737 F.2d 883 (10th Cir. 1984), 82-2084, City of Gillette, Wyo. v. F.E.R.C.

Docket Nº:82-2084.
Citation:737 F.2d 883
Case Date:June 28, 1984
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 883

737 F.2d 883 (10th Cir. 1984)




No. 82-2084.

United States Court of Appeals, Tenth Circuit

June 28, 1984

Frances E. Francis, Washington, D.C. (Alan J. Roth, P. Daniel Bruner, and Ben Finkelstein, Washington, D.C., with him on the brief) of Spiegel & McDiarmid, Washington, D.C., for petitioner.

Arlene Pianko Groner, Atty., F.E.R.C., Washington, D.C. (Charles A. Moore, Gen. Counsel, Kristina Nygaard, Asst. Gen. Counsel, Thajauna D. Miller and Don Garber, Attys., Washington, D.C., on the brief), for respondent.

Page 884

Before HOLLOWAY and LOGAN, Circuit Judges, and ARRAJ, District judge. [*]

LOGAN, Circuit Judge.

The city of Gillette, Wyoming, appeals from two orders of the Federal Energy Regulatory Commission (FERC) rejecting Gillette's application for a preliminary permit to study a proposed hydroelectric project. Under the Federal Power Act, 16 U.S.C. Secs. 791a-825r, the FERC may issue licenses for developing hydroelectric projects at federal dams. 16 U.S.C. Sec. 797(e). A preliminary permit gives the recipient the exclusive right to study the feasibility of a project and to apply for a license to develop the project. It may be issued for a period as long as three years. 16 U.S.C. Sec. 798; 18 C.F.R. Sec. 4.30(b), (c). The recipient also has priority over competing applicants for licenses after the preliminary permit expires. 18 C.F.R. Sec. 4.33(h).

On February 20, 1981, the Commission issued a public notice stating that Mitchell Energy Company, Inc., had applied for a preliminary permit to study a proposed hydroelectric project at the Yellowtail Afterbay Dam in Montana. The notice stated that any party who wished to submit a competing application should file with the FERC by April 28, 1981, either an application for a preliminary permit or a notice of intent to file a competing application. If a party filed a timely notice of intent, the public notice gave the party until June 29, 1981, to file a preliminary permit application.

On June 19, 1981, Gillette filed a competing preliminary permit application for the Yellowtail project. On July 22, 1981, the Deputy Director of the FERC's Office of Electric Power Regulation (OEPR) rejected Gillette's application as untimely because it was not filed by April 28. On July 28 Gillette sent a letter to the Deputy Director protesting this action, stating that Gillette had mailed a timely notice of intent to file a competing application. Gillette enclosed a photocopy of the notice of intent and an affidavit stating that it had been mailed to the OEPR on April 10, 1981. The letter concluded, "Please advise me as soon as possible if you need anything further from us." The Deputy Director did not reply and took no action on the letter.

On February 17, 1982, Gillette filed with the Commission an "Appeal from Staff 'Action,' Protest, and Petition for Waiver of Regulations and for Leave to File Affidavit and Application for Preliminary Permit" (Appeal, Protest, and Petition). The FERC rejected the appeal. Gillette filed an application for rehearing pursuant to 16 U.S.C. Sec. 825l (a). Rehearing was denied by operation of law on July 9, 1982. Gillette then filed a petition for review with this Court under 16 U.S.C. Sec. 825l (b).


Gillette contends that the Commission improperly...

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