*3 complied requirements with the other MIKVA, Before TAMM* and Circuit of sections 9 and 10 of the Rivers and Judges, MacKINNON, Senior Circuit Appropriation Harbors Act of 1899. 30 Judge. (1899)(codified Stat. 1151 as amended at 33 (1982)) (hereinafter

U.S.C. 401 and 403 §§ Act). cited as the Rivers and Harbors having Commission held that failed to do this, Washington Power did not have a complete “permit right way” prior operate June to construct or to MacKINNON, Judge: Senior Circuit dam, and therefore the dam fall does not Two orders of Energy Regu- the Federal exceptions under the set out in sections (“FERC” latory 23(a) 23(b) Commission or the “Com- of the Federal Act. mission”) However, incorporates by hold that the ref- Water the 1905 Act

* Judge fully opinion prior Tamm had concurred in this to his death. State, of Wash- western law of State

erence the water applicants for provides that ington Spo- land on the south bank of the owned acquire water way shall rights of Falls, 45 miles kane River at Little about pursuant under and “by appropriation Spokane, Washington downstream from Washington.” the laws State of (J.A. 637-42). Wilson wanted to use the 83 is basic to a provision, which This vital (J.A. drop point foot in the river at Act, is interpretation of the 1905 proper 637) produce electricity and to do so the Commis- by the brief of totally ignored in the land on needed to obtain an interest absolutely no con- agency gives sion. The the north bank and the bed and waters if not control- important, sideration to However, the north of the river itself. Act. This failure is ling, provision of the up all land of the river and bank attempted con- fatal to the Commission’s high water mark on the south bank was the Act. struction of (the Spokane Indian Reservation within the 1905- We hold *4 “Reservation”). could have ob- Wilson waterway of the a 10 was not permit Secretary from the of the tained a Secretary of the and that the United States right way through the Interior to use a of Act, by was authorized the Interior dam, etc., under the Act Reservation for a incorporated Washington water law which February 31 Stat. of reference, quali- grant consent to and by to con- applicants rights applied generally public valid to to lands and reser- fied occupy Spokane the dams on and to however, struct permit, would vations. Such Falls, Little and to authorize the River at the have been revocable at the discretion of develop- construction of the Little Falls Moreover, it Secretary. Id. Washington Power’s Little Falls de- ment. right to the of the have included the use velopment therefore comes within the stat- Unwilling river’s water. Id. to invest 23(a) utory exceptions set forth in sections building power dam under these circum- a Act, 23(b) and and of the Federal Power stances, help Repre- the Wilson enlisted required, now that the Company the is not Washington, the Con- Jones sentative naviga- Little has become River below Falls district, bill, gressman sponsor for the to ble, oper- to a license to continue to obtain enacted, “[providing for the which was development at Little ate and maintain the rights acquirement of ... land water [and] Falls. the power purposes for and ... for sites Background water, of said and for other beneficial use I. (1905).2 This bill purposes.” 33 Stat. Wilson, private Around David along the applied only to the entrepreneur responsible for much of zen, granted by corporation of the United powers Act association or 1. In addition to the 3, 1905, States, by Secretary to exercise of the Interior where it is intended such of Mar. power granted by any permitted or also had the additional the use hereunder or one relating rights February purposes to Provid- Act of herein named: more of reservations, provid- ed, way through permits etc. This Act within such shall be allowed That Indian, through any ed: or other of said ... or be, approval only upon of the reservation Secretary and That the of the Interior is, Department under whose hereby empowered, chief officer of the under authorized him, by supervision such reservation falls general regulations ... to be fixed finding way through upon by the same is not permit him that the use of public incompatible interest ... And the United States ... with the ... reservations of given by poles, gen- further, any permission plants, provided lines for the That electrical power provi- Secretary under the eration and distribution of electrical the Interior canals, ditches, pipes pipe- revoked him or ... and for this Act sions of lines, flumes, tunnels, discretion, water con- not be or other in his and shall his successor duits, dams, easement, any right, reservoirs used inter- and for ... or held to or confer in, to, promote commercial activities] reservation---- [certain or over ... est added). (1901) of the beneficial uses to the extent other Stat. 790 ground occupied by or other ... electrical hereunder, provides: by any permitted 2. The 1905 ... citi- works Spokane Indian accordance with the boundary Washington, of the laws of southern applied under Act. the 1905 Act to the and became the 1905 Sec- Reservation retary acquire Interior Secretary the Interior empowered ” use waters River at the citizens, associations and cor- “consent point appropriation purchase and to acquiring States porations of the United acres of the Reservation on the north bank “the use of the waters Interior, of the river. The along boundary of the River” the southern 3, 1906, acting on November accordance “right” Spokane Indian Reservation. Act, granted with the 1905 the 100 acres acquired, to be to the use of this water was by approv- to use the waters procedure provided (J.A. 261-81). ing application Wilson’s This “appropriation Act, pursu- under and approval permit.” constituted the “1906 laws of the State of Wash- ant ington.” empowered It also later, year July Less than a appropriators grant Interior such Wilson sold his interests in the lands and “for “land” within the Reservation (J.A. water, electrical, or erection of suitable 298-322). Company began dams ... plants, and other needful hydroelectric construction develop- structures ment. the beneficial use of said

