Mine Reclamation Corp. v. F.E.R.C.
| Decision Date | 05 August 1994 |
| Docket Number | No. 93-1227,93-1227 |
| Citation | 30 F.3d 1519 |
| Parties | , 25 Envtl. L. Rep. 20,127 MINE RECLAMATION CORPORATION; Kaiser Steel Resources, Inc., Petitioners, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Eagle Mountain Energy Company, a California Corporation; Metropolitan Water District of Southern California, Intervenors. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Petition for Review of an Order of the Federal Energy Regulatory Commission.
Michael C. Dotten argued the cause for petitioners. With him on the briefs was Eric R. Todderud.
Joel M. Cockrell, Attorney, FERC, argued the cause for respondent. With him on the brief were Jerome M. Feit, Sol., Joseph S. Davies, Deputy Sol., FERC, and Samuel Soopper, Attorney, FERC.
On the brief for intervenor Eagle Mountain Energy Company was Jose R. Allen.
On the briefs for intervenor Metropolitan Water District of Southern California was Victor E. Gleason.
Before EDWARDS, GINSBURG, and HENDERSON, Circuit Judges.
Opinion for the Court filed by Circuit Judge GINSBURG.
Petitioners Mine Reclamation Corporation and Kaiser Steel seek review of an order of the Federal Energy Regulatory Commission granting Eagle Mountain Energy Company a preliminary permit for a hydroelectric project. The petitioners argue that the Commission lacked jurisdiction to issue the permit and that even if it had jurisdiction over the project, it violated various of its own regulations in granting Eagle Mountain's application. Finally, the petitioners contend that the Commission should have conducted a hearing before issuing the permit in order to resolve a disputed issue of material fact. For the reasons set out below, we deny the petition.
In January 1991 Eagle Mountain applied for a preliminary permit to build a pumped storage station in Riverside County, California. The proposed project would involve pumping water from a lower to an upper reservoir during off-peak hours; the water would then be permitted to flow back from the upper to the lower reservoir during peak demand hours, thereby generating electricity for sale at the higher peak-load price. Abandoned open-pit iron ore mines would serve as the reservoirs.
The land upon which the project is to be built is owned partly by the federal government and partly by Kaiser Resources. Kaiser has leased the land it owns to Mine Reclamation Corporation (MRC), which is in the process of developing a solid waste landfill on the site. Kaiser has offered to exchange with the Bureau of Land Management certain environmentally sensitive land that it owns for some BLM land that MRC needs in order to complete the landfill project. The BLM has agreed in principle, but Eagle Mountain is trying to prevent the transfer in litigation before the Department of the Interior.
Eagle Mountain's permit application anticipated that "the water initially to charge the reservoirs and to provide makeup for seepage and evaporation losses will be obtained from the ... Colorado River Aqueduct." The Metropolitan Water District of Southern California, which owns the Colorado River Aqueduct, intervened to oppose Eagle Mountain's application. It asserted that no water is available from the Aqueduct for use in Riverside County because its contracts with the Department of Interior require that the water be used only on the Coastal Plain of Southern California.
In response Eagle Mountain clarified that it does not intend to use the Metropolitan Water District's water; rather, it stated that it was exploring the acquisition of water from other holders of Colorado River water rights, with the thought of using the excess transportation capacity of the Aqueduct to get the water to its project site. Eagle Mountain also indicated that it had explored and would continue to explore alternative sources of water. Hence, there appears to be no dispute that Eagle Mountain's application for a preliminary permit did not definitively identify the source of water for its project.
The Director of the FERC Division of Project Review granted the preliminary permit. 55 F.E.R.C. p 62,192 (1991). Kaiser and MRC sought rehearing, which the Commission denied, 62 F.E.R.C. p 61,066 (1993), and later moved to cancel the preliminary permit, which the Commission also denied, 62 F.E.R.C. p 61,163 (1993). They now petition for review in this court.
Kaiser and MRC argue in various ways that the Commission did not have jurisdiction to issue, and was barred by its own rules from issuing, the preliminary permit because the applicant had not definitively identified the source of water for its proposed project. Prior to addressing those arguments, however, we consider sua sponte whether the expiration of the permit has rendered this case moot.
