Martin v. Federal Energy Regulatory Commission

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Submitted October 15, 1999 Decided January 25, 2000

No. 98-1398

Frederick W. Martin,
Petitioner

v.

Federal Energy Regulatory Commission,
Respondent

Portland Natural Gas Transmission System,
Intervenor

On Petition for Review of Orders of the
Federal Energy Regulatory Commission

Frederick W. Martin, appearing pro se, was on the briefs
for petitioner.

Jay L. Witkin, Solicitor, Federal Energy Regulatory Com-
mission, John H. Conway, Deputy Solicitor, and David H.
Coffman, Attorney, were on the brief for respondent.

 George H. Williams, Jr. and Gunnar Birgisson were on
the brief for intervenor.

Before: Williams, Ginsburg and Tatel, Circuit Judges.

Opinion for the Court filed by Circuit Judge Ginsburg.

Ginsburg, Circuit Judge: Frederick Martin petitions for
review of a decision of the Federal Energy Regulatory Com-
mission authorizing the construction of a new pipeline that
would traverse part of Mr. Martin's property. Despite Mr.
Martin's failure to designate the correct order in his petition
for review, we hold that we have jurisdiction to review the
Certificate Order. Because the Commission's decision was
not arbitrary and capricious, we deny the petition.

I. Background

In 1997 the Commission authorized the Portland Natural
Gas Transmission System to construct a pipeline nearly one
mile of which would use an existing right-of-way through Mr.
Martin's farm in North Stratford, New Hampshire. Portland
Natural Gas Transmission Sys., 80 FERC p 61,345 (1997)
(the "Certificate Order"). The farm was established by an
ancestor of Mr. Martin's in the early 1830s and the farmhouse
and surrounding 112-acre tract are characteristic of early
19th century building and farming patterns. Mr. Martin has
improved the farm but maintained its historic character and
function. The property was listed in the National Register of
Historic Places one year after the Commission authorized
Portland to construct the pipeline.

Before the Commission, Mr. Martin challenged the plan to
build the pipeline across his property upon various environ-
mental grounds, alleging that the pipeline would damage the
open fields and other scenic and natural resources on his
property and endanger the historic farmhouse. Mr. Martin
suggested an alternative route for the pipeline, but the Com-
mission rejected that route in favor of the Portland plan to
use the existing right-of-way. Mr. Martin requested rehear-

ing but the Commission denied his application. Portland
Natural Gas Transmission System, 83 FERC p 61,080 (1998)
(the "Rehearing Order").

II. Analysis

Although Mr. Martin seeks to challenge the Commission's
Certificate Order, his petition for review mentions only the
Rehearing Order. Before we reach the merits of Mr. Mar-
tin's argument, therefore, we must determine whether we
have jurisdiction to hear his claim.

A. Jurisdiction

After the Commission denied Mr. Martin's request for
rehearing, he filed a petition for review and a motion for stay
of construction. In the petition, Mr. Martin sought review of
the Commission's Rehearing Order, in which the Commission
had denied his request that the agency reconsider its decision
to grant the certificate to Portland. It is clear from Mr.
Martin's briefs before this court, however, that what he really
wants is review of the Certificate Order, which is the order
actually authorizing Portland to construct the pipeline across
his property.

Under 15 U.S.C. s 717r(b): "Any party ... aggrieved by
an order issued by the Commission ... may obtain a review
of such order in the court of appeals ... by filing ... a
written petition praying that the order ... be modified or set
aside...." Mr. Martin is aggrieved by the Certificate Order,
not the Rehearing Order, which simply denied rehearing.
Indeed, an order denying rehearing is unreviewable except
insofar as the request for rehearing was based upon new
evidence or changed circumstances. See ICC v. Brotherhood
of Locomotive Engineers, 482 U.S. 270, 278-80 (1987).

The Commission argues that, because Mr. Martin failed to
designate the Certificate Order in his petition for review, this
court lacks jurisdiction to review that Order. According to
the Commission, the two orders do not "merge" such that an

appeal of the Rehearing Order may be construed as an appeal
of the Certificate Order. Cf. Conecuh-Monroe Community
Action Agency v. Bowen, 852 F.2d 581, 586 (D.C. Cir. 1988)
(noting that, where district court simultaneously denied pre-
liminary injunction and entered judgment on underlying com-
plaint, "the preliminary injunction question ... merged into
the final judgment").

