e and maintain a hy droele ctric g ener ation fac ility known as the Warrior Project. The Smit h Deve lopment is one of t wo hy droele ctric developments encompa ssed by the Warrior Project. The Deve lopment c onsists of Smit h Dam and Smit h L ak e, an intake structure , a power house built into the dam, and an emer g ency spillway

. The Associa t i o n, an org anization comprised mainly of Smit h L ake proper ty owner s, intervene d in the licensing proce eding s and specific ally objected
to Alabama Power’s proposal to maintain lake levels as they had exis ted under

the ea rlier lice nse.

The licensing p roceeding s lasted near ly five y ear s and g ener ated an extensive Environmental Assessment. Pursuant to the Endang er ed S pecie s Act, FERC eng ag ed in consultations with the U.S. Fish and Wil dlife Service s to ensure that its action

was not likely to “jeopa

rdize the continued exis tence of” a listed specie s or critica l habitats. 16 U.S.C. § 1536(a) (2). I n addition, the Commi ssion adopted a condition that the U.S. For est Service place d on the license pursuant to the Fe dera l Power Act. FERC issued the new license on Marc h 31, 2010, declining to adopt the Association’s water level proposal and authorizing Alabama Power to oper ate unde r existi ng water level benc hmarks.

T h e Association filed a timely reque st for rehe aring o f t h e license order
, arg uing that the license was not best adapte d to a compre hensive plan of d evelopment, as require d by Section 10(a) (1) of the Fe dera l Power Act, and that the license order ’s compre hensive deve l opment finding s wer e not supported by substantial evidenc e, as require d by Section 313(b) of the Act. The Commi ssion issued a rehe aring order aff irming the license order as it rela tes to the Association. The Association then filed

a second rehe aring reque st, which t h e Commi ssion summarily denied on the g rounds that the rehe aring order did not modify the license order
, and the Association’s argume nts wer e4

considere d and denied in the first rehe aring order

. The Association t hen filed its petition for judicial revie w on Marc h 18, 2013 – 124 day s afte r the first rehe aring orde r b u t within six ty day s after

the sec ond rehe aring order

.

II.

We do not rea ch the merits of this petitio n beca use, as noted, we g rant I nterve nor Alabama Power’s motion to dismiss for lack of subject matter jurisdiction. Under Section 313(b) of the Fe dera l Power Act, a party “ag g rieve d by an order issued by
t h e Commi ssion

. . . may obtain a revie w of such order in the United States Court of Appea ls

. . . by filing in such court, within six ty day s afte r the order of the Commi ssion upon the application for rehe aring
, a writ t en p etition pray ing that the order of the Commission be modified . . . .”

Our jurisdiction is thus limit ed to case s in which a petitioner has first soug ht rehe aring befor e the Commi ssion (an exhaustion require ment) and the n promptly bring s the petition to our c ourt afte r the order deny ing rehear i n g

. We have made clea r that a second rehe aring petition must be filed if – and only if – the first rehe aring order “modifie[d] the re sults of the ear lier one in a signific ant way .” Town of Norwood, Mass. v. FERC , 906 F.2d 772, 775 (D.C. Cir. 1990). We subs equently explained that

means a chang e in the “outcome,” not mere ly a ch ange in

reas o n ing. Allegheny Power v. FERC
, 437 F.3d 1215, 1222 (D.C. Cir. 2006).

Rece ntly
, in W

estern Area Power Admin. v. FERC
, we dealt with th e logic al conver se of a petitioner’s obliga tion to file a second rehe aring petition. 525 F.3d 40, 52-53 (D.C. Cir. 2008). There we fac ed a petition to our court that followed a second rehe aring order that responde d to an unnece ssary second rehe aring petition. Unfortuna tely for the petitioner, we held that the second rehe aring petition – beca use it was not based on any5

chan ge in result i n the first rehe aring order – was not require d. There fore
, it did not toll the six ty -day period. Consequently the petition to our court arr ived bey ond the six ty -day limit
, too la te to gr ant us jurisdiction.

