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FERC v. KECK

April 16, 1993

FEDERAL ENERGY REGULATORY COMMISSION, Plaintiff,
v.
THEODORE A. KECK, III, HOLLY S. KECK, Defendants


William W. Caldwell, United States District Judge


The opinion of the court was delivered by: WILLIAM W. CALDWELL

Pending is Plaintiff's motion for preliminary and permanent injunctive relief. This matter arises under the Federal Power Act, 16 U.S.C. § 791a, et seq. ("FPA") and, so, we properly exercise jurisdiction according to 28 U.S.C. § 1331.

 I. Facts

 Plaintiff is the Federal Energy Regulatory Commission ("the Commission"), a federal agency charged, inter alia, with enforcing the FPA. Defendants are the owners of the Blackstone Mill ("Blackstone"), a small hydroelectric generating facility on the Mahantango Creek in Dauphin County, Pennsylvania. *fn1" Blackstone produces about 200,000 kilowatt-hours of electricity annually. In February, 1983, Defendants contracted with the Pennsylvania Power and Light Company ("PP&L") to sell Blackstone's output to the utility. Plaintiff offers evidence that Defendants were selling electricity to PP&L at least as late as December, 1992.

 On November 4, 1986, Defendants Theodore and Holly Keck filed an application for an exemption from federal licensing. *fn2" The Commission ultimately dismissed that application because it did not include required information. The Kecks appealed the application dismissal, but the appeal was dismissed as untimely. In February, 1989, the Pennsylvania Fish Commission notified the Federal Energy Regulatory Commission that Defendants were continuing to operate Blackstone without a federal license. The Commission investigated and, on March 14, 1989, determined that Blackstone was subject to the licensing provision and was not in compliance. The agency ordered Defendants to submit an application for either a license or an exemption within 12 months. Order Finding Hydroelectric Project Jurisdiction, 46 FERC P 63,425 (1989). Defendants failed to comply and, on October 18, 1990, the Commission issued a compliance order setting specific filing deadlines. Compliance Order, 53 FERC P 62,053 (1990).

 Three months later, Defendant Theodore Keck filed copies of letters from state and federal lawmakers with the Commission, apparently believing them to be a sufficient application for a license.

 
Since no studies are required, and sence [sic] there are no forms for application for your license, please consider this letter my request for your license. I beleve [sic] you have on file all the information you need for my license.

 Letter from Keck to the Commission of January, 1991. *fn3" A month later, the Commission notified Defendants that the application was deficient and forwarded instructions for making a proper application, including a sample application. Plaintiff indicates that it received no response.

 On October 15, 1991, the Commission again informed Defendant Theodore Keck that his application was inadequate. The Commission's letter specified the deficiencies of Defendant's 1991 submission and provided that:

 
your efforts to bring yourself into compliance with the Commission's order in Docket No. UL89-15-004 by filing an acceptable license application as soon as possible may be a factor in determining future Commission enforcement action. Within 15 days of the receipt of this letter, you must file a report explaining the reasons why you did not file an acceptable application and what steps you are taking to revise your application and bring yourself into compliance. This letter constitutes notice under Section 31(a) of the Act.

 Letter from the Commission to Keck of October 15, 1991 (emphasis added). The letter further informed Defendant that the Commission would seek a meeting with him to more fully explain the process. It concluded by noting that the application would be rejected if the necessary corrections were not made within 90 days. Again, Plaintiff indicates that there was no response from Defendants. Commission personnel met with Mr. Keck on December 4, 1991. During that meeting, Mr. Keck requested that the Commission waive all licensing requirements for Blackstone. The Commission representatives notified him that there is no statutory basis for such a waiver. Subsequently, on January 28, 1992, the Commission rejected Defendant's application. On March 31, 1992, the Commission issued a compliance order to Theodore Keck, requiring him to "immediately cease and desist all project-related operations until he has received a license from the Commission." Compliance Order, 58 FERC P 63,618 (1992). Mr. Keck filed a timely request for a rehearing before the Commission, but it was denied on July 23, 1992. See Order Denying Rehearing, 60 FERC P 61,226 (1992). The Commission's order again required the Kecks to cease operation of Blackstone until the Commission granted either a license or an exemption. Id. Plaintiff's brief does not indicate any further proceedings or communications involving Defendants. The Commission filed the current action on March 2, 1993, and the pending motion on the same date. *fn4"

 II. Law and Discussion

 A. Commission Jurisdiction

 As a threshold matter, we must determine if the Commission correctly concluded that Blackstone falls within the federal licensing requirement. We will not dwell on the issue of what deference to afford the agency conclusion, as we agree that it properly exercised its jurisdiction.

 
The FPA's licensing mandate is found in § 817.
 
It shall be unlawful for any person, State, or municipality, for the purpose of developing electric power, to construct, operate, or maintain any dam, water conduit, reservoir, power house, or other works incidental thereto across, along, or in any of the navigable waters of the united States, or upon any of the public lands or reservations of the United States (including the Territories) . . . except under and in accordance with the terms of a ...

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