Domtar Maine Corp. v. Federal Energy Regulatory Commission

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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 11, 2003 Decided October 28, 2003

No. 97-1300

DOMTAR MAINE CORPORATION, INC.,

PETITIONER

v.

FEDERAL ENERGY REGULATORY COMMISSION,

RESPONDENT

PASSAMAQUODDY TRIBE,

INTERVENOR

Consolidated with

No. 02-1178

On Petitions for Review of Orders of the

Federal Energy Regulatory Commission

Catherine R. Connors argued the cause for petitioner.

With her on the briefs was Matthew D. Manahan.

Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.

2

David H. Coffman, Attorney, Federal Energy Regulatory

Commission, argued the cause for respondent. With him on

the brief were Cynthia A. Marlette, General Counsel, and

Dennis Lane, Solicitor. Susan J. Court, Special Counsel,

entered an appearance.

Gregory W. Sample argued the cause and filed the brief for

intervenor.

Before: EDWARDS, RANDOLPH, and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge: The Federal Power Act of 1920, 16

U.S.C. § 791a et seq., requires licensing of all dams operated

on navigable waters for the purpose of generating electric

power, except those authorized by a valid pre-Act permit. In

this case, we must decide whether two dams are exempt from

licensing because their owner operates other dams down-

stream pursuant to such a permit. The Federal Energy

Regulatory Commission found them not exempt. Because we

agree, and because we find no error in FERC’s challenged

orders, we deny the petitions for review.

I.

Section 4(e) of the Federal Power Act (FPA) authorizes the

Federal Energy Regulatory Commission to ‘‘issue licenses

TTT for the purpose of constructing, operating, and maintain-

ing dams, TTT reservoirs, TTT or other project works neces-

sary or convenient for the TTT development, transmission, and

utilization of power across, along, from, or in any TTT bodies

of water over which Congress has jurisdictionTTTT’’ 16

U.S.C. § 797(e) (2000). Section 23(b)(1) makes it ‘‘unlawful

TTT, for the purpose of generating electric power, to con-

struct, operate, or maintain any dam, TTT reservoir, TTT or

other works incidental thereto across, along, or in any of the

navigable waters of the United States,’’ unless FERC has

issued a proper license. Id. § 817(1). That section, however,

exempts any facility operating ‘‘under and in accordance with

3

the terms of a permit or valid existing right-of-way granted

prior to June 10, 1920,’’ the date the FPA became law. Id.

Petitioner, Domtar Maine Corporation, owns several hydro-

electric facilities in eastern Maine. Its Forest City facility,

located along the U.S.-Canadian border on the east branch of

the St. Croix River, includes ‘‘a 16-foot-high, 500-foot-long

dam, and a 16,070-acre reservoir.’’ Ga.-Pac. Corp., 78

F.E.R.C. ¶ 61,223, 61,953 (1997). Domtar’s West Branch

facility, located on the west branch of the St. Croix, comprises

two developments, each of which also includes a dam and a

reservoir. Id. Both of Domtar’s facilities enhance the pow-

er-generating capabilities of two downstream projects that

Domtar also operates, Woodland and Grand Falls. Forest

City is thirty-five miles upstream from Grand Falls and forty-

seven from Woodland; West Branch is ten miles upstream

from Grand Falls and twenty-two from Woodland. Id. Al-

though FERC licensed the two upstream facilities in 1980, it

never licensed the downstream projects because they operate

pursuant to a 1916 Act of Congress, see Pub. L. No. 64–234,

39 Stat. 534 (1916), and thus qualify for the exception to the

FPA’s licensing requirement. (Domtar actually acquired the

licenses to the upstream facilities in 2001, well after the

previous licensee, Georgia-Pacific Corporation, initiated the

proceedings in this case. See Ga.-Pac. Corp., Domtar Me.

Corp., 97 F.E.R.C. ¶ 62,078, 64,114–15 (2001). For simplicity,

we will refer to the petitioner as Domtar regardless of the

time period under discussion.)

In 1995, Domtar started down what would prove to be a

long and complex procedural path culminating in the proceed-

ings now before us. The company petitioned FERC to

declare that the two upstream facilities, though already li-

censed, actually fell outside FERC’s jurisdiction because the

downstream projects that they benefited were themselves

exempt from the licensing requirement. FERC declined to

do so, holding that the downstream projects’ exemption had

no effect on the jurisdictional status of the upstream dams.

