*3
though
petition
reopening
even
was
GINSBURG,
and
Cir-
Before WRIGHT
filed over four months after the award of
MacKINNON, Senior Cir-
Judges,
cuit
and
permit
days
and 72
after NCWCD had
Judge.
cuit
permit.
learned of the
filed
Circuit
Opinion for the court
FERC,
holding hearing, reject-
without
a
Judge
WRIGHT.
J. SKELLY
petition
untimely.
very
In
ed the
as
a
brief
Cir-
Concurring opinion filed
Senior
opinion
conclusory
and
FERC held that
Judge MacKINNON.
cuit
had had sufficient “actual notice”
WRIGHT,
Judge.
Circuit
J. SKELLY
petition unjusti-
to make the lateness of the
the unsuccessful ef-
facts,
This ease involves
Because we hold that
as
fied.
NCWCD,
Water Con-
forts of the Northern Colorado
alleged by
show that the lateness
(NCWCD), political
servancy District
sub-
for reconsideration was
Colorado,
reopen
division of the State of
probably justified, we reverse FERC’s re-
permit proceeding of the Fed-
preliminary
petition.
jection of NCWCD’s
Our decision
Energy Regulatory
eral
Commission
language
on both the clear
and the
is based
(FERC
Commission).1
August
4(f)
On
legislative history
clear
of Section
developer,
private
issued to a
1981 FERC
Act.2
failure to
the Federal Power
FERC’s
Inc.,
preliminary
Energenics Systems,
in-
give written notice to NCWCD was an
study
feasibility of and to
permit
provision.
disputable
violation of
prepare
application for construc-
subsequent
a license
While NCWCD’s
behavior
power
operation
hydroelectric
of a
exemplary,
quickly
tion and
both its failure
Vrain
in Boulder
project on the St.
Canal
proceeding
learn of the
and its failure to
NCWCD, which had not
County, Colorado.
quickly ascertain and act on its interests
respon-
participated
proceeding,
in the
has
reasonably foreseeable
results of
were
operating
Indeed,
law for
siblity
under Colorado
violation.
distri-
maintaining a number of water
Congress
passed
the written notice
provide
4(f)
water to the
bution facilities
provision of Section
did so because
cities, towns,
irrigation in-
agricultural
fully expected
public
entities
like
NCWCD,
notice,
The St.
of northeastern Colorado.
given
terests
if not
written
direct
facilities. On
frequently
Vrain
is one of those
Canal
behave
as NCWCD
FERC,
1981),
see Pub.L. 95-
(Supp.
1.
to the creation of
Prior
V
the distinction between FERC
IV,
Aug.
Stat. Title
§
case. Both will
and the FPC is irrelevant
to this
1981)),
(codified
(Supp. V
at 42 U.S.C.
§
be referred to as the “Commission.”
thus
discussed in
and license functions
opinion
in the Federal Power
this
were vested
Although
provision
is now labeled
(FPC)
by the
which was created
4(e),
4(f)
originally
we will
§
§
labeled
FPC func-
Act. Because these
Federal Power
4(f)
provision
throughout
this
§
refer to this
as
to FERC when
tions were later transferred
opinion.
dissolved,
7172(a)
see 42 U.S.C.
FPC was
§§ 797(f),
holders would be
FERC cannot first
798. Permit
to have behaved.
seems
applicants
preferred over other license
so
statutory mandate that was de-
ignore a
long
plans
as their
are “at least as well
municipalities in their com-
signed to assist
* * *
conserve,
adapted
develop,
and then declare that a
permits
petition for
in the
interest
re-
utilize
water
rights
acting
its
municipality loses
region.”
sources
C.F.R.
expected it would act without the
Congress
§ 4.33(h)(1) (1983). Indeed,
where
even
light
of this we
assistance.
mandate’s
competing applicant
superior plan
reverse.
permit holder is entitled to be informed of
Background
Legal
specific
why
plan
“the
reason
its
is not as
I.
adapted”
given
and to
well
“a reasona-
controversy,
one
To understand
period
bring
plan up
ble
of time” to
the Federal Power
first understand
must
competitor.
level
Id.
importance
licensing scheme and the
Act’s
*4
§ 4.33(h)(2).
preliminary permit
that scheme of
to
public
statutory preference for
de-
and the
Congress
adopted
policy
also
a
fa
operation
hydroelectric
of
velopment and
voring public ownership
hydroelectric
of
projects.
power projects.
required
It
the Commis
development
hydroelectric
give
preference
sion
a
promote
to
to “States and
To
development municipalities”
private developers
that that
power and to assure
over
in
interest, Congress
preliminary permit
public
proceedings,
all
license
would serve
scheme,
licensing
proceedings
prior per
administered
in
created a
which there is no
construction,
Commission,
mit,
opera-
proceedings
expi
license
by the
and
after the
tion,
hydroelectric
ration
and maintenance of
earlier
license.
16 U.S.C.
§
§
797(e) (1982).
800(a) (1982).
Li-
projects.
proceeding
16 U.S.C.
such
a
up
municipality
a duration
per
censes
to 50 state or
must receive the
§
Although
plan
Commission mit or
if
years.
