Arizona Elec. Power Co-op., Inc. v. U.S.
| Decision Date | 25 June 1987 |
| Docket Number | No. 86-7233,86-7233 |
| Citation | 816 F.2d 1366 |
| Parties | ARIZONA ELECTRIC POWER COOPERATIVE, INC., Petitioner, v. UNITED STATES of America and Interstate Commerce Commission, Respondents, The Atchison, Topeka and Santa Fe Railway Company and Southern Pacific Transportation Company, Intervenors-Respondents. |
| Court | U.S. Court of Appeals — Ninth Circuit |
William L. Slover, C. Michael Loftus, Donald G. Avery, Kelvin J. Dowd, Robert D. Rosenberg, Pauline E. Waschek, Washington, D.C., for petitioner.
Ellen D. Hanson, Cecelia E. Higgins, Washington, D.C., for respondent.
R. Eden Martin, Lee M. Straus, Robert M. Portman, David M. Levy, Washington, D.C., for intervenors-respondents.
Petition for Review of an Order of the Interstate Commerce Commission.
Before NOONAN, and O'SCANNLAIN, Circuit Judges, and STOTLER, * District Judge.
Perhaps inspired by Jarndyce v. Jarndyce, the fabled interminable litigation of Dickens' Bleak House, the Interstate Commerce Commission has been presiding over this continuing saga for the last ten years, now in its sixth epoch.
Piercing the musty veil of regulatory sophistry surrounding this proceeding, we see that the Commission had a simple task: to determine the reasonableness of the rate intervenor-respondents charged petitioner for hauling coal in unit trains between 1977 and 1982. Petitioner originally sought such determination in 1977 before the first shipment. We thought the guidelines were clear enough when we had this same matter before us in 1982 and 1983. Because we find that petitioner has suffered the arcane rigors of the regulatory process long enough, we vacate, remand, and retain jurisdiction to assure that our mandate is promptly implemented.
Petitioner Arizona Electric Power Cooperative, Inc. ("AEPCO") is a nonprofit rural electric power cooperative that produces and distributes electric power throughout Arizona and parts of California. In 1974 AEPCO began construction on two 175 megawatt coal-fired generating plants near Cochise, Arizona and signed a long term fuel supply contract with a coal mine near Gallup, New Mexico. AEPCO needed to ship the coal the 523 miles from New Mexico to Arizona by rail, but by the time the plants were scheduled to go on line, the cooperative had not been able to negotiate a favorable rail transportation rate with either the Atchison, Topeka & Santa Fe Railway Company ("Santa Fe") or the Southern Pacific Transportation Company ("Southern Pacific") (together referred to as "Railroads"), the only available carriers. 1
In 1977 AEPCO filed a complaint with the Interstate Commerce Commission ("ICC" or "Commission") under 49 U.S.C. Sec. 11701 of the Interstate Commerce Act ("Act"), requesting the Commission to set a maximum rate for its coal traffic at $4.67 per ton. The Railroads' offered rate at that time was $8.64 per ton. The Railroads requested that the ICC categorize their rate as a "capital incentive rate" to be protected under 49 U.S.C. Sec. 10729. 2 Section After the ICC issued its decision in AEPCO I, the Railroads raised AEPCO's rate several times, and by 1980 the rate stood at $12.30 per ton. AEPCO challenged these increases by filing another section 11701 complaint with the ICC. While this action was pending, Congress repealed the capital incentive rate protection afforded by section 10729 with the passage of section 210 of the Staggers Rail Act of 1980, Pub.L. 96-448, 94 Stat. 1910 ("Staggers Act"). Section 210(b) of the Staggers Act contained a savings clause that protected the Railroads' existing capital incentive rates for the five years originally guaranteed. 3
10729 provided an expedited alternative to normal rate filing procedures and prohibited the Commission from suspending or setting aside the rate for five years. The ICC approved the $8.64 rate under section 10729 in November 1977, and the protected rate went into effect on January 1, 1978. Incentive Rate on Coal--Gallup, New Mexico to Cochise, Arizona, 357 I.C.C. 683 (1977) ("AEPCO I "), aff'd, Houston Lighting & Power Company and Arizona Electric Power Cooperative, Inc. v. United States, 606 F.2d 1131 (D.C.Cir.1979), cert. denied, 444 U.S. 1073, 100 S.Ct. 1019, 62 L.Ed.2d 755 (1980)
In August 1981 the Administrative Law Judge ("ALJ") hearing AEPCO's complaint decided that the section 10729 and Staggers Act protection applied only to the original rate established and not to subsequent increases. Consistent with that interpretation, the ALJ reviewed the reasonableness of AEPCO's rate increases and concluded that the maximum reasonable rate at that time was $10.88 per ton. As a result, the ALJ ordered the Railroads to pay refunds to AEPCO. ICC Case No. 37437 (Decision Served August 21, 1981) ("AEPCO II ").
The Railroads appealed AEPCO II to the full Commission and in March 1982 the ICC reversed the order of the Administrative Law Judge, dismissing the complaint. ICC Case No. 37437 (Decision Served March 30, 1982) ("AEPCO III "). The Commission believed that the capital incentive rate established by section 10729 and extended by the Staggers Act immunized both the base rate and any cost recovery increases applied to that rate.