See Ga.-Pac. Corp., 77 F.E.R.C. ¶ 62,189 (1996) (‘‘Ruling 1’’),

reh’g denied, 78 F.E.R.C. ¶ 61,223 (1997) (‘‘Ruling 2’’).

4

Although Domtar petitioned this court to review Rulings 1

and 2, we stayed those proceedings after Domtar filed a

second petition with FERC. In that petition, Domtar asked

the Commission to reverse its previous decisions and hold

that the upstream facilities needed no licenses. Domtar

based its request on new evidence purportedly showing that

the upstream facilities did not enhance the power-generation

capabilities of the downstream projects. According to Dom-

tar, this meant that neither facility was part of any ‘‘project,’’

defined by FPA section 3(11) as a ‘‘complete unit of improve-

ment or development, [including] all TTT dams [and] reser-

voirs TTT the use and occupancy of which are necessary or

appropriate in the maintenance and operation of such unit.’’

16 U.S.C. § 796(11) (emphasis added). Based on Domtar’s

new evidence, FERC agreed that the upstream facilities did

not enhance downstream power generation and thus required

no licenses. See Ga.-Pac. Corp., 81 F.E.R.C. ¶ 62,222 (1997)

(‘‘Ruling 3’’).

The following month, several groups that had previously

sought to intervene in the proceedings—including the U.S.

Department of the Interior and the Passamaquoddy Tribe—

petitioned FERC to rehear Ruling 3. In response, FERC

asked Domtar for additional data regarding the upstream

facilities, and after analyzing the data, FERC again reversed

itself, concluding that the facilities in fact required licenses.

See Ga.-Pac. Corp., 91 F.E.R.C. ¶ 61,047 (2000) (‘‘Ruling 4’’),

reh’g denied, 98 F.E.R.C. ¶ 61,312 (2002) (‘‘Ruling 5’’). Dom-

tar then filed a second petition for review with this court, but

simultaneously asked FERC to rehear two aspects of Ruling

5—its refusal to offer the company any guidance on how to

operate the facilities so as to avoid the licensing requirement,

and its decision to solicit other applicants to replace Domtar

as the licensee. Responding to Domtar’s request, FERC

issued a final order, again declining to provide the requested

advice and standing by its decision to solicit other license

applicants, but ruling that it would give Domtar an incum-

bent’s preference in any re-licensing proceedings. See Dom-

tar Me. Corp., 99 F.E.R.C. ¶ 61,276 (2002) (‘‘Ruling 6’’).

5

Domtar then filed a third petition for review with this

court, in which it listed Ruling 6 as the ruling under review.

At the time, the company’s second petition for review was still

pending, but we subsequently dismissed that petition as

premature, explaining that when Domtar filed the petition,

the company was still pressing its case before the Commis-

sion. See Domtar Me. Corp. v. FERC, Nos. 97-1300, 02-1126,

02-1178, 2002 U.S. App. LEXIS 18,157 (D.C. Cir. Aug. 29,

2002) (unpublished order). We also consolidated Domtar’s

first and third petitions. Id. FERC subsequently filed a

motion to dismiss the third petition, which we now address

along with Domtar’s first and third petitions. We also consid-

er intervenor Passamaquoddy Tribe’s argument that we

should remand the case so that FERC can determine whether

the upstream facilities occupy ‘‘reservations of the United

States,’’ and thus require a license under FPA section

23(b)(1).

II.

In its motion to dismiss, FERC points out that Domtar’s

third petition for review seeks review only of Ruling 6—a

ruling that was, according to FERC, nothing more than a

denial of a rehearing request. It is true that ‘‘an order which

merely denies rehearing of another order is not itself review-

able.’’ Microwave Communications, Inc. v. FCC, 515 F.2d

385, 387 n.7 (D.C. Cir. 1974). It is also true that ‘‘a petition

for review of an agency order must specify the order or part

thereof to be reviewed,’’ and that ‘‘[f]ailure to specify the

correct order can result in dismissal of the petition.’’ Entra-

vision Holdings, LLC v. FCC, 202 F.3d 311, 312 (D.C. Cir.

2000) (internal quotation marks omitted). That said, ‘‘a party

may TTT appeal from one order despite referring only to a

different order in its petition TTT if the petitioner’s intent can

be fairly inferred from the petition or documents filed more

or less contemporaneously with it.’’ Martin v. FERC, 199

F.3d 1370, 1372 (D.C. Cir. 2000) (internal quotation marks

omitted).