Id.
license
is at least as well
licensing
generally
adapted
serving
public’s
are
to
decisions
be
to
water re
policy
“develop[ing],
plan
private
of best
source interests as the
of the
based
in
consenting],
utilizing]
public
parties.
private party’s plan
and
Id. Where a
superior,
municipality
resources of the re-
a
interest
the water
state or
is enti
§ 800(a),
licensing process
gion[,]”
specific
id.
tled to be informed of the
deficien
given
to account for at least
cies
period
is also structured
and to be
a reasonable
promoting
policy goals:
plan
two related
exten-
time to make its
“at
least as well
by applicants prior
adapted
plans.”
sive data collection
to
as the other
18 C.F.R.
§ 4.33(h)(4)(1983).
receipt
promoting pub-
spite
pref
their
and
licenses
But
of the
development
operation
hydroelec-
public ownership,
permit
lic
erence for
once a
issued,
projects.
permit
prior
tric
whoever has the
ity
licensing stage
competi
at the
over all
Congress wanted license decisions to be
tors,
they public
private.
be
or
See Wash
made on the basis of detailed submissions
ington Public
Supply System
Power
include as much relevant data
that would
FPC,
(D.C.Cir.1966),
358 F.2d
possible.
id.
802. And believed
See
grounds
rev’d and vacated on other
sub
only willing
parties
to invest
FPC,
nom. Udall v.
387 U.S.
87 S.Ct.
collecting
extensive data
there was
3. As holders, eight security publication weeks.” This was re- "for sentatives of consumers or "or 26, August the Act of four weeks person participation duced to in the other whose II, 502, 1935, 687, interest”). Title 839. Stat c. proceeding be in the (1982) 825g(a) (giving U.S.C. § 4. See also 16 30, 1918) (com- Cong.Rec. (Aug. 5. See 56 authority party broad to admit as Sinnott). Rep. ments any proceeding interested state before 19, published On 1981 FERC also begin investigations NCWCD to into the notice, published identical to that feasibility in the project of and its in a interests Register, location, Federal newspaper. a local It at legal rights into its 26, republished May 2, was on June respect and with to the matter. On November 13, June 9. 1981 NCWCD’s Board of Directors re- petition solved reopen pro- FERC to 7, August On 1981 FERC ordered that a ceeding and to submit competing permit preliminary permit Energenics. be issued to application. 10, On December filed, competing applications No had been petition NCWCD filed its for reconsidera- party commenting “[n]o reopening. tion and application objected to issuance of the permit.” Issuing Preliminary Order Per- receiving After a response from Ener- mit, (R.) Appendix (JA) Record genics Joint reply and a memorandum from 19. also NCWCD, stated that the order would but without holding hearings or appealed be final days. unless within 30 R. making findings fact, FERC, on Febru- timely appeal JA No filed. ary 1982, issued a short order rejecting petition. NCWCD’s The order stated: briefly We should discuss what NCWCD good No cause has been why shown prior did learn and do to its December petition[,] Northern Colorado's filed four to reconsider. NCWCD first months after issuance of the learned that Director’s appli- had filed an order, should now be permit relating considered. North- cation for to a ern complains Colorado the St. Vrain it did Canal when a member of receive direct proposed NCWCD’s Board of notice of the Directors saw the no- project, published tice but newspaper a local admits it received actual on June no- through a little more than tice a local newspaper one month after no- Ener- genics’ government tices to other pending. entities were is- North- prior sued and one month ern to the deadline Colorado claims that it did not take for comments and action protect notices of intent to file interests because it competing applications. respond- received from the Bureau of Reclamation *6 published ed to this trying erroneous pertaining information to the ascertain the exact location of the proposed proposed project. location of the How- project, and ever, to do this it contacted the determining after proper loca- Department’s United States Interior Bu- tion of proposed project, Northern Reclamation, reau of which owned the Ca- days Colorado waited 72 filing before its nal and with which NCWCD had an estab- petition for reconsideration. Northern working lished relationship. Unfortunate- petition Colorado’s for reconsideration is ly, gave the Bureau NCWCD an incorrect rejected. therefore examining location, location. After Rejecting Order Petition for Reconsidera NCWCD concluded that it was not a feasi- tion, 81, 65, R. reprinted JA at 18 FERC ble site and thus decided not to challenge ¶ (CCH) 61,098.6 26, February On 1982 Energenics’ application. petitioned NCWCD rehearing, for and on After permit, received its it March rejected petition. 25 FERC began government to contact various enti- FERC stressed that rejected had part ties feasibility study. of its petition One of earlier as untimely and would ad the entities contacted was NCWCD. practice On here to entertaining peti of not September meeting at a with En- rehearing tions for the of an order denying ergenics, NCWCD for the first time real- reconsideration. Rejecting Notice Petition proposed ized the correct location of the Rehearing, for R. JA 79. NCWCD project. prompted This realization petitioned then this court for review. Except introductory paragraph, for a short order. quoted entirety material in text is the of FERC's agency. reopened, If the matter is III. Jurisdiction any ensuing final order then be re regarding questions first raises FERC with the review stat viewed accordance jurisdiction. Section 313 of the this court’s hand, If[,] ute. on the other for § (1982), Act, provides 825/ U.S.C. matter, reopen reason declines to jurisdiction over the orders this court statutorily itself would be a that decision petition for re of the when a Commission reviewable order.” See also Investment by “any party us view has been filed with of FRS, Institute v. Board Co. Gov. chapter aggriev proceeding to