power or The dam Compa- was constructed Id. 2 (emphasis water.” ny complying without with sections 9 and Immediately Congress passed after 10 of Rivers and Harbors *5 Act, step Wilson took the initial to 401 and as would have U.S.C. been §§ 10,000 per a flow of feet if appropriate required Spokane cubic River at that time pursuant place “navigable Little to and in and second at Falls was a river ... of the Providing acquirement Secretary water this Act until after the An Act der of the for of Spokane along person, in the River the southern Interior is satisfied that the associa- Reservation, tion, boundary company applying ap- Spokane Indian or has made said of good Washington, acquire- plication in the State faith and with intent and of for ability purposes lands on said reservation sites to use said lands above ment of for for purposes specified requires quantity power and the use said and that it of of beneficial use, water, purposes. applied and other lands for in such and in case objection grant by and said land shall be Be it enacted the Senate House of of made, Secretary par- Representatives the United States Amer- the said shall afford the of of assembled, objecting opportunity so a full to be ica in That the ties the use of the waters of the heard. paid compensation to the said river forms the southern Sec. 3. That the be where boundary applicants of the Indian Reservation said land said shall be deter- may, Interior, Secretary prescribed of the in manner in Section Three with consent of mined citizen, second, by any eighteen acquired hundred be associa- of the Act of March tion, nine, ninety provide corporation “An Act to or of the United States entitled rights way by appropriation pursuant acquiring railroad under and to the laws for the of of Reservations, through Washington. companies Indi- the State of Indian of lands, allotments, Secretary 2. That the an and Indian and for other Sec. Interior empow- be, is, hereby purposes.” and he authorized and grant appropriator appropria- allotted in several- such or Sec. 4. That if the land ered to reservation, ty any whether the individual Indian which has not tors land on said conveyed power severalty any with full been allotted in been to the allottee same has Indians, any appropri- granted such individual but which has not been of alienation ator, empow- power Secretary conveyed alienation, of the Interior to the allottee with full of moneys for such land ered to use the received or whether the same remains unal- lotted, purchase of other suitable said so allotted in the on the north bank of the River, necessary requisite lands for such allottee. such as shall be Secretary the Interior 5. That the and for the erection of Sec. for overflow water, electrical, regulations power plants, make all needful rules or shall suitable dams, walls, flumes, proper exe- wing not inconsistent herewith for or other needful carrying effect of this Act. required cution and into for the structures (1905) ch. 33 Stat. 1006 power said water: Pub.L. No. 173 or for the beneficial use of added). Provided, (emphasis granted That no lands shall be un- hydroelectric Little Falls maintain the 1911 navigable ... or ... ... States United the ex- We hold that under development. [Washington].”3 Wash- wholly within 23(a) and in sections developed ceptions the Little contained also ington Power Act, is not 23(b) Washington Power side of the river opposite plant on the Falls have addi- contemplated apply for or to originally site from the lands of the to continue Wilson, used some tional license or so existing Little not included operate and maintain Reservation Company Wil- assigned plant. Falls interests appro- Power itself Thus son. Statutory per II. cubic feet a flow

priated Framework Appropriation the laws of the State pursuant to second Law Washington. 23(b) 23(a) the Federal Sections pro- U.S.C. §§ ap- Washington Power May On vide: Act to the the 1905 plied under 23(a) this Part provisions to use Sec. acquire the Interior affecting any be construed as at the shall not Spokane River the waters existing right-of-way permit or valid purchase and to appropriation point of its confirming or or as granted of Reservation eight acres additional an heretofore claim, 328-409). affecting any or as (J.A. otherwise On point at the same lands af- given authority heretofore fecting any 29, 1908, Assistant an August to law ... approval pursuant the initial endorsed the Interior by the Commissioner acquisition 846). (41 49 Stat. Cf. U.S.C. Stat. 435). (J.A. This constituted Indian Affairs original Wilson permit.” “1908 (b) any person, unlawful for It shall be Captain resurveyed by Web- also grant was state, municipality, purpose (J.A. Army, and others ster, United States construct, power, to developing electric Secretary of 531-32), approved con- maintain operate, or 6, 1910. The dam May the Interior reservoir, house, duit, or other power the same began producing electric across, along, or incidental thereto works *6 year. waters the any navigable in of the of States, part upon any or is whether the United in this case The issue the United held, or reservations of given public lands correctly present Commission Territories), or uti- (including the facts, States present Feder- foregoing surplus water or water lize the in 1920 and as enacted al Power dam, except un- any from Government 1935, requires Washington in amended with the terms in accordance li- der and apply for and a now to Power obtain existing right-of- valid permit a or operate in order to continue cense plans are submitted to and thereof Appropriation Act at tion The Rivers and Harbors 3. Engineers by by approved Chief of provided: relevant time Secretary of War before construction be lawful to con- That it shall not Sec. 9. further, any provided That And commenced: the construction struct or commence dam, dike, causeway bridge structure bridge, plans over or in or other or when haven, harbor, canal, roadstead, naviga- Engineers port, approved the Chief of been have river, War, Unit- water ble or other Secretary not be it shall Congress to the until the consent of ed States building plans be- such either to deviate from lawful been shall have of such structures un- completion of the structure after fore or plans for the same and until obtained previ- plans said has modification of less the approved by to and shall have been submitted ap- ously and received submitted to been Engineers Chief of Engineers of the proval Chief of of the Provided, may be structures War: That such Secretary War. legislature of a of the built under added). (emphasis As set forth Stat. 1151 30 below, waterways the other State across rivers and navigable portions not Spokane River was we find that wholly within of which lie Washington. “navigable” within State, single provided the loca- the limits aof 10, 1920, way granted prior gress to June or a had prescribe any failed to legislative Act____ granted pursuant license to this govern rules water public use on the lands of these territories, new federal so (41 896) Stat. 16 U.S.C. Stat. miners without title based their use of added). wa- (emphasis question first simple ter on the addressed, but effective Washington doctrine of must be is whether come, first first served. prior possessed to June The common law England, existing right-of-way” “operate, “valid based on ownership of land or maintain dam” at Little Falls on the riparian streams, use of based on own- [a] language River. Since the critical ership riparian of land and streams, use of exception disjunctive, of the it is generally ignored and another common necessary to determine addition grew out of usages the customs and law. the Secretary’s action consti- whether also west, early inspired principal- American ” “permit tuted “construct ... [a] ly by paramount mining interest added). (emphasis dam” precious minerals. appro- The doctrine of however, priation, govern did not the water language

