CITY OF WILLCOX v. F. P. C.

Nos. 74-2123, 75-1019, 75-1062, 75-1245, 75-1246-75-1248.

567 F.2d 394 (1977)

CITY OF WILLCOX and Arizona Electric Power Cooperative, Inc., Petitioners, v. FEDERAL POWER COMMISSION, Respondent, San Diego Gas & Electric Co., American Smelting and Refining Co., et al., Southern Union Gas Co., General Motors Corporation, El Paso Natural Gas Co., Navajo Tribal Utility Authority, Department of Water and Power, etc., The People of the State of California, etc., Tucson Gas & Electric Co., Pacific Gas & Electric Co., Nevada Power Company, Southwest Gas Corporation, Southwest Natural Gas Consumers, Arizona Fuel Users Association, Pioneer Natural Gas Co., Intervenors. ARIZONA PUBLIC SERVICE COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent, San Diego Gas & Electric Co., City of Willcox, Arizona and Arizona Electric Power Coop., Inc., American Smelting and Refining Co., et al., Southern Union Gas Co., Navajo Tribal Utility Authority, General Motors Corporation, Tucson Gas & Electric Co., Pacific Gas & Electric Co., Southern California Edison Co., El Paso Natural Gas Co., People of the State of California and the Public Utilities Commission of the State of California, Nevada Power Company, Southern California Gas Co., Southwest Natural Gas Consumers, Southwest Gas Corporation, Arizona Fuel Users Asso., Pioneer Natural Gas Co., Intervenors. NEVADA POWER COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent, American Smelting & Refining Co, et al., General Motors Corp., Tucson Gas & Electric Co., Southern California Gas Co., San Diego Gas & Electric Co., Pacific Gas & Electric Co., City of Willcox Arizona and Arizona Electric Power Coop., Inc., Navajo Tribal Utility Authority, People of the State of California and the Public Utilities Commission of the State of California, El Paso Natural Gas Co., Salt River Project Agricultural Improvement and Power District, Southwest Gas Corp., Southern Union Gas Co., Southern California Edison Co., Southwest Natural Gas Consumers, Arizona Fuel Users Asso., Pioneer Natural Gas Co., Intervenors. PACIFIC GAS AND ELECTRIC COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent, Southern Union Gas Co., City of Willcox Arizona, et al., Navajo Tribal Utility Authority, American Smelting and Refining Co., et al., Southwest Gas Corp., The People of the State of California, et al., El Paso Natural Gas Co., General Motors Corporation, Southern California Edison Company, Arizona Public Service Co., Nevada Power Co., Tucson Gas and Electric Co., Intervenors. SAN DIEGO GAS & ELECTRIC COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent, Southern Union Gas Co., City of Willcox, etc., People of the State of California, et al., General Motors Corporation, Pacific Gas & Electric Co., Navajo Tribal Utility Authority, El Paso Natural Gas Co., Southwest Gas Corp., Southern California Edison Co., Nevada Power Company, American Smelting and Refining Co., et al., Arizona Public Service Co., Tucson Gas & Electric Co., Southwest Natural Gas Consumers, Arizona Fuel Users Association, Pioneer Natural Gas Co., Intervenors. SOUTHERN CALIFORNIA GAS COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent, San Diego Gas, et al., Southern Union Gas Co., City of Willcox, etc., Department of Water and Power of the City of Los Angeles, The People of the State of California, et al., Pacific Gas and Electric Co., Navajo Tribal Utility Authority, El Paso Natural Gas Co., General Motors Corporation, Southern California Edison Co., American Smelting and Refining Co., Arizona Public Service Co., Southwest Gas Corp., Nevada Power Company, Tucson Gas & Electric Co., Southwest Natural Gas Consumers, Arizona Fuel Users Asso., Pioneer Natural Gas Co., Intervenors. SOUTHERN CALIFORNIA EDISON COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent, Nevada Power Co., El Paso Natural Gas Co., The People of the State of California, et al., San Diego Gas and Electric Co., American Smelting and Refining Co., et al., Navajo Tribal Utility Authority, Pacific Gas and Electric Co., Tucson Gas and Electric Co., Southwest Natural Gas Consumers, Arizona Fuel Users Association, Pioneer Natural Gas Co., Intervenors.

United States Court of Appeals, District of Columbia Circuit.

Decided June 30, 1977.

On Motions for Clarification and Denial of Rehearing August 18, 1977.

Certiorari Denied January 9, 1978.


Attorney(s) appearing for the Case

David R. Straus, Washington, D. C., was on the brief, for petitioner in No. 74-2123 and intervenors City of Willcox and Arizona Elec. Power Coop.

Arnold D. Berkeley, Washington, D.C., was on the motion of intervenors petitioners, City of Willcox and Arizona Power Cooperative. Inc., for stay of second interim curtailment plan, was on the reply of petitioners, City of Willcox and Arizona Electric Power Cooperative, Inc., to oppositions to the motion for stay of second interim curtailment plan, and was on the petition for rehearing of petitioners, City of Willcox and Arizona Electric Power Cooperative, Inc.

Peyton G. Bowman, III, Washington, D. C., with whom C. Floyd Mathews, Washington, D. C., was on the brief, for petitioner in No. 75-1019.

Arnold Fieldman, Washington, D. C., with whom Reuben Goldberg, Washington, D. C., was on the brief, for petitioner in No. 75-1062 and intervenor Nevada Power Co.

Howard V. Golub, New York City, with whom Malcolm H. Furbush, San Francisco, Cal., was on the brief, and on the petition for rehearing for petitioner in No. 75-1245 and intervenor Pacific Gas and Elec. Co. Daniel E. Gibson, Oakland, Cal., entered an appearance for intervenor PG&E Co.

