[00:00:01] Speaker 01: Case number 24-1071 et al. [00:00:04] Speaker 01: Grand River Dam Authority petitioner versus Federal Energy Regulatory Commission. [00:00:10] Speaker 01: Mr. Tsetlin for the petitioner, Mr. Perkins for the respondent, Mr. Cassette for the intervener. [00:00:16] Speaker 02: Good morning, Council. [00:00:19] Speaker 02: Good morning, Your Honor. [00:00:20] Speaker 02: Misha Tsetlin for GRDA. [00:00:22] Speaker 02: The Pensacola Dam has two functions as relevant here. [00:00:26] Speaker 02: One, we use the dam for power generation to service our larger rural customers in Oklahoma under the supervision of FERC. [00:00:35] Speaker 02: Two, the US Army Corps of Engineers uses the dam for flood control operations for the benefit of the entire Arkansas River system by telling us to open and close the gates in the course discretion. [00:00:48] Speaker 02: All of the disputed flooding here, to the extent it's not just caused by natural causes, is caused entirely by the Corps' flood control operations, not by our power generation operations. [00:00:59] Speaker 03: Council, before we get into the facts of this, I'd like to talk about standing for the authority. [00:01:07] Speaker 03: So here, the brief doesn't say very much about this, other than that the authority is the object of FERC's action. [00:01:15] Speaker 03: Yes, Your Honor. [00:01:16] Speaker 03: But in our decision from a few years ago remanding this to FERC, we asked FERC to do a variety of different kinds of legal analysis about the statute and the underlying license, which they did. [00:01:30] Speaker 03: So what is the direct injury, the concrete and imminent injury that the authority faces at this point from FERC's current decision? [00:01:41] Speaker 02: The we have to conduct various studies which are going to cost dollars and cents. [00:01:47] Speaker 03: Didn't the authority already conduct the study and submit a report to for [00:01:52] Speaker 02: There are additional studies being required just during the pendency of these proceedings. [00:01:59] Speaker 02: They required more from us under the, you know, submit more data, more stuff under the orders on review. [00:02:08] Speaker 05: Have those reports been submitted as well? [00:02:14] Speaker 02: We updated them with additional data just a couple of months ago, and we responded to them and said, hey, why are you asking us for this data? [00:02:23] Speaker 02: We're on appeal before the DC Circuit. [00:02:25] Speaker 02: And they basically sent us a letter saying, no, give it to us. [00:02:28] Speaker 02: We wouldn't have had to do that work. [00:02:30] Speaker 03: Did you seek to stay those requirements while this appeal was pending before FERC? [00:02:34] Speaker 03: I don't know if that's a mechanism that was available. [00:02:37] Speaker 02: We claimed that because we were before this court, they didn't have the authority. [00:02:45] Speaker 02: Then we asked them in that letter, use your discretion to stay this. [00:02:50] Speaker 02: They sent us back a pretty nasty letter saying, no, give it to us now. [00:02:53] Speaker 02: And then we went ahead and gave them the additional data that they wanted. [00:02:57] Speaker 03: But the authority hasn't been required to purchase any land for flood control. [00:03:02] Speaker 03: I mean, they haven't been asked to acquire land or to take any particular action. [00:03:07] Speaker 03: Yeah, by far. [00:03:09] Speaker 02: That's correct, Your Honor. [00:03:10] Speaker 02: But if we, in terms of, I mean, standing at minimum from the fact that we're subject to the study requirements in terms of redressability, if we get vacature of the orders on review, we will, of course, not have to produce any of that stuff. [00:03:25] Speaker 02: And we'll be done. [00:03:26] Speaker 03: Well, we have a number of cases, though, suggesting that it's not an Article III injury to have legal reasoning. [00:03:37] Speaker 03: that is harmful to a person, right? [00:03:39] Speaker 03: That the legal reasoning alone isn't the type of injury that gives Article 3 standing. [00:03:45] Speaker 02: Well, not legal reasoning, Your Honor. [00:03:47] Speaker 02: The orders on review require us to do real stuff. [00:03:51] Speaker 02: I understand that in the stay context, this Court, and frankly, why we didn't seek a stay in this Court, this Court has held that just doing normal [00:04:01] Speaker 02: kind of litigation and things of that sort, or even in the agency context, is not sufficiently weighty to trigger the discretion of the court to stay. [00:04:12] Speaker 02: But certainly, submitting, preparing data reports that cost dollars and cents, real money. [00:04:19] Speaker 05: Can I ask, are there any data requests pending? [00:04:26] Speaker 02: We responded to their letter request. [00:04:29] Speaker 02: We don't know if they'll ask us for more. [00:04:32] Speaker 02: Certainly, we're subject to. [00:04:34] Speaker 05: I think that means no. [00:04:36] Speaker 05: There are no data requests pending as of now. [00:04:41] Speaker 02: Well, I will attempt to update this court on my rebuttal about what more we continue to do under the orders on review. [00:04:50] Speaker 02: Let me come at it this way. [00:04:52] Speaker ?: OK. [00:04:53] Speaker 07: My understanding of your argument that's at point three of your brief is that Perk aired [00:05:05] Speaker 07: by refusing to determine if it was the core rather than your client that caused the disputed flooding. [00:05:14] Speaker 07: That's right, Ron. [00:05:14] Speaker 07: That's the- Yes, that they violated- And all of the strokes, that's your argument. [00:05:18] Speaker 02: Yes, that they violated this court's remand instructions and didn't consider an important aspect of the problem. [00:05:23] Speaker 07: And I didn't see in your brief where you asked us at this juncture to say, [00:05:30] Speaker 07: to make a finding, so to speak, that the flooding was due to the Coors action, not Grand River Dam's action, right? [00:05:43] Speaker 07: They're not asking us to find at this point that there's insufficient evidence that [00:05:52] Speaker 07: Grand River Dam is responsible for the flood. [00:05:55] Speaker 02: Yeah, the only thing we're asking for is vacatur or the orders on review on that aspect, that they didn't answer this court's factual question about who's causing the dispute of flooding. [00:06:05] Speaker 02: And then that is further an important aspect of the problem under State Farm. [00:06:09] Speaker 07: So the reason that I ask it that way is that even if we rule for you on that plane, [00:06:21] Speaker 07: on that plan. [00:06:22] Speaker 07: What you would get is a remand, and FERC would appropriately go back and see, well, was this, you know, check all the evidence that they allegedly overlooked and determine really whether the poor is responsible for the flooding as opposed to your client, right? [00:06:50] Speaker 07: And so I guess my point is that if you prevail on that point, then why do we need to decide points one, two, and four that you presented in your brief? [00:07:11] Speaker 07: Because we don't know whether [00:07:14] Speaker 07: your client will be asked to purchase any land outside of the project boundary or to change the dimensions of the project boundary or whether it's the core who has exclusive responsibility to purchase land outside the project boundary with respect to your client. [00:07:36] Speaker 07: rather than your client, because none of those things may ever come to pass. [00:07:41] Speaker 07: The project boundary may never change. [00:07:43] Speaker 07: Nobody may ever have to purchase anything, right? [00:07:47] Speaker 07: Why are we even talking about points one, two, and four, because even if you win one number three, [00:07:57] Speaker 07: Those other issues aren't right here. [00:08:00] Speaker 02: If we win on number three, the orders on review will be set aside. [00:08:03] Speaker 02: It's a sufficient basis for us to win. [00:08:06] Speaker 02: But for example, if we win on number one, it is undisputed here. [00:08:11] Speaker 02: If we win on one, on the meaning of the Pensacola Act, it is undisputed that we already own all the rights within the project boundary. [00:08:19] Speaker 02: And if we are right about the Pensacola Act, FERC has literally no jurisdiction [00:08:24] Speaker 02: to do anything else on remand because we already own everything within the project boundary. [00:08:29] Speaker 02: And if we are corrected, the Pensacola Act is plain as day that outside the project boundary, FERC has no power. [00:08:36] Speaker 02: This proceeding is over. [00:08:38] Speaker 02: We don't have to do anything else. [00:08:39] Speaker 02: We can all close up shop and just worry about the relicensing proceeding. [00:08:43] Speaker 03: Even if that argument is a good one as a matter of law, why isn't the right time to bring that when FERC orders you to purchase [00:08:53] Speaker 03: land or acquire land outside the project boundary? [00:08:57] Speaker 02: Because we currently have orders that are final orders that if they are set aside on this basis, the proceeding is over. [00:09:06] Speaker 07: But FERC hasn't even decided whether the project boundary should be expanded, right? [00:09:14] Speaker 07: It seems that at the moment they say, we think that the project boundary has to be expanded [00:09:21] Speaker 07: because of whatever flooding issue. [00:09:25] Speaker 07: And at that point, the dispute is ripe about A, whether because it seems like you have an argument that once the project boundary is fixed, it's fixed and can't be expanded. [00:09:39] Speaker 07: And then you have a separate argument that if it's expanded, [00:09:48] Speaker 07: or if it's not expanded and there's land outside the project boundary that's being flooded, well, PERC has no jurisdiction to