It is clear from the of the pueblos of Indian tribes and contemporary 1905 Act and from the laws Washington, federal law or proprietary rights of the State of which Con of the reference, gress incorporated by government. federal See generally W. acquired Hutchins, Power had a “valid Rights Water in the Nineteen construct, existing right-of-way” oper (1971). Western 13-20 States When Wil- ate, and maintain the Little Falls dam son appropriate wanted to the flow of the began producing electricity the time it in Spokane by building it, a dam across therefore, of the Indi- ans government and the federal stood in provides: The 1905 Act way. That the to the use of the waters River where the said River This case thus becomes if clearer we first boundary Spo- forms the southern lawfully consider how Wilson would have may, kane Indian Reservation with the proceeded Washington, under the laws of Interior, consent directed, had he chosen to citizen, association, acquired by any appropriate nonnavigable water riv- corporation by ap- of the United States public er on land not within a federal Indi- propriation pursuant under and procedure an reservation. The appro- Washington. laws the State priating in effect Section 33 Stat. 1006 passed when the 1905 Act was was estab- unambiguously The 1905 Act sets out Con- 1891, passed by lished the Act of gress’ intention as to the manner of ac- Washington Legislature State in its second *7 quiring to the use of these wa- year of existence. 1891 Wash.Laws c. 142. “by appropriation pur- ters: under and provided The Act of 1891 that the to suant to the laws the State Wash- streams, lakes, the use of the water of ington.” incorpo- The 1905 Act thus Id. certain other named surface sources for rates reference the state law of Wash- irrigation, mining, manufacturing, domes- ington appropriation as to the of water and tic, municipal purposes acquired or could be congressionally makes it the mandated fed- by appropriation. procedure The 1891 re- governing portion eral law the Spo- 1917, mained in effect until another when bordering kane River on the Indi- superseded statute it. the 1891 Act While completely an Reservation. This was a provide specifically appropria- did not sensible course to take. production power, tion for the of electric Supreme Washington Court ruled

Appropriation is a fundamental doctrine provide did not of water law in the western states. This 1908 that statute exercising appropri- developed doctrine in the first exclusive means of California Rather, rights conquest. right. decade water could be after the American Con- ative 312 States, 564, 207 customary way, the v. U.S. United S.Ct.

appropriated 207, (1908), this providing prove one means to 52 L.Ed. 340 followed line only statute dealt right. Joyce, authority, specifically v. with the preserve the' Kendall 489, (1908). against appropriation of water P. 1091 reservation 48 Wash. nonnavigable bordering of a stream Court, in one Supreme Washington Belknap Fort Indian in Mon- Reservation decisions, rights had of its earliest water 1905, therefore, any appropriation In tana. moreover, announced, the essen- already Washington at Little Falls under state law Ap- appropriation of water. tials of a valid being trumped by superior would risk stated, comprises the propriation, the court rights applicable doctrine fed- water, accompanied by some to take intent arising eral Any right reservations. from thereof, for physical demonstration open, appropriate attempt solely an un- use, up rea- followed with some valuable flowing der law from a stream diligence and consummated with- sonable through a federal reservation Indian unnecessary delay. Pomeroy Ellis v. out precarious have been indeed. Co., 572, 1 Wash. 21 P. 27 Improvement (1889). hydro- statutory provide of a dam for Neither did law much Construction satisfy leeway appropriators on electricity unquestionably may of water Indian February 15, In the requirements appropria- for a valid reservations. Act of these 790, previously if referred Thus had built his dam and 31 Stat. tion. Wilson (see 1), nonnavigable Congress permitted develop- power plant on a stream n. Washington, hydro-electric on flowing through public land ment of Federal reservation, by authorizing on a he would reservations federal have, leaving permit this use of the rest facts of Interior forests, unchanged, public lands, acquired through case a valid interest oth- States, through appro- stream er includ- the waters reservations United reservations, legal ing law. for electrical priation under This Indian generation system plants, poles, was well-established 1905 and it and lines for electric as well as for explicitly body power, of law which the distribution any purpose. 1905 Act referred.4 “dams” used beneficial Act, however, provided The existence of the Indian Secretary of permission given through Reservation whose lands flowed (the under the 1901 “Secretary”) Interior however, Falls, at Little Secretary] in “may revoked [the obviously complicated the task of the discretion, held his and shall not be appropriator. the United would-be easement, any right or or interest confer Supreme ruled in States Court United land, reservation, in, to, public or over v. Rio Dam & Irrigation States Grande park.” or Id. Co., 174 U.S. 19 S.Ct. Act, however, (1899), special govern- L.Ed. 1136 The 1905 act federal greater origi- granted ment could reserve the use of water and different purpose. nating flowing through or than Act. That was its land owned the 1901 Secretary to government appropria- specifically the federal authorizes the appropria- grant tion under state law.5 This rule was af- land Reservation Winans, Wash- firmed in v. 198 tors of water under the laws United States electrical, (1905), ington 49 L.Ed. for the “erection of U.S. S.Ct. *8 1908, power dams for the plants, and in the landmark case of Winters place subsequent recog- appurtenant the land or Code of remain 4. The Water owner, upon Id. 39. § the same used.” existing rights any riparian which nized "the any existing right acquired appropria- by [and] Spokane extend- Indian Reservation Since the tion or otherwise.” Laws of high bank of on the south ed water mark Also, 1.