High Country Resources and Glacier Energy Company v. Federal Energy Regulatory Commission

I concur in Part III of the majority opinion concerning the effect of the Forest Service’s 1986 determination regarding the Diobsud Creek project. However, I respectfully dissent from Part II. There, the majority gives an unduly narrow reading to Petitioners’ requests for rehearing before FERC, and thus incorrectly concludes that we have no jurisdiction to consider the statutory construction argument urged on appeal. I disagree, because this claim was adequately raised below.

In their rehearing requests, Petitioners made two arguments that are relevant here. First, they challenged the…