Our case is on all fours with W estern. Stil l the Commi ssion

asser ts that our case law is inconsistent and sug g ests as a “re solution” that we allow a subsequent petition for rehe aring to toll the six ty -day period reg ardle ss of whether it is prompted by

a chang e in result in th e fi rst rehe aring order unless the subsequent petition is deeme d “vexatious.” Presumably
, under FERC’s view, it would be up to F ERC to deter mine (at lea st in the first instance) the petitioner’s motivation, which would then, in turn, aff

ect our j urisdiction. That would surely be an extraordinary manner to c o n strue Congr ess’s eff orts to insist that FERC case s be promptly broug ht to us. Petitioner, ag ree ing with the C ommissi on that our ca ses ar e in conf lict, also asserts that the exhaustion require ment of the statute – requiring a party to make an “objec tion” to the Commi ssion's order befor e seeking judicial review – cre ates a “tra p” if we conclude that a second rehe aring reque st was not nece ssary beca use the “re sult” did not chang e. I n other words, petitioner points out that a party mi g ht be required to object to an element of reasoning or l og ic for e x haustion purposes that did not aff ect the r esult.

We reje ct the premise that our case s are inconsistent. To be sure there appear s to be som e tension but there is n o nece ssary conflict. Some time ag o, in Ten nessee Gas Pipeline Co. v. FERC
, we dismiss ed a petition beca use the party h ad filed a second pending rehe aring petition with the Commi ssion. 9 F.3d 980 (D.C. C ir. 1993) (pe r cur iam). We did so notwithstanding

our rec og nition that the petitioner was “not require d” to file the second pe tition. Id. at 981. 1

We did not e xplai n why

the s ec ond pet it io n wa s unnec es sa ry

. 16

We reiter ated that position in Clif ton Power Corp. v. FERC
, holding that a party could not “simultaneously seek both ag ency

rec onsideration and judicial revie w of an a g ency ’s orde r.” 294 F.3d 108, 111 (D.C. C ir. 2002) (c iting Tennessee Gas Pipeline Co.
, 9 F.3d at 980). FERC and petitioner assume that if a second rehe aring petition is not require d, and there fore does not toll the statute, it should not be a bar to our revie w. Yet that a second rehe aring petition is not require d does not nece ssarily

mean that it wo u l d not aff ect the Commi ssion’s thinking. C o n ceivably a party might come up with a new considera ti o n that would influence the Commi ssion and m odify the result. I f so, that would surely

interfe re w ith our review

.
I n sum, Tennessee and Clif ton stand for the proposition that we will not hear a ca se if the pe titioner has a r ehea ring petition pending befor e the Commi ssion at the time of filing in this court, whether it was require d or not. I t follows that a party must ch o o s e whether to seek an optional petition for rehea ring befor e the Com mission, or a petition for revie w t o our court; it cannot pr ocee d simult aneously

. There rema ins petitioner’s “tra p” arg ument

. Al though we did not previously respond to tha t a rg ument in a Fe dera l Power Act case , we did in a Natura l Gas Ac t ca s e which has an identical provision for judicial revie w, Columbia Gas Transmissi on Corp. v. FERC
, 477 F.3d 739, 741- 42 (D.C. C ir. 2007). We observe d there that whe n a party seeks judicial revie w following a rehe aring order that chang es the rea soning without altering the result, “i t may have a ‘re asonable g round’ for not having ear lier rais ed its objections to the rationale underpinning the rehe aring order ” and therefore be entitled to7

considera tion of those arg uments. Id

. (quoting 15 U.S.C. § 2 717 r (b))

.
I t is conce ivable that an erstwhile petitioner would be

unsure whether any chang e in result worke d by a Commi ssion rehe aring order would be thought “sig nificant” or not, in which

case the saf

er course clea

rly is to file a petition in our court, rely ing on the “re asonable g rounds” exception in Section 313(b)
to allow us to revie w FERC' s decision if the signific ance of any chang e in result i s objectively unclea r. See Tow n of Norwood
, 906 F.2d at 7 7 5 (def

ining key question as whether “the later order modifies the results of the ear lier one in a signifi cant way ”) (emphasis added). But in this case , wher e t h e result di d

n o t chang e on first rehe aring and petitioner soug ht a sec o n d rehe aring nonetheless, there can be no dispute that W estern Area Power prec ludes judicial revie w of a n untimely

petition.

For the fore g oing rea sons, we g rant I n t er v enor Alabama Power’s motion to dismiss the Association’s petition for revie w in its entirety

. 3

So ordered.

I t co uld be tho ught that cha ll eng ing re as oni ng that doe s not cha nge 2 the r es ult i s no t a

re quire d “ objec ti on. ”

This incl udes al l cl ai m s as ser te d aga inst the Sec re ta ri es of the 3 I nter io r and Agr ic ultur e bec aus e “the ord er on re vi ew is undeniabl y that of the Com

m is si on.” Bang or Hydr o-Ele c. Co. v . FERC
, 78 F.3d 659, 662 (D.C. Cir . 199 6).