                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                      ___________

                                No. 98-4079/99-3554
                                   ___________

Williston Basin Interstate Pipeline    *
Company,                               *
                                       *
            Petitioner,                *
                                       *
      v.                               *
                                       * On Petition for Review of
Federal Energy Regulatory              * Orders of the Federal
Commission,                            * Energy Regulatory Commission.
                                       *
            Respondent;                *
                                       *
Northern States Power Company,         *
                                       *
            Intervenor on Appeal.      *
                                  ___________

                              Submitted: March 15, 2000
                                  Filed: June 27, 2000
                                   ___________

Before RICHARD S. ARNOLD, LAY, and BEAM, Circuit Judges.
                           ___________

RICHARD S. ARNOLD, Circuit Judge.

      Williston Basin Interstate Pipeline Company petitions for review of six
administrative orders issued by the Federal Energy Regulatory Commission. All six
orders interpret a contract between Williston Basin and the Northern States Power
Company. We hold that the Federal Energy Regulatory Commission correctly
interpreted the contract, and therefore affirm the first four orders. We hold that we do
not have jurisdiction to review the final two orders, but this holding has no practical
significance, since we are deciding the underlying substantive question, the meaning
of the contract.

                                            I.

      Williston Basin Interstate Pipeline Company is an interstate natural gas pipeline
company that operates in Montana, North Dakota, South Dakota, and Wyoming.
Northern States Power Company supplies residential and commercial customers in
North Dakota and Minnesota with natural gas. In 1991, Northern States and Williston
entered into negotiations for Williston to build a 50-mile addition to Williston's pipeline
system that would allow it to transport natural gas for Northern States.

        Pursuant to Section 7(c) of the Natural Gas Act, 15 U.S.C. §717f(c), Williston
filed an application with the Federal Energy Regulatory Commission, requesting a
certificate of public convenience and necessity to construct the pipeline and transport
the natural gas. As part of the application, Williston included a proposed new tariff to
cover this service. Williston generally uses what is referred to as the "FT-1" rate
schedule. The proposed tariff for the Williston-Northern States deal was called Rate
Schedule X-13. The Commission issued a certificate authorizing Williston to construct
and operate the pipeline and related facilities to transport gas for Northern States.
However, the Commission directed that some changes be made to Rate Schedule X-13.
The Commission required Williston to recover the costs of the new service through an
"incremental rate."1




      1
        Additionally, the Commission set the initial rate, contained in Rate Schedule X-
13, at $19.5778 per 1,000 cubic feet of gas.

                                           -2-
       In response to the Commission's directive to use an incremental rate, Williston
and Northern States submitted a Service Agreement. Article V of this Service
Agreement requires Williston to recalculate ("restate") the X-13 rate on March 1, 1995,
and to continue its recalculations every two years until the X-13 rate equals or falls
below Williston's generally available FT-1 rate. The agreement states that these rate
restatements are "pursuant to Section 4 of the Natural Gas Act." When the X-13 rate
equals or falls below the FT-1 rate, Northern States will pay a rate equal to the FT-1
rate, and the X-13 rate will no longer be restated. Exhibit A and Schedule A of the
Service Agreement also provide that in calculating and restating the X-13 rate,
Williston will use two cost components – the return-on-equity and depreciation rates
– that it uses in calculating its FT-1 Rate Schedule. The contract states that in using
these FT-1 cost components, Williston will use Rate Schedule FT-1 "as such may be
in effect from time to time."

        A brief discussion of the Commission's role under the Natural Gas Act will be
useful in explaining Williston's and Northern States' problems under this contract.
Under Section 4 of the Natural Gas Act, 15 U.S.C. §717c, if a pipeline such as
Williston proposes to change its existing rates, the pipeline has the burden of
demonstrating to the Commission that its proposed change is just and reasonable. If
the pipeline proposes a rate increase, the Commission can allow the pipeline to put its
new rate into effect (making it the "effective" rate), but subject to investigation and
refund. This means that if the Commission ultimately determines that the proposed rate
was not just and reasonable, the Commission can order the pipeline to refund the
difference between the "effective" rate and the rate the Commission ultimately decides
is just and reasonable. In contrast, under Section 5 of the Natural Gas Act, 15 US.C.
§717d, if the Commission decides to review a pipeline's rates that are already
unconditionally in place, it has power to grant only prospective relief.

