California Department of Water Resources v. Federal Energy Regulatory Commission

ORDER

The only issue raised in the Federal Energy Regulatory Commission’s (“FERC”) petition for rehearing is whether this court lacked jurisdiction to review a FERC decision because it was not sufficiently final. Our opinion is reported at 341 F.3d 906 (9th Cir.2003).

FERC argues that we do not have jurisdiction because the California Department of Water Resources (“DWR”) sought judicial review of one issue in a FERC order, while simultaneously seeking agency reconsideration of separate, unrelated issues in the same order. FERC asks us to follow a D.C. Circuit case which held that “once a party petitions[an] agency for reconsideration of an order, or any part thereof, the entire order is rendered nonfi-nal as to that party.” BellSouth Corp. v. FCC, 17 F.3d 1487, 1489-90 (D.C.Cir.1994).

The Ninth Circuit takes another view of finality. In Steamboaters v. FERC, 759 F.2d 1382 , 1387-88 (9th Cir.1985), we held that we had jurisdiction to review a FERC order. In that case, FERC had definitively resolved one issue, but a different issue was still pending before FERC because FERC had, in the same order, deferred decision on that issue. Under the rule in Steamboaters, the fact that one…