Resolute Natural Resources Company and Resolute Aneth, LLC v. Federal Energy Regulatory Commission and United States of America

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Decided February 26, 2010
No. 08-1268
RESOLUTE NATURAL RESOURCES COMPANY AND RESOLUTE
ANETH, LLC,
PETITIONERS
v.
FEDERAL ENERGY REGULATORY COMMISSION AND UNITED
STATES OF AMERICA ,
RESPONDENTS
NAVAJO N ATION , ET AL .,
I NTERVENORS
On Petition for Review of Orders
of the Federal Energy Regulatory Commission
Sheila Slocum Hollis and Blaine Yamagata were on the
briefs for petitioners Resolute Natural Resources Company
and Resolute Aneth, LLC.
Howard Eliot Shapiro was on the brief for intervenors the
Navajo Nation and Navajo Nation Oil and Gas Company in
support of petitioners. Pamela J. Anderson entered an
appearance.

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John J. Powers III and Robert J. Wiggers, Attorneys,
U.S. Department of Justice, Thomas R. Sheets, General
Counsel, Federal Energy Regulatory Commission, Robert H.
Solomon, Solicitor, and Beth G. Pacella, Senior Attorney,
were on the brief for respondents.
Lowery Barfield, Steven H. Brose, and Daniel J. Poynor
were on the brief for intervenor Western Refining Pipeline
Company in support of respondent.
Before: GINSBURG and KAVANAUGH , Circuit Judges, and
SILBERMAN, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge GINSBURG.
GINSBURG, Circuit Judge: Resolute Natural Resources
Co. and Resolute Aneth, LLC (collectively “Resolute”)
petition for review of certain orders of the Federal Energy
Regulatory Commission declining to investigate allegedly
anticompetitive conduct by Western Refining Pipeline Co.
involving oil pipelines in New Mexico; intervenors the
Navajo Nation and the Navajo Nation Oil and Gas Co.
(collectively “the Navajo”) bring substantially the same
petition. We dismiss the petition for review because the
Commission’s decision not to open an investigation is not
reviewable by a court.*
I. Background
Western filed two tariffs with the FERC in order to
establish service and set rates for the transportation of crude
* This case was considered upon the record from the Federal
Energy Regulatory Commission and upon the briefs submitted by
parties. See Fed. R. App. P. 34(a)(2); D.C. Cir. R. 34(j).

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oil to northwestern New Mexico from west Texas and
southeastern New Mexico. See FERC Docket Nos. IS08-131-
000 and IS08-131-001. Resolute and the Navajo moved to
intervene and to protest the tariffs, alleging “Western is
attempting to use the tariff it filed on February 8, 2008 to
secure Commission validation of Western’s exercise of
market power by illegally preferring its affiliates and
discriminating against third parties such as Resolute who [sic]
seek access to competitive markets for their crude oil.”
Resolute, Protest and Motion to Intervene, FERC Docket Nos.
IS08-131-000 and IS08-131-001 (Feb. 25, 2008). In the
orders now under review, the Commission denied the motions
and subsequent petitions for rehearing. See 122 FERC ¶
61,210 at ¶¶ 13, 14 (Mar. 7, 2008) (“Resolute and the Navajo
Protestors lack standing because they are not shippers on
Western, they do not intend to ship on Western, and they have
not made a valid transportation request to Western for
shipments.” Their allegations of anticompetitive conduct “are
speculative[,] ... unsupported ... [and] beyond the
Commission’s jurisdiction.”), and reh’g denied, 123 FERC ¶
61,271 (June 19, 2008).
II. Analysis
The Commission’s authority to investigate a new rate
derives from § 15(7) of the Interstate Commerce Act. See
ICA § 15(7); Frontier Pipeline Co. v. FERC, 452 F.3d 774,
776 (D.C. Cir. 2006). In 1978, one year after the Congress
had transferred authority over oil pipelines from the Interstate
Commerce Commission to the FERC, see Department of
Energy Reorganization Act, Pub. L. No. 95-91, § 402(b), 91
Stat. 565, 584, it repealed much of the ICA but provided that
transportation of oil by pipeline would be subject to “[t]he
laws ... as they existed on October 1, 1977.” Act of Oct. 17,
1978, Pub. L. No. 95-473, § 4(c), 92 Stat. 1337, 1470; see 49

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U.S.C. § 60502 (“The Federal Energy Regulatory
Commission has the duties and powers related to the
establishment of a rate or charge for the transportation of oil
by pipeline or the valuation of that pipeline that were vested
on October 1, 1977, in the Interstate Commerce Commission
or an officer or component of the Interstate Commerce
Commission”); see also Frontier Pipeline, 452 F.3d at 776;
Exxon Pipeline Co. v. United States, 725 F.2d 1467, 1468 n.1
(D.C. Cir. 1984). Accordingly, we apply the version of §
15(7) in force in 1977, which was reprinted most recently in
the appendix to title 49 of the 1988 version of the U.S. Code.
We have held repeatedly — and in no uncertain terms —
that in a case of this sort ICA § 15(7) “precludes judicial
review. The Commission’s decision not to investigate is
therefore not reviewable.” ExxonMobil Oil Corp. v. FERC,
219 Fed. Appx. 3 (D.C. Cir. 2007) (internal quotation marks
and citations deleted); accord Mo. Pub. Serv. Comm’n v.
FERC, No. 07-1304, 2007 U.S. App. LEXIS 26581 (D.C. Cir.
Nov. 13, 2007); Arctic Slope Reg’l Corp. v. FERC, 832 F.2d
158, 164–65 (D.C. Cir. 1987); see also So. Ry. Co. v.
Seaboard Allied Milling Corp., 442 U.S. 444, 454 (1979)
(decision not to investigate protested rate filing under § 15(8),
a derivative of § 15(7), “not judicially reviewable”).
Against this body of precedent, we instructed the parties
to address reviewability in their briefs. Nonetheless, neither
the petitioners nor the intervenors in support of the petitioners
did so in their opening briefs. In their reply brief the
petitioners, with good reason, do not dispute the
Commission’s showing that its decision not to investigate a
new rate is, as a rule, unreviewable. Instead they claim to
come within two possible exceptions to the rule, but it is the
work of a moment to see that neither applies here.

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In Exxon Pipeline we said a decision of the Commission
whether to suspend a rate pending an investigation is
unreviewable “[1] at least as long as the agency complies with
its statutory obligation to give a reason and [2] in no other
way oversteps the bounds of its authority.” 725 F.2d at 1470
(internal footnote deleted). The first possible exception is
inapplicable here because under § 15(7) the Commission has
no “obligation to give a reason” except when it suspends a
rate, which it did not do in this case. See ICA § 15(7). The
second is inapplicable because the Commission did not
“overstep the bounds of its authority” when it refused to
initiate an investigation into Western’s proposed rates; as we
have seen, the decision whether to initiate an investigation is
within the discretion of the Commission.
III. Conclusion
For the foregoing reason, the petition for review is
Dismissed.

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