a under (D.C.Cir.1977); Gard F.2d 1280-1283 by the Commission ed an order issued FCC, (D.C.Cir.1976). ner v. 530 F.2d § (b). Id. proceeding.” such 825l The sec however, provides, that this court tion also In this case NCWCD followed the petition par unless the shall not consider a procedure set out in City Rochester. It ty previously objections had raised petitioned reopening for and its application for re rejected. rejection That ais statutori hearing there is reasonable or “unless § ly 825l, order reviewable under 16 U.S.C. Id. ground failure do so.” Under statutory prerequi met all statute, party may apply for a rehear respect sites to review with to that order. thirty days ing by the Commission “within we agen issue review is therefore “the after the issuance” of a Commission order. cy’s reconsidering reasons for not its earli § 825l(a). Id. Rochester, City supra, er order.” argues that because NCWCD standard, course, F.2d at 938. The proceedings, and party permit not a whether Commission’s “action was ‘ar rehearing because it filed no discretion, bitrary, capricious, an abuse of issuance, days within ” or otherwise not accordance with law.’ improp- petition to this court is NCWCD’s Institute, supra, Investment Co. 551 F.2d disagree. er. We quoting 10(e) Section of the Ad literally party,” Although not “a Act, ministrative Procedure 5 U.S.C. inability party to become a NCWCD’s 706(2)(A) precisely objection. of its It basis grossly deny judicial would be unfair Statutory Obligation IV. FERC’s petitioner objecting agen to an review to a Give NCWCD Written Notice cy’s grant party refusal status on the controversy At the center of this is the party petitioner basis that the lacks status. that FERC breached its statuto- contention petitioner obviously be con Such a must ry obligation to NCWCD individual- purpose party sidered a for the limited Energenics’ permit ized written notice of denying reviewing agency’s basis for *7 application. Obviously, if FERC had no
party status. See Public Service Comm’n
duty,
such
untimeliness cannot
NCWCD’s
FPC,
1517 14469, Representatives House on H.R. tory inadequacy and for the of its articula- of 14760, 15126, H.R. and H.R. Cong., 3d by 66th tion the Commission. (1921) (statement Merrill, Sess. 89 of O.C. Secretary, Executive Federal Power Com- Act’s language. The 1. mission). argues that Mr. FERC Merrill’s Supreme The Court has stated: “[T]he contempo- statement should be treated as a starting point interpreting for a statute is interpretation agency
raneous stat- language of the itself. statute Absent ute, and FERC asserts that has consist- clearly expressed legislative intention to ently interpretation. followed Mr. Merrill’s contrary, language must ordinarily referring explains FERC also to “[i]n regarded be as conclusive.” Consumer mayors, Mr. thus Merrill drew a distinction Safety Sylvania, Product Comm ’n v. GTE governments on the level between local Inc., 102, 108, 2051, 447 U.S. 100 S.Ct. towns, {e.g., typically mayors have (1980). L.Ed.2d In 64 766 this case cities, villages) typical- and those which provides the statute first that the Commis- {e.g., authorities, ly drainage do not water sion at once prelimi- “shall notice districts, districts). [a irrigation Only the for- nary permit] writing group mer received written notice.” Brief municipality State or likely respondent interested group, at 21. The latter in or view, application)!]” affected such 16 rely FERC’s § 797(f) (1982). Second, Register U.S.C. newspaper notices or the Federal defines “municipality” city, county, notice. as “a irrigation district, drainage district, political other position supports by citing FERC its or agency competent subdivision of a State general proposition “the that considerable carry under the laws thereof on the respect interpretation given is due the [a] of developing, transmitting, business utiliz- charged statute the officers or Id. ing, distributing 796(7). power.” respon- with administration.” Brief for Ford quoting Motor Co. at Credit dent statutory The of “municipali definition Milhollin, 555, 566, 444 U.S. 100 S.Ct. ty” expressly thus includes those entities 790, 797, (1980) (internal 22 63 L.Ed.2d that FERC now contends it can expressly quotation omitted). marks and citations As interpreting provision. exclude in argues, FERC longstand- a “consistent and Moreover, although requirement of writ ing interpretation by agency charged generally ten notice is understood to mean Act, administration while not notice, Vapor personal see NLRB v. Recov controlling, entitled considerable Co., ery Systems (9th 311 F.2d 20, quot- weight.” respondent Brief Cir.1962), argues FERC types that certain ing United Nat’l States v. Ass’n Securi- municipalities rely should have to Dealers, ties 694, 719, 422 U.S. 95 S.Ct. general public newspaper and Reg Federal For L.Ed.2d notices, though ister even spe the statute reasons, however, number of this well es- cifically they states that are entitled to principle tablished of administrative law * * addition, writing.” “notice[s] cannot validate what the Commission has although and, unambiguous statute is done. “shall,” using the word written in “the OPM, We stated in Obremski v. F.2d Ass’n Ameri language command))]” (D.C.Cir.1983), limit Costle, can Railroads v. 562 F.2d placed judicial agency’s role an (D.C.Cir.1977), views itself as interpretation statute of a “assumes free flexibility to exercise broad in deciding adequately articulated deci- administrative what obligation Congress. meets its interpreting the relevant law sion range within reasonableness.” legislative history. 4(f) interpretation of Section fails in light says “shall,” both for its unreasonableness The statute but FERC ar- statutory language legislative gues his- two statements from the brief *9 1518 McLaughlin’s complaint, which the resentative Representatives debate House of discussed, great flexibility directly was or that was never answered
provision show
to
statement
FERC first cites
a
may
newspaper
intended.