§ ch. 117 that "the use of water which River, river bed the Tribe owned the applied has to a beneficial use would be been through the Reservation. flowed River power or for the beneficial use of said faction of of Interior that water,” conferring without applicant had § ... intent and the] Secretary any right to revoke the ability to use said lands for the purposes right way at will. The 1905 Act further specified____ above mutandis, adopts, pur- mutatis for the Act of Mar. 33 Stat. 2.§ poses determining compensation, the Act The language of the clearly contem- 2, 1899, pertaining of March “rights-of- plates grant by land the Secretary way by companies through railroad Indian specific for the purpose of constructing a (emphasis Reservations.” 30 Stat. 990 add- dam, a reservoir and other works. The ed). grant purpose for that implicitly confers on special Act of the 1905 Con approved applicant an “to use gress purposes. thus served By several said purpose” lands for [said] —otherwise providing rights that in the waters of the grant would be sterile and no federal Spokane bordering River the Reservation law at prohibited time such use. acquired, could be with the consent of the grants These constitute “rights-of-way” for Secretary, in accordance with the laws of the “erection of suitable ... electrical ... Washington, away the State of it cleared plants, dams, The Act recog- also [etc.]” hydroelectric development obstacle nizes that the necessary are to have existed under the federal “acquired by be ... appropriation under doctrine, reservation which as we have Washington,” the laws of provided that the seen, potentially conflicted with the state applicant made the showing additional appropriation provided, moreover, law. he was able and intended “to use said lands compensate a means to residents of the [specified] for the purposes.” Act of any damage Reservation for done to their 33 Stat. 2. All of this flows from § property by the construction of dams and the Act to be by administered the Secretary finally, other works. And it increased the of the Interior. ability develop incentive and the water power Act, moreover, 3 of by obviating Section clearly Secretary’s discretion to Congress revoke at will indicates that intended the Act to hydroelectric rights might authorize the granting way. granted to along that river the southern provides That section compensa- that “the boundary of the Reservation. Thus Con paid tion to be for said land ... shall be gress clearly special intended Act to determined in prescribed the manner ... hydro establish the framework which 2, the Act provided] [March electric developers acquire could the land acquiring ... for the of rights-of-way by banks, to the use of companies through railroad tions____” Indian reserva- waters and the bed Id. produce River to electricity. 2,1899 (30 990) Act of provided March Stat. companies acquire “rights- for railroad interpretation

This is confirmed of-way” purpose for the of constructing language itself, of the Act its legislative through railroads Indian history, reservation lands statutory and related law. payment compensation and for the Congress 1905 Act authorized the Secre- tary damage caused Interior the “construction” of railroads. 30 Stat. 990-92. It would be grant ... land on Indian [the mysterious indeed if relied on a ... such as shall be neces- Reservation] . provided statute that compensation for sary requisite ... for the erection of damages electrical, caused the “construction” of

suitable power plants, ... which, railroads as the model for a statute develop- dams ... [and] construction, attempted ment of or for the under FERC’s did beneficial use [upon showing of said water to the satis- authorize the “construction” of dams.6 parallels permit 6. The 1905Act also Act in that both of Interior autho- *9 in the 1905 Act and the sole reason pressed intend dams did not if For on the The erection of a dam constructed for its enactment. to be works other for, is no development there provided hydroelectric it “rights-of-way” or dams for specific pro- including a for its explanation grants of express purpose for which the compensation for of payment for vision way authorized the 1905 rights of by construction. What damages caused and Wilson there be? No would construction other requested authorization to expressly both merely damage would result compensatory construct a dam. See exercise rights of of unused acquisition from the Indeed, as noted at 320-21. infra rights. way and water above, required the Act an section Act, of reading of the 1905 the “intent and applicant to demonstrate The correct enigmatic and unreason- course, necessary this structures ability” avoids to erect Congress intended to development power able construction. or required for the way rights granting provide for use of water before for the beneficial and the statu- of dams the construction for granted acquire any or land or he be could for compensate parties tory means rights. water construction, by such damage done to them provided for with Congress had just as Legislative History A. The To of railroads. to the construction respect rejects appeallingly The FERC now, eighty years the 1905 construe stat straightforward interpretation of the authorizing the construction of later, as not the intent of contends instead that ute and single purpose which interpreted as authoriz Congress cannot be for which the the Act and Congress passed building of a dam. The ing the actual land and consented Secretary granted the only plausible support Commission’s necessary and use of acquisition colloquy House is the this view frus- place, first rights in the margin,7 floor, in the between Congress ex- set forth clear intent trate the reservation, whether the only on said tors land Indian reservations construction on rize severalty ap- allotted in Secretary same has been has ascertained after the Indians, necessary carry has not been but which plicant individual has the resources power statutory require- conveyed alienation, with full through project, a to the allottee with the FERC's whether the same remains unal- make no sense under or ment that would lotted, Spokane said interpretation. the north bank of the River, necessary requisite such as shall be Rights Spokane River. Water rights and for the erection for overflow water, electrical, power plants, or Speaker, suitable Washington. I Mr. Mr. JONES of walls, dams, wing or other needful flumes present con- unanimous consent for ask (H.R. 15609) for the providing structures of the bill sideration power use of said water: or for the beneficial acquirement in the of water for the Provided, granted be under boundary That no land shall along southern Reservation, Secretary the Interi- after the this act until Indian of the association, person, or acquirement is satisfied that Washington, or State of application company applying said has made for sites lands on said reservation water, ability to good intent and faith and with purposes use of said and the beneficial speci- purposes above said lands for purposes, I send to the use and for other quantity requires of land it fied and that have read. desk and ask to use, objection applied and in case for in such as follows: The Clerk read grant land shall be made enacted, etc., of said to the use That the Be it parties so ob- shall afford said River where of the of the waters opportunity be heard. boundary jecting full the southern said river forms paid compensation to be acquired 3. That Sec. Spokane Indian Reservation deter- association, applicants shall be citizen, land said corporation for said by any prescribed in section 3 in the manner by appropriation mined United States act to entitled "An act of March State of Wash- pursuant laws of the acquiring of provide ington. through reserva- companies Indian railroad tions, Interior Sec. 2. That the allotments, lands, Indian is, be, empow- Indian hereby and he authorized purposes.” other appropria- and for grant appropriator or such ered to