AEPCO appealed the Commission's decision to this court in 1982 (Docket No. 82-7283). AEPCO filed its brief in September, but the Commission requested and received two extensions of time in which to file its In an order dated November 19, 1982 we remanded the case to the ICC for two months to allow it to reconsider its decision. Two days before the remand deadline expired the Commission requested an indefinite removal of the time limit. We denied that request and gave the Commission three weeks to file a brief or concede that section 10729 did not immunize rate increases from review (Order of March 31, 1983). In April 1983 the Commission filed a concession statement with the court, "explicitly conceding that the Interstate Commerce Commission is not precluded by former 49 U.S.C. 10729 from reviewing the coal rates challenged by petitioner, to the extent the initial rate has been increased by later general rate increases" (Statement of April 20, 1983). We then remanded the case to the ICC with instructions that review be "completed forthwith" (Order of May 11, 1983).
brief. Finally, in November 1982, the Commission made a motion to remand the case for further proceedings, stating that (Motion of November 8, 1982).
In August 1983 the Commission issued its new decision. ICC Case No. 37437 (Decision Served August 30, 1983) ("AEPCO IV "). The Commission reiterated the substance of the statement it made to this court by concluding that "the protection of section 210(b) of the Staggers Act extends only to the capital incentive rate approved specifically under former section 10729 and not to the rate as subsequently increased by general rate and fuel cost increases...." AEPCO IV at 6. The Commission noted that inflation recovery was not a sufficient basis to immunize the rate increases from challenge. So noting, however, the Commission went on to state that it "need not, and shall not find unreasonable any rate resulting from the imposition of cost-based general increases (including inflation) so long as carrier's revenue/cost ratio is not increased." Id.
AEPCO petitioned the ICC to reconsider, but in April 1986 the Commission denied that request and reaffirmed the policy announced in AEPCO IV. According to the Commission, the legislative intent of the Staggers Act would have been thwarted if the ICC "failed to provide for cost recovery and allowed inflation to erode the base capital incentive rate." ICC Case No. 37437 (Decision Served April 10, 1986, p. 3) ("AEPCO V ").
AEPCO timely appealed the AEPCO V decision to this court.
The standard of review for a decision of the ICC is defined in the Administrative Procedure Act, 5 U.S.C. Sec. 706(2)(A) (1982). A reviewing court may hold unlawful agency action that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Id. The scope of this review is narrow. Bowman Transportation Co. v. Arkansas Best Freight System, 419 U.S. 281, 285, 95 S.Ct. 438, 441, 42 L.Ed.2d 447 (1974). ICC decisions in rate cases "are not to be disturbed by the courts except upon a showing that they are unsupported by evidence, were made without a hearing, exceed constitutional limits, or for some other reason amount to an abuse of power." Atchison, Topeka & Santa Fe Railway Company v. Wichita Board of Trade, 412 U.S. 800, 806, 93 S.Ct. 2367, 2374, 37 L.Ed.2d 350 (1973) (quoting Manufacturers R. Co. v. United States, 246 U.S. 457, 481, 38 S.Ct. 383, 389, 62 L.Ed. 831 (1918)).
After this appeal was filed the ICC and the United States moved to dismiss the case on the ground that AEPCO V was not a final decision. This court denied the motion in an order filed November 14, 1986. In their briefs on the merits, the ICC and the intervenor Railroads again challenge the jurisdiction of this court to review the AEPCO V decision.
The denial by a motions panel of a motion to dismiss on jurisdictional grounds does not foreclose a merits panel from reconsidering the jurisdictional issue. United States v. Humphries, 636 F.2d 1172, 1174 n. 2 (9th Cir.1980),cert. denied, 451 U.S. 988, 101 S.Ct. 2324, 68 L.Ed.2d 846 (1981). A party may raise jurisdictional challenges at any time during the proceedings. May Department Store v. Graphic Process Co., 637 F.2d 1211, 1216 (9th Cir.1980).
"An issue is fit for judicial review if it is essentially legal and if the agency's resolution of it is final." Consolidated Rail Corp. v. United States, 812...
To continue reading
Request your trial
-
U.S. v. Alghazouli
..."law" in § 545 is not the equivalent of the broader "law or regulation" phrase in § 554. See also, e.g., Ariz. Elec. Power Co-op. v. United States, 816 F.2d 1366, 1375 (9th Cir.1987) ("When Congress includes a specific term in one section of a statute but omits it in another section of the ......
-
Sarei v. Rio Tinto, PLC
...reference to “Laws of the United States.” Cf. Estate of Bell v. Comm'r, 928 F.2d 901, 904 (9th Cir.1991); Ariz. Elec. Power Coop. v. United States, 816 F.2d 1366, 1375 (9th Cir.1987) (“When Congress includes a specific term in one section of a statute but omits it in another section of the ......
-
Richard v. United States
...but omits it in another section of the same Act, it should not be implied where it is excluded.” Arizona Elec. Power Co–op., Inc. v. United States, 816 F.2d 1366, 1375 (9th Cir.1987). 12. “In 1867, Native American tribal leaders, as well as members of the United States military and other of......
-
Navajo Nation v. Superior Court of State of Wash.
...but omits it in another section of the same Act, it should not be implied where it is excluded." Arizona Elec. Power Co-op, Inc. v. United States, 816 F.2d 1366, 1375 (9th Cir.1987). 25 U.S.C. § 1913 dictates the notice requirements required for proceedings involving the voluntary terminati......
-
Are insignificant emissions significant? Western States Petroleum Ass'n v. EPA: the air operating permit program of the Clean Air Act.
...department from precedent in a manner sufficient to permit judicial review of its policies); Arizona Elec. Power Coop v. United States, 816 F.2d 1366, 1374 (9th Cir. 1987) (also involving railroad hauling (149) Western States, 87 F.3d at 285. (150) 889 F.2d 292 (1st Cir. 1989) (holding that......