at the
been directed
Sinnott,
provi-
the
Representative
made
in the
requirement as contained
publication
sugges-
Responding
a
sponsor.
sion’s
Indeed,
proposal.
initial
an amendment
required
be
tion that
the
subject
immediately
and
that
was
offered
proof
to demand
permit proceeding
each
adopted.9
pub-
mailed and
proper notices were
that
lished,
that
Sinnott stated
Representative
case,
significance
In
of such
the
things to
“too
did
want
become
he
not
legislative floor
is
comments from
debates
the
complicated,”
preferred
that he
limited,
only
not
because of such clear stat
jurisdic-
“directory rather than
provision be
utory language, but also because “[t]he
tional,”
“rest
matter should
and that
the
single legislator,
a
even the
remarks of
Cong.Rec.
9763
with the Commission.”
controlling
analyzing
sponsor,
not
are
1918).
30,
citation
(August
FERC’s second
legislative history.
sponsor’s]
the
[Even
by Representative
to a
comment
be
the Re
statement must
considered with
proposed
the
McLaughlin, who criticized
ports of
Houses
both
and
statements
require
that “to
notice
provision by arguing
Congressmen.” Chrysler Corp. v.
other
by” a
interested or affected
counties
1705,
Brown,
U.S.
S.Ct.
present problems because
project would
1519
to control.” Skidmore v.
report,
power
in
&
ments
a conference
because com-
Swift
Co.,
134,
Congress, carry
140,
the
mended to
entire
323 U.S.
65 S.Ct.
89
greater
(1944).
weight than comments from floor L.Ed. 124
agency
Where the
has
See
by
legislators.
debates
individual
reasoning
shown
little evidence
the
Congress Kreps,
American Jewish
574
contemporaneous position,
went
into its
(D.C.Cir.1978);
624,
see also
F.2d
n. 36
629
position
been
accorded little defer-
Marshall,
1381,
Vitrano v.
F.Supp.
504
Wrecking
See Adamo
v. United
ence.
Co.
(D.D.G.1981)
the
most use- States,
(“Perhaps
434 U.S.
287 n.
S.Ct.
Congressional
illuminating
ful document
Here,
573 n.
pality might which therein interested provision. the statute’s notice It was a filing”). disputed No one this under- general, descrip- brief and matter-of-fact standing. tion agency practice. of then-current brevity gen- reason for the statement’s
3. The Merrill inadequacy statement’s erality is clear from the statement’s con- contemporaneous agency as a in- hearing text. The simply was not focused terpretation consistently applied. interpretation Commission’s reject as we particular parts. Just must statute’s It was con- legislative justify history personnel reliance on its cerned with the needs of the practice respect municipal with no with question Commission and of how provision, reject we tice must also its asser extensive authority the Commission’s personnel tion that the 1921 comment Commis hire Specifically, should be. Secretary testifying hearing sion’s Executive while bill on a to authorize the Com- type personnel to a House committee amounted mission to hire for the first time. contemporaneously articulated and con The statement cited as authoritative agency interpretation sistently response general followed to Commission inwas ato question which we owe deference. It has directly that was concerned accepted important long provision been that an fac neither the notice nor Com- weight giving personnel needs; tor to an mission’s to be considered con- interpretation agency’s of the statute it cerned with whether the Commission had thoroughness evident in power per- enforces is “the its sufficient to conduct consideration, validity its reasoning, hearings open mit and license and to them consistency pro parties. with earlier and later to all interested The statement nouncements, simply and all of those part factors was of a short answer that persuade, lacking power generally described Commission’s then- *11 inadequacy 4. The Merrill statement’s Such a statement practices.10
current
legislative ac-
an indication
or under-
intended
likely to have been
not
of
quiescence.
of a
construction
as an authoritative
stood
it serve as
meaning, nor could
statute’s
argument
that relies on
other
FERC’s
Sloan,
103,
436 U.S.
v.
such.
SEC
similarly
Cf.
be re-
can
the Merrill statement
1711-1712,
1702,
117-119, 98 S.Ct.
the statement
argues that
jected. FERC
(1978);
Wrecking Co.