315 Representative Washington, colloquy Jones examination of the between Con- (H.R. 15609), Repre author of and the bill gressmen Jones Dalzell and Lovering Lovering sentatives Dalzell and on Febru reveals. 11, 1905, ary passed House day In this colloquy, Mr. Dalzell first in- sufficiently bill. The Act itself is clear on quired power “How is used, the water to be require its face not or so as authorize by dams Mr. river?’ Jones of Wash- history. United legislative recourse ington replied; 643, 648, Oregon, States v. U.S. 81 They will dam probably the river. This (1961); Avi S.Ct. 6 L.Ed.2d 575 they willing is a matter are to take care Project ation Consumer Action v. Washb of at I say, some future Time. will urn, how- (D.C.Cir.1976). F.2d ever, However, Department legislative War had the history even the un dergirds investigated, the Act matter and I view that contem know from plated personal of a construction as careful part observation of the willing Sec. 4. That of the Interior to take care of some future time. I however, regulations say, shall rules and Department make all needful will that War proper investigated, inconsistent herewith exe- had the matter and I know from carrying personal into pdrt cution and effect of this act. observation that that of the riv- objection? navigable. simply The SPEAKER. Is there er is not This is a matter lands, however, Speaker, reserving Mr. DALZELL. Mr. reference to Indian object, acquirement rights. like to I would have some of water explanation of this bill. Mr. DALZELL. From what committee is Washington. Speaker, reported? Mr. JONES of Mr. this bill Washington. the ary River forms the southern Mr. bound- JONES of From the Com- simply Indian Reservation for a mittee on Indian Affairs. provides affects quite by considerable extent. There is a fall in Indian lands and meafts which rapids persons acquire permanent rights. the river. There are considerable there can splendid water-power carry which would furnish Mr. it LOVERING. Does Being the north facilities to the land on side. dam the river? Oh, no; way Washington. an Indian there is no reservation Mr. JONES of not at matter, power purposes up, which sites for could be ac- all. That came if it would have to quired. supreme go Foreign Our court also has held that to the Committee Interstate and riparian They with reference doctrine to water Commerce. to take their have chances State, question holds in our on that. rights acquirement objection? of water there reserva- The SPEAKER. Is [After pause.] tion is a matter some doubt. This bill a The none. Chair hears Now, simply acquirement Washington. authorizes the of water Mr. JONES of Mr. Speaker, on the reservation side of the river the amendment section 4 the Washington, “appropriation" "appropria- the laws of the State of word should be tor,” put and the committee in a further has restric- and I will move amendment. report tion that it must be with consent of the The Clerk will SPEAKER. The Secretary of the In order to Interior. secure amendment. water-power purposes sites for there is no law The Clerk read as follows: now under which the title to these sites can be Amend the as section 4 amendment enabling striking "appropriation” companies secured. There is a law out the word in- licenses; permits "appropriator.” to secure they or but of sert the course word expend large you accept would not want to sums of Mr. STEPHENS of Texas. Do money permit, on mere license so this the committee amendment? Washington. acquirement bill authorizes the of title to this Mr. JONES Yés. procedure question land under the of law which was taken on the'amendment amendment, agreed acquire through it railroads can to. money question paid reservations. The to be The SPEAKER. The now is on Indians, Treasury agreeing for the benefit of the to the committee amendment. taken, suggested question the amendment the committee is the amend- agreed if allotment is taken the sum re- ment was to. The bill was ordered to the ceived can be used as amended time; engrossed purchase and was Interior in the of other suitable land and read a third time, passed. read the third such allottee. Washington, Mr. DALZELL. is the water On motion of Mr. JONES How used, by river? motion to the last vote was laid on dams in the reconsider Washington. They prob- Mr. JONES will the table. (1905) ably Cong.Rec. is a dam the river. This matter are navigable. simply colloquy This is point river is not then continued to the lands, to Indian matter reference how- upon where Jones made the remark *11 ever, acquirement of water and heavily: the Commission relies so rights. Lovering. Mr. Does carry the [the bill] (1905) added). Cong.Rec. right to dam the river? foregoing exchange, From the it is clear Oh, Mr. Washington. no; Jones of not Congress plainly that Jones told that erect- matter, at all. That if up, it came would ing a “dam the river” was more than a [in] go have to the Committee on Inter- possibility, probability “they it was a state Foreign They and Commerce. have company] willing later the are [Wilson to take their chances on that. to take care of at some future time.” In exchange Id. The FERC contends this representation making Congress, demonstrates that “the 1905 Act dealt with (and Representative gave the Jones House granting rights, of water and land not us) explanation why the Bill underlying authority to build a dam.” Brief of He categorical- took the form it did. stated position FERC at 16. ultimately This leads ly Department “the had War the mat- [navigability] investigated [Rep. ter FERC to conclude that personal knew from observation Power was without to erect the Jones] part [Spokane] that that river is not operated dam in 1908-10 and that it has added). navigable” (emphasis Had the riv- years dam for over 70 without valid author- navigable, er been consent of the Secre- ity. Congressman This construction of tary of Interior probably would not have