Under the circumstances of this case, we believe that

Domtar’s intent to seek review of Ruling 4, the underlying

6

aggrieving order, can be ‘‘fairly inferred.’’ We did not dis-

miss Domtar’s second petition for review, which listed Ruling

4, until several months after the company filed its third

petition. Thus, at the time it filed that petition, Domtar

already had a petition pending that sought review of Ruling 4.

In light of this, Domtar’s decision to list only Ruling 6 in its

third petition is more reasonably viewed, both now and at the

time it was filed, as evincing the company’s effort to ensure

that all of the Commission’s orders would be reviewed, rather

than as a sudden decision to reverse course and abandon any

attempt to have this court review Ruling 4. To be sure, the

wiser course of action would have been for Domtar to dismiss

the second petition voluntarily when it filed the third, and

then to list Ruling 4 in the third petition. We are neverthe-

less convinced that FERC could fairly infer not only that

Domtar still wished to challenge Ruling 4 when it filed its

third petition, but also that the company had simply made a

mistake when it listed only Ruling 6 in that petition. More-

over, FERC does not claim that it suffered any prejudice

because of Domtar’s decision to list Ruling 6 instead of Ruling

4. It does contend that Domtar’s decision reflected a strate-

gic choice, rather than a mistake, but we think that assertion

unconvincing: Domtar had nothing to gain—and much to

lose—by pursuing the course it did. We will therefore deny

FERC’s motion to dismiss Domtar’s third petition.

Turning to the merits of the petitions, we begin with

Domtar’s argument that Rulings 4, 5, and 6 were all beyond

FERC’s power to issue, and that we should therefore regard

Ruling 3—the only one in which the company prevailed—as

final. Domtar points out that only parties can petition FERC

for rehearing, see 16 U.S.C. § 825l(a), and that when the

would-be intervenors asked the Commission to rehear Ruling

3, they were not yet parties to the case. They were not yet

parties because FERC did not grant their motions to inter-

vene until Ruling 4, see 91 F.E.R.C. at 61,170 n.19, over two

years after they petitioned for rehearing. Therefore, Domtar

concludes, Ruling 3 became final when the thirty-day window

to seek rehearing closed, and Rulings 4, 5, and 6—all of which

stem from the would-be intervenors’ petition for a rehearing

7

of Ruling 3—are invalid because the Commission did not

issue them in response to a proper request for rehearing.

In response, FERC insists that the requests for rehearing

were procedurally proper because in Ruling 4 it granted the

motions to intervene retroactive to the date of Ruling 3, a

date prior to the filing of the requests. See Ga.-Pac. Corp.,

98 F.E.R.C. at 62,339 n.40. According to the Commission,

this is not the first time that it has granted intervention

retroactively. In the first case in which it did so, the Com-

mission justified the procedure on the ground that otherwise

a party would have to move to intervene prior to an initial

ruling by the Commission. See Mohawk Paper Mills, Inc.,

33 F.E.R.C. ¶ 61,291, 61,584 (1985). This is so because a

party could almost never move to intervene, have the motion

granted, and then petition for rehearing all within the thirty-

day window established for the filing of rehearing petitions.

See id.

Not only have we never approved FERC’s practice of

granting intervention retroactively, but the practice seems

inconsistent with the statutory limitation that only a party

can petition FERC for rehearing. Indeed, one could argue

that Congress crafted that limitation for the very purpose of

requiring parties to intervene before an initial Commission

ruling, thus precluding them from waiting until FERC ruled

and then raising new arguments that might, if brought forth

initially, have saved the Commission and the parties from

spending time and money on a second proceeding. Here,

however, the would-be intervenors did move to intervene

prior to Ruling 3—the Commission’s initial ruling on Dom-

tar’s second petition; it was FERC’s failure to grant inter-

vention in Ruling 3 that later required the Commission to

resort to the procedural gimmick of retroactive intervention.

So even if Congress wanted to require parties to present

arguments to FERC as early as possible, that objective was

not subverted here. Moreover, Domtar does not claim that

the retroactive grant deprived it of the ability to present any

of its arguments to the Commission. Thus, while we are

unprepared to say that a retroactive grant of intervention is

always permissible, we conclude that in the circumstances of

8

this case, it was. Accordingly, we reject Domtar’s assertion

that Rulings 4, 5, and 6 are invalid.

