UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


GRANHOLM, JENNIFER M

v.

FERC


98-1276a

D.C. Cir. 1999


*	*	*


Randolph, Circuit Judge: Michigan's Attorney General, on  behalf of the
state's Department of Natural Resources, filed a  petition for
judicial review of three Federal Energy Regulato- ry Commission orders
issued in connection with an applica- tion by the Mead Corporation for
a hydroelectric power  license. We hold that Michigan's failure to
seek rehearing of  the Commission's "Order on Remand" deprives the
court of  jurisdiction.


This proceeding has its genesis in orders the Commission  issued in
1995 and 1996. In Mead Corp., 72 F.E.R.C.  p 61,027 (1995), the
Commission granted Mead's application  for a new license to continue
operation and maintenance of a  hydroelectric power project in
Michigan under Part I of the  Federal Power Act, 16 U.S.C. ss
791a-823b, without imple- menting certain recommendations of the
Michigan Depart- ment of Natural Resources. Among the rejected
recommen- dations were license conditions requiring additional studies
 designed to reduce the number of fish trapped in the project's 
turbines and to compensate Michigan for the fish killed. The 
Commission determined that the proposed conditions did not  fall
within s 10(j) of the Federal Power Act, 16 U.S.C.  s 803(j), which
requires the Commission to afford significant  deference to fish
protection recommendations of state and  federal fish and wildlife
agencies. The Commission consid- ered the Michigan recommendations
pursuant to s 4(e) and  s 10(a) of the Federal Power Act, 16 U.S.C. ss
797(e), 803(a),  which give the Commission broader latitude to balance


ronmental interests against development interests in promot- ing the
best comprehensive use of a waterway. The Commis- sion rejected the
Michigan recommendations after finding  that Mead's study method was a
reasonable means of assess- ing the project's impact on fishery
resources.


Michigan sought rehearing, asserting that the Commission  should have
considered the Michigan recommendations under  s 10(j). In Mead Corp.,
76 F.E.R.C. p 61,352 (1996), the  Commission denied rehearing after
reiterating that Michi- gan's recommendations were not subject to s
10(j), and that  the public interest did not require performance of
those  studies.


Michigan then sought judicial review of the 1995 and 1996  orders in
this court. The case was docketed as No. 96-1453,  but on August 5,
1997, after Michigan submitted its initial  brief, the Commission
filed an unopposed motion for volun- tary remand so that the
Commission could reconsider wheth- er it should have reviewed
Michigan's recommendations un- der s 10(j). The Commission's motion
was prompted, in part,  by this court's intervening decision in Kelley
v. FERC, 96  F.3d 1482, 1487 (D.C. Cir. 1996), which viewed as
"weighty"  the question whether the Commission may legitimately treat 
fish and wildlife recommendations as outside s 10(j). This  court
granted the motion on August 8, 1997, and remanded  the case to the


On April 22, 1998, the Commission issued its "Order on  Remand," Upper
Peninsula Power Co., 83 F.E.R.C. p 61,071,  at 61,362 (1998) ("remand
order")1, further elucidating, but  adhering to, its prior ruling.
Without seeking rehearing of  the remand order, Michigan petitioned
for judicial review of  the 1995, 1996, and 1998 orders, contending
once again that  the Commission erred in considering Michigan's




__________

n 1 By order dated February 19, 1997, not under review here, the 
Commission also approved the transfer of the license from Mead to 
Upper Peninsula Power Company. See Mead Corp., 78 F.E.R.C.  p 62,121
(1997). For simplicity, this opinion refers to the licensee as 


dations under s 10(a) rather than the more deferential  s 10(j).


On July 30, 1998, the Commission moved to dismiss for lack  of
jurisdiction on the ground that Michigan failed to seek  rehearing of
the remand order as required by s 313(a) of the  Federal Power Act, 16
U.S.C. s 825l(a). By order dated  October 15, 1998, the court directed
the motion to dismiss to  be referred to the merits panel. Upper
Peninsula Power  Company intervened in support of the Commission's


Section 313(a) of the Federal Power Act provides that "[n]o  proceeding
to review any order of the Commission shall be  brought by any person
unless such person shall have made  application to the Commission for
rehearing thereon." 16  U.S.C. s 825l(a). This petition-for-rehearing
requirement is  mandatory. See ASARCO, Inc. v. FERC, 777 F.2d 764, 774
 (D.C. Cir. 1985).2 Neither the court nor the Commission  retains "any
form of jurisdictional discretion" to ignore it.  ASARCO, 777 F.2d at
775 (quoting Boston Gas Co. v. FERC,  575 F.2d 975, 979 (1st Cir.
1978)); see also Bluestone Energy  Design, Inc. v. FERC, 74 F.3d 1288,
1293 (D.C. Cir. 1996);  Platte River Whooping Crane Critical Habitat
Maintenance  Trust v. FERC, 962 F.2d 27, 34-35 (D.C. Cir.), reh'g en
banc  denied, 972 F.2d 1362 (1992); Town of Norwood, Mass. v.  FERC,
906 F.2d 772, 774 (D.C. Cir. 1990). Such a mandatory 
petition-for-rehearing requirement exists in each of the three  major
statutes the Commission administers. See ASARCO,  777 F.2d at 774