       On March 1, 1995, pursuant to the contract, Williston restated its X-13 rate for
the first time. The FT-1 rate used to calculate this restatement (Docket No. 92-163)

                                          -3-
was one that had been effective, subject to investigation and refund, since November 1,
1992. The Commission took note of the fact that the return-on-equity and depreciation
rates underlying the restated X-13 rate were tied to those underlying the FT-1 rate,
which was itself subject to refund. Therefore, the Commission made the X-13 rate also
subject to refund pending the outcome of the ongoing rate case in the FT-1 docket.
This is the first order that Northern States is challenging here. Williston sought
rehearing of this order, arguing that because the restated X-13 rate was lower than the
initial X-13 rate, the Commission lacked authority to make the restated rate subject to
refund. The Commission denied the request for rehearing, reasoning that because the
X-13 rate was not yet final, it was not yet certain that the restated X-13 rate would
actually be a decrease. The Commission's denial of rehearing is the second order that
Williston is challenging here.

        Shortly thereafter, the Commission finished its investigation of the FT-1 rate
(Docket No. 92-163) that had been used in calculating Williston's first restatement.
The Commission issued orders that, inter alia, lowered the return-on-equity and
depreciation rates for this FT-1 rate. These orders required Williston to lower this FT-1
rate retroactively for its effective period, which was November 1, 1992 through August
1, 1995.2 The Commission then directed Williston to recalculate its first restatement
of the X-13 rate to reflect the lower return-on-equity and depreciation rates of the
underlying FT-1, and to refund the overcharges. The Commission also ordered


      2
       This action did not yet finalize the FT-1 rate in Docket No. 92-163. Williston
challenged this decision in the D.C. Circuit. That Court remanded the order back to
the Commission for further consideration of the return-on-equity rate imposed on
Williston. Williston Basin Interstate Pipeline v. FERC, 165 F.3d 54, 62-63 (D.C. Cir.
1999). Recently Williston Basin entered into a settlement agreement involving the
return-on-equity rate, and this settlement agreement was approved by the Commission.
As such, the cost components of the FT-1 rate involved in calculating Williston's 1995
X-13 restatement are now final. The motion of Northern States to file a supplemental
appendix containing the settlement agreement is granted.

                                          -4-
Williston to follow a similar procedure in its subsequent biennial filings. This is the
third order Williston challenges here. Williston sought rehearing of this order, and the
Commission's denial of rehearing is the fourth order that Williston now challenges.

       This process repeated itself in 1997, when Williston made its second biennial
restatement of the X-13 rate. Williston used the FT-1 rate that had become effective
on August 1, 1995 (Docket No. 95-364) to calculate this second X-13 restatement rate.
The result of Williston's second X-13 restated rate was an overall rate reduction.
However, the FT-1 rate that Williston used was itself subject to refund and
investigation. Accordingly, the Commission accepted the proposed X-13 rate subject
to refund, pending its final determination regarding the FT-1 rate in Docket No. 95-364.
This is the fifth order that Williston is challenging before our Court. Williston sought
rehearing, again arguing that the Commission lacked authority to make a rate decrease
subject to a refund. The Commission's denial of this request for rehearing is the sixth
order that Williston now challenges.

                                           II.

       Before we reach the merits, we must address some jurisdictional issues. Initially,
the Commission argued that this Court did not have jurisdiction to review any of the six
orders, because they were not yet final. The Commission's investigations of both
underlying FT-1 rates were still pending. It was not yet certain that Williston would
actually be forced to pay any refund. In light of the settlement agreement with respect
to the FT-1 rate in Docket No. 92-163,3 all parties now agree that we have jurisdiction




      3
        This settlement agreement lowers the return-on-equity rate for the FT-1 rate in
Docket No. 92-163. Accordingly, the final X-13 rate for Williston's first restatement
will be lower than the initial effective rate, and Williston will have to pay a refund to
Northern States.

                                          -5-
to review the first four challenged orders. These orders are final agency action, and are
ripe for review before our Court.

       However, the underlying FT-1 rate for Williston's second restatement of the X-
13 rate is still undetermined pending the result of the Commission's investigation. We
agree with the Commission that we do not have jurisdiction to review the orders that
concern the second restated rate. It is not clear what, if any, refund Williston will be
required to pay with regard to the second restatement of the X-13 rate. These orders
are not yet the "final administrative action." See United States v. Gary, 963 F.2d
180,185 (8th Cir. 1992).4

                                          III.

       We now turn to the four orders over which we have jurisdiction. Although the
facts of this case seem complicated, the legal issue is a straightforward contract
question. Did the Commission correctly interpret the contract between Williston and
Northern States to require that Williston use the "final" FT-1 cost components in its
biennial restatement, as opposed to the "effective" rate at the time of a restatement?

       As an initial matter, the parties disagree over what standard of review should
apply. Williston argues that the Commission's decision is not based on an
interpretation of a statute, or of regulations or guidelines promulgated by the agency,
but only on its reading of a contract. Therefore, it says the Chevron doctrine, see
Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842-44
(1984), does not apply, and we should not defer to the Commission's decision. See


      4
       In holding that we do not have jurisdiction, we agree with the reasoning of the
D.C. Circuit, which also dismissed Williston's petition for review of these two orders.
See Williston Basin Interstate Pipeline Co. v. FERC, 1997 WL 811724, No. 97-1504
(D.C. Cir. Dec. 12, 1997).

