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


MARTIN, FREDERICK W.

v.

FERC


98-1398a

D.C. Cir. 2000


*	*	*


Ginsburg, Circuit Judge: Frederick Martin petitions for  review of a
decision of the Federal Energy Regulatory Com- mission authorizing the
construction of a new pipeline that  would traverse part of Mr.
Martin's property. Despite Mr.  Martin's failure to designate the
correct order in his petition  for review, we hold that we have
jurisdiction to review the  Certificate Order. Because the
Commission's decision was  not arbitrary and capricious, we deny the


I. Background


In 1997 the Commission authorized the Portland Natural  Gas
Transmission System to construct a pipeline nearly one  mile of which
would use an existing right-of-way through Mr.  Martin's farm in North
Stratford, New Hampshire. Portland  Natural Gas Transmission Sys., 80
FERC p 61,345 (1997)  (the "Certificate Order"). The farm was
established by an  ancestor of Mr. Martin's in the early 1830s and the
farmhouse  and surrounding 112-acre tract are characteristic of early 
19th century building and farming patterns. Mr. Martin has  improved
the farm but maintained its historic character and  function. The
property was listed in the National Register of  Historic Places one
year after the Commission authorized  Portland to construct the


Before the Commission, Mr. Martin challenged the plan to  build the
pipeline across his property upon various environ- mental grounds,
alleging that the pipeline would damage the  open fields and other
scenic and natural resources on his  property and endanger the
historic farmhouse. Mr. Martin  suggested an alternative route for the
pipeline, but the Com- mission rejected that route in favor of the
Portland plan to  use the existing right-of-way. Mr. Martin requested


ing but the Commission denied his application. Portland  Natural Gas
Transmission System, 83 FERC p 61,080 (1998)  (the "Rehearing


II. Analysis


Although Mr. Martin seeks to challenge the Commission's  Certificate
Order, his petition for review mentions only the  Rehearing Order.
Before we reach the merits of Mr. Mar- tin's argument, therefore, we
must determine whether we  have jurisdiction to hear his claim.


A. Jurisdiction


After the Commission denied Mr. Martin's request for  rehearing, he
filed a petition for review and a motion for stay  of construction. In
the petition, Mr. Martin sought review of  the Commission's Rehearing
Order, in which the Commission  had denied his request that the agency
reconsider its decision  to grant the certificate to Portland. It is
clear from Mr.  Martin's briefs before this court, however, that what
he really  wants is review of the Certificate Order, which is the
order  actually authorizing Portland to construct the pipeline across 
his property.


Under 15 U.S.C. s 717r(b): "Any party ... aggrieved by  an order issued
by the Commission ... may obtain a review  of such order in the court
of appeals ... by filing ... a  written petition praying that the
order ... be modified or set  aside...." Mr. Martin is aggrieved by
the Certificate Order,  not the Rehearing Order, which simply denied
rehearing.  Indeed, an order denying rehearing is unreviewable except 
insofar as the request for rehearing was based upon new  evidence or
changed circumstances. See ICC v. Brotherhood  of Locomotive
Engineers, 482 U.S. 270, 278-80 (1987).


The Commission argues that, because Mr. Martin failed to  designate the
Certificate Order in his petition for review, this  court lacks
jurisdiction to review that Order. According to  the Commission, the
two orders do not "merge" such that an 


appeal of the Rehearing Order may be construed as an appeal  of the
Certificate Order. Cf. Conecuh-Monroe Community  Action Agency v.
Bowen, 852 F.2d 581, 586 (D.C. Cir. 1988)  (noting that, where
district court simultaneously denied pre- liminary injunction and
entered judgment on underlying com- plaint, "the preliminary
injunction question ... merged into  the final judgment").