L.Ed.2d 148
Adamo
put Congress on notice of
Commission’s
States,
434 U.S. at
supra,
v. United
Congress, by
thus
not
interpretation and
5;
5,
Inc. v.
n.
Robzen’s
n.
Id. at 22.
court,
emphasized
First,
points.
FERC
two
argues
Commission
that on June
Although
sympathize
we
1981, prior
proceedings,
to the close of
concerns,
practical
reject
we must
NCWCD received “actual notice” when one
justi
its contention that those concerns can
newspa-
of its Directors saw the last of the
fy
practices. Any
the Commission’s
admin
per notices. In FERC’s view this was suf-
approach developed
istrative
would have to
negate
ficient to
challenge.
NCWCD’s
Sec-
adequately
articulated and within a
ond,
important,
argues
and more
range of
FERC
respect
reasonableness with
Congress’
having
that NCWCD admits
instruction.
received all
Obremski v.
Cf.
OPM,
supra,
by September
relevant
information
Because this
to us
provi-
case comes
seems to have been the
findings,
sponsor
explained
factual
we cannot decide the
sion’s
purpose
he
72-day delay
of whether
Representatives:
issue
was rea-
to the House of
*
**
excusable,
sonably
for a
but
number of
It is well
that municipalities
known
reasons we must reverse FERC’s decision
are
very
officials
often
dilato-
that,
assuming
alleged
the truth
all facts
ry
sleep upon
they
rights.
their
NCWCD,
was still inexcus-
It
provide
seems to me it is wise to
ably untimely.
reaching
this conclusion
as soon as an
filed
holding
waiting
long
are not
such
we
person
corporation
that notice shall be
*14
acceptable
of
period
generally
time is
given
at once
municipali-
to the various
reopen
pro-
to
efforts
an administrative
ties,
county, city,
which mean the
irriga-
ceeding.
clearly
That is
not the case. But
district,
district,
drainage
tion
or other
* *
special
this case
a
involves
number
cir-
political division
the State
*.
This
We are influenced
cumstances.
bring knowledge directly
will
home to
* * *
prac-
time limits contained in FERC’s own
op-
officials and
them an
tice, by
legislative history
of the Feder-
portunity
present
application
their
if
provision,
al Power Act’s notice
and
they
municipal
desire
or
owner-
particular facts of this case.
ship,
where otherwise
matter would
entirely
snap
be
judg-
overlooked and
significance
72-day
The
of NCWCD’s
* *
against
ment would be taken
them
*.
period
be
part
time
should in
evaluated in
given
parties
Cong.Rec.
(August
1918) (state
light
periods
of the time
Sinnott).
proceedings.
by Representative
own
We assume
FERC’s
that ment
Of
course,
periods
recognition by Congress
FERC’s views of
those
reflect
how
cannot
long various
decisions should mean that once
is deficient
tasks and
a munici
reasonably
case
pality
take.
In this
FERC first
can learn the relevant
information
Energenics’
freely sleep
rights.
notices of
on and then
its
But
issued
it
9,1981 (64
July
days
influence the
1981 and listed
should
evaluation of a munici
later)
comments,
behavior,
pro- pality’s
municipality
as the last date for
since a
tests,
petitions
rights
The
if
response
or
to intervene.
notices
should not lose its
its
explained
anyone
congressional
expectations.
interested in was within
also
could,
filing
competing application
Congress
expected
under
a
seems not to
.mu
§ 4.33(b)
(1983),
(c)
protect
nicipalities
to file competing ap
to be able
18 C.F.R.
&
July
by filing,
relatively
plications
exemplary promptness
after
interest
casually
simple
informally coming upon
intent.13
the nec-
notice of
(2)
competing
applicant,
unequivocal
submit a
tive
"an
A notice of intent to
and
state-
name,
(1)
only
specific type
application
address,
include
ment of intent
need
to submit
4.33(b)(l)(2) (1983).
prospec-
application.”
telephone
and
number of
C.F.R.
sought
thus
Congress expected and
information,
what
this factor should
essary
direct, unambiguous,
by requiring
at the issue with to avoid
us to look
at least lead
notice,
placed
given that FERC
flexibility.
written
some
neither
position
in a
in which
NCWCD
factors, we must conclude
Given these
piece-
procedures nor its
stated
FERC’s
reject
peti-
NCWCD’s
that the decision
guidance, we
gave
clear
dents
reached as it was with-
reopening,
tion for
denied
to have
find it an abuse of discretion
fact-finding, was an
hearing
out a
alleged.
facts
of rea-
For a number
of discretion.
abuse
days, in and of
of 72
passage
sons
conclusion that
We reverse FERC’s
itself,
FERC’s conclusion.
cannot sustain
that,
untimely
even
days was so
municipali-
allow a
procedures
FERC’s own
complete,
true and
explanation offered was
notice to take
proper
ty which receives
may
FERC
not be reasonable.
reach a decision on
days to
more than 60
hearings at which NCWCD
course hold
compete.
point
At that
it wants to
whether
in its
may
required
prove
the facts
be
only
simple notice of intent
it need
file a
And,
course,
such hear-
allegations.