                                          -6-
AMISUB v. Shalala, 12 F.3d 840, 843-4 (8th Cir. 1994). In response, the Commission
argues that we should review its decisions under the "arbitrary and capricious"
standard, and defer to the Commission's interpretation as long as it is rational. See
Minnesota Power & Light Co. v. FERC, 852 F.2d 1070, 1072 (8th Cir. 1988). We do
not have to resolve this dispute, because even under the more stringent standard
proposed by Williston, we hold that the Commission correctly interpreted the contract.

       Schedule A of the agreement expressly sets forth a formula for calculating the
rate to be included in each biennial rate restatement. The agreement provides that
Williston will calculate the X-13 rate using the depreciation and return-on-equity rates
underlying its FT-1 rate "as such may be in effect from time to time." This language
is ambiguous, because two different FT-1 rates could be "in effect" for any given period
of time. There could be one FT-1 rate which is in effect, subject to refund, on the
computation date. Yet when the Commission concludes its investigation, it could set
a different FT-1 rate, which is retroactive so as to be effective back to the computation
date. That is exactly what happened in this instance. The phrase "as such may be in
effect from time to time" does not direct which of those two rates should be used.

       The initial "incremental" rate set forth in the contract was expressed in an actual
dollar amount. In contrast, the future rate restatements are expressed in a formula that
requires change in the future in accordance with changes to certain component elements
of the FT-1 rate. However, the FT-1 rate itself can be, and in fact was, subject to
refund. If the X-13 rate incorporates by reference the FT-1 rate, logically it also
incorporates the refund process to which the FT-1 rate is subject. If future FT-1 rates
are subject to refund, than so are the X-13 rates that are based on those FT-1 rates.
The final rate, after the refund determination is made, is the "just and reasonable" rate.
To interpret the contract otherwise would be to allow Williston to charge Northern
States whatever rate had been proposed, regardless of its justness or reasonableness.




                                           -7-
       The rest of the contract is consistent with this interpretation. In addressing the
situation when the X-13 rate no longer exceeds the FT-1 rate, the contract states that
the X-13 rate is to be equal to the FT-1 rate "as such may be in effect from time to
time." The Commission interpreted this phrase to mean that when the X-13 and FT-1
rates are equal, that any retroactive changes to the FT-1 rate would also affect the X-13
rate, because at that point the X-13 rate has essentially become the FT-1 rate. If this
is so, and we agree that it is, it is consistent to interpret the same phrase to have a
similar meaning in the disputed portion of the contract. We also believe this
interpretation is more consistent with the parties' intentions. In another part of the
contract, the parties made the initial X-13 rate subject to the final FT-1 rate. It is
reasonable to infer that Williston and Northern States intended a similar outcome for
subsequent restatements. Moreover, Exhibit A to Rate Schedule X-13 expressly
provides for retroactive increases in the restated X-13 rate. It is unlikely that the
parties could have intended anything as one-sided as to provide for retroactive
increases in the X-13 rate without providing for a corresponding measure for
retroactive rate decreases.

       Williston argues that this interpretation of the contract allows the Commission
to order a refund for a rate decrease, which would exceed its powers under Section 4
of the Natural Gas Act. We do not believe that this is the case. Under Section 16 of
the Natural Gas Act, 15 U.S.C. §717o, the Commission has the authority to enforce the
terms of a pipeline's rate schedule. This includes the power to order refunds to enforce
the terms of Commission-approved tariffs and contracts. See Consolidated Gas
Transmission Corp. v. FERC, 771 F.2d 1536, 1550-51 (D.C. Cir. 1985). That is
exactly what the Commission did here.

                                           IV.

       Therefore, for the reasons stated above, as to the first four orders that Williston
is appealing, we hold that the Commission properly interpreted the contract between

                                           -8-
Williston and Northern States. The FT-1 rate that should be used when calculating the
1995 X-13 restatement should be the final FT-1 rate, not the FT-1 rate that was in
effect subject to investigation and refund when Williston made its restatement. We
dismiss that portion of the appeal dealing with the last two orders, relating to the 1997
X-13 restatement, as we do not have jurisdiction over those orders.

BEAM, Circuit Judge, dissenting.

       I agree with the court's opinion except its analysis of the applicable depreciation
and rate of return calculations to be applied. In my view, the rates "in effect from time
to time," are those being used at the time the biennial rate restatement is initially
calculated. Accordingly, I would reverse the Commission in the four orders over which
the court has jurisdiction.

      A true copy.

             Attest:

                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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