In general, this court reviews only the order(s) designated
in the petition for review. See Fed. R. App. P. 15(a) (1998)
("petition must ... designate ... the order or part thereof to
be reviewed"); see also John D. Copanos & Sons, Inc. v.
FDA, 854 F.2d 510, 527 (D.C. Cir. 1988).* The failure to
designate an order in the petition is not necessarily fatal to its
review, however. As we said in Southwestern Bell Telephone
Co. v. FCC, a party may demonstrate its intention to appeal
from one order despite referring only to a different order in
its petition for review if the petitioner's intent " 'can be fairly
inferred' " from the petition or documents filed more or less
contemporaneously with it. 180 F.3d 307, 313 (D.C. Cir.
1999) (quoting Brookens v. White, 795 F.2d 178, 180 (D.C. Cir.
1986)).

In Southwestern Bell, the FCC had denied a local exchange
carrier's petition for rehearing of an Investigation Order in
which the agency had found that the carrier had underesti-
mated its future tariff requirements. See id. at 309-10.
Southwestern Bell then petitioned this court for review, citing
only the Reconsideration Order. See id. Upon examination
of Southwestern Bell's petition for review and its subsequent
filings, we found that "nothing prior to the brief filed in this
court ... gave the Commission any notice of Southwestern
Bell's intent to seek review of the Investigation Order." Id.

__________
* Effective December 1, 1998, Fed. R. App. P. 15(a) was amended
(in style but not in substance) to require that a petitioner "specify"
rather than "designate" the order or part thereof to be reviewed.
Because Mr. Martin filed his petition prior to the amendment, we
refer to the earlier version of the Rule in this opinion.

at 313. The petition designated for review only the Reconsid-
eration Order and only that order was appended to the
petition; likewise, the docketing statement named only the
Reconsideration Order and only that order was attached to it;
and the preliminary statement of issues focused upon South-
western Bell's petition for review of the Reconsideration
Order. See id.

Like the petitioner in Southwestern Bell, Mr. Martin desig-
nated in his petition for review only the order denying
rehearing, but unlike the earlier petitioner, he made his
intent to seek review of the underlying order fairly inferable
from his contemporaneous filings. On the same day that Mr.
Martin filed his petition for review, he filed a motion to stay
the construction of a portion of the pipeline pending review of
his petition. The motion for stay bespeaks in two ways Mr.
Martin's intent to seek review of the Certificate Order.

First, by attaching to the motion a copy of his application
to the Commission for rehearing, in which he cites and
discusses the Certificate Order, Mr. Martin identified the
order from which his dispute with the Commission arose.
Second, the nature of the motion for stay itself sufficed to
indicate Mr. Martin's purpose in filing his petition for review.
He sought a stay in order to prevent the irreparable harm to
his property that allegedly would attend the construction of
the pipeline. Because Portland clearly derived its authority
to construct the pipeline from the Certificate Order, Mr.
Martin's motion for stay was necessarily directed to that
order. And if Mr. Martin sought to stay enforcement of the
Certificate Order, then he must also have meant to seek
review of the Certificate Order, not the Rehearing Order. Cf.
Foman v. Davis, 371 U.S. 178, 181 (1962) (holding that where
petitioner submitted two notices of appeal, one that was
premature and one that failed to specify judgment from which
appeal was being taken, "Court of Appeals should have
treated the [second] ... as an effective, although inept,
attempt to appeal from the judgment sought to be vacated.
Taking the two notices and the appeal papers together,

petitioner's intention ... was manifest"). Moreover, Mr.
Martin's filings subsequent to the petition for review, includ-
ing the docketing statement and the certificate as to rulings
under review, indicated that he was challenging the Certifi-
cate Order as well as the Rehearing Order.