is, however, Jones’ remark too broad. been sufficient since the Rivers and Har- ignores the earlier statement the bill’s Appropriation bors required of 1899 “[t]hey probably author that will dam the Congress Army the consent of ignores plain language river.” It also Corps Engineers party before a could of the Act. The reconciliation of these two lawfully a navigable obstruct stream with statements, “they probably will dam navigable, a dam. Since the river carry the River” and that the bill does not however, below, as we discuss the consent right fact, to dam the river is how- requirements and other ever, not difficult. applica- Rivers and Harbors Act were not may begin unambiguous We with the ble. company statement that Wilson and “will Representative Jones then stated to Con- probably “they dam the river” and that gress “simply that the bill affects Indian willing are to take care of [that matter] provides persons lands and means which Congressman some future time.” Jones acquire permanent can rights” See obviously inquiry Congressman took the supra (emphasis note 7 This ex- Lovering inquiry to be an directed to Com- pression congressional intent indicates jurisdiction. reply mittee His to the in- that the interests in the lands that would quiry whether “the bill [carried] granted by of the Interior river,” to dam the was directed to whether dams, etc., acquire rights, to erect water the terms of the it to be con- bill pursuant special to this Act of March sidered the Committee on Interstate and “permanent” rights long would be so Foreign jurisdiction Commerce which had they purposes were used for the Con- legislation involving navigable over waters gress empowered approve. Congressman of the United States. Thus high The Reservation lands ran to the wa- reply indicating Jones’ the bill ter mark on the south side of the River and acquirement “the authorized grant thus the included the river bed suffi- rights” “[t]hey probably dam will cient to erect the needed since the river,” do this and that could applicants already contiguous owned the part is not navi- necessary land on the because “that of the river south bank However, gable.” dam. if in the future the passed The House therefore building dam in the bill on “matter [of Congressman representation, Jones’ based go have to up came [it] waters] Department’s Foreign investigation on the War on Interstate the Committee observation, personal his that the river was interpretation reconciles This Commerce.” navigable. passed by ex- not The bill was remarks and Congressman Jones’ both February Cong.Rec. to the House on reply in terms related his plains days on Interstate later March jurisdiction of the Committee Cong.Rec. Congressman the Senate. There Foreign Commerce. Massachusetts, ample passed time after the House the second was Lovering of passed the Senate it for the concerning bill before inquired member who *12 river, Department to intervene and correct one of the more War was to dam any inaccurate assessment of the River’s members of that Committee. senior navigability. The fact that neither the War Directory Congressional Department party attempted nor other Dalzell, questioned who Congressman claiming stop to this bill the river was in to whether the river Congressman Jones as navigable, strong fact evidence that no from what commit- dammed and would be authority one in doubted that the river was reported, a member of the bill was was tee navigable. passed not Since the bill both He undoubted- Rules Committee. was calendar, on the unanimous consent houses was with whether the bill ly concerned single objection stopped could a have unanimous consideration on the proper for It should also noted bill. Id. be that the as well as whether consent calendar advised, Army engineer subsequently by appropriate jurisdic- House committee with Army letter of March 1905 to the Dis- damming navigable rivers tion over the Portland, Engineer Oregon, trict The bill had been reported had the bill. only navigable “the River to Indian by the on reported out Committee (J.A. 623). Army Post Falls” Had the being considered Affairs was navigable found the River to be it could If the river unanimous consent calendar. stopped the Little easily have Falls Devel- navigable, on Interstate was the Committee record, however, opment. evidentiary have had Foreign Commerce would Army Engineers demonstrates Congressmen then Dalzell and jurisdiction; cognizant development being of the Lovering have realized the bill had Act, the 1905 investi- implemented committee, correct not come from the no for the gated the matter and saw basis stopped single it a either could have any “nav- jurisdiction exercise of their over objection. igable” water. Id. moreover, was, that in There a chance was, in addi damming Congressman Jones “matter” of a navi- the future the tion, stating that the bill did not up, since at the correct gable river would come considered, right to dam give any particular person the being an offi- time the bill was carry the did not com Corps Engineers the river. bill Army cer of the river, although the right to dam the study plete of the river conducting navigability it in that direction as could (J.A. 623). was Act went as far Congressman Jones While observation, respect to a river that was not and with personal confident States, unless Depart- river of the United knowledge of the War his stated 3413), established (39 Congress wanted to make investigation Cong.Rec. ment inapplicable. Com navigable, if the water law not the river was river, under the was, authority dam the plete to study determined it the Committee satisfying derived from be Foreign Commerce would Interstate and state requirements of both federal authorizing approve legislation had have the 1905 Act. Con under the terms of The river was law of the stream. obstruction including the however, gress grant the land matter did could navigable, erect the upon which to stream bed up. not come them, only part “grant” appropriators, but that was the neces- necessary It was still sary rights way. was needed. consent and Act for the Thus, Representative replied when Jones appropriator obtain Representative Lovering’s inquiry as to “by use the waters “right their “[t]hey to dam the river” that pursuant under and to the appropriation that,” have to take their chances he was Washington” (empha- the State laws of giving plain description in fact statute, sis Under legal procedure applicants had to of water was not limit- appropriation go through complete right to secure their any particular method. 1891 Wash. ed to to dam the river under the terms of the per- 1. Therefore it was Laws ch. only 1905 Act. pending Not did the missible, any controlling in the absence of navigability study potential raise a uncer- prohibition, appropriate diver- tainty; there were uncertainties inherent in intended, sion, accom- as Wilson legal procedure appropriation. application His plished by a dam. “chances” Wilson had to take included the the Interior stated that Secretary of possibility might precede that others him in used, alia, would be inter diverted water appropriating the water and thus under house, lighting plant and irri- for a *13 Washington law, appropriation 1891 Wash. (J.A. 267-68). Obviously gation system Laws, 142, 1, ch. be “first in time [and] diversionary satisfy any method would right” respect the first in with to the water Washington in Thus the laws of