Domtar next claims that its two upstream facilities are

covered by the 1916 law that exempts the downstream pro-

jects from the licensing requirement, and that the upstream

facilities are therefore also exempt. We are unpersuaded.

The 1916 statute speaks in specific terms, authorizing only

the operation of ‘‘the two dams’’ at Woodland and Grand

Falls. 39 Stat. at 534. It mentions no other facilities. Given

that the upstream dams existed in 1916, we expect that

Congress would have referred to them had it wanted the law

to cover them. Reinforcing this conclusion, the upstream

facilities are ten and thirty-five miles, respectively, from the

nearest downstream project, and it seems implausible that

Congress, by using the word ‘‘dams,’’ intended to encompass

not only the two downstream dams but also other facilities so

far away. ‘‘If the intent of Congress is clear, that is the end

of the matterTTTT’’ Chevron U.S.A. Inc. v. Natural Res. Def.

Council, Inc., 467 U.S. 837, 842 (1984).

Domtar argues that even if the permit does not expressly

cover the upstream facilities, FERC’s decision to require

licenses for those facilities violates FPA section 23(a), which

provides in part that the Act ‘‘shall not be construed as

affecting any permit TTT granted prior to June 10, 1920.’’ 16

U.S.C. § 816. According to Domtar, if the two upstream

facilities enhance the power-generating capability of the

downstream projects, then requiring licenses for the up-

stream facilities would ‘‘affect’’ the projects’ permit. It would

do so, Domtar asserts, because the permit conferred the right

to use all existing assets to generate power, and since those

assets include the two upstream facilities, requiring licenses

for those facilities would limit that right, thereby affecting the

permit.

Because Domtar first advanced this section 23(a) argument

in its reply brief, FERC has moved to strike the argument on

the ground that it was raised too late. See, e.g., A.J. McNul-

ty & Co. v. Sec’y of Labor, 283 F.3d 328, 338 (D.C. Cir. 2002)

9

(‘‘[B]ecause this point appears for the first time in the compa-

ny’s reply brief, we will not consider it.’’). Domtar responds

that the argument is just a variation on those that it has

made from the outset. We disagree. Domtar claims in its

response to FERC’s motion to strike that it has ‘‘consistently

referenced ‘section 23’’’ of the FPA. But this claim is mis-

leading because section 23(b), which Domtar has referred to

throughout these proceedings, and section 23(a), which it has

not, are codified in two separate sections of the U.S. Code—

sections 817 and 816 of Title 16, respectively. This is not, in

other words, a situation in which a party cites a particular

statutory section, and then later cites a subsection of that

section. Domtar now cites an entirely different section, one

that we can find no citation to in the record. Even the table

of authorities in the company’s initial brief omits section 816,

which corresponds to section 23(a), further belying Domtar’s

claim that it has relied on section 23(a) throughout. More-

over, while there is some nexus between the section 23(a)

argument and the ones that Domtar did raise earlier, those

other arguments do not, in our view, fairly raise the section

23(a) issue. Put simply, none of the other arguments re-

quired FERC to explain why its orders did not ‘‘affect’’ the

authority that Congress conferred in the 1916 permit. Thus,

FERC never had a chance to address the section 23(a) issue,

either during its own proceedings or in its brief to this court.

We will therefore not consider the argument now.

Next, Domtar claims that Rulings 1 and 2 constitute a

departure from Union Water Power Co., 68 F.E.R.C. ¶ 61,180

(1994), reh’g denied, 73 F.E.R.C. ¶ 61,296 (1995). According

to Domtar, that case established a test for determining

whether a facility falls within FERC’s jurisdiction and there-

fore requires a license: is the facility’s link to ‘‘a licensed

project’’ strong enough to invoke FERC’s jurisdiction? Id. at

61,888. In other words, Domtar says that Union Water held

that the Commission would examine the ‘‘relationship be-

tween the facilities in question and the already-identified

jurisdictional components of the hydropower project.’’ Id. at

61,889 (emphasis added). Noting that its upstream facilities

10

are linked only to two downstream projects that FERC

concedes require no licenses, Domtar argues that under

Union Water, the upstream facilities also require no licenses

because they are not linked to any ‘‘licensed project.’’