Rollin E. Woodbury, Rosemead, Cal., with whom H. Robert Barnes, Alan M. Nedry, Rosemead, Cal., Edward C. Farrell and Arthur T. Devine, Los Angeles, Cal., were on the brief, for petitioner in No. 75-1248 and intervenors Southern California Edison Co. and Dept. of Water and Power of the City of Los Angeles. Frederick H. Ritts, Washington, D.C., entered an appearance for Dept. of Water and Power of the City of Los Angeles.

John H. Burnes, Jr., Atty., F. P. C., Washington, D. C., with whom Robert W. Perdue, Deputy Gen. Counsel, Washington, D. C., were on the brief, for respondent. George W. McHenry, Jr., Sol., F. P. C., Washington, D. C., at the time the record was filed, also entered an appearance for respondent. Richard C. Steffey and William J. Grealis, Attys., F. P. C., Washington, D. C., entered an appearance for respondent.

Drexel D. Journey, Gen. Counsel, and Allan Abbot Tuttle, Sol., F.P.C., Washington, D. C., were on the brief, and on the response of the respondent, Federal Power Commission, to motion for stay.

Harris S. Wood, El Paso, Tex., was on the brief, for intervenor El Paso Natural Gas Co.

Thomas M. Walsh, Washington, D. C., was on the response of respondent, Federal Power Commission, to motion for stay. C. Frank Reifsnyder, Washington, D. C., was on the brief and on the petition for rehearing of intervenor, El Paso Natural Gas Co.

George W. Wise, Washington, D. C., was on the petition for rehearing of intervenor, El Paso Natural Gas Co.

Edward J. Grenier, Jr., Washington, D. C., with whom Frazer F. Hilder, Detroit, Mich., was on the brief, for intervenor General Motors Corp. Richard J. Pierre, Jr. and Richard P. Noland, Washington, D. C., also entered an appearance for intervenor General Motors Corp.

Randolph W. Deutsch, San Francisco, Cal., with whom Richard D. Gravelle and J. Calvin Simpson, San Francisco, Cal., were on the brief, for intervenors People of the State of California and the Public Utilities Commission of the State of Cal. John S. Fick, San Francisco, Cal., also entered an appearance for intervenors People of the State of California and Public Utilities Commission of the State of Cal.

David R. Pigott, San Francisco, Cal., was on the brief for petitioner in No. 75-1246. Donald J. Richardson, Jr., San Francisco, Cal., also entered an appearance for petitioner in No. 75-1246 and intervenor San Diego Gas and Elec. Co.

Jeffrey A. Meith, Los Angeles, Cal., also entered an appearance for intervenor Southern California Gas Co.

Thomas D. Clarke, Los Angeles, Cal., was on the response of petitioners, on the brief for petitioner in No. 75-1247 and intervenor Southern California Gas Co., to motion for stay of second interim curtailment plan, was on the answer of petitioner, Southern California Gas Co., to reply to petitioners (City of Willcox and Arizona Power Cooperative, Inc.) for stay of second interim curtailment plan, and was on the petition for rehearing of petitioner, Southern California Gas Co.

Jerome Ackerman, Bingham B. Leverich and Nicholas W. Fels, Washington, D. C., were on the brief for intervenors American Smelting and Refining Co., et al. James R. McCotter, Washington, D. C., also entered an appearance for intervenors American Smelting and Refining Co., et al. Cameron R. Graham, Albuquerque, N. M., Robert J. Haggerty, Washington, D. C., A. S. Grenier, Dallas, Tex. and Phil W. Jordan, Washington, D. C., were on the brief for intervenors Pioneer Natural Gas Co., Southern Union Gas Co. and Southwest Natural Gas Consumers. Constance L. Howard and Charles H. McCrea, Las Vegas, Nev., entered an appearance for intervenor Southwest Gas Corp. John T. Ketcham, Washington, D. C., entered an appearance for intervenor Pioneer Natural Gas Co.

Lawrence V. Robertson, Jr., Las Vegas, Nev., Thomas F. Brosnan, Washington, D. C. and John F. Harrington, Washington, D. C., were on the brief for intervenor Tucson Gas and Elec. Co.

Cameron R. Graham, Albuquerque, N. M., was on the brief for intervenor Southwest Natural Gas Consumers.

Richard H. Silverman, Phoenix, Ariz., was on the brief and on the motion of intervenor Salt River Project, Agricultural Improvement and Power District in No. 75-1052. Joel L. Green, Washington, D.C., entered an appearance and was on the motion for intervenor Salt River Project, Agricultural Improvement and Power District in No. 75-1062.

David B. Graham, Washington, D.C., filed a brief on behalf of Natural Rural Electric Cooperative Ass'n, as amicus curiae urging affirmance.

Walter F. Wolf, Jr., Washington D.C., entered an appearance for intervenor Navajo Tribal Utility Authority.

James R. Bieke, Washington, D.C., entered an appearance for intervenor Arizona Fuel Users Ass'n.

Before BAZELON, Chief Judge, and TAMM and MacKINNON, Circuit Judges.


Certiorari Denied January 9, 1978. See 98 S.Ct. 724.

Opinion for the court filed by Circuit Judge MacKINNON.

Opinion filed by BAZELON, Chief Judge, concurring in part and dissenting in part.

MacKINNON, Circuit Judge:

The natural gas shortage necessitating curtailment of deliveries on the El Paso Natural Gas System is the subject of the present appeal. Recognizing that decreasing availability would soon cause severe hardship, the Federal Power...

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