pre-
days
more
gain approximately 60
ings
allegations
be exam-
NCWCD’s
important,
application. Most
paring its
ined,
light
in a
impeached, or cast
different
procedure
fol-
exact
notice sets out the
facts, and as a result NCWCD’s
by new
dates,
option
low,
the exact due
unrea-
may be found to have been
behavior
intent,
with a notice of
protecting interests
finding
would have to
sonable. But such
parties need not ex-
potential
Thus
etc.
prove
based on NCWCD’sfailure to
determining what is
pend time and effort
presentation
or on the
factual contentions
here, in
The facts
con-
expected of them.
currently
not
be-
significant
new facts
trast,
with the informa-
presented NCWCD
contained in the
fore us. On the facts
placed
piecemeal
tion in a
fashion
us,
could not have
record before
having
argue
theory
the situation of
validly reached that determination.14
appeared
pub-
never to have
reopening that
Reversed and remanded.
regulations
licly
did
arisen before.
notice,
explain
proper
what constituted
MacKINNON,
Judge,
Circuit
con-
Senior
municipality
they explain
nor did
what
curring.
Al-
expected
to do.
position
NCWCD’s
majority’s
I concur with the
decision to
argues that all NCWCD
though FERC here
*15
a
remand this case to the Commission for
simple
file the
would have had to do was
hearing
whether the facts
to determine
intent,
by the
no
statement
notice of
reopening
permit
to
the district to
justify a
this would have
stated that
apply
temporary permit.
reaching
for a
the fact that the
appropriate.
been
Given
conclusion, however,
disagree
I
with
late,
that
as
than two weeks
was less
majority’s analysis primarily
much of the
period
normal
compared with FERC’s
—
intent,
apparent eagerness to
given its
decide several
notice of
requiring the short
complete
delay
issues
the
absence
and confusion
substantial
that this sort of
dispute.
Energenics
of
Because of FERC’s refusal to take seri-
has raised the issue
Intervenor
statute,
ously
provision
underlying
arguing
equities
a
the
prejudice,
that
the
favor not
of
receipt
development
reopening
it had relied on its
of
of a worthwhile water
because
expended significant
needlessly delayed
permit
amounts
the
the
and so
been
and
interests
during
72-day period.
money
injured
the
and NCWCD have been
of time and
both
Moreover,
Energenics'
uncertainty.
simple
kept
losses cannot
But the
fact
and
in a state of
behavior,
asserting prevent
reopening. NCWCD is
there
because of FERC’s
is a chance of
right given by
the
and undermined
litigation
rights
disposed
statute
as
are
of with
further
Any prejudice that resulted from
finality
Commission.
prior
to even the issuance of
license
reasonably
foreseeably
delays
that followed
(i.e.,
again
ability
denied the
if
is once
misdeeds cannot be a
or,
from the Commission’s
reopen
proceeding
reopened,
if the
denying reopening.
basis for
party
one
is denied the
when
however,
merits).
contention,
hope
point
FERC will now
We thus
that
Energenics’
does
care, responsibility,
dispatch.
resolving
proceed
rapidly
and
importance
this
the
out
agree
power,
strong
factual record.
I
that
the
sale
and there is
circumstan-
Conservancy
allegations
passage
District’s
must be
tial
that
evidence
accepted
purposes
ap-
as true for
of this
amendment
have been the only event
peal,
agree
majority’s
but I cannot
with the
placed
“likely”
the District in the
sta-
apparent determination to decide some of
tus. When the Commission sent out the
underlying
issues
substantial
as
notices the District did not
authority
Conservancy
facts asserted
District
power,
to wholesale
and this is a fact from
developed
in its brief were facts
on a
might
be inferred that the District
hearing.
elementary
record after a
It is
municipality likely
was not a
to be interest-
court should
decide
issue that
“[n]o
might
ed.
Insofar
likely
as it
be
to be
properly
has not been
clarified and no court
“affected,”
published notice, by desig-
any question
should decide
without needed
nating
Canal,” might
the “St. Vrain
Davis,
facts.”
4 K.
Administrative Law
giving
considered as
all the notice that was
§
(2d
1983).
Treatise
25:11
ed.
This re- necessary
operat-
to alert the District that
courts,
designed
“prevent
straint
ed the St. Vrain Canal.
through
premature adjudica-
avoidance of
It is not clear that
Conservancy
Dis-
tion,
entangling
from
themselves
ab-
was,
fact,
trict
“municipality likely
disagreements
stract
over administrative
in Energenics’ petition
be interested”
policies,
protect
and also to
agencies
the date that
the Commission’s notices
judicial
Abbott Lab-
from
interference.”
municipalities.
were sent out to
As of that
Gardner,
136, 148,
oratories v.
387 U.S.
§
date,
45—118(j)provid-
Colo.Rev.Stat.
37—
(1967) (em-
I.
the district.
generally
I
purposes
concur
that for
added.)
(Emphasis
Conservancy
Dis-
appeal
Conservancy
District can
this
“authority
generate
trict did not receive
“municipality
now be
likely
considered
electricity
May
for wholesale sales” until
(emphasis
be interested ... or affected”
just after
added)
FERC had mailed its
Energenics project.