FERC responds that in Lake Ontario Land Development

and Beach Protection Ass’n v. Federal Power Commission,

212 F.2d 227 (D.C. Cir. 1954), we affirmed the Commission’s

authority to license only some parts of a project. In that

case, we held that FERC’s predecessor, the Federal Power

Commission, could require licenses for those parts of a pro-

ject that were in the United States even though it clearly

could not require other parts to be licensed because they

were in Canada. Lake Ontario, Domtar replies, was different

because there the parts that were in the United States (and

hence within the agency’s jurisdiction) generated power.

Here, by contrast, the only facilities that might fall within

FERC’s jurisdiction—the upstream ones—generate no pow-

er. Although FERC insists that Lake Ontario ‘‘did not turn

on what part of a project was jurisdictional,’’ Respondent’s

Br. at 20, it points to nothing either in the opinion or in later

cases to support that assertion. FERC also points out that

Lake Ontario ‘‘required that any jurisdictional facilities be

licensedTTTT’’ Id. That is true, but unhelpful because Dom-

tar argues that its upstream facilities are simply not within

FERC’s jurisdiction. Moreover, Lake Ontario’s affirmation

of FERC’s licensing authority does not foreclose the possibili-

ty that FERC later, i.e., in Union Water, interpreted the

FPA to mean that a non-generating facility needs no license if

it is linked only to generating facilities that are themselves

exempt from the licensing requirement.

As to Union Water, FERC asserted in Ruling 2 that the

‘‘licensed project’’ and ‘‘already-identified jurisdictional com-

ponents’’ language from Union Water was ‘‘simply des-

cri[bing]’’ the actual projects in that case. Ga.-Pac. Corp., 78

F.E.R.C. at 61,955. That assertion, however, seems inconsis-

tent with the actual structure of the ruling: The quoted

language appears in the first two paragraphs of the ruling’s

discussion section; the third paragraph then begins with,

‘‘[t]urning to the facilities at handTTTT’’ Union Water, 68

11

F.E.R.C. at 61,889. In other words, in the first two para-

graphs FERC seems to have been speaking in general terms

and laying out guiding principles of law before turning in the

third paragraph to the facts of the case before it. The

Commission’s use of the indefinite phrase ‘‘a licensed project’’

instead of the more definite phrase ‘‘the licensed project’’

further undermines FERC’s claim that it was talking about

the specific facilities in the case rather than in general terms.

Nevertheless, Domtar cites no case in which FERC held, as

Domtar wants us to hold here, that the Commission lacked

jurisdiction over a non-generating installation because the

generating facilities to which the installation was connected

were themselves exempt from the licensing requirement.

Absent any such inconsistency between previous Commission

rulings and FERC’s orders in this case, we will not overturn

FERC’s interpretation of its own ruling. See United Mun.

Distribs. Group v. FERC, 732 F.2d 202, 211–12 (D.C. Cir.

1984) (‘‘[T]he Commission’s decision TTT is not inconsistent

with prior Commission precedent. We therefore reject [the]

invitation to overturn the Commission’s orders on that

ground.’’).

Domtar next argues that FERC’s orders are arbitrary and

capricious because the Commission lacks a coherent test for

deciding whether a facility requires a license. The company

points out that FERC exercised jurisdiction over the two

developments that comprise its West Branch facility even

though those developments, when viewed in isolation, enhance

downstream power generation by an average of only 0.5 and

1.8 percent, respectively. Domtar then cites two cases in

which FERC declined to exercise jurisdiction over facilities

that enhanced downstream generation by similar percentages.

See Me. Dep’t of Conservation, 95 F.E.R.C. ¶ 62,015 (2001)

(0.6 to 0.9 percent); Matagamon Lake Ass’n, 94 F.E.R.C.

¶ 62,195 (2001) (1.3 to 2.1 percent). Domtar’s comparison

misses the mark, however, because in each of the other two

cases—as here—there were several upstream facilities, and

the figures that Domtar cites from those cases were aggre-

gate enhancement levels. Domtar, in other words, seeks to

compare the separate enhancement levels of its facilities to

the combined enhancement levels of the facilities in the two

12

cited cases. The proper comparison is with the combined

enhancement level in this case, and because that level (for

West Branch and Forest City combined) ranges from 2.4 to

4.9 percent, well above the levels in the other cases, those

cases provide no support for Domtar’s charge of arbitrari-

ness.

Domtar also relies on Chippewa and Flambeau Improve-

ment Co., 95 F.E.R.C. ¶ 61,017 (1998), reh’g denied, 95

F.E.R.C. ¶ 61,327 (1998), aff’d, 325 F.3d 353 (D.C. Cir. 2003).

