688 F.2d 1014 (5th Cir. 1982), 80-2375, Mesa Petroleum Co. v. F.E.R.C.

• Date: 14 October 1982
• Docket Number: 80-2375.
• Citation: 688 F.2d 1014
• Parties: MESA PETROLEUM COMPANY, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1014

688 F.2d 1014 (5th Cir. 1982)

MESA PETROLEUM COMPANY, Petitioner,

v.

FEDERAL ENERGY REGULATORY COMMISSION, Respondent.

No. 80-2375.

United States Court of Appeals, Fifth Circuit

October 14, 1982

Page 1015

Anderson, Byrd & Richeson, Richard C. Byrd, Ottawa, Kan., O'Neill, Forgotson, Roncalio & Haase, P.C., Barry L. Haase, Washington, D.C., for petitioner.

John A. Cameron, Jr., A. Karen Hill, Attys., F.E.R.C., Washington, D.C., for respondent.

Petition for Review of an Order of the Federal Energy Regulatory Commission.

Before CLARK, Chief Judge, GARZA and JOHNSON, Circuit Judges.

CLARK, Chief Judge:

Sections 503(c)(1) and 503(a)(1)(B) of the Natural Gas Policy Act ¹ empower certain federal and state agencies, including the United States Geological Survey (USGS), to determine whether natural gas produced from the Outer Continental Shelf qualifies under § 102(d) of the Act for the incentive price established in § 102(b). Mesa Petroleum Company sought a ruling from the USGS that gas produced from wells penetrating a reservoir off the Louisiana coast was eligible for the incentive price. The USGS ruled against Mesa, finding that the reservoir had been discovered before July 27, 1976, and thus that § 102(d)'s requirements were not met. Mesa then filed a protest of the USGS determination with the Federal Energy Regulatory Commission. Because the Commission did not reverse or remand the USGS ruling within the forty-five days specified in § 503(b)(1)(B) and (2)(B), it became final under § 503(d). Mesa subsequently petitioned this court for review. Finding ourselves without jurisdiction to entertain this appeal, we dismiss it.

The jurisdictional issue here is purely one of statutory construction. The Commission argues that § 503 itself precludes our review of its decisions acquiescing in sub-agency determinations. Section 503(c)(4) provides that sub-agency rulings "shall not be subject to judicial review under any Federal or State law except as provided under subsection (b) of this section." Subsection (b) in turn limits judicial review to cases in which the Commission reverses the sub-agency decision or remands the matter for further consideration. Because the Commission neither reversed nor remanded in this case, the Commission concludes that we are without jurisdiction.

Mesa agrees that § 503 provides no basis for jurisdiction. It instead relies on § 506, the general provision dealing with judicial review of orders under the Act. That section provides for review in a United States Court of Appeals of "any order, within the meaning of section 551(6) of Title 5 (other than an order assessing a civil penalty under section (504(b)(4) ) or any order under section (302) or any order under section (303) ), issued under this chapter ...." § 506(a)(1). Mesa asserts that if Congress had intended to preclude review of § 503 orders, that section would have been included in § 506(a)(1)'s parenthetical. At best, Mesa argues, the statutes are ambiguous, and congressional intent to provide judicial review of agency decisions should be presumed in the absence of clear and convincing evidence to the contrary. Abbott Laboratories v. Gardner, 387 U.S. 136, 141, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967).

Here, however, the legislative history is crystal clear in support of the Commission's interpretation. Representative Dingell, the House Manager of the Natural Gas Policy Act and one of its foremost authorities, ² made the following statement during House debates on the Act:

Section 506(a)(1) does not now fully reflect the separate...