address that at all. [00:10:02] Speaker 07: Somebody that's between the Army Corps of Engineers and those landowners or whatever is how to resolve that. [00:10:10] Speaker 07: But the point is that why is any of that ripe right now where we don't know whether PERC [00:10:18] Speaker 07: is going to expand the project boundary or ask you or anyone else to acquire land outside of the current project bound. [00:10:28] Speaker 02: And again, I don't mean to be repetitive. [00:10:29] Speaker 02: It's because there is no dispute that we own all the land within the project boundary. [00:10:34] Speaker 02: If this court holds that we are right as to what the Pensacola Act means, and it's not a long act, it's playing its day, the proceedings are over. [00:10:42] Speaker 02: We're not going to have to do anything else. [00:10:44] Speaker 02: And it wouldn't have to spend any more money. [00:10:46] Speaker 02: It would be done. [00:10:47] Speaker 02: And there are final orders that were petitioned within our 60 days. [00:10:51] Speaker 07: Explain to me why that revolves. [00:10:56] Speaker 07: why that would resolve everything. [00:10:59] Speaker 02: I mean, maybe my friend will say something different, but as I understand it, it is undisputed that if there is a holding from this court that the FERC has no jurisdiction outside of the project boundary that [00:11:14] Speaker 02: that there was nothing else to be done here because we own all of the rights within the project boundary. [00:11:20] Speaker 02: The entire dispute here and the one that Congress was resolving in 2019 was what to do with disputed flooded lands outside the project boundary. [00:11:29] Speaker 02: Congress said that is outside of FERC's jurisdiction, which is what we were saying the whole time. [00:11:36] Speaker 02: Once Congress said that, this should have been over. [00:11:38] Speaker 02: Now, the first time we came up to this court about four years ago, FERC had agreed with us [00:11:44] Speaker 02: You know, a lot of the arguments that I put in my briefs and I was going to present today, I presented to this court. [00:11:51] Speaker 02: And what this court said is, we need to hear more from FERC as to what this 2019 act means. [00:11:58] Speaker 02: FERC has now told you all what they think. [00:12:00] Speaker 02: Now, I don't think they actually did any textual analysis. [00:12:02] Speaker 02: But they've told you. [00:12:03] Speaker 02: The arguments are squarely presented. [00:12:05] Speaker 02: Congress tried to put an end to these proceedings in 2019. [00:12:08] Speaker 02: It said that outside of the project boundary, FERC has no jurisdiction. [00:12:15] Speaker 02: These proceedings are all about what is outside the project boundary. [00:12:18] Speaker 02: This case, this proceeding should be over. [00:12:20] Speaker 02: We shouldn't have to submit these studies. [00:12:22] Speaker 02: Mr. Salin. [00:12:23] Speaker 05: Yes. [00:12:23] Speaker 05: I find the Pinsacle Act argument powerful. [00:12:28] Speaker 05: But if the case is moot, the case is moot, right? [00:12:33] Speaker 02: Well, it's not moot, Rhonda. [00:12:36] Speaker 02: We have submitted information, and there'll be additional proceedings from that information. [00:12:41] Speaker 02: Ending those proceedings that certainly cost us at least $1 to take part in is injury. [00:12:47] Speaker 02: What is causing that? [00:12:49] Speaker 02: These orders. [00:12:50] Speaker 02: What is the reachability? [00:12:52] Speaker 02: Vacating these orders. [00:12:53] Speaker 02: Those are the three elements of standing. [00:12:58] Speaker 02: So the proceedings would be over. [00:13:00] Speaker 02: We would save money. [00:13:02] Speaker 02: We're the direct object of those proceedings. [00:13:04] Speaker 02: We have to participate in those proceedings. [00:13:07] Speaker 02: And so there is standing. [00:13:08] Speaker 02: The case is not moot. [00:13:09] Speaker 05: And this next question might be unfair. [00:13:12] Speaker 05: We give you a heads up that we would be asked about moodness. [00:13:17] Speaker 05: And I think there's some precedents that say something similar to what you just said in the context of an improperly appointed federal agency. [00:13:27] Speaker 05: being subjected to a proceeding before them is injurious. [00:13:32] Speaker 05: Do you have any good precedents for just being subject to an agency proceeding is an injury? [00:13:41] Speaker 02: I mean, we're happy to submit some briefs after this. [00:13:45] Speaker 02: I mean, you can see that we did not expect this to be an objection given that we are in the middle of proceedings. [00:13:53] Speaker 02: They told us to submit reports. [00:13:55] Speaker 02: There's going to be follow-up. [00:13:56] Speaker 02: There's going to be back and forth. [00:13:57] Speaker 05: This has a long tail. [00:13:58] Speaker 05: I think the original order to do the research and present a full report probably was enough for an Article III injury. [00:14:09] Speaker 05: Uh, but now that that, now that that report has been submitted, I, you can tell, I just speak for myself. [00:14:15] Speaker 05: I'm a little worried that now that that report has been submitted, I'm a little worried that you're no longer being injured in an article three way from FERC. [00:14:26] Speaker 05: Even if there are some pending data requests that you haven't responded to yet, I'm not even sure that there are, I don't think just merely having to show up to a FERC hearing. [00:14:37] Speaker 05: is article three. [00:14:40] Speaker 02: I mean if it costs one dollar I would think that it is but it also that would be a somewhat strange I think I mean holding because this has a tail so if they if [00:14:55] Speaker 02: For that issues another and follow-up information request. [00:14:58] Speaker 02: I think there'd be no dispute I think that there would be under these orders that there would you know in a letter saying hey we need more that that that would satisfy anybody's concerns with regard to injury but then we wouldn't have a final order and we'd be outside of our outside of our 60-day window on these orders and these are the orders that are causing us the injury and so that would be a pretty strange trap to put us into where you know the specific [00:15:25] Speaker 02: the specific orders on review clearly injured us by doing the studies and doing the follow-up and things like that. [00:15:32] Speaker 03: Is there like a capable of repetition yet evading review exception to mootness here? [00:15:39] Speaker 03: Is that why you're suggesting that they're going to continue to make information requests that sort of brings this out of mootness? [00:15:47] Speaker 02: I mean, I think if the court finds that mootness is interpreted like this in a situation where the orders [00:15:55] Speaker 02: Continue with a continual proceeding that has a long tail that no one disputes will cost us dollars and cents to to have to take part in. [00:16:04] Speaker 02: If the court thinks that having that kind of long tail isn't enough for for to maintain a case from being moved, then I think capable of repetition exception would be considered. [00:16:15] Speaker 03: So sorry, did you say earlier that that that before FERC you had asked for a stay of this report asked them to sort of [00:16:25] Speaker 03: holds the requirement to file a report and they declined? [00:16:29] Speaker 02: They asked us for certain additional data. [00:16:33] Speaker 02: And we said, why are you asking us for this data? [00:16:36] Speaker 02: We're before the court. [00:16:41] Speaker 02: And we said, you have no jurisdiction to ask us because we're the court. [00:16:44] Speaker 02: That was an argument. [00:16:45] Speaker 02: That was an aggressive argument. [00:16:46] Speaker 02: We also said, if you don't agree with that, at least use your discretion to stay it. [00:16:50] Speaker 03: You did, is that in the record? [00:16:52] Speaker 02: No, because that was after we petitioned, because we were surprised that they were continuing to ask us for information when their ability to get information from us is exactly what's in dispute here. [00:17:06] Speaker 02: But they asked us for it. [00:17:10] Speaker 02: And then we, yeah. [00:17:11] Speaker 03: It might be helpful to submit that information to the court in terms of showing ongoing harms. [00:17:17] Speaker 02: We will absolutely submit that and we'll submit anything additional. [00:17:20] Speaker 02: Now, I see I'm a negative on my time and I haven't had a chance to talk about the merits. [00:17:25] Speaker 02: I don't know how the court wants to proceed with that. [00:17:27] Speaker 07: Why don't you proceed to the merits? [00:17:29] Speaker 07: We'll give you a couple minutes. [00:17:31] Speaker 02: Well, with regard to the Pensacola Act, as I mentioned earlier, I think it clearly, by its plain text, resolves these proceedings. [00:17:40] Speaker 02: The Pensacola Act says FERC's licensing jurisdiction shall not extend beyond the project boundary. [00:17:48] Speaker 02: All the disputed lands here are beyond the project boundary. [00:17:52] Speaker 02: FERC has no jurisdiction there, so we can't do anything else with that. [00:17:57] Speaker 07: But aren't there a bunch of instances where FERC has adjusted project boundaries? [00:18:03] Speaker 07: Even in some of the cases that you cited in your brief were instances where FERC did just that, right? [00:18:13] Speaker 02: In every one of those cases with the licensees, [00:18:17] Speaker 02: consent, both in section six of the Federal Power Act and more specifically, the Pensacola Act, it requires our express written consent, that's the Pensacola Act, to change the project boundary. [00:18:31] Speaker 02: We'll be clear, we are not going to give that consent for anything to do with addressing the course [00:18:39] Speaker 