But I
1981—
Energenics’ permit
notices of
application.1
agree
necessarily
cannot
can be
Majority at
1516. The majority
transformed into a
decision
parties agree
Conservancy
that the
when the
District
Commission sent out
*16
notices,
authority
“gener-
had
before that date
“likely
the District was
to be inter-
to
ate, distribute,
electricity
oper-
and sell
project
ested” in a
the size and character of
for
6, 1981,
facilities,”
ation of its
Energenics’ proposal. May
own works and
Ma-
jority
the Colorado statute was amended
nothing
but there is
in this
before
Conservancy
permit
support
Districts to whole-
record to
way
conclusion one
or
act
statute,
1. This
as amended
the
SALES OF ELECTRIC ENERGY WHICH
by
approved
on May
provides:
MAY BE MADE BOTH WITHIN AND WITH-
Nothing
in this article shall be con-
OUT THE BOUNDARIES
THE
OF
DISTRICT
provided
grant
to the district or board the
strued
OR SUBDISTRICT.
generate,
(as
distribute,
sell,
OR
power
Colo.Rev.Stat.
amended,
37-45-118
May
energy
electric
1981).
CONTRACT TO SELL
except
language
The
was added
capitalized
the
of the works and facilities of
for
operation
to the section
the amendment.
by
the district AND EXCEPT FOR WHOLESALE
studies.”
“plan
based on detailed
authority it
such limited
[was not]
that with
the other
Conservancy
announced
Id.
The
District
interested” in construct-
“likely to be
planned
power
the
to Public
purposes, a
that it
to sell
ing,
its own
for
Energenics.
or another
proposed
Company of Colorado
character or size
Service
which
fact,
application,
present
utility.
the
In
retail
developed,
power
the
seeks to wholesale
Conservancy District
year,
next
the
The
it was not
indication
may be some
Sys-
permit Energenics
in
another
filed for
power
the
producing
within
in
interested
tems,
62,573 (1982).
permit
The
1527 posed specific station on facility II. at a the 9-mile canal?5 of hand the majority The dismisses out Energenics 3. When the board met with Conservancy District’s argument that the September again on 29 told and was knowledge the contents actual admitted proposed the exact location of the published notice on June 9 was suffi of the facility? satisfy require statute’s notice cient to majori- The Or was on some other date? ment: “We can thus conclude it, ty, necessary without before facts reading of the June 9 notice did not make apparently holding makes the substantive failure to fulfill its statu harmless FERC’s plainly that notice was insufficient as of tory obligation.” Majority at 1522. The however, That, is a the first date. fact that some willing that at majority is to concede subject must be the of determination at the knowledge provi point actual renders (The hearing. meetings minutes of superfluous.4 *The sion of written notice might the District’s of directors cast board question then becomes when did Con others.) light some on this issue and The servancy District’s board have sufficient date, majority ignores the second which Energenics’ application knowledge of the September should not be done. It selects begun taking steps it should Conservancy 29 as the date on protect interest? Did it have sufficient required District received the actual notice knowledge— statute, holding the failure to of the 1. When the board became aware specify exactly where on a 9-mile canal the notice on 9? published June pub- would be located rendered the defective, a letter fatally 2. When the board received lished notice least as Energenics August pin applied Conservancy from late District. Ma- pro pointing jority the exact location at 1522. Ass’n, 18, 1981, May required Coop. See Warrior River Elec. 11 F.P.C. as of the Commission 693, (1952). take affirmative action to send additional notice 702 agree majority that date. I after this question at this time need not be addressed Conservancy 5. The District admits that in late decided that issue. and that we have not August it received a letter from de tailing project, exact location of but course, recognition by Congress this [that
4. “Of explains look at the it did not location rights] municipalities are not mindful of their previously carefully had misled because it been mean that once notice is deficient a cannot Brief of the Bureau of Land Reclamation. municipality can the relevant information learn ignores majority Petitioner at statement, n. The 8 8. freely sleep rights.” Majority at and then on its development point but further of this line with what I 1523. This is in understand to necessary judge the reasona seems in order general in administrative cases: ac be the rule sufficient, delay. Conservancy bleness of the District’s Is party is tual notice to the affected only personal applicant responsible service. to be held not even if the statute mandates 583, Udall, F.Supp. 262 592 See Converse (D.Or.1966) the Commission’s failure to the District (Surface requires Resources Act map, possible with a but also for the personally copy claimants, to be served on mine of notice negligence examining of the District in not plaintiffs could not contest lack but very complete placed notice that was before its they completely personal service since “were eyes by applicant? might That be con publication”), aff’d, of the notice of informed placing premium compounding sidered as on Cir.1968), denied, (9th cert. 393 399 F.2d U.S. Conservancy negligence. The District in Au 1025, 635, 21 L.Ed.2d 89 S.Ct. 1981, gust, as a cannot be considered novice Atchison, Ry., T. & S.F. also Hunter v. See F.2d matters, such as the record indicates it had filed denied, Cir.), (7th cert. 342 U.S. preliminary permit, under (1951) (plaintiffs L.Ed. 619 72 S.Ct. case, present identical circumstances to the notice, complain lack of formal not could following application by Mitch period ... notice for sufficient since “[a]ctual Energy Piggy ell