In that case, unlike here, FERC considered the impact of two

upstream facilities separately even though the same entity

owned both. The Commission replies that it did so because

one of the two facilities enhanced downstream power genera-

tion by less than one tenth of one percent. In other words,

the Commission employs two separate thresholds when deter-

mining jurisdiction: one for the collective impact of all up-

stream facilities owned by the same entity and a second for

the impact of individual facilities. With the former, FERC

declines jurisdiction over all of the facilities when their aggre-

gate average impact falls below a threshold that appears from

FERC’s cases to lie somewhere between 2 and 2.5 percent.

With the latter, FERC declines jurisdiction over an individual

facility and excludes its effect on downstream generation

from any aggregate calculations if its impact falls below some

lower threshold, i.e., 0.1 percent. This latter threshold ex-

plains Chippewa. Applying this two-threshold framework

here, FERC considered Domtar’s upstream facilities together

because they were owned by the same entity and neither fell

below the 0.1 percent threshold. The Commission then exer-

cised jurisdiction because the average aggregate impact of

the two facilities is 3.4 percent, far above the 2-to-2.5 percent

threshold. To be sure, FERC does not explicitly advance this

framework—a framework that we believe is sufficiently rea-

sonable and predictable that we may sustain it—but we think

that it ‘‘may reasonably be discerned’’ both from the Commis-

sion’s explanation of Chippewa and from its decisions in other

cases. See Jost v. Surface Transp. Bd., 194 F.3d 79, 85 (D.C.

Cir. 1999) (‘‘We may not supply a reasoned basis for the

agency’s decision that the agency itself has not given. We

13

will, however, uphold a decision of less than ideal clarity if the

agency’s path may reasonably be discerned.’’) (quoting Motor

Vehicle Manufacturers Ass’n of the United States, Inc. v.

State Farm Mutual Automobile Insurance Co., 463 U.S. 29,

43 (1983)) (internal quotation marks omitted).

Attempting to bolster its arbitrary-and-capricious argu-

ment, Domtar notes that in Union Water, FERC declined

jurisdiction over a facility that impounded 4.78 percent of the

usable storage in a river’s storage system. According to the

company, this reveals FERC’s arbitrariness here because its

facilities—over which FERC did exercise jurisdiction—en-

hanced downstream generation by an average of 3.4 percent,

and 4.78 is higher than 3.4. Domtar is comparing apples and

oranges: 4.78 was not the percentage by which the facility in

Union Water enhanced downstream power generation, but

rather the percentage of the river’s usable storage that the

dam impounded. If Domtar wants to make a useful compari-

son, it can compare 4.78 to the usable-storage figure for its

two upstream facilities, which FERC says is 72.26 percent.

(FERC did not determine the generation-enhancing percent-

ages in Union Water, so generation-enhancement figures for

the two cases cannot be compared.)

Domtar also points to the Commission’s decision in Union

Water to assess the impact of several facilities individually, as

in Chippewa, instead of aggregating their effects, as it did

here. But the company failed to make this argument to

FERC, and our review is limited by statute to those objec-

tions that FERC has had an opportunity to consider. See 16

U.S.C. § 825l(b). To be sure, the company did argue to

FERC that its rulings are inconsistent because the Commis-

sion sometimes considers facilities in isolation and other times

aggregates their effects. Yet it did not point to Union Water

in making this argument, thus depriving the Commission of

an opportunity to explain its own ruling. Having failed to

mention Union Water before the Commission, Domtar may

not use that case to support its argument now.

14

For its last argument, Domtar contends that Rulings 4 and

5 conflict with FPA section 23(b)(1), which makes it unlawful

to operate a facility without a license ‘‘for the purpose of

generating electric power.’’ 16 U.S.C. § 817(1). Domtar

asserts that the purpose of its upstream facilities is not power

generation, but the advancement of flood control, recreation-

al, and environmental objectives. According to Domtar,

FERC refused to consider the purpose of its facilities when

determining whether they had to be licensed, thereby effec-

tively reading the ‘‘purpose’’ language out of the statute.