02: flood control operations. [00:18:40] Speaker 02: So unless and until we give that consent, which we will not do for the court's flood control operations, there is no jurisdiction over the disputed lands. [00:18:49] Speaker 02: If that is not enough, the Pensacola Act also says that any lands outside of the project boundary [00:18:55] Speaker 02: shall not be considered part of the project. [00:18:57] Speaker 02: That's very important because a project is defined by the Federal Power Act as lands and waters and whatnot that are necessary or appropriate for the management of the project. [00:19:13] Speaker 02: That means that [00:19:16] Speaker 02: Congress is saying there that lands outside of the project boundary are not necessary or appropriate for the management of the project. [00:19:23] Speaker 02: That's an explicit direction from Congress, which is the one that gives for all of its authorities. [00:19:30] Speaker 02: Now, the last time we were before this card, my friend for the city who was sitting over there said, well, look, the Pensacola Act is ambiguous because licensing jurisdiction could have multiple meanings. [00:19:41] Speaker 02: I think it's no wonder that argument doesn't appear. [00:19:45] Speaker 02: in FERC's remand order or any of their briefs here. [00:19:48] Speaker 02: The argument doesn't work. [00:19:49] Speaker 02: As FERC says on page 43 of their brief here, there was only one kind of jurisdiction here. [00:19:54] Speaker 02: It's licensing jurisdiction. [00:19:56] Speaker 02: So there is now ambiguity in the more recently enacted Pensacola Act, which renders Section 28 of the Federal Power Act completely irrelevant. [00:20:06] Speaker 02: My friends on the other side didn't even give a textual basis in the Pensacola Act for adding the proviso that the act applies only to. [00:20:17] Speaker 02: future licenses. [00:20:19] Speaker 02: They just said, well, I think FERC says in its orders on review that the Pensacola Act read by its literal terms would violate Section 28 of the Federal Power Act. [00:20:32] Speaker 02: That's, of course, constitutionally impossible. [00:20:35] Speaker 02: Nothing Congress did in 1920 could. [00:20:38] Speaker 07: Can I ask you a question about the Pensacola Act? [00:20:40] Speaker 07: Yes. [00:20:42] Speaker 07: the the provision on project scope and boundary jurisdiction amendments you point out that that first sentence says that commission may consistent with the requirements of the federal power act amend the project boundary only with the express written agreement of the project licensee yes that's what you were talking yes earlier and then it goes on to say if the licensee does not agree to a project boundary change proposed by the commission [00:21:12] Speaker 07: The purposes and requirements of part one of the Federal Power Act shall be deemed to be satisfied without the commission's proposed boundary or jurisdiction change. [00:21:24] Speaker 07: How should we construe that sentence? [00:21:26] Speaker 07: What does it do? [00:21:27] Speaker 07: What does it mean? [00:21:29] Speaker 02: It means that there is nothing else to be done. [00:21:32] Speaker 02: Once we say the project boundary shall not be changed, [00:21:38] Speaker 02: The fact that FERC might be concerned about something going on beyond the project boundary is immaterial. [00:21:44] Speaker 02: The earlier provisions, the prior two, say FERC doesn't even have jurisdiction outside the project boundary. [00:21:51] Speaker 02: There's no basis to make us do anything there. [00:21:55] Speaker 02: So if we don't agree to extend FERC's jurisdiction by amending the project boundary, as far as FERC's concerned, it's done. [00:22:06] Speaker 07: All right, anything else you want to say on the merits or any other questions on merit? [00:22:11] Speaker 05: I was going to ask one follow-up question. [00:22:12] Speaker 05: Yes. [00:22:13] Speaker 05: To Mootness. [00:22:15] Speaker 05: You were talking about how some of the follow-up requests for information, you asked FERC to stay those requests. [00:22:23] Speaker 05: Yeah. [00:22:24] Speaker 05: But I would think that if FERC should have stayed those requests while this petition is resolved, FERC should have also stayed [00:22:35] Speaker 05: the demand for the original report while this petition was resolved. [00:22:43] Speaker 02: I will provide more details on rebuttal, but I believe that some of that report and those studies were also being provided as part of the ongoing relicensing proceedings. [00:22:54] Speaker 02: And that because we have submitted our relicency application, they had that information from that, including the report that we relied on. [00:23:04] Speaker 02: It was submitted in [00:23:07] Speaker 02: The latest update was 2022. [00:23:10] Speaker 02: But then they were asking for more updated information on that report, which is when we asked them, hey, I know you've got this, including from our relicensing proceedings, but we shouldn't have to give you any more information. [00:23:25] Speaker 05: I'm worried that's a little out of the frying pan of the fryer, though, because now I'm wondering if the follow-up requests for information might also have been necessary for the relicensing proceeding, even if [00:23:37] Speaker 05: they weren't deemed necessary by FERC for this current dispute. [00:23:43] Speaker 02: We'll submit the letter, but it's clear that the letter was addressing this. [00:23:46] Speaker 02: The relicensing proceeding application is closed. [00:23:49] Speaker 02: We've already submitted our relicensing. [00:23:53] Speaker 02: Our license expires at the end of this month, and we're going to be just going on and continuing federal power act authority under our license. [00:24:00] Speaker 02: So we've already submitted our license. [00:24:02] Speaker 02: Those additional requests for information and any other loans [00:24:05] Speaker 02: that would be coming would presumably be related to the proceedings rising from these orders on review. [00:24:12] Speaker 03: I guess just one other thing. [00:24:13] Speaker 03: I mean, is it the authorities view that it's inevitable that they will be required to purchase land? [00:24:21] Speaker 02: Absolutely not. [00:24:22] Speaker 03: No. [00:24:23] Speaker 02: Absolutely not. [00:24:23] Speaker 02: I mean, this is the whole, this [00:24:26] Speaker 03: I mean, if we disagreed on the interpret, I mean, you know, if we agreed with work on its, if, you know, if first decision was allowed to stand will inevitably require the authority to purchase land. [00:24:39] Speaker 03: And I think that goes to the eminence of. [00:24:41] Speaker 02: Yeah, I mean, if this court, under the orders on review, we are responsible for the flooding caused by the Army Corps of Engineers. [00:24:56] Speaker 02: experience a no rain situation for the next indefinite period of time and unknown in the history of the Arkansas River system. [00:25:07] Speaker 02: I mean, the reason that all these dams were constructed was the massive flooding that was happening in the 20s and the 30s. [00:25:13] Speaker 02: Unless that happens, and if we're responsible for the backwater effect of not opening our gates at the direction of the core, it will be inevitable that we will have to purchase [00:25:26] Speaker 02: some land under their interpretation of the Federal Power Act, Standard Article 5, and the Pensacola Act. [00:25:33] Speaker 02: That'll be inevitable. [00:25:44] Speaker 07: I just want to make sure I understand your response to Perf's argument about Section 28 of the Federal Power Act that says that [00:25:57] Speaker 07: The right to alter, amend, or repeal this chapter is expressly reserved, but no such alteration, amendment, or repeal shall affect any license theretofore issued under the provisions of this chapter or the rights of any licensee there under. [00:26:19] Speaker 07: So, if I understand it right, Burke is saying that [00:26:27] Speaker 07: that the Pensacola Act, one, we shouldn't be doing any sort of implicit repeal. [00:26:37] Speaker 07: But even if we were, it shouldn't affect any license that had been issued prior to the effective date of the act. [00:26:50] Speaker 07: If I'm understanding their argument correctly. [00:26:55] Speaker 07: So they would say that, [00:26:58] Speaker 07: The Pensacola Act doesn't affect PERC's power with respect to your client's license. [00:27:05] Speaker 07: I just want to make sure I understand your response. [00:27:07] Speaker 02: Yeah, I mean, that is the wrong, their analysis in the orders in our review here is in the wrong legal framework. [00:27:13] Speaker 02: The governing case that this court should look at is the [00:27:16] Speaker 02: the Dorsey case from the U.S. [00:27:17] Speaker 02: Supreme Court. [00:27:18] Speaker 02: There, there was an old statute, I think, from 1917 that said that any future changes to criminal convictions is only going to be, you know, is not applied retractively. [00:27:28] Speaker 02: And it said, Congress, we need to express language. [00:27:31] Speaker 02: to change that. [00:27:33] Speaker 02: The U.S. [00:27:33] Speaker 02: Supreme Court said, no, we're not going to require express language because there was a much more lenient statute. [00:27:41] Speaker 02: We're just going to look at, and the quote is, whether there's a necessary condition of congressional intent. [00:27:48] Speaker 02: that the new act would apply. [00:27:50] Speaker 02: Here, you couldn't have clear indicia of congressional intent absent of express statement, which Dorsey does not require, that Congress was attempting to resolve this very dispute. [00:28:02] Speaker 02: The fight that we had with Miami was started on the meaning of standard Article 5 and FERC's authority under Section 6 and things of that sort. [00:28:13] Speaker 02: That happened in 2018, beginning 2018, early 19. [00:28:17] Speaker 02: the Congress comes in the next year and in a balanced suspenders way, it rejects every one of Miami's arguments. [00:28:26] Speaker 07: But this statute, this Pensacola Act applies to more than this license, right? [00:28:34] Speaker 07: I mean, this isn't the only license that is covered by that amendment. [00:28:40] Speaker 02: Yes, it covers both this license and all future licenses. [00:28:43] Speaker 02: Nothing in the text can be read, and they do not point to a word in the text that can be read to apply to only future license. [00:28:50] Speaker 02: What they're doing is using Section 28 of the Federal Power Act to blue pencil in a future license only requirement. [00:28:59] Speaker 02: The Section 28 of the Pensacola Act has existed for 100 years. [00:29:04] Speaker 02: Never once, never once has either FERC or any court ever used Section 28 of the Federal Power Act in that manner to blue pencil in with no statutory hook, no statutory basis, a future license only requirement on a statute that on its face applies to the current license and the future license, of course. [00:29:29] Speaker 07: All right, we'll give you some time on rebuttal. [00:29:31] Speaker 07: Let's hear from council for the commission. [00:29:44] Speaker 06: May it please the court, Jason Perkins for the commission. [00:29:47] Speaker 06: And since we started this on standing, we might as well talk about that first. [00:29:52] Speaker 06: So the after [00:29:55] Speaker 06: The orders were issued and you saw in the ordering language of the remand order, the only ordering language there is about the report that was ordered. [00:30:06] Speaker 06: The report was filed November 13th, 2024 in docket number 1494-477. [00:30:12] Speaker 06: There was back and forth with FERC staff about the supporting files used to determine the backwater envelope curve parcel analysis in that report. [00:30:23] Speaker 06: So essentially the request was, [00:30:25] Speaker 06: Okay, you filed the report, can you send us the GIS data that went into it, so we can understand the report. [00:30:31] Speaker 06: So that was December 19th was the letter from FERC staff. [00:30:34] Speaker 06: Then January 21st was the response from GRDA saying that they didn't need to provide it. [00:30:39] Speaker 06: This case is currently before the DC circuit. [00:30:42] Speaker 06: A number of other arguments provided there. [00:30:45] Speaker 06: Then February 18th FERC staff responded and said that, and this is right from the letter from February 18th on page two, that commission staff's December 19th, 2024 additional information request does not modify the order on remand requirements, but only requests that GRDA provide the existing supporting information it relied on to conduct the requested backwater envelope parcel curve analysis pursuant to the order on remand. [00:31:09] Speaker 06: So it's just a follow-up. [00:31:11] Speaker 06: That's all there is. [00:31:12] Speaker 06: Are there any pending follow-up demands? [00:31:15] Speaker 06: So the submission of the data that was requested from GRDA came in March 5th. [00:31:20] Speaker 06: I'm not aware of anything beyond that. [00:31:22] Speaker 06: And subdoc at 477 is where the report is lodged on our website. [00:31:27] Speaker 06: It is after the hearing order here, so it's not part of the record index. [00:31:31] Speaker 06: But it is part of the public record, part of the commission record. [00:31:34] Speaker 03: I want to ask you from FERC's perspective, if the order was upheld, is there any chance that FERC would not require GRDA to acquire more land? [00:31:45] Speaker 03: Or is that basically inevitable based on what it's found? [00:31:50] Speaker 03: I mean, the legal conclusion, it's drawn, and then based on historical flooding and things like that. [00:31:58] Speaker 03: So your friend on the other side says, well, the only way we wouldn't be required to acquire more land is if flooding somehow stopped. [00:32:06] Speaker 03: So what is FERC's position on that? [00:32:09] Speaker 06: I will say that the orders lead in that direction, that this is [00:32:15] Speaker 06: A case on remand it was sent back to us to examine all the four issues and the commission determined it needed more information on a parcel by parcel level to understand and so it ordered the report. [00:32:26] Speaker 06: And a natural remedy for an Article 5 problem is to go get the property rights that the licensee hasn't already gotten. [00:32:33] Speaker 06: So all of that is obvious in the face of the orders. [00:32:36] Speaker 03: So that would support Article 3 injury then. [00:32:39] Speaker 06: But there's no guarantee that the commission gives in these orders about the scope, process, or impact of future acquisition. [00:32:45] Speaker 06: And it says several times that they haven't asked GRDA to go do that yet. [00:32:49] Speaker 06: So it's more of a timing issue than anything else. [00:32:51] Speaker 03: So is there any question that if FERC did require the acquisition one, then [00:32:56] Speaker 03: GRDA could challenge that. [00:32:59] Speaker 03: That would be our legal reasoning behind that order. [00:33:02] Speaker 06: That would be an Article 3 injury once the order to get the further property rights is issued. [00:33:09] Speaker 06: Usually, as we saw in the City of Collier cases, there's a direction to submit a proposal. [00:33:15] Speaker 03: Is there virtually no chance though that FERC will require the acquisition of land? [00:33:22] Speaker 06: It depends on what the commission does with the information in the report. [00:33:25] Speaker 06: If you, since we're talking about an Article 3 issue, we can say that the report itself said that 880 acres would need to be purchased. [00:33:35] Speaker 06: And that's GRDA's perspective as to what the meaning of the FERC orders translated onto a property by property basis would be. [00:33:45] Speaker 06: So I think you're in a situation where if you are considering that as a potential injury, it would have to be [00:33:52] Speaker 06: substantial risk of future economic harm type of injury to sustain standing now after the submission of the report. [00:33:59] Speaker 03: Because FERC didn't challenge standing here. [00:34:01] Speaker 03: I mean, we have an independent responsibility, of course, but FERC didn't raise this. [00:34:06] Speaker 03: So perhaps suggesting that FERC does believe there is a substantial economic harm. [00:34:11] Speaker 06: So we considered whether this case was a candidate for abeyance because of this sort of situation where the proceedings are ongoing that could result in Article III injury [00:34:22] Speaker 06: There would almost certainly be questions and there were raised some questions in the hearing request about eventual scope process impact of a remedy so is a third appeal inevitable here should we think about piecemeal litigation and holding us all until a final. [00:34:39] Speaker 06: order on all of the potential issues are disposed of. [00:34:41] Speaker 06: But once the report came in, and it's GRDA's perspective that they have to get 180 acres, it seemed a little bit less certain whether or not the parties would support abeyance, whether or not the court would find that that's appropriate. [00:34:54] Speaker 06: If the court finds that there's no injury supporting standing now, then I assume the case should be dismissed. [00:35:01] Speaker 05: If it's dismissed on that ground and then [00:35:04] Speaker 05: authority is ordered to buy land and then the authority files a petition to challenge that. [00:35:09] Speaker 05: Could the authority collaterally challenge the orders that we're talking about today when they challenge that future order to purchase land? [00:35:17] Speaker 06: I apologize that I'm not sure I have a definitive answer that I can give to that right now. [00:35:21] Speaker 06: But since we're talking about Article 3 cases, we're kind of off the briefs at this point. [00:35:27] Speaker 06: I will mention that there were some recent standing cases for cases decided by this court. [00:35:32] Speaker 06: If you're comfortable with me mentioning them, they're called American Whitewater. [00:35:36] Speaker 06: and industrial energy consumers of America. [00:35:38] Speaker 06: And they were decided in the last few months. [00:35:39] Speaker 06: One was American Whitewater was about a hydro licensee. [00:35:44] Speaker 06: And the court asked whether or not standing was appropriate for that licensee as an intervener, because the result of that order was no dam removal needed to happen in decommissioning. [00:35:55] Speaker 06: So there was a final decision about licensees' responsibilities. [00:35:59] Speaker 06: And they intervened to support that decision. [00:36:02] Speaker 06: They were found to have standing. [00:36:03] Speaker 06: Industrial energy consumers, there were [00:36:06] Speaker 06: A group of electric customers who oppose an incentive given by the commission, but the incentive necessarily relied on later decision making to actually take effect and actually have economic consequences. [00:36:17] Speaker 06: In that opinion, this court found that the interest in a collateral stoppable effect didn't support standard. [00:36:25] Speaker 06: And so that's why I'm not totally sure that I can give you an answer as to what the commission would do as to these issues later, because [00:36:31] Speaker 06: there are some conflicting precedence as to whether or not that the lack of standing now. [00:36:36] Speaker 05: Do you think that this case is different than industrial energy consumers? [00:36:40] Speaker 06: Well, I'm not sure because there is a case cited in industrial energy consumers, Alabama Municipal Distributors Group, that says sort of the opposite, that no standing