Nor does the Commission claim to suffer any prejudice
from our review of the Certificate Order despite Mr. Martin's
failure to designate it in his petition for review. Although an
agency is under no obligation to determine whether a party
that petitions for review of an unreviewable order meant to
specify a different order, see Southwestern Bell, 180 F.3d at
314, here the Commission's filings in response to Mr. Martin's
petition for review and motion for stay indicate that the
agency was aware from the outset that Mr. Martin meant to
seek review of the Certificate Order.

The Commission's opposition to Mr. Martin's motion for
stay lists the Certificate Order as one of several orders
"relevant to this proceeding." In moving to transfer Mr.
Martin's case from the First Circuit to this circuit, the
Commission invoked the authority of 28 U.S.C. s 2112(a)(1):
"If proceedings are instituted in two or more courts of
appeals with respect to the same order ... the agency ...
shall file the record in the court in which proceedings with
respect to the order were first instituted." The Commission
expressly argued that the First Circuit should transfer Mr.
Martin's case to this circuit because another party had filed a
petition for review of the Preliminary Order and the Certifi-
cate Order in this circuit before Mr. Martin had filed his
petition for review. That the Commission understood Mr.
Martin's petition for review to encompass the Certificate
Order, therefore, is apparent; indeed, its argument for trans-
fer of the case depended upon it.

In sum, despite Mr. Martin's failure to refer to the Certifi-
cate Order in his petition for review, his accompanying mo-
tion for stay provided the Commission with notice of his
intent to seek review of the Certificate Order. Accordingly,
we have jurisdiction to consider Mr. Martin's claim.

B. The Merits

Mr. Martin challenges the Certificate Order as arbitrary
and capricious on the grounds that the Commission failed to
comply with regulations promulgated under the National
Environmental Protection Act and the National Gas Act in
order to protect scenic and historic places. Under the regula-
tions implementing the NEPA, the agency was required to
prepare an Environmental Impact Statement in which it
discussed any inconsistency between the proposed project
and a state or local environmental plan or law. 40 C.F.R.
s 1506.2(d). Mr. Martin complains that the Commission
failed to discuss the consistency of Portland's proposed pipe-
line with a "river corridor management plan" adopted by the
State of New Hampshire. The Commission points out, dis-
positively, that no inconsistency with any state or local plans
was raised before it, and that the cited regulation does not
require it affirmatively to address consistency with such
plans.

The NGA regulation governing placement of pipeline
rights-of-way provides:

Where practical, rights-of-way should avoid ... places
listed in the National Register of Historic Places.... If
rights-of-way must be routed through such historic
places ... they should be located in areas or placed in a
manner so as to be least visible from areas of public view
and so far as possible in a manner designed to preserve
the character of the area.

18 C.F.R. s 2.69(a)(1)(ii). Mr. Martin claims that because a
portion of his land lies within a state-designated "river corri-
dor" and because the State had certified his entire property
as "historic" before the Commission prepared its Final Envi-
ronmental Impact Statement, the agency should have ad-
dressed in the certification proceedings whether the regula-
tions required an adjustment to take the proposed pipeline
route around Mr. Martin's property. Mr. Martin proposed
such an adjustment to the Commission.

 The Commission considered the "visual impact" of the
proposed pipeline on historic properties such as Mr. Martin's,
as well as the practicality of the alternative route Mr. Martin
proposed. The Commission rejected the alternative route
because it would have required Portland to develop a new
right-of-way, in contravention of 18 C.F.R. s 2.69(a)(1)(i),
which states that "[i]n locating proposed facilities, consider-
ation should be given to the utilization, enlargement or exten-
sion of existing rights-of-way." We cannot fault the Commis-
sion for approving Portland's use of the existing right-of-way
through Mr. Martin's property rather than requiring the
pipeline company to develop a new route through previously
undisturbed properties.

The Commission also notes that, New Hampshire's desig-
nation notwithstanding, Mr. Martin's property was not listed
on the National Register of Historic Places at the time of the
proceedings, nor even as of his request for rehearing, and
that he therefore did not raise before the agency any claim
related to listing on the National Register. The record of the
certification proceeding bears out the Commission's point.
Therefore, the agency's decision was in no respect arbitrary
and capricious.

III. Conclusion

For the foregoing reasons, we have jurisdiction to review
the Certificate Order, and the petition for review is

Denied.