and
On petition for writs of certiorari to the United States Court
of Appeals for the Fifth Circuit.
On October 20, 1977, this Court stayed the order of the
Interstate Commerce Commission served June 28,
Page 434 U.S.
949 , 950
1977, in its Investigation and Suspension Docket No. 9164, Trans
Alaska Pipeline System (Rate Filings), pending final disposition of
the petitions for writ of certiorari by this Court. To further
effectuate that order, it is hereby ordered:
1. During the period the stay is in effect, commencing at
3 p. m., e. d.t., October 20, 1977, the following pipeline
companies may collect their respective rates set forth in the
tariffs that were suspended by the Interstate Commerce Commission
in its order of June 28, 1977:
Amerada Hess Pipeline Corporation
Arco Pipe Line Company
BP Pipelines, Inc.
Mobil Alaska Pipeline Company
Sohio Pipe Line Company
Exxon Pipeline Company
Union Alaska Pipeline Company
2. The Federal Energy Regulatory Commission may proceed
with its investigation of the rates set forth in said tariffs (FERC
Docket No. OR78- 1) and in connection with that investigation may
enter any appropriate orders not inconsistent with either this
order or this Court's order of October 20, 1977.
3. During the period the stay is in effect, the pipeline
companies shall keep account of all sums collected under the terms
of said tariffs by virtue of the stay entered by this Court.
4. In the event certiorari is denied or it is otherwise
ultimately determined that said pipeline companies were not
lawfully entitled to collect a portion of the rates so collected,
the pipeline companies shall refund such portion of said rates,
with interest computed in accordance with Section 15(8)(e) of the
Interstate Commerce Act, as amended, 90 Stat. 38, 49 U.S.C.A
15(8)(e) (Supp. 1977), to the persons entitled thereto without
further order of this Court.
Mr. Justice STEWART and Mr. Justice POWELL took no part in the
consideration or decision of this order.
Page 434 U.S.
949 , 951
Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL joins,
dissenting.
I initially joined in granting a stay in these cases. Upon
further consideration, however, I am convinced that our stay was
improvidently and precipitately issued and that it should now be
dissolved.
Applicants will be able to collect approximately $1.5 million
per day by virtue of our stay that would not be collected were the
suspension order of the Interstate Commerce Commission-which is the
subject of petitions for certiorari in this case 1-to remain in
effect. Because of the enormous sums of money that will be
collected under our stay, over $ 100 million by January 28, 1978,
when the suspension order of the ICC ends by its terms, the Court
should be very clear before continuing this stay that it is really
needed to protect applicants and, more importantly, that the
provisions of the stay adequately protect the interests of anyone
who may be affected by this litigation. On the pleadings so far
before us, I am not convinced that the Court is in a position to
act with any such conviction.
First, with respect to the need for the stay, it is important to
recognize that each applicant comes before this Court in a dual
capacity: Each is both a part owner of the Trans Alaska Pipeline
System and a shipper of oil over the pipeline. Therefore some
amounts which an applicant would be prevented from collecting under
the suspension order would immediately be recouped as extra profit
to that applicant in its capacity as a shipper. This is not to
suggest that the gains would offset the losses with any precision,
but only that the net losses may be sufficiently small that
extraordinary equitable relief would not be appropriate.
My greater concern, however, is that the form of our stay may
not adequately protect the ultimate consumers of oil
Page 434 U.S.
949 , 952
shipped over the pipeline or the interests of shippers or
holders of royalty interests in the oil at Prudhoe Bay. Although
the applicants aver that the "landed price" of oil in the United
States will not be affected by our stay and therefore that
consumers of Alaskan oil will not face higher prices because of our
order, I am not prepared to accept these unexplained statements on
the record presently before us. Nor do I think the interest which
applicants are today ordered to pay on any amounts ultimately
ordered refunded is sufficient to reimburse shippers and royalty
holders for the costs they may incur as a consequence of our stay.
The only information we have as to what those costs may be is the
statement of the Arctic Slope Regional Corp. [
Footnote 2] that it will have to borrow at an
estimated interest of 10% amounts equal to the royalties it would
have had but for our stay. Nonetheless, the Court today sets the
interest to be paid on amounts refunded at the rate prescribed by
49 U.S.C. 15(8)( e) (1976 ed.), which applies only to railroad
tariffs and is today somewhere below 7%.3 Indeed, in adopting this
rate, the Court today rejects what is to me the much more
reasonable suggestion of the Solicitor General that the interest be
set at 9%, which is the rate prescribed by the Federal Power
Commission for tariff refunds from natural gas pipelines.
4
For the reasons stated above, I would vacate the stay ordered by
this Court on October 20, 1977, and order proceedings on the
petitions for certiorari to be expedited. Barring
Page 434 U.S.
949 , 953
this, I would have entered the form of stay order suggested by
the Solicitor General.
Mr. Justice BLACKMUN, dissenting.
I, too, conclude that the Court's stay was improvident. I agree
with the conclusions reached by Mr. Justice BRENNAN and would
vacate the stay issued by this Court on October 20, would
accelerate consideration of the petitions for certiorari, and would
follow the suggestions of the Solicitor General as to the rate of
interest.
Footnotes
Footnote 1 For a discussion
of the background of this litigation, see Mobil Alaska Pipeline Co.
v. United States,
557 F.2d
775 (C.A.5 1977).
Footnote 2 Arctic Slope is
the representative of the Inupiat Eskimos who have a claim to be
paid 2% of the wellhead value of Alaskan crude oil up to a total of
$500 million as consideration for their surrender of aboriginal
land claims in the Prudhoe Bay area.
Footnote 3 Section 15(8)(e)
sets the rate of interest at "a rate which is equal to the average
yield . . . of marketable securities of the United States which
have a duration of 90 days."
Footnote 4 See 18 CFR
154.67(c)(2) (1977).
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