now means you can challenge the rest of all the reasoning of the orders later. [00:36:52] Speaker 03: So there's seems like that would have to be the case that you would have to be able to challenge the reasoning because the reasoning would be what would be supporting the apple, you know, the order to acquire the land. [00:37:06] Speaker 06: So perhaps it would be part of it would support the eventual order that would say you have to to [00:37:16] Speaker 06: to procure land. [00:37:17] Speaker 06: But whether or not there's a legal conclusion that is part of that, that it relies on past precedent, I'm honestly not sure that I can give an answer right now. [00:37:26] Speaker 06: So whether or not that is something the commission would consider a collateral attack on a prior order. [00:37:31] Speaker 06: In some other instances, it is considered that. [00:37:35] Speaker 06: But under industrial energy consumers, there wouldn't be a problem. [00:37:39] Speaker 06: So I'm honestly not sure I'd have to check. [00:37:44] Speaker 07: So one of the arguments that notwithstanding any of that, we should forge ahead because with respect to issue one, the Pensacola Act, [00:38:04] Speaker 07: Fishlers are right about the construction of the Pensacola Act. [00:38:09] Speaker 07: FERC has no more jurisdiction over it with respect to kind of this flooding issue. [00:38:16] Speaker 07: And so we should decide that issue now. [00:38:24] Speaker 06: In terms of if that supports an injury or? [00:38:28] Speaker 07: Well, that [00:38:33] Speaker 07: I think your friend on the other side says that that's ripe and they have standing to pursue that claim now because that will end all of these proceedings, including all of the potential further requests for reports and studies and data, et cetera. [00:38:58] Speaker 06: I'm not sure that having to participate in commission proceedings has necessarily been identified as an Article III injury, at least when you're a commenter who wants to object to something the commission did. [00:39:09] Speaker 06: I think, generally speaking, the court has found that that doesn't support the amount of resources you spend on administrative proceedings or litigation is not considered an Article III injury. [00:39:19] Speaker 06: When it's the licensee, I'm honestly not sure if that question is different, because that's the regulated party responding. [00:39:26] Speaker 06: Certainly, it's the case that there is a lot of regulatory process related to all of our federal licensees, especially when relicensing is pending. [00:39:34] Speaker 06: So it would be hard to identify what's only responsive to this proceeding at this point until there's further process actually undertaken by the commission. [00:39:48] Speaker 03: Let me ask you about FERC's interpretation of the Pensacola Act. [00:39:53] Speaker 03: We frequently have situations where the court wishes that Congress would get involved and say what it would like an agency to do. [00:40:04] Speaker 03: And it very much seems like that is what Congress did here, very explicitly. [00:40:09] Speaker 03: And then FERC takes Section 28 and says, well, yes, Congress does the Pensacola Act, but we're only going to apply it to future licenses. [00:40:23] Speaker 03: You know, can you, I mean, that just seems, I mean, the act seems quite clearly. [00:40:27] Speaker 03: There's nothing in the act that suggests it's only prospective. [00:40:32] Speaker 06: I guess two responses to that. [00:40:34] Speaker 06: One, that was the commission's position the first time and we were told to look at it again by this court who said that there are two possible readings. [00:40:44] Speaker 06: But those orders are not in, I mean, that was the square holding of the first round of orders and this court [00:40:51] Speaker 06: sent it back to us and said the statute is ambiguous, decide whether or not it is unclear to us whether the amendment strips FERC of authority to enforce the existing license or that FERC's authority to impose new conditions on future licenses is limited. [00:41:04] Speaker 06: So automatically there, there's a problem. [00:41:07] Speaker 06: If there's a clear statement rule in section 28, which is how the commission read section 28, it's unclear how you can take the position that our authority to enforce the existing license has been stripped [00:41:21] Speaker 06: by a provision that isn't clear. [00:41:22] Speaker 05: You could interpret it's unclear to us as it is ambiguous in a term of art way that triggers some of these canons of interpretation that can trigger when there's ambiguity. [00:41:36] Speaker 05: You could also interpret it's unclear to us to mean we don't know. [00:41:41] Speaker 05: And if all the court was saying is we don't know if the Pensacola Act applies prospectively or not, or whether the Pensacola Act only prescribes [00:41:50] Speaker 05: only applies respectively. [00:41:54] Speaker 05: I don't think there's a holding that binds FERC in any kind of law of the case sense. [00:42:02] Speaker 06: The process gas consumers group case that we cited in our brief does tend to give law of the case principles to the prior case. [00:42:09] Speaker 06: I think that has been the practice in FERC cases that return back up to the court. [00:42:14] Speaker 06: So that you are looking from the starting point of what was decided in the first case to [00:42:18] Speaker 06: what was granted to the commission and ensuring that we gave a reasonable response to all those things. [00:42:22] Speaker 06: I think that happened in this case. [00:42:24] Speaker 05: And as with respect- I think holdings in a prior decision are involved in the case, but a line in the previous opinion in the case that says, we declined to decide this issue, that's a holding that in some ways ties an agency's hand on remit. [00:42:44] Speaker 05: I think that's certainly how the commission understood it. [00:42:47] Speaker 05: In this case. [00:42:48] Speaker 06: In this case. [00:42:48] Speaker 06: But the question is whether you were wrong. [00:42:51] Speaker 06: Well, with respect, I think aside from whether or not it was a holding of the past court, if those are the two options, it either strips our authority into the existing license or our authority to impose conditions on further licenses limited, then choosing the existing license option creates an implied repeal. [00:43:11] Speaker 06: That's what these orders are crystal clear about. [00:43:14] Speaker 06: multitude of cases that we cite in paragraph 39 of our remand order. [00:43:19] Speaker 05: That is not the approach that section 28 has never been used. [00:43:25] Speaker 05: in this kind of robust way to change to, you know, blue pencil, a subsequent statute. [00:43:35] Speaker 06: Is that correct? [00:43:36] Speaker 06: I think we don't have many cases that cite Section 28, probably because as you see in other parts of the Pensacola Act itself and a lot of the other examples that are cited of project-specific legislation, Congress knows how to say notwithstanding any other law when it means that. [00:43:53] Speaker 06: And so it's even saying that in other parts of subsection B of this statute. [00:43:58] Speaker 06: And so when that language is absent from three, what does that mean? [00:44:03] Speaker 05: I think the best language for the authority is the boundary jurisdiction amendments language. [00:44:09] Speaker 05: OK. [00:44:09] Speaker 05: And I'm going to do a couple of ellipses here. [00:44:13] Speaker 05: But it says the commission may amend the project boundary only with the expressed written agreement of the project licensing. [00:44:23] Speaker 05: just sounds very present tense to me. [00:44:30] Speaker 06: And our reading of that is if you compare it to Article two of the existing license, that's clear override of the existing license, but then it's last in time and it controls. [00:44:42] Speaker 06: Well, that's [00:44:45] Speaker 06: But that's the issue under Section 28 is that we have to be certain. [00:44:47] Speaker 06: We essentially have to have certainty to the level that the Supreme Court would find that what Congress meant to do there was essentially overwrite Article II of the existing license when it didn't specifically say it was doing. [00:45:05] Speaker 05: It didn't use magic words, but it seems like definitely the best reading [00:45:15] Speaker 05: I argue with the only reading this sentence is that it applies to existing licenses. [00:45:22] Speaker 05: The commission may amend the project boundary only with the agreement of the project licensee. [00:45:26] Speaker 05: It's talking about a project boundary that exists today. [00:45:30] Speaker 05: What could the word the be referring to if not the project boundary that exists today? [00:45:38] Speaker 06: Well, I would point the court to [00:45:41] Speaker 06: the original introduced text of the Pensacola Act, and it included a more specific provision about what it meant by project boundary. [00:45:49] Speaker 05: I think it's telling that your first go-to answer after that question was to go to legislative history. [00:45:56] Speaker 05: I'm not saying we would never look at legislative history, but I think you were doing the best that can be done to defend interpretation of text that's pretty clear. [00:46:06] Speaker 06: Well, that, I mean, also the fact that, [00:46:10] Speaker 06: If that's the only indication that we have, then I think we're a little bit short of what Epic Systems from the Supreme Court would tell us. [00:46:17] Speaker 06: A little bit short of what Epic Systems from the Supreme Court would tell us is necessary. [00:46:22] Speaker 06: Maybe we're then just trying to help make more sense of what Congress did, and I don't know that that's our task here. [00:46:30] Speaker 07: But to answer Judge Walker's question, let's suppose 10 