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ENERGY RESERVES GROUP, INC. v. DEPARTMENT OF ENERGY

Nos. 10-15 to 10-17.

589 F.2d 1082 (1978)

ENERGY RESERVES GROUP, INC., and Suburban Propane Gas Corporation, Appellees, Marathon Oil Company and Sklar & Phillips Oil Company, Intervenors-Appellees, v. DEPARTMENT OF ENERGY and James R. Schlesinger, Secretary, Department of Energy, Appellants. SIERRA PETROLEUM CO., INC., Appellee, Maurice L. Brown Company, Intervenor-Appellee, v. DEPARTMENT OF ENERGY and James R. Schlesinger, Secretary, Department of Energy, Appellants. BRADEN-ZENITH, INC., Appellee, v. DEPARTMENT OF ENERGY and James R. Schlesinger, Secretary, Department of Energy, Appellants.

Temporary Emergency Court of Appeals.

Decided October 31, 1978.

Attorney(s) appearing for the Case

Robert G. Heiss, Nancy C. Crisman, Haywood Torrence, Jr., and Mark J. Kreitman, Dept. of Energy, Washington, D. C., with whom Barbara Allen Babcock, Asst. Atty. Gen., and Dennis G. Linder, David Epstein, and Bruce G. Forrest, Dept. of Justice, Washington, D. C., were on brief, for appellants.

Joseph W. Kennedy, Morris, Laing, Evans, Brock & Kennedy, Wichita, Kan., with whom Robert I. Guenthner, Wichita, Kan., was on brief, for appellees.

Daniel Joseph, Akin, Gump, Hauer & Feld, Washington, D. C., with whom Warren E. Connelly, Washington, D. C., and Thomas Brown, Brown & Fox, Kansas City, Mo., and John R. Cope and Arthur M. Meyer, Jr., Bracewell & Patterson, Washington, D. C., were on brief, for appellees.

Warren Belmar, Keith A. Jones and Amanda Birrell, Fulbright & Jaworski, Washington, D. C., were on brief, for amici curiae, Kansas Independent Oil & Gas Association and National Stripper Well Association.

Before CHRISTENSEN, BECKER and ZIRPOLI, Judges.

BECKER, Judge:

Introduction

In these cases the appellees question the validity of Ruling 1974-29 of the Federal Energy Administration (FEA), designated as an "interpretative" rule by FEA. If Ruling 1974-29 was interpretative, the ruling was exempt from the rule making requirements of § 553(b) and (c) Title 5 U.S.C., a part of the Administrative Procedure Act (APA). Section 553(b) of the APA permits all administrative agencies to issue interpretative...

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