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Rainsong Co. v. Federal Energy Regulatory Comm'n

ELR Citation: 28 ELR 21559
Nos. 97-70914, 151 F.3d 1231/(9th Cir., 08/19/1998) Notice of appeal untimely

The court holds untimely a company's notice of appeal of the Federal Energy Regulatory Commission's (FERC's) denial of its application for a license to build a hydroelectric dam in the Olympic National Forest. The court first holds that it lacks jurisdiction to review the company's notice of appeal. For the court to have jurisdiction, a party must file its notice of appeal within 60 days "after the order of the Commission." Under FERC's own regulation, 18 C.F.R. §385.2007(b), "after the order of the Commission" refers to the date when the order is issued. The company filed its notice of appeal 63 days after the order was issued. The court then rejects the company's argument that the time to file a notice of an appeal should not begin to run until FERC mails notification of the order. Relevant case law has directly rejected the company's argument. Allowing the company's interpretation of "after the order of the Commission" would render two-thirds of 18 C.F.R. §385.2007(b) surplusage. And nothing in 18 C.F.R. §385.2010, the regulation relied on by the company, indicates that it affects when an order is deemed effective or issued.

Counsel for Petitioner
Kurt Denke
Law Offices of Kurt Denke
33 35th Ave. W., Seattle WA 98199
(206) 284-5949

Counsel for Respondent
Timm L. Abendroth
Federal Energy Regulatory Commission
825 N. Capitol St. NE, Washington DC 20426
(202) 208-0200

Before Sneed and Kleinfeld, JJ.