years from now, after the license has been renewed, [00:46:41] Speaker 07: this Pensacola Act is still going to be in effect. [00:46:48] Speaker 07: And this language would be talking about any amendment of the project boundary of that license at that time, 10 years from now, right? [00:46:57] Speaker 06: Correct. [00:46:58] Speaker 06: And that's 50 years from now. [00:46:59] Speaker 06: Right. [00:47:00] Speaker 06: And that's why the commission said it can give effect to all the language. [00:47:02] Speaker 06: And that's why it's the most reasonable reading, is that it respects Section 28 and the Pensacola Act by giving the Pensacola Act effect [00:47:09] Speaker 06: on future licenses, including that provision, which would mean standard article two is not going back in future licenses. [00:47:15] Speaker 06: So it's all there. [00:47:16] Speaker 06: And that's why we're saying that that's what the Supreme Court wants us to do in this situation, that we are supposed to try and give effect to everything Congress has done. [00:47:23] Speaker 06: It may not be precisely what some people might think Congress meant at the time, but we have to be really clear about what we think Congress meant at the time in order to give effect to one and not the other. [00:47:33] Speaker 03: Makes it really hard for Congress to get anything done. [00:47:36] Speaker 03: We do this, and we really mean it for right now. [00:47:42] Speaker 06: Right, but the other sections of B are pretty clearly applying the type of language we would expect to know that we're talking about exceptions from a currently enforced rule. [00:47:55] Speaker 06: So the notwithstanding language in those sections is helpful. [00:47:58] Speaker 05: If I told you right now that you could amend your brief, [00:48:02] Speaker 05: Do you think I'm only applying that to future cases? [00:48:09] Speaker 06: Well, [00:48:12] Speaker 06: It would depend on whether or not you talked about this case or some other case. [00:48:16] Speaker 06: If you just said you can amend your brief, I've got a number of briefs in front of this court. [00:48:20] Speaker 06: So which case are we talking about? [00:48:21] Speaker 06: Which license? [00:48:22] Speaker 06: So I don't know that that's necessarily this positive. [00:48:25] Speaker 06: I think the issue is that if you look at the full text of what Congress was doing here, you can see under B, and there are sites that we can provide for this, the understanding of all three sections under B is best applied to future licenses. [00:48:43] Speaker 06: And the reason why is that under B1, federal land, under current understanding of the project, there is not federal land under the current license. [00:48:52] Speaker 06: There will be federal land on relicensing. [00:48:55] Speaker 06: You look at JA 998, they're identifying that there will be federal land involved in license going forward, and there currently isn't any. [00:49:03] Speaker 06: Under B2, those [00:49:08] Speaker 06: requirements there, the tech says the commission or any other state or federal agency shall not include any license for the project. [00:49:15] Speaker 06: Well, we have to be talking about a future license there because we've already issued the one in 1992 that's still in effect. [00:49:21] Speaker 06: So including any license means when you're issuing a new license. [00:49:25] Speaker 06: And then you get to three, there's no notwithstanding language and there's no language that means we're definitely talking about new licenses or definitely talking about the existing license. [00:49:35] Speaker 06: And so you get the implied repeal question. [00:49:37] Speaker 06: So that is essentially what makes sense of all parts of B and Section 28. [00:49:43] Speaker 05: Is it possible? [00:49:47] Speaker 05: Well, that's all right. [00:49:48] Speaker 07: I'm good. [00:49:51] Speaker 07: All right. [00:49:53] Speaker 07: If you want to make any concluding remarks, you can. [00:49:56] Speaker 07: Otherwise, we'll hear from counsel for the interview. [00:50:01] Speaker 06: If the report reaches the mayor of the case, we think it's a reasonable place to start [00:50:07] Speaker 06: is with the finding on causation, which identifies that there's a problem here that is caused by the flooding, which is an issue that has been remanded to the commission. [00:50:17] Speaker 06: And the commission made a determination on the evidence in terms of what else the court decides to address it may depend on, which results you reach in whatever other order you think may be useful. [00:50:29] Speaker 06: With that, thank you for your time. [00:50:47] Speaker 04: Good morning, Your Honor. [00:50:48] Speaker 04: Somebody please record David Gossett for the City of Miami. [00:50:52] Speaker 04: Given the questioning so far, I hope briefly to talk about four issues. [00:50:57] Speaker 04: I'm going to start with standing, which is obviously something that has interested the court quite a lot. [00:51:02] Speaker 04: I don't actually have much to add to what I said. [00:51:05] Speaker 04: I was going to focus the court on the fact that even under the authorities' submissions, they acknowledged that there was flooding on 880 acres of land in the city. [00:51:19] Speaker 04: There's a dispute about whether it's 880 acres or 13,000 acres, but that is something that we think will get resolved going forward. [00:51:29] Speaker 03: So inevitably, under anyone's view, they would have to acquire some land? [00:51:33] Speaker 03: Under FERC's legal interpretation. [00:51:35] Speaker 04: Under FERC's legal interpretation, I think it is inevitable that if this court affirms that, the city will have to either acquire land or acquire flowage easements. [00:51:44] Speaker 04: But I do think that if the court dismisses for lack of standing, there is no question in my mind that the authority could challenge the legal conclusions here in those future orders. [00:51:57] Speaker 04: I don't know if I would call it a collateral attack or just the fact that they are incorporated into that. [00:52:05] Speaker 04: The last thing I'll say on that is I think [00:52:09] Speaker 04: Everyone before the court would love some closure on these issues, because obviously it will affect what happens below. [00:52:16] Speaker 04: And it might clarify how to proceed. [00:52:21] Speaker 04: But I'm not addressing the Article III aspect of that. [00:52:25] Speaker 04: On the court's role, Judge Wilkins, which you asked about, [00:52:31] Speaker 04: I think it's important to distinguish what the commission decided there, which is I think the only legally relevant question. [00:52:40] Speaker 04: The commission held below that GRDA will be legally responsible for acquiring land irrespective of whether [00:52:49] Speaker 04: flooding on that land is caused by GRDA's operations of the dam when it itself is controlling the dam or when it is operating the dam under the direction of the core when the water is in the floodplain between 745 and 755. [00:53:09] Speaker 04: That was the question that was unclear before, but the [00:53:14] Speaker 04: The commission has now clarified that that's its view and that that's the Corps' view as well. [00:53:19] Speaker 04: It's also the view that the courts in Oklahoma have similarly taken in private litigation about that. [00:53:26] Speaker 04: So I think that the question of the Corps' role has been adequately resolved for purposes of assuming there is this flooding and assuming the Pensacola Act, which I'll turn to in a second, doesn't address that, the authority has to deal with that flooding. [00:53:42] Speaker 07: So your argument is that even if your friend on the other side is correct, that the flooding is due to [00:53:57] Speaker 07: the Army Corps of Engineers action or their direction, it's immaterial because it's flooding nonetheless. [00:54:08] Speaker 07: And Burke's view is that Grand River Dam Authority [00:54:13] Speaker 07: You will have to acquire new rights or easements or whatever bundle of sticks is required to address that flooding, regardless of who's responsible. [00:54:32] Speaker 04: Yes, because flood control is a project purpose and the authority, when it accepted the license, accepted responsibility to own all lands necessary and appropriate for project purposes, including flood control. [00:54:48] Speaker 04: it knew that there could be flooding from the property and it was accepted accordingly. [00:54:54] Speaker 04: I think on this it's also worth flagging part of the reason there is this flooding now regardless of whether the core controls it in this narrow range is because over the course of the last 30 years the authority has raised the average level in the [00:55:12] Speaker 04: in the reservoir significantly by 20 feet or more. [00:55:16] Speaker 04: And that means that there is much more likely to be flooding be times when the water is in the flood zone. [00:55:23] Speaker 04: And therefore, when the core can say, OK, we don't want to flood down river, we're going to flood up river. [00:55:29] Speaker 04: That's basically what the core is deciding is who to flood, not whether there is flooding. [00:55:33] Speaker 04: It's because the core is saying, OK, the water is too high in this in this reservoir. [00:55:37] Speaker 04: What are we going to do? [00:55:38] Speaker 04: Do we flood down river? [00:55:39] Speaker 04: Do we flood up river? [00:55:40] Speaker 04: So that's part of the reason why it doesn't make sense for the court to be legally responsible. [00:55:45] Speaker 04: Finally, of course, to the extent there is anything to the authority's arguments about that being the authority's, the court's responsibility in some sort of takings theory, the appropriate route for that would be for the authority eventually to bring a case on the court of claims. [00:56:03] Speaker 03: for