Sierra Pacific Resources v. El Paso Corp.

MEMORANDUM *

1. Filed Rate Doctrine

The district court granted the defendants-appellees’ (“the Gas Companies”) motion to dismiss on the ground that the filed rate doctrine barred all of plaintiff Nevada Power’s claims. 1 As we explained in E. & J. Gallo Winery v. Encana Corp., 503 F.3d 1027 (9th Cir.2007), the Filed Rate Doctrine, as defined in that case, bars claims based on FERC-approved rates. FÉRC’s jurisdiction to approve rates does not include retail sales of natural gas. 15 U.S.C. § 717 (b). Nonetheless, the Filed Rate Doctrine bars claims based on retail transactions to the extent that those transactions are based on FERCapproved rates in upstream transactions. In addition, FERC lacks jurisdiction over first sales transactions, 15 U.S.C. § 3431 (a)(1)(A), and the Filed Rate Doctrine does not bar claims based on such transactions. Gallo, 503 F.3d at-. On a motion to dismiss, “[a]U allegations and reasonable inferences are taken as true, and the allegations are construed in the light most favorable to the non-moving party.” Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir.2004). Based on the record, it is reasonable to infer that at least some of the retail transactions…