As the court explained in Northwest Pipeline Corp. v.  FERC, 863 F.2d
73, 77-78 (D.C. Cir. 1988), the "obvious (and  salutary) purpose" of
the petition-for-rehearing requirement  is to afford the Commission
"an opportunity to bring its  knowledge and expertise to bear on an
issue before it is 




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n 2 The court in ASARCO interpreted s 19(a) of the Natural Gas  Act,
the counterpart to s 313(a) of the Federal Power Act. See 777  F.2d at
772-75. Substantially identical provisions of the Natural  Gas Act and
the Federal Power Act are to be interpreted consis- tently with each
other. See Arkansas La. Gas Co. v. Hall, 453 U.S.  571, 577 n.7
(1981).


presented to a generalist court." The requirement also per- mits the
agency an initial opportunity to correct its errors.  See ECEE, Inc.
v. FERC, 611 F.2d 554, 565 (5th Cir. 1980).


Michigan acknowledges s 313(a)'s petition-for-rehearing re- quirement
and the line of authorities just cited, but tries to  avoid the
consequences by analogizing its situation to that in  Southern Natural
Gas Co. v. FERC, 877 F.2d 1066 (D.C. Cir.  1989), a case arising under
the Natural Gas Act s 19(b), 15  U.S.C. s 717r(b). The petitioner in
Southern Natural Gas  had failed to seek rehearing of a Commission
order denying  rehearing. See 877 F.2d at 1068-73. The court held that
the  petitioner did not need to seek further rehearing of the 
Commission order denying rehearing because the original  outcome had
not been changed although the Commission had  "supplie[d] a new
improved rationale." Id. at 1073. The  court reasoned that if the
statute were read as making a  request for rehearing a predicate to
judicial review of each  order denying rehearing, the process might
never end. See  id. Such an interpretation would have permitted "an
endless  cycle of applications for rehearing and denials," limited,
the  court stated, "only by FERC's ability to think up new ratio-
nales--which, since none of them would be put to a test in  court,
would not be much of a limitation." Id. (citations  omitted).


Michigan's theory is that since the Commission, in its order  on
remand, did nothing more than attempt to improve the  rationale
supporting its earlier decisions, Southern Natural  Gas excused the
State from having to seek rehearing under  s 313(a). Michigan misses
the point that Southern Natural  Gas, given its reasoning, is confined
to the question whether  this court has jurisdiction if the petitioner
failed to seek  rehearing of a Commission order on rehearing, a
question not  entirely resolved by the statute. The situation here is
not  comparable. Michigan stands on no different footing than  any
other petitioner who has failed to seek rehearing from a  Commission
order rendered in an initial proceeding. That  the proceeding here was
on remand from this court is of no  moment. As far as s 313(a) is
concerned, the case before the 


agency was in the same posture as if it had begun anew.3  Nothing in s
313(a) exempts Commission orders issued on  remand from the rehearing
requirement. In such circum- stances, requiring parties to seek
rehearing before petitioning  for judicial review--requiring, that is,
parties to comply with  the terms of s 313(a)--will not entail a cycle
of agency  orders, the key concern in Southern Natural Gas. The 
rehearing requirement is triggered anew only if the court  orders the
case remanded and the agency issues a fresh  decision.


Michigan also thinks it did not have to seek rehearing  because this
would have done no good and, at all events, the  arguments it would
have raised before the Commission on  rehearing are the same as those
the Commission is now  opposing in this court.4 A party's belief that
nothing would  change on rehearing is irrelevant. Section 313(a)
speaks in  absolutes. It brooks no exceptions. Our precedents are as 
firm as can be on this point: an application for rehearing  must be
filed before the litigant seeks judicial review "even if  the point
sought to be appealed was raised, considered, and  rejected in the
original proceeding." ASARCO, 777 F.2d at  773. As the saying goes,
"rules is rules." Bartlett J.  Whiting, Modern Proverbs and Proverbial
Sayings 541 (1989).


Dismissed.




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n 3 Because the court here remanded the "case"--instead of merely 
remanding the record and holding the case in abeyance--the court  did
not retain jurisdiction. See D.C. Cir. R. 41(b).


4 The remand order did not, as Michigan supposes, simply reach  the
same conclusion as the 1995 licensing and 1996 rehearing  orders--that
the Michigan studies did not constitute s 10(j) recom- mendations--and
address only the points raised in Michigan's prior  brief, submitted
in case No. 96-1453. The remand order also held  that even if some of
Michigan's requests were considered under the  more deferential s
10(j), instead of s 10(a), the record provided  substantial evidence
for the Commission's conclusion that the stud- ies and protective
devices suggested by Michigan need not be  included as license