400 F.3d 1 (D.C. Cir. 2005), 04-5143, Southeastern Federal Power Customers, Inc. v. Harvey

Docket Nº:04-5143, 04-5148.
Citation:400 F.3d 1
Party Name:SOUTHEASTERN FEDERAL POWER CUSTOMERS, INC., Appellee v. Francis J. HARVEY, in his official capacity as Secretary of the Army, et al., Appellees State of Florida, Appellant.
Case Date:March 04, 2005
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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400 F.3d 1 (D.C. Cir. 2005)

SOUTHEASTERN FEDERAL POWER CUSTOMERS, INC., Appellee

v.

Francis J. HARVEY, in his official capacity as Secretary of the Army, et al., Appellees

State of Florida, Appellant.

Nos. 04-5143, 04-5148.

United States Court of Appeals, District of Columbia Circuit.

March 4, 2005.

Argued Feb. 8, 2005

Appeals from the United States District Court for the District of Columbia (No. 00cv02975).

James T. Banks and William S. Cox, III argued the causes for appellants State of Florida and State of Alabama. Charles J. Crist, Jr., Attorney General, Christopher M. Kise, Solicitor General, Parker Thomson, Lauren James Caster, Donald G. Blankenau and R. Craig Kneisel, Assistant Attorneys General, Attorney General's Office of the State of Alabama, and Matthew Lembke, Warren B. Lightfoot, and W. Larkin Radney IV were on brief.

Mary Maclean Asbill and Deborah M. Murray were on the brief of amici curiae

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Alabama Rivers Alliance, et al. in support of appellants.

Michael T. Gray, Attorney, United States Department of Justice, Bruce P. Brown and Clinton A. Vince argued the causes for the appellees. Robert A. Oakley, Attorney, United States Department of Justice, Thurbert E. Baker, Attorney General, Attorney General's Office of the State of Georgia, R. Todd Silliman, William M. Droze, J. Cathy Fogel, David A. Fitzgerald, Edward J. McGrath, Patricia T. Barmeyer and Lewis B. Jones were on brief.

Susan N. Kelly and Wallace F. Tillman were on the joint brief of amici curiae American Public Power Association et al. in support of the appellees.

Before: GINSBURG, Chief Judge, and HENDERSON and GARLAND, Circuit Judges.

OPINION

KAREN LECRAFT HENDERSON, Circuit Judge.

The states of Alabama and Florida appeal the district court's approval of a settlement agreement among the appellees, the United States Army Corps of Engineers (Corps), the State of Georgia, various Georgia municipal and county water authorities (Water Supply Providers) and Southeastern Federal Power Customers, Inc. (Southeastern), a non-profit association that represents rural electric cooperatives and municipal electric systems utilities that purchase hydropower from federal projects. Under the settlement the Corps agreed to enter into interim contracts with the Water Supply Providers to lease them water storage space in Lake Sidney Lanier, a reservoir formed by the Buford Dam, which the Corps built and operates on the Chattahoochee River north of Atlanta. In turn, Southeastern's members, who distribute hydropower generated by the Buford Dam, will receive credits in the amount of the supply rent against the price they pay for hydropower. After conditionally approving the settlement agreement, the district court issued an order dismissing the case as moot. Because we conclude that the case is not moot, we vacate the dismissal order, dismiss the appeals from the other, nonfinal orders for lack of appellate jurisdiction and remand to the district court.

In 1946 the Congress authorized the Corps to design and construct the Buford Dam project, which was completed in 1956. See Rivers and Harbors Act of 1946, Pub.L. No. 79-525, 60 Stat. 634, 635 (1946). During the 1970s and the 1980s the Corps entered into renewable five-year contracts with several Water Supply Providers, which contracts allowed the latter, subject to their payment of set fees, to withdraw water either from the Chattahoochee River downstream of the Buford Dam or from Lake Lanier itself. Since the last of these contracts expired in 1990, the Corps has continued to permit the Water Supply Providers to withdraw water under the terms of the expired contracts but in increasing amounts.

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