statute. rights. 1908-10, in authorized citizen or effect corporation of the United States that de- Speed appropriation therefore unappropriated appropriate sired to water if was essential Wilson was to be success non-navigable in a stream to do so in making good ful the chances that were dam, provided erection of a he had the Realizing this, available to him. all Wilson necessary rights and in the consent river quickly. Congressional acted Bill was might bed and in land that be over- 3, 1905, signed by the President on March Holman, v. flowed. Wash. Washington, Griffith D.C. On March 239, (1900) (the riparian 63 P. scrubby pine “on a tree” over miles right to owner has the obstruct a non-nav- away, posted his Location of Wilson Water river). Therefore, igable when the Secre- Right “opposite to the head of what tary grant right way made the of the Spokane known as the Little Falls of the land, acquisition to the and consented (J.A. 178). promptly And River” at 8 right of the to use the water the erec- morning, day o’clock the next the 9th tion of the he authorized the construc- March, 1905, copy Wilson filed for record a tion of the dam in accordance with the Right” County of this “Water with the intendment of the Act. No federal or state (J.A. 178). County Auditor of Lincoln That law, time, statute or decisional at that re- promptness such Wilson acted with indi quired specific “permit” a more to build a clearly cates that he was aware he had to nonnavigable dam to divert waters under acquiring right if be the first in his water principal such factual circumstances. The right he to secure the to dam the objective obstacle here for Wilson was to procedure posting filing river. This and right way acquire a sufficient interest Washington sufficient under law to bed, constituting the land the river “10,000 appropriation initiate the cubic appurtenant riparian and other per feet in the second of flow water Spokane Indian Tribe and the United Spokane approximate point River” at the States, pro- to erect a dam. The 1905 Act i.e., posting, at the Little Falls. objec- vided for the attainment of all such fur necessary It is not to outline authorizing tives to “con- steps timing subsequent of the acquisition rights by sent” to the of water ther the of the dam and Washington and to that led to the construction Wilson perfected the Sir: power plant that related only It is appropriation. essen- Company’s I your have considered communication that, following the ultimo, enactment realize of the submitting papers tial to 4th Act, the consent and application it was of the the 1905 matter of David Wilson, compliance Spokane, Washington, for the approval right to use the waters of the laws of with River, acquirements of land by compliance with both acquired Wilson Reservation, Indian final gave right Wilson laws power purposes sites for and other bene- the dam store construct excavate ficial use of the waters of said river. and divert waters By Department letter of Falls. the river was not November at Little Since Department was, Act, returned Mr. Wil- it after the navigable, son’s application, accompanying pa- with Secretary’s approval and law pers, you and advised the same necessary provided the means both further considered when right perfect to con- and sufficient Department amended so as to conform to Falls. final the works at Little struct regulations prescribed under the Act of perfecting “appropriation” act March of the dam and the erection water your With letter of said the 4th ultimo to “use” in the water diversion you application amended submit an filed power plant. This or some other electrical by Mr. under date January Wilson “use” eventual was essential Wash- regulations to conform re- law, into incorporated the 1905 ington to, particularly describing ferred the land else the would be lost. water acquired purchased; desired to be Moreover, pur- appropriated one applying also to erect any other changed could be “to benefi- pose *14 and maintain and all suitable wa- Id, use.” cial § ter, plants, etc., power re- electrical development quired power the for of for Interpretation III. 1905 Act of the the the use waters the of beneficial of the of the Interior River; right to also the for Act The belated construction points designated the build a dam at that the Commission now advances for the ap- map the said accompanying on also odds clearly first time is with the plication, marked dam and “site for subsequently ” contemporaneous and contin- ”1, dam No. re- No. and “site for interpretation Department uous of serving right to to himself hereafter Interior, charged which was with adminis- two sites he determine at which said of Act, tering the 1905 2. The Act. The applicant sets will erect the dam. express terms of 1905 Act are on their seeking acquire to forth that he quite They clear: face show faith, good for land and water on the intended south- making improve- purpose of certain to of the Reservation be devel- ern border power, developing ments as soon as i.e., oped produce electricity, to “for sites obtained, rights sought shall purposes power erection of ... ... will, permit; said the state of the water power plants electrical or ... improvements power of to consist addition, contempo- power.” of Id. In house, flumes, turbines, penstock, electri- interpretation the 1905 raneous transformers, generators, and the cal provides Department Interior power, necessary pole line to market said support interpretation additional for the con- requisites all the other presented above. the statute a mod- and establishment struction plant power lighting ern electrical 4, 1906, to May In his letter of the Com- Affairs, Secretary of Indian missioner E.A. wrote:

the Interior Hitchcock requirements From a careful examination of all the formed to the applica- submitted, appears papers it regulations ble applied and that Wilson had application amended of David Wilson is regulations conformance with said requirements in accordance with the authority hydroelectric build dam. Department, regu- as set forth in the contemporaneous regulations promul- approved pre- lations October gated by Department Interior, 3, 1905; scribed under the Act of March Affairs, Office of September 28, Indian satisfactory that he has submitted show- every 1905 in paragraph breathe in- their ings as to his financial business and exec- terpretation of the 1905 Act as authorizing ability, and actually utive that he intends power dams, etc., the construction of develop and use the at the site imposing obligation Depart- on the purposes specified. and for the ment of the pass upon Interior to applica- approve tions therefor and to of all the facts those that view shown therefore, comply with the Act papers, regulations.8 accordance with recommendation, Secretary approved your applica- applica- the said Wilson’s tion and in so doing interpreted approved____ tion David Wilson is the 1905 Act as conferring on the Secretary the (J.A. 230-32) The itali- grants. to make such While Wil- language places beyond cized above it right way son’s upon was later amended doubt that of the Interior application by Company to include addi- interpreted the Act to authorize him to tional necessary land facility, noth- application “consent” to Wilson’s to use the ing subsequently occurred to cast doubt on waters, grant him “the land and water Secretary’s approval clear of Wilson’s rights” River Indian Reser- application develop river, which ex- vation, to confer on Wilson “the included, plicitly alia, inter erect and maintain” whatever facilities build, operate, and maintain a dam. necessary develop the river for hydroelectricity, “to It is clear to this build dam” and other division the court improvements necessary to that the Act produce Company authorized the ” electricity acquire transmit approve necessary and to Wil- all the “right way, application son’s foregoing pur- compliance all the and that dual with the 1905 poses. Id. It is also clear that the Secre- Act and the laws the state Wash- tary application determined Wilson’s ington, con- as embodied in the 1905 au- *15 September Regulations provided 8. rights____ approxi- 1905 Ninth. A statement of the applicant "acquire any rights that no could flowing Spokane mate amount of water River, the use the of waters of the said point appropriation River at the diversion or of or to the use of the lands in the said Satisfactory good ---- Tenth. evidence of the Reservation, provisions Indian under the of this company ability faith of the and its financial application approval] by until therefor [and proposed the matter of the construction the of Secretary (Section 2). the of the Interior.” To works." Id. rights applications obtain such Upon approval application "4. the of an ... "to describe ... the area lands in- of overflow designated appraise the Indian Service will be volved and the extent and dimensions of the site individual, damages, arising by the tribal and works, proposed and ... such other material for taking reason of the of lands and of the location possibilities development facts as to the the of of works____ proposed construction the power upon as will furnish data which to base "5. No work of construction of character rights sought an estimate of the value of the permitted compensation will be until (Section acquired.” 3). be damages lands to be taken and done or to be map showing "Seventh. A ... the location paid done shall have been determined and pro- and extent of ... lands and sites overflow provided. manner as herein posed occupied by buildings to be or other foregoing regulations "6. The shall be ob- necessary structures to be used in connection by any seeking acquire served ... individual proposed showing with the works and in detail rights provisions the authorized under the proposed the elevation waters to be contained act, particularly purpose, controlled____ as to the Eighth. or Evidence the com- intent, ability applicant." the pliance ... with the laws the financial State of Wash- (J.A. 941-46). ington concerning acquirement the of water

321 Acting non- from the marked sites. The Company to dam the Com- the thorized of Indian in his the River missioner Affairs letter of navigable waters of accompanying applica- the transmittal Wilson’s thereby appropriate beneficial reemphasized Secretary also to the power purposes. tion waters use for the applying that Wilson was not from the record clear 506).10 (J.A. a dam build Commission’s constructed, ultimately dam whether the the present ruling that 1905 Act did not maintained, operated by Washington authorize the to authorize the pre of the two occupied either one Power building bluntly thus dams contradicts the Spokane on cise locations dams contemporaneous interpretation the map approved Octo River indicated byAct and the Commissioner Secretary. Compare ber of Indian Affairs. (by comparing 116 Exhibit with Exhibit present ruling The Commission’s maps showing location of the Act did not authorize Wilson or his ap showing the present dam with that “occupy” is equally successors to the River impossible it is to tell whether proved sites Secretary’s contempo- inconsistent with the approved sites exactly dam built on was interpretation. contrary, To the raneous 2).9 if the Wash Nos. Even dam Department ap- Interior had built, however, ultimately ington Power application “to proved occupy Wilson’s 1 or No. precisely Dam Site No. improve land said waters and the necessar- the land and as marked Exhibit (J.A. 180) ily incident thereto” granted Secretary to rights by the other added). Washington Water Com- still be the exist Wilson would valid 61,002, 61,0027 (1983) pany 25 F.E.R.C. other at Little n ing dam and structures (Butler, Chrmn., dissenting). applied Secretary for Falls. Wilson only right not dams at the to build subsequently Wilson transferred all his sites, marked but rights, which included to erect and maintain [a]lso other and maintain dams and struc- build water, power all electrical or suitable tures, Washington Power.11 The Com- dams, wing-walls, flumes and oth- plants, mission would not have able to reach been required for the er needful structures AU, passed upon issue not diversion namely granted whether the 1905 irrigation of water for and other benefi- Falls Dam at to build Little cial use of said water ... all, had it not held the transfer was valid. (J.A. 500). appli- Respondent Brief of at 8. The Com- approval Thus See has thus conceded that transfer enough cation broad to include mission may notwithstanding any minor valid.12 This transfer viewed dam deviation was (J.A. 527-529), (J.A. 466-524), (J.A. each The two sites were within feet of 59 534-535) it is clear that the dam was erected at other and for full documentation transfer approximate ap- location that had been Water from Wilson to proved. Power. *16 prays the erect further for [Wilson] reasoning applied in the Commission 12. The water, elec- and maintain and all suitable correct, it approving transfer even if this dams, wing-walls, power plants, trical or reviewing authority a transfer exceeded its and other needful structures flumes by already Depart