In general, this court reviews only the order(s) designated  in the
petition for review. See Fed. R. App. P. 15(a) (1998)  ("petition must
... designate ... the order or part thereof to  be reviewed"); see
also John D. Copanos & Sons, Inc. v.  FDA, 854 F.2d 510, 527 (D.C.
Cir. 1988).* The failure to  designate an order in the petition is not
necessarily fatal to its  review, however. As we said in Southwestern
Bell Telephone  Co. v. FCC, a party may demonstrate its intention to
appeal  from one order despite referring only to a different order in 
its petition for review if the petitioner's intent " 'can be fairly 
inferred' " from the petition or documents filed more or less 
contemporaneously with it. 180 F.3d 307, 313 (D.C. Cir.  1999)
(quoting Brookens v. White, 795 F.2d 178, 180 (D.C. Cir.  1986)).


In Southwestern Bell, the FCC had denied a local exchange  carrier's
petition for rehearing of an Investigation Order in  which the agency
had found that the carrier had underesti- mated its future tariff
requirements. See id. at 309-10.  Southwestern Bell then petitioned
this court for review, citing  only the Reconsideration Order. See id.
Upon examination  of Southwestern Bell's petition for review and its
subsequent  filings, we found that "nothing prior to the brief filed
in this  court ... gave the Commission any notice of Southwestern 
Bell's intent to seek review of the Investigation Order." Id. 




__________

n * Effective December 1, 1998, Fed. R. App. P. 15(a) was amended  (in
style but not in substance) to require that a petitioner "specify" 
rather than "designate" the order or part thereof to be reviewed. 
Because Mr. Martin filed his petition prior to the amendment, we 
refer to the earlier version of the Rule in this opinion.


at 313. The petition designated for review only the Reconsid- eration
Order and only that order was appended to the  petition; likewise, the
docketing statement named only the  Reconsideration Order and only
that order was attached to it;  and the preliminary statement of
issues focused upon South- western Bell's petition for review of the
Reconsideration  Order. See id.


Like the petitioner in Southwestern Bell, Mr. Martin desig- nated in
his petition for review only the order denying  rehearing, but unlike
the earlier petitioner, he made his  intent to seek review of the
underlying order fairly inferable  from his contemporaneous filings.
On the same day that Mr.  Martin filed his petition for review, he
filed a motion to stay  the construction of a portion of the pipeline
pending review of  his petition. The motion for stay bespeaks in two
ways Mr.  Martin's intent to seek review of the Certificate Order.


First, by attaching to the motion a copy of his application  to the
Commission for rehearing, in which he cites and  discusses the
Certificate Order, Mr. Martin identified the  order from which his
dispute with the Commission arose.  Second, the nature of the motion
for stay itself sufficed to  indicate Mr. Martin's purpose in filing
his petition for review.  He sought a stay in order to prevent the
irreparable harm to  his property that allegedly would attend the
construction of  the pipeline. Because Portland clearly derived its
authority  to construct the pipeline from the Certificate Order, Mr. 
Martin's motion for stay was necessarily directed to that  order. And
if Mr. Martin sought to stay enforcement of the  Certificate Order,
then he must also have meant to seek  review of the Certificate Order,
not the Rehearing Order. Cf.  Foman v. Davis, 371 U.S. 178, 181 (1962)
(holding that where  petitioner submitted two notices of appeal, one
that was  premature and one that failed to specify judgment from which
 appeal was being taken, "Court of Appeals should have  treated the
[second] ... as an effective, although inept,  attempt to appeal from
the judgment sought to be vacated.  Taking the two notices and the


petitioner's intention ... was manifest"). Moreover, Mr.  Martin's
filings subsequent to the petition for review, includ- ing the
docketing statement and the certificate as to rulings  under review,
indicated that he was challenging the Certifi- cate Order as well as
the Rehearing Order.


Nor does the Commission claim to suffer any prejudice  from our review
of the Certificate Order despite Mr. Martin's  failure to designate it
in his petition for review. Although an  agency is under no obligation
to determine whether a party  that petitions for review of an
unreviewable order meant to  specify a different order, see
Southwestern Bell, 180 F.3d at  314, here the Commission's filings in
response to Mr. Martin's  petition for review and motion for stay
indicate that the  agency was aware from the outset that Mr. Martin
meant to  seek review of the Certificate Order.