This argument is also waived. Domtar did not make its

purpose argument in its first petition to FERC, nor did it

contest either the statement in Ruling 1 that the purpose of

the upstream facilities was held in 1980 to be power genera-

tion, see 77 F.E.R.C. at 64,351, or the statement in Ruling 2

that the upstream facilities were still being operated for that

purpose, see 78 F.E.R.C. at 61,954. True, in response to the

would-be intervenors’ request for rehearing of Ruling 3, the

company argued that ‘‘[s]ection 23(b)(1) provides for manda-

tory jurisdiction only if the reservoir is operated for the

purpose of developing electric power—and the headwater

benefits analyses demonstrate that the Reservoirs in this case

are not operated for that purposeTTTT’’ But Domtar never

expanded on that assertion. In particular, it failed to men-

tion FERC’s earlier statements that the purpose of the

upstream facilities was power generation—which, again, it did

not object to at the time. Because a party has ‘‘at least a

modicum of responsibility for flagging the relevant issues

which its documentary submissions present[ ],’’ AT&T Corp.

v. FCC, 317 F.3d 227, 235 (D.C. Cir. 2003), Domtar had an

obligation, especially in light of its earlier silence, to state

clearly that it was either disavowing any prior concessions it

might have made about the facilities’ purpose or contending

that new evidence showed that the purpose had changed. Its

failure to do so left FERC with no reason to think that

Domtar was advancing an argument about section 23(b)(1).

15

Domtar did make a detailed purpose argument during

FERC’s consideration of the company’s second petition, an

argument that FERC responded to in Ruling 5. See 98

F.E.R.C. at 62,335–36. But that argument addressed how

the purpose of the upstream facilities informed the question

of whether they were ‘‘necessary or appropriate’’ to the

operation of the downstream projects, and hence a part of

those projects under FPA section 3(11). At oral argument,

agency counsel contended that making a section 3(11) purpose

argument is insufficient to raise a section 23(b)(1) purpose

argument. In Ruling 4, however, FERC itself stated that the

two arguments are closely related. Responding to an asser-

tion by one of the intervenors, the Commission wrote that

‘‘[w]ere we to find that the [upstream facilities] are not

necessary or appropriate with regard to the downstream

projects, this would equate to a finding that the reservoirs are

not being maintained for the purpose of generating electrici-

ty, so that Section 23(b) would not apply.’’ Ga.-Pac. Corp., 91

F.E.R.C. at 61,172 n.25. We are thus somewhat skeptical of

the Commission’s claim that because Domtar only raised a

section 3(11) purpose argument, FERC had no notice of the

section 23(b)(1) purpose argument. That said, we do not

think that a concession by FERC that two arguments are

closely related (if not equivalent) allows a litigant to make one

argument to the Commission and then the other on appeal.

If Domtar wished to argue that FERC was ignoring the

language of section 23(b)(1), it had an obligation to make that

argument to the Commission. Having failed to do so, it may

not ask us to entertain the argument now. See 16 U.S.C.

§ 825l(b).

III.

This brings us finally to the Passamaquoddy Tribe’s con-

tention that we should remand the case so that FERC can

decide whether Domtar’s upstream facilities occupy ‘‘reserva-

tions of the United States.’’ 16 U.S.C. §§ 797(e), 817(1). If

they do, then FERC would have an additional basis for

requiring that the facilities have licenses, see id. § 817(1), as

well as several more requirements to satisfy before it could

16

issue a license, see id. §§ 797(e), 803(e). But because FERC

has already determined that it has jurisdiction over the

facilities, nothing would be gained by finding another basis

for jurisdiction. As to the additional requirements, the Com-

mission tells us (and Domtar agrees) that it can address them

during re-licensing proceedings. Since Congress has not

spoken directly to this issue, and since the Commission’s

position represents a reasonable interpretation of the Federal

Power Act, we must defer to it. See Chevron, 467 U.S. at

842–43. Moreover, we have long given agencies broad discre-

tion as to the manner in which they carry out their duties,

including the timing of their own proceedings. See Natural

Res. Def. Council, Inc. v. SEC, 606 F.2d 1031, 1056 (D.C. Cir.

1979) (‘‘[T]he agency TTT alone is cognizant of the many

demands on it, its limited resources, and the most effective

structuring and timing of proceedings to resolve those com-

peting demands. An agency is allowed to be master of its

own house, lest effective agency decisionmaking not occur in

any proceedingTTTT’’). Indeed, at oral argument, counsel for

the Tribe agreed that FERC’s approach would make no

substantive difference, saying that while there may be effi-

ciency considerations, ultimately this is simply ‘‘a question of

now or later.’’ Under these circumstances, we decline the

Tribe’s invitation to remand the case for further proceedings.

IV.

The petitions for review are denied.

So ordered.