Eagle Mountain's preliminary permit expired on May 1, 1994. Although no party asserts that the case is therefore moot, we are obliged to address the issue sua sponte because mootness goes to the jurisdiction of this court. See Iron Arrow Honor Society v. Heckler, 464 U.S. 67, 70, 104 S.Ct. 373, 374, 78 L.Ed.2d 58 (1983) (per curiam); Moreau v. Federal Energy Regulatory Commission, 982 F.2d 556, 566 n. 4 (D.C.Cir.1993). For the present purpose, it is enough to note that the case is not moot if our decision respecting the validity of the permit would still affect the rights of the parties. See Clarke v. United States, 915 F.2d 699, 701 (D.C.Cir.1990) (en banc).
The Federal Power Act authorizes the Commission to grant a license for a hydroelectric project, see 16 U.S.C. Sec. 797(e), and in anticipation thereof to grant a preliminary permit for the purpose of allowing a potential license applicant time to collect data and to do the other things that must be done before one files a license application, see id. Sec. 797(f). The preliminary permit holder is given priority in any ensuing licensing proceeding. See 18 C.F.R. Sec. 4.80. More relevant to our mootness analysis, Sec. 24 of the Act provides:
Any lands of the United States included in any proposed project under the provisions of this subchapter shall from the date of the filing of application therefor be reserved from entry, location, or other disposal under the laws of the United States until otherwise directed by the Commission or by Congress.
16 U.S.C. Sec. 818. It is undisputed that, upon the filing of an application for a preliminary permit, included public lands are reserved pursuant to Sec. 24.
In August 1990 the BLM "segregated" certain federal lands in anticipation of transferring title to Kaiser. See 55 FED.REG. 33,178 (Aug. 14, 1990). (Segregation is "the removal for a limited period ... of a specified area of the public lands from the operation of the public lands laws," 43 C.F.R. Sec. 2200.0-6(j), thereby precluding its appropriation under those laws, see id. Sec. 2201.2(b).) On January 31, 1991, Eagle Mountain applied to the FERC for a preliminary permit to put its hydroelectric project on those same lands; it did not file an application for a hydroelectric license until April 29, 1994. Meanwhile, the BLM approved the exchange of land between Kaiser and the federal government on October 20, 1993. See 58 FED.REG. 57,617, 57,617-18 (Oct. 26, 1993).
The Bureau's approval of the land exchange is the subject of on-going litigation within the Department of the Interior. Among the issues are whether the BLM's prior segregation of the lands barred the Commission from issuing the preliminary permit (a possibility that the Commission rejected before issuing the permit), and if not, whether the Commission's grant of the preliminary permit bars the BLM from completing the land transfer. See Eagle Mountain Energy Co., No. 94-89 (IBLA Jan. 4, 1994) (). Were we to hold that the Commission improperly granted the preliminary permit, Eagle Mountain would no longer be able to challenge the land exchange on the basis of Sec. 24 of the Federal Power Act.
Thus will our resolution of this case affect the legal rights of the parties even though Eagle Mountain's preliminary permit has expired. Therefore the case is not moot. See British Caledonian Airways Ltd. v. Bond, 665 F.2d 1153, 1158 n. 2 (D.C.Cir.1981).
Under section 4(e) of the Federal Power Act, the Commission is authorized:
To issue licenses ... for the purpose of constructing, operating, and maintaining ... works necessary or convenient for ... the development, transmission, and utilization of power across, along, from, or in any of the streams or other bodies of water over which Congress has jurisdiction under its authority to regulate commerce ... or upon any part of the public lands and reservations of the United States (including the Territories), or for the purpose of utilizing the surplus water ... from any Government dam....
16 U.S.C. Sec. 797(e). The petitioners argue that the FERC erred in asserting jurisdiction "solely because the project would be located in part on federal lands." If this were a correct description of the agency's holding, the petitioners would surely be correct. Cf. Chemehuevi Tribe, 420 U.S. at 412-13, 95 S.Ct. at 1076-77 (). In fact, however, the Commission asserted jurisdiction over the project because it is a hydroelectric generating facility and it is to be built in part upon land owned by the United States.
As a general matter, we know "that Congress intended the Act as a whole ... to subject to regulation only that segment of the power industry involving the construction and operation of hydroelectric generating facilities." Chemehuevi Tribe of Indians v. Federal Power Commission, 420 U.S. 395, 414, 95 S.Ct. 1066, 1077, 43 L.Ed.2d 279 (1975). More specifically, a license is required only for a...
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