such a taking the level of the reservoir. [00:56:06] Speaker 03: When you say that the authority has raised the level of the reservoir. [00:56:10] Speaker 03: Does that determine whether the flooding is? [00:56:15] Speaker 03: You know, down of the reservoir or upstream of the reservoir. [00:56:18] Speaker 03: I'm sorry. [00:56:19] Speaker 03: I was probably was not very clear. [00:56:22] Speaker 03: Sorry. [00:56:23] Speaker 04: At the moment, the rule curve for the reservoir, which is basically where the water is normally supposed to be, ranges between 742 and 744 feet. [00:56:35] Speaker 04: Then if there's a lot of rain, the water is going to go up from there. [00:56:39] Speaker 04: It used to be the case that the rule curve, where the authority set the reservoir level on a general basis, was in the 730s. [00:56:46] Speaker 04: It generated less power, so the authority made less money off of power. [00:56:54] Speaker 04: Power and recreation. [00:56:57] Speaker 04: I mean, it's a bigger reservoir now. [00:56:58] Speaker 04: There's more space for boating, et cetera, if the water is higher in the reservoir. [00:57:03] Speaker 04: Because the reservoir is basically a lake. [00:57:06] Speaker 04: There were reasons why the authority wanted to raise the reservoir. [00:57:09] Speaker 04: They generate more power. [00:57:10] Speaker 04: But it causes. [00:57:15] Speaker 04: Turning to the Pensacola Act, which is obviously, if you reach the merits, the most important question here. [00:57:23] Speaker 04: I think there are definitely two ways to read this act, which is what Judge Silberman helped. [00:57:31] Speaker 04: Judge Walker, you said that the [00:57:35] Speaker 04: the authorities' interpretation is powerful. [00:57:37] Speaker 04: And it may be, but I think that's not the question. [00:57:40] Speaker 04: The question is whether Congress impliedly repealed Section 28 here. [00:57:46] Speaker 04: And there's a general principle against implied repeals. [00:57:49] Speaker 04: And here we have the added benefit of what we're talking about, impliedly repealed, is [00:57:57] Speaker 04: Congress's pre-commitment, which is pretty fundamental to the whole structure of the Federal Power Act, that we don't change rights and obligations of existing licensees once they get a license. [00:58:08] Speaker 04: That's the principle that we're talking about here, is that when they got this license, these were what they were allowed to do, and this is what they must do. [00:58:16] Speaker 07: And so- Isn't it completely consistent with that principle to read the statute as the petitioners have asked us to? [00:58:28] Speaker 07: I mean, number one, this doesn't seem like the typical implied repeal case, because here Congress defined project to be this specific project that they are talking about, that they are going to do. [00:58:45] Speaker 07: So there's nothing implicit about that. [00:58:48] Speaker 07: That's very explicit. [00:58:49] Speaker 07: Yes. [00:58:50] Speaker 07: And then they say that's what project means. [00:58:55] Speaker 07: And then in project scope, they say if the licensee does not agree to a project boundary change proposed by the commission, then that's it, basically. [00:59:12] Speaker 07: And it says amend the project boundary. [00:59:20] Speaker 07: We might have thought that it was ambiguous before, but that doesn't preclude us now from saying the best reading of the statute, now that we're not doing Chevron deference to an agency, is to say that they met this project and the project boundary as it exists. [00:59:43] Speaker 07: It existed on December 20, 2019. [00:59:45] Speaker 07: It was signed into law. [00:59:48] Speaker 04: I have both a legal answer and a factual answer. [00:59:53] Speaker 04: The legal answer is that I think obviously no one is claiming Chevron deference. [00:59:57] Speaker 04: We all understand we're out of the Chevron world and no one's even claiming that this is the sort of factual question that Underlope or Bright might still get deference to what the agency has said. [01:00:08] Speaker 04: This is a question of what the statute means. [01:00:11] Speaker 04: But I think that Section 28, as a clear statement rule, as a precommitment, it's sort of like the major questions doctrine. [01:00:19] Speaker 04: It's to the extent there's any reading of this law that doesn't fully run roughshod over the text of the law, under which the existing license obligations aren't changed, the court must endorse that reading. [01:00:34] Speaker 04: It's not about what Burke said. [01:00:35] Speaker 04: I'm not saying that you owe deference to Mr. [01:00:38] Speaker 04: to the Commission or to Mr. Perkins's argument, it's that you owe deference to Congress's statement and to the principle of 100 years of statutory interpretation or more that implied repeals are disfavored and that this has to be viewed as an implied repeal of Section 28 to the extent it. [01:01:00] Speaker 07: But the other principle you said governed here is that there was a principle of [01:01:04] Speaker 07: like you know making sure that that licensees expectations and the expectations of their investors and these projects etc aren't unsettled i mean isn't this congress saying that we are going to make sure that those expectations are not unsettled here because we're not going to allow a project [01:01:30] Speaker 07: boundary amendment unless the licensee agreed. [01:01:37] Speaker 04: The Congress was also presumably [01:01:40] Speaker 04: paying attention to the rights of others, the obligations as well as the rights of the project. [01:01:45] Speaker 04: And on section, I guess it is B3C, which is where you're focusing about project boundary amendments, I think that's where it's worth looking again, as Mr. Perkins did, at [01:02:01] Speaker 04: all of the language of the statute and how B1 has nothing to do with the current license. [01:02:09] Speaker 04: There is no federal land on the current license. [01:02:11] Speaker 04: B2 license conditions says that you shall not include in any license requirements relating to surface elevations. [01:02:20] Speaker 04: The current license has requirements about surface elevations. [01:02:22] Speaker 04: That's the rule curve. [01:02:23] Speaker 04: So this is saying don't put this into a license, but it's not saying remove it from the license that's already there. [01:02:30] Speaker 04: There's no reading of B2 that applies to the current license. [01:02:35] Speaker 04: Then B3, the project scope language, [01:02:39] Speaker 04: B3A says the licensing jurisdiction of the commission shall not extend outside the project boundary. [01:02:47] Speaker 04: And that's what I think it is reasonable to interpret as being about the new license. [01:02:52] Speaker 04: There was the relicensing proceeding ongoing at the time the Pensacola Act was passed. [01:02:58] Speaker 04: So this could be about [01:03:01] Speaker 04: You're having all these fights. [01:03:02] Speaker 04: Let's work these out in the current license. [01:03:04] Speaker 04: And then it's set. [01:03:06] Speaker 04: We're not going to have this fight going forward. [01:03:08] Speaker 04: And then B3, B and C are part of that project licensing. [01:03:13] Speaker 04: On project licensing, I should also flag [01:03:17] Speaker 04: entirely different part of FERC deals with project licenses versus complaints on existing licenses. [01:03:23] Speaker 04: They're different offices and different people. [01:03:25] Speaker 04: So talking about the project licensing really does make some sense only if it's interpreted as being about the new license. [01:03:33] Speaker 04: So I think it's unfair of the authority to argue that we haven't focused on the language of this statute. [01:03:40] Speaker 04: I think we do, and it does apply. [01:03:45] Speaker 04: So yes, B3C says that the authority gets to reject project boundary amendments. [01:03:54] Speaker 04: The question is just, are those project boundary amendments under the current license or under the new license or both? [01:04:00] Speaker 04: And we think that it is a perfectly plausible reading. [01:04:03] Speaker 04: And therefore, under Section 28, the reading of the court must accept that applies to the new license only. [01:04:10] Speaker 03: and implied repeals or disfavor was just one way of reading statutes over time. [01:04:16] Speaker 03: Another one is that more specific statutes, more general statutes, right? [01:04:21] Speaker 03: And we shouldn't read new congressional enactments overly narrowly to give them no effect because of a almost 100-year-old statute. [01:04:30] Speaker 03: I mean, there are a lot of principles that we apply in understanding how two statutes work together over time. [01:04:37] Speaker 04: That is, of course, true. [01:04:39] Speaker 04: We learned that in law school. [01:04:41] Speaker 04: But it doesn't change the fact that there is the implied repeal rule, and that here what we're talking about implied repealing is actually itself a rule against implied repeals. [01:04:57] Speaker 04: So you're saying don't impliedly repeal a rule that says we don't impliedly repeal existing license. [01:05:03] Speaker 04: We don't change licenses. [01:05:05] Speaker 04: And I think that's particularly powerful. [01:05:07] Speaker 04: Sorry, you have a follow-up question before I say my next point, which is slightly off. [01:05:11] Speaker 03: I don't think that the rule against implied repeals means that any plausible reading that doesn't lead to a repeal is the one that we must adopt. [01:05:23] Speaker 03: I think we're trying to figure out the best meaning of both the Pensacola Act and Section 28 and how they fit together. [01:05:30] Speaker 03: And the best meaning might not just be a meaning that's plausible because of a rule against implied repeals as well. [01:05:38] Speaker 