United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 14, 2005 Decided December 9, 2005

No. 04-1221

SAVE OUR SEBASTICOOK,

PETITIONER

v.

FEDERAL ENERGY REGULATORY COMMISSION,

RESPONDENT

AMERICAN RIVERS, ET AL.,

INTERVENORS

On Petition for Review of Orders of the

Federal Energy Regulatory Commission

Anthony W. Buxton argued the cause for petitioner. With

him on the briefs was Linda S. Lockhart.

Lona T. Perry, Attorney, Federal Energy Regulatory

Commission, argued the cause for respondent. With her on the

brief were Cynthia A. Marlette, General Counsel, and Dennis

Lane, Solicitor.

John L. Smeltzer and Anna T. Katselas, Attorneys, U.S.

Department of Justice, were on the brief for intervenor United

States Department of the Interior.
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Charles Owen Verrill, Jr., M. Evan Corcoran, and Sarah E.

Tomalty were on the brief for intervenors American Rivers, et al.

Before: GINSBURG, Chief Judge, and HENDERSON and

RANDOLPH, Circuit Judges.

Opinion for the Court filed by Circuit Judge RANDOLPH.

 

RANDOLPH, Circuit Judge: In an application to the Federal

Energy Regulatory Commission, the owner and operator of a

hydroelectric project sought to surrender its license and remove

part of its dam on the Sebasticook River in Maine. Over the

objection of nearby landowners, the Commission granted the

application and denied the landowners’ petition for rehearing.

FPL Energy Maine Hydro, LLC, 106 F.E.R.C. ¶ 61,038 (Initial

Order), reh’g denied, 107 F.E.R.C. ¶ 61,120 (2004) (Rehearing

Order).

The owner of the hydroelectric project, FPL Energy Maine

Hydro, LLC, determined that installation of a fish passage

device, at a capital cost of $4.1 million with $130,000 in annual

operating expenses, rendered the project economically

infeasible. (The project’s annual revenues were approximately

$165,000 to $265,000.) Installation of the device – a fish lift –

became a condition on FPL’s license after the Commission

amended the license to include the terms of a settlement

agreement entered into by the project’s previous owner, federal

and state agencies, and conservation groups. See Edwards Mfg.

Co., 84 F.E.R.C. ¶ 61,227, at 62,092-93, 62,097 (1998). 

Save Our Sebasticook (SOS), the landowners’ association,

complained that breaching the dam would drain the century-old

reservoir behind it, diminishing property values and depriving

SOS’s members of the reservoir’s recreational benefits. SOS

urged the Commission to require FPL to install a less expensive
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fish passage device – a “Canavac” fish pump – and to continue

operating the project. There was some doubt whether the fish

pump was a viable alternative. At the Commission’s direction,

FPL consulted with other signatories to the agreement and

reported back that most of the parties, including the United

States Department of the Interior, insisted on installation of the

fish lift or partial removal of the dam to allow fish passage. 

After further proceedings unnecessary to recount, the

Commission granted FPL’s surrender application pursuant to

section 6 of the Federal Power Act, 16 U.S.C. § 799, which

provides that licenses “may be altered or surrendered only upon

mutual agreement between the licensee and the Commission.”

See Initial Order, 106 F.E.R.C. at 61,143. Among the reasons

for its decision, the Commission stated that “a licensee is not

compelled to continue operating a project if it wishes to

surrender its license.” Id. While the Commission had the

options of conditioning surrender on “partial or total dam

removal or to approve it without dam removal,” id. at 61,143-44,

it believed that partial dam removal would be in the public

interest in light of the “long-standing fisheries goal in this river

basin,” id. at 61,144. In this initial order, and in its order

denying SOS’s rehearing petition, the Commission rejected the

plea that it amend FPL’s license to require installation of a fish

pump, something the Commission thought it could not do unless

FPL had applied for an amendment to its license, which it had

not. See id. at 61,142-43; Rehearing Order, 107 F.E.R.C. at

61,404.

SOS’s petition for judicial review raises four objections to

the Commission’s orders: (1) the Commission erred in

concluding that it had no discretion to deny the surrender

application or to force FPL to continue operating the project

with license modifications; (2) the Commission should have

evaluated its options under the “best adapted to a comprehensive
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plan” standard instead of the “public interest” standard; (3) the

Commission’s decision misinterprets section 6 of the Federal

Power Act; and (4) the Commission improperly allowed the

agreement between FPL and the federal and state agencies and

conservation groups to affect its judgment.

Only the fourth of these objections is properly before us.

Neither SOS nor the individual landowners raised the other three

in their rehearing requests. Under section 313(b) of the Federal

Power Act, “[n]o objection to the order of the Commission shall

be considered by the court unless such objection shall have been

urged before the Commission in the application for rehearing

unless there is reasonable ground for failure so to do.” 16

U.S.C. § 825l(b). Enforcement of this provision, which we have

considered to pose a jurisdictional bar, see, e.g., City of Orrville

v. FERC, 147 F.3d 979, 990 (D.C. Cir. 1998); Kelley ex rel.

Mich. Dep’t of Natural Res. v. FERC, 96 F.3d 1482, 1487 (D.C.

Cir. 1996); Town of Norwood v. FERC, 906 F.2d 772, 774 (D.C.