Co. on November required”); Public Ad 73A C.J.S. is all that backing applications present of others and (1983) Law & Procedure ministrative ("one ing delay plans after considerable was not a knowledge prejudiced having is not actual Energy Mitchell 1981). new tactic for the District. See Co., of, by, complain to re a failure ¶62,180 (Aug. 16 FERC Commission, notice”). more ceive formal years ago, conclusion. came to the same than 30 *18 (D.C.Cir. FDA, v. 495 F.2d Clark the majority on the fact that The relies party 1974). principle that “The basic maps [is] other munici- Commission did send provide notice as will entitled to such is this, an majority the extracts palities; from ” prepare opportunity to .... reasonable map that a determination” “implicit[ ... ] Davis, Law Treatise Administrative K. govern- properly advise necessary to was § 1980). (2d “The notice must be ed. 14:11 Ma- project’s location. units of the mental reasonably convey the of such nature sup- no jority majority offers 1522. The Mullane required information to A is proposition that notice port for the Co., & Trust Hanover Bank Central if notice to B contains extra infor- defective 652, 657, 306, 314, L.Ed. 70 S.Ct. U.S. to A. On included in the notice mation not (1950).7 contrary, A is entitled to such notice as nature and reasonably apprise Conservancy it of the will received The notice question, regard- apprise it project in sufficient of the District was either location facts, information B gets. it was not. No- necessary of what less parties is irrel- to other interested tice sent incorporating implicit this determina- By Mullane, adequacy Under evant. strenuously the Commission tion —which inquiry. requires factual On re- notice majority neatly rather making denies —the mand, permitted be the Commission should simply be problem that cannot avoids a point the at what Conservan- to determine record: how on this deficient resolved En- notice of the cy District had sufficient in- necessary it much information impli- application. Contrary to the ergenics the Conservan- to inform clude in the notice majority, the Com- cation discerned question is rights? That cy District of its has not done so. investiga- In that mission not the board’s actu- key to whether or ig- not be August letter should tion notice was knowledge al published nored. hearing requires a and deter- It sufficient. It cannot be facts. mination of relevant III. entirely unsup- by reliance on evaded Conservancy Finally, regard to the with that A’s notice ported proposition such as 72-day delay, even after admitted District’s map because A did get not is defective knowledge, agree I possible it had all that B received.6 majority that the absence of factual requires that the question The statute findings impossible it to tell “wheth- makes give notice of such “at once reasonably excusa- 72-day delay er writing” interested munici- application in knowledge Judging by the District’s ble.” It does specify palities qualify. that procedure demonstrated of Commission must be. Ordinari- specific the notice Energy application prior to how its Mitchell per- procedures where ly, administrative doubted that it necessary, administrative any justifiable for the sonal notice has excuse District supra. by the same basic here. See governed delay note 5 As for the agencies “are notice,” issue, delay in- majority’s discussion of the requirements of fairness simply gratuitous advice to the opportuni- “specificity of notice cluding authority. Hess & appellate exceeds our are courts. ty respond,” as public while the majority, entitled to have it sent to them Relying reasoning papers. read it in the must pointed also that the Commission could be out "implicitly that notice to detcrmin[ed]” ... reject any suggestion that the notice 7. Iwould by the general public, is demanded which also particular required statute must some statute, specificity require greater than did not detailed than the how be more exact or more published stat- provided by The notice. by any required statute in which notice other any indication ute can be searched vain provided personal Congress service on more exact or municipalities are entitled to require parties. interested general public. I than the more detailed notice specific no ment at issue in this case is more municipalities provides that believe the statute requirements govern adjudi than the notice are entitled and the rest of the Act. under the Administrative Procedure cations municipalities are 554(b) (1982). same information —but U.S.C. See 5 *19 sum, In I would remand to the Commis- hearing
sion for a to determine: Conservancy
1. or not the Dis- Whether
trict, statutory inability in view of its power light
to wholesale
this court’s construction of the notice personal
provision, was entitled to
notice at the time the notice was sent
out. point Conservancy
2. At what Dis- knowledge
trict had sufficient actual
of all the information to which it was
entitled. Conservancy District’s
3. Whether the
delay after it received all of the
knowledge to it was entitled
was reasonable. proper remedy applied.
4. The to be If the District’s is to be timely, it is
considered whether to be recompense Energenics
required to through
for such loss as it suffered delay of the District. my opinion, this court should not issue rulings these issues until
substantive developed a fac-
after provide record sufficient to a reasoned
tual present,
basis for our decision. At substantively
court has ruled on several allegations basis mere
issues on Conservancy District. To rule substan- proce-
tively improper judicial thereon is appellate
dure for court. America STATES of
UNITED DOE, Appellant.
John
No. 83-1793. Appeals, States Court
United Circuit.
District of Columbia 11, 1984.
Argued Jan. 27, 1984.
Decided March