270 F.3d 957 (D.C. Cir. 2001)
Murphy Exploration and Production Company, Appellantv.United States Department of the Interior and Gale A. Norton, Appellees
No. 00-5218
United States Court of Appeals  FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed November 9, 2001

Appeal from the United States District Court  for the District of Columbia (No. 99cv00570)
Before Ginsburg, Chief Judge, Sentelle and Rogers, Circuit Judges.
Opinion for the Court filed by Circuit Judge Sentelle.
Circuit Judge Rogers dissented.
On Appellees' Petition for Rehearing
Sentelle, Circuit Judge:


1
This matter is before us on  motion for rehearing of our decision in Murphy Exploration & Production Co. v. U.S. Department of Interior, 252 F.3d  473 (D.C. Cir. 2001). In that decision we considered the  appeal of a natural gas producer (Murphy) from a district  court judgment dismissing for lack of jurisdiction Murphy's  suit for reimbursement of mining royalty overpayments. The facts are set forth in the earlier opinion. The district court  had held (rightly) that the suit was governed by the Federal  Oil and Gas Royalty Simplification and Fairness Act, 30  U.S.C. § 1724(h)(l ) ("FOGRSFA"), which requires the Secretary to "issue a final decision in any administrative proceeding ... within 33 months from the date such proceeding was commenced or 33 months from [the effective date of the Act], whichever is later."  If the Secretary fails to do so within the  allotted time, she "shall be deemed to have issued a final decision in favor of the Secretary ... and the appellant shall  have a right to judicial review of such deemed final action...."  Id. at § 1724(h)(2)(B).


2
While the district court correctly identified the governing statute, we held that the court was incorrect in its application. That is, that court ruled that it had no jurisdiction because  Murphy's February 3, 1989 refund request did not constitute the commencement of an "administrative proceeding" within the meaning of FOGRSFA. In doing so, the district court  followed the Secretary's interpretation of section 1724(h)(2)(B) made in the rulemaking proceeding. For the reasons set forth in our original opinion, we disagreed with  the Secretary's interpretation. In our analysis, we concluded  that the deference afforded agency interpretation of the statutes under Chevron U.S.A. Inc. v. Natural Resources  Defense Council, Inc., 467 U.S. 837 (1984), was inapplicable  because the controverted provision of the statute conferred  jurisdiction on the federal courts so that "we must decide, as  an original matter, whether the district court had jurisdiction  to hear Murphy's lawsuit."  Murphy Exploration, 252 F.3d at  480. We concluded for reasons fully set out at 252 F.3d 48082 that it had such jurisdiction.


3
In the original proceedings before us, the Department of  the Interior ("DOI") had argued "that Murphy waived its challenge to the agency's interpretation of FOGRSFA because it did not advance that view during the rulemaking  process."  Id. at 478. While recognizing that in Ohio v. EPA,  997 F.2d 1520 (D.C. Cir. 1983), we had declined to consider an argument that the parties had failed to raise "during rulemaking proceedings before the Agency," id. at 1528, we  distinguished Ohio on the ground that the record before us in Murphy Exploration did not reveal that Murphy had any role in the rulemaking proceeding and therefore could not "be said  to have 'waived' its argument by failing to advance it during  those proceedings." Murphy Exploration, 252 F.3d at 478.


4
After we issued our opinion, the DOI came forward with  further record material which it sought to have us notice  demonstrating that while we had been literally correct in our earlier opinion that the record before us did not reflect the  participation of Murphy in the rulemaking proceeding, Murphy had in fact participated and had not raised the argument that the Department was incorrectly interpreting 30 U.S.C.  § 1724(h)(2)(B). We accept the material proffered and allow  the petition of the Department of the Interior only to the  extent that we order the first full paragraph in the first  column of 252 F.3d 478, being the same language as the only  full paragraph on page 6 of the slip opinion in Murphy  Exploration, stricken.1


5
This revision makes no difference in the result of the case. Ohio v. EPA still does not bar our review. That decision only restates the incontrovertible proposition that one may not  present an argument on appeal without having first raised it  below, i.e., in the proceedings from which the litigant appeals. See Ohio, 997 F.2d at 1528-29 ("Judicial efficiency is served  because issues that are raised before the agency might be resolved without the need for judicial intervention."). The question in Ohio was whether the petitioners had exhausted  their administrative review, not whether they were estopped  from advancing an argument in a different proceeding. Nothing in Ohio or any other authority prevents Murphy  from pursuing its claim in a second forum, i.e., apart from the  original rulemaking, if such a forum is otherwise available. As we have held before, such a forum is available to a party  when a rule is "brought before this court for review of further  [agency] action applying it."  Functional Music, Inc. v. FCC,  274 F.2d 543, 546 (D.C. Cir. 1958).  As we opined in Functional Music, because "administrativerules and regulations are capable of continuing application," were we to limit review to the adoption of the rule without further judicial relief at  the time of its application, we "would effectively deny many parties ultimately affected by a rule an opportunity to question its validity." Id. Just so here.


6
For the reasons set forth in Murphy Exploration, we  reversed the judgment of the district court that it had no  jurisdiction.  Nothing in the petition before us convinces us  that we erred in any fashion in that decision.


7
Except to the limited extent set forth above, the petition  for rehearing is denied.2



Notes:


1
 That paragraph is the last before Section II.B of the opinion.  It  begins, "DOI further proposes that Murphy" and ends a few  sentences later with " 'waived' its argument by failing to advance it  during those proceedings."  252 F.3d at 478.


2
  Judge Rogers would grant rehearing.  See Murphy Exploration  & Production Co. v. U.S. Dept. of Interior, 252 F.3d 473, 483 (D.C.  Cir. 2001) (Rogers, J., dissenting).