Cir. 1990), enables the Commission to correct its own errors,

which might obviate judicial review, or to explain why in its

expert judgment the party’s objection is not well taken, which

facilitates judicial review. See, e.g., Granholm ex rel. Mich.

Dep’t of Natural Res. v. FERC, 180 F.3d 278, 281 (D.C. Cir.

1999); Nw. Pipeline Corp. v. FERC, 863 F.2d 73, 77-78 (D.C.

Cir. 1988). SOS asks us to construe its claims on rehearing

liberally because the organization was not then represented by

counsel. But even the most generous construction would not

have alerted the Commission to the legal arguments SOS now

raises before us. The statement in SOS’s rehearing petition

reminding the Commission of its “duty to consider all relevant

facts” did not satisfy 16 U.S.C. § 825l(b). See Entergy Servs.,

Inc. v. FERC, 391 F.3d 1240, 1247 (D.C. Cir. 2004). To hold

that this empty generality adequately raised SOS’s legal

objections would be to disregard the provision and the reasons

underlying it. 
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Nor do we believe that SOS has presented, in the words of

the statute, a “reasonable ground for [its] failure” to raise these

objections on rehearing. 16 U.S.C. § 825l(b). This exception is

reserved for an “extraordinary situation.” Wis. Power & Light

Co. v. FERC, 363 F.3d 453, 460 (D.C. Cir. 2004) (internal

quotation marks omitted); see also ASARCO, Inc.v. FERC, 777

F.2d 764, 774 (D.C. Cir. 1985) (interpreting identical language

in the Natural Gas Act). SOS reasons that it would have done

no good for it to present its objections in a rehearing petition

because the Commission would have rejected them. This

involves the troubling proposition that the less convincing the

party’s objection, the more willing a court should be to excuse

the party’s failure to present it to the Commission. SOS’s claim

also proves too much. If the Commission’s probable rejection

of a party’s argument were enough to constitute a “reasonable

ground,” very few arguments against the Commission’s original

order would need to be presented on rehearing. Yet we have

held that a party must include its objection in a rehearing

petition despite the fact that “the point sought to be appealed

was raised, considered and rejected in the original proceeding.”

ASARCO, Inc., 777 F.2d at 773 (explaining identical provision

in the Natural Gas Act). Even if it were very likely that the

Commission would deny the rehearing petition, a reviewing

court would at least have the benefit of the agency’s expert view

of why it thought the petitioner’s arguments failed. 

There are two cases, both cited by SOS in its reply brief, in

which we found that a party had a “reasonable ground” for

disregarding the rehearing requirement. Neither is comparable

to this case. In Arkansas Power & Light Co. v. Federal Power

Commission, 517 F.2d 1223 (D.C. Cir. 1975), the agency had

later acknowledged “that its action under challenge had been

unlawful.” ASARCO, Inc., 777 F.2d at 774 (explaining Ark.

Power & Light Co., 517 F.2d at 1237). And in Public Service

Co. of New Mexico v. FERC, 857 F.2d 833 (D.C. Cir. 1988), the
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petitioner had twice presented its objections to and supporting

arguments against a particular Commission practice, the

Commission had given its reasons for rejecting those objections,

and an intervening decision of this court had found the

Commission’s practice illegal. Id. at 836.

This brings us to the only objection properly before us.

SOS argues, as it did in its rehearing petition, that the

Commission wrongly treated the agreement between FPL and

others as limiting the Commission’s options in deciding whether

to accept FPL’s surrender of its license. But it was the nature of

FPL’s application that constrained the Commission’s choices.

See Initial Order, 106 F.E.R.C. at 61,143-44; Rehearing Order,

107 F.E.R.C. at 61,404. When a licensee applies for a surrender

of its license, the Commission believes it may not compel the

licensee to continue operating the project. Initial Order, 106

F.E.R.C. at 61,143; Rehearing Order, 107 F.E.R.C. at 61,404;

see Niagara Mohawk Power Corp., 83 F.E.R.C. ¶ 61,226, at

62,007 (1998); see also Niagara Mohawk Power Corp. &

Fourth Branch Assocs. (Mechanicville), 98 F.E.R.C. ¶ 61,227,

at 61,903, reh’g denied, 100 F.E.R.C. ¶ 61,185 (2002); Fourth

Branch Assocs. (Mechanicville) v. Niagara Mohawk Power

Corp., 89 F.E.R.C. ¶ 61,194, at 61,596 n.60 (1999). It follows

from this legal principle, which SOS may not challenge, that

FPL’s application to surrender its license gave the Commission

three choices – allow the surrender conditioned on removal of

the dam in full, in part, or not at all. Initial Order 106 F.E.R.C.

at 61,143-44; Rehearing Order, 107 F.E.R.C. at 61,404. It

would have been a different matter if FPL had sought to amend

its license. That FPL did not seek this relief because it was

bound by the agreement is of no particular moment. Separate

contractual arrangements often constrain parties appearing

before the Commission. Nothing in the Federal Power Act, or

at least nothing SOS has mentioned, empowered the

Commission to consider the validity of the agreement in this
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license surrender proceeding. See Rehearing Order, 107

F.E.R.C. at 61,404.

 Accordingly, we dismiss the petition for judicial review in

part and deny it in part. 

So ordered.