The Commission's opposition to Mr. Martin's motion for  stay lists the
Certificate Order as one of several orders  "relevant to this
proceeding." In moving to transfer Mr.  Martin's case from the First
Circuit to this circuit, the  Commission invoked the authority of 28
U.S.C. s 2112(a)(1):  "If proceedings are instituted in two or more
courts of  appeals with respect to the same order ... the agency ... 
shall file the record in the court in which proceedings with  respect
to the order were first instituted." The Commission  expressly argued
that the First Circuit should transfer Mr.  Martin's case to this
circuit because another party had filed a  petition for review of the
Preliminary Order and the Certifi- cate Order in this circuit before
Mr. Martin had filed his  petition for review. That the Commission
understood Mr.  Martin's petition for review to encompass the
Certificate  Order, therefore, is apparent; indeed, its argument for
trans- fer of the case depended upon it.


In sum, despite Mr. Martin's failure to refer to the Certifi- cate
Order in his petition for review, his accompanying mo- tion for stay
provided the Commission with notice of his  intent to seek review of
the Certificate Order. Accordingly,  we have jurisdiction to consider
Mr. Martin's claim.


B. The Merits


Mr. Martin challenges the Certificate Order as arbitrary  and
capricious on the grounds that the Commission failed to  comply with
regulations promulgated under the National  Environmental Protection
Act and the National Gas Act in  order to protect scenic and historic
places. Under the regula- tions implementing the NEPA, the agency was
required to  prepare an Environmental Impact Statement in which it 
discussed any inconsistency between the proposed project  and a state
or local environmental plan or law. 40 C.F.R.  s 1506.2(d). Mr. Martin
complains that the Commission  failed to discuss the consistency of
Portland's proposed pipe- line with a "river corridor management plan"
adopted by the  State of New Hampshire. The Commission points out,
dis- positively, that no inconsistency with any state or local plans 
was raised before it, and that the cited regulation does not  require
it affirmatively to address consistency with such  plans.


The NGA regulation governing placement of pipeline  rights-of-way
provides:


Where practical, rights-of-way should avoid ... places  listed in the
National Register of Historic Places.... If  rights-of-way must be
routed through such historic  places ... they should be located in
areas or placed in a  manner so as to be least visible from areas of
public view  and so far as possible in a manner designed to preserve 
the character of the area.


18 C.F.R. s 2.69(a)(1)(ii). Mr. Martin claims that because a  portion
of his land lies within a state-designated "river corri- dor" and
because the State had certified his entire property  as "historic"
before the Commission prepared its Final Envi- ronmental Impact
Statement, the agency should have ad- dressed in the certification
proceedings whether the regula- tions required an adjustment to take
the proposed pipeline  route around Mr. Martin's property. Mr. Martin
proposed  such an adjustment to the Commission.


The Commission considered the "visual impact" of the  proposed pipeline
on historic properties such as Mr. Martin's,  as well as the
practicality of the alternative route Mr. Martin  proposed. The
Commission rejected the alternative route  because it would have
required Portland to develop a new  right-of-way, in contravention of
18 C.F.R. s 2.69(a)(1)(i),  which states that "[i]n locating proposed
facilities, consider- ation should be given to the utilization,
enlargement or exten- sion of existing rights-of-way." We cannot fault
the Commis- sion for approving Portland's use of the existing
right-of-way  through Mr. Martin's property rather than requiring the 
pipeline company to develop a new route through previously 


The Commission also notes that, New Hampshire's desig- nation
notwithstanding, Mr. Martin's property was not listed  on the National
Register of Historic Places at the time of the  proceedings, nor even
as of his request for rehearing, and  that he therefore did not raise
before the agency any claim  related to listing on the National
Register. The record of the  certification proceeding bears out the
Commission's point.  Therefore, the agency's decision was in no
respect arbitrary  and capricious.


III. Conclusion


For the foregoing reasons, we have jurisdiction to review  the
Certificate Order, and the petition for review is


Denied.