04: That is, of course, true. [01:05:40] Speaker 04: On this, Patrice Judge Walker, the only legislative history that exists of the Pensacola Act is a one line in the conference report that says, this is about delineating the scope of the core versus the commission. [01:05:57] Speaker 04: That's all that the legislative history says. [01:05:59] Speaker 04: So Congress as a whole, I mean, [01:06:03] Speaker 05: That may be all the legislative history says the history surrounding the amendment is not good for you. [01:06:09] Speaker 05: I'm not saying that we should go beyond the plain text. [01:06:11] Speaker 05: I'm not even inquiring into that. [01:06:12] Speaker 05: But that history is something along the lines of people like to have fun on the lake with their boats. [01:06:20] Speaker 05: People who do that don't really care whether Miami gets flooded. [01:06:23] Speaker 05: They had and probably have more political power than people in Miami have. [01:06:28] Speaker 05: So they use that political power to get a bigger lake for their boats. [01:06:34] Speaker 05: I'm not casting a value of judgment on that, but that would be quite consistent with the meaning of the plain text as the authority has described it, although I suspect that the authority would not like that explanation for how the law became the law. [01:06:48] Speaker 04: To be clear, the authority can continue to flood this land. [01:06:51] Speaker 04: And it can keep the water where it is. [01:06:53] Speaker 04: It's just a question of whether the costs of that should be allocated to all of the rate payers or to just the city. [01:07:01] Speaker 05: And if I were a policymaker, I may well say, let's impose the cost on the people who are flooding other people's land. [01:07:10] Speaker 05: But I'm not Congress. [01:07:14] Speaker 04: That's where I think the fact that this is sort [01:07:18] Speaker 04: one small provision in a 1,700-page bill that is never described as doing what you just said does have some bearing in how the court should think about Section 28, because I think that's, again, where we go back to. [01:07:33] Speaker 04: Section 28 was passed by Congress when they first set out the entire way that they incentivized people to build dams in this country. [01:07:42] Speaker 04: And it's existed that whole time. [01:07:44] Speaker 04: It has been interpreted. [01:07:46] Speaker 04: The case I point the court to is this court's Montana case from 1970. [01:07:52] Speaker 04: What the court held in that case was that it was OK to change the structure by which someone's rights were remedied. [01:08:02] Speaker 04: It used to be the case that if there was a claim that you had done something wrong, the licensee had private arbitration to decide if it was OK. [01:08:13] Speaker 04: then after that license was issued, FERC was created, and the law was changed. [01:08:18] Speaker 04: So FERC decided it, and then there was appeal to the court. [01:08:21] Speaker 04: And the court said, OK, that procedural change is OK, because it's not substantive. [01:08:25] Speaker 04: It's not changing substantive rights or responsibilities under it. [01:08:28] Speaker 04: But actually, if you read the Montana case, it suggests essentially that a substantive change in the rights or obligations of a licensee might actually have constitutional problems. [01:08:41] Speaker 03: What would be the constitutional problem, though, because the Pensacola Act is still prospective. [01:08:47] Speaker 03: It's not changing. [01:08:50] Speaker 04: I think it was, I mean, so to be clear, in that case, it was changing, taking something away from the licensee that they had or that they claimed they had. [01:09:01] Speaker 04: And then it would be sort of a takings or a contract violation would have been the theory there. [01:09:05] Speaker 04: But the obligations similarly are bound by section Article 28. [01:09:11] Speaker 04: No one's claimed that it's only about their rights. [01:09:13] Speaker 04: It's also their obligations. [01:09:16] Speaker 05: I only asked this because I think you can answer it in 10 seconds. [01:09:18] Speaker 05: It's not worth more than 10 seconds. [01:09:20] Speaker 05: There's a Pensacola, something spelled like Miami, and a Disney all next to each other. [01:09:25] Speaker 05: Is that a coincidence? [01:09:27] Speaker 05: You know how they all got these Florida names? [01:09:29] Speaker 04: Miami is actually a tribal name. [01:09:33] Speaker 04: And in Florida, too. [01:09:34] Speaker 04: So the Miami tribe was there. [01:09:36] Speaker 04: I have no idea how Disney got there. [01:09:38] Speaker 04: But Miami is a tribal name. [01:09:40] Speaker 04: And in fact, there's a representative of the tribe here. [01:09:43] Speaker 04: If there are no further questions, thank you so much, Your Honor, and thank you for the time. [01:09:53] Speaker 02: If I may, your honor, I think this threshold issues discussed here in terms of standing. [01:10:00] Speaker 02: I think it's actually an argument of mootness, and that's quite significant. [01:10:03] Speaker 02: There's no real dispute that there was standing when we filed this petition. [01:10:07] Speaker 02: When you have a question of whether a case becomes moot, the presumption flips the other way. [01:10:12] Speaker 02: So if the court thinks that there is now a case that where we clearly have standing at the beginning has become moot, we would ask for supplemental briefing. [01:10:20] Speaker 02: To the extent that I have anything to add to say before is that in this order on review at J.A. [01:10:26] Speaker 02: 1038 for specifically reserve the right under these orders to require more reports, supplemental information, et cetera, during the penances proceeding, they've already exercised those rights. [01:10:37] Speaker 02: So I think that will be sufficient to rebut the presumption that the case that wasn't moved before has become moved. [01:10:44] Speaker 02: But I would ask the court to permit us something of a briefing on this issue. [01:10:47] Speaker 02: Since it is not a standing issue, it's rather a brief decision. [01:10:50] Speaker 05: How fast could you do it? [01:10:51] Speaker 02: As fast as your honors want. [01:10:53] Speaker 03: Now, with regard to the merits, my friends keep talking about- Sorry, if you're going to do supplemental briefing, if you could also address the, you know, sort of the imminence of any economic harm of acquiring property, of being required to acquire property. [01:11:11] Speaker 07: Absolutely, Your Honor. [01:11:13] Speaker 07: We'll issue an order that sets forth what we want supplemental briefing. [01:11:18] Speaker 02: Thank you. [01:11:20] Speaker 02: Quickly on the merits, my friends keep talking about the Sampai repeal doctrine. [01:11:24] Speaker 02: I think the reason they keep talking about that is they can't actually win on the controlling doctrine. [01:11:28] Speaker 02: The Dorsey case from the Supreme Court is exactly on point. [01:11:30] Speaker 02: Also a statute 100 years ago, that 100 years ago statute required an express statute in the future. [01:11:37] Speaker 02: The US Supreme Court rejected that requirement. [01:11:40] Speaker 02: The only way they can win, I believe, is a magic order requirement or a very stringent notion of clear, unambiguous statement. [01:11:49] Speaker 02: That's just not what Dorsey says. [01:11:51] Speaker 02: And the reason that Dorsey essentially took out the express requirement that had been in the 1917 statute [01:11:57] Speaker 02: is they said, we've got to respect the fact that the dead hand of our prior Congress can't bind a new Congress. [01:12:03] Speaker 02: The only time that we've been able to find that Section 28 was discussed in the case before this court was the PG&E case written by then-judge Ginsburg, future justice Ginsburg, joined by Judge Scalia. [01:12:15] Speaker 02: And the only thing that this court said about that was, well, they purport to, the prior Congress purported to bind future Congress, I think, suggesting that [01:12:25] Speaker 02: To the extent it was effective, it was not very effective at all when you have a future Congress acting as it did here. [01:12:32] Speaker 02: I had a little bit of time travel here when I heard my friend from Miami bring back this licensing jurisdiction argument. [01:12:39] Speaker 02: I think there's a reason that wasn't in the orders below or any of the briefs here. [01:12:44] Speaker 02: There's only one kind of jurisdiction that FERC can exercise here. [01:12:48] Speaker 02: As they say on page 43 of their [01:12:49] Speaker 02: They're brief. [01:12:50] Speaker 02: That's the jurisdiction that they do not have outside the project boundary. [01:12:55] Speaker 02: I also heard my friend say something about 880 acres. [01:12:58] Speaker 02: Those 880 acres are entirely the result of the Corps' flood control operations. [01:13:06] Speaker 02: While my friend does not believe that that is a relevant consideration, this court in the first call round clearly did. [01:13:12] Speaker 02: It asked for a factual determination by FERC that FERC refused to then give on remand. [01:13:18] Speaker 02: And it even said why it wanted it. [01:13:20] Speaker 02: This court cited Arkansas Game and Fish Commission, which is the case that says the flooding by FERC of land, even if it's temporary flooding, can be a taking. [01:13:31] Speaker 02: And what do you do when the federal government takes your land? [01:13:35] Speaker 02: you go to the court of claims and you sue, which is what they should do if they have a problem with anything that the court is doing. [01:13:41] Speaker 02: They do not have any claim against us where we are acting only as an agent of the court when we're opening and closing those gates when it gets above 745 feet. [01:13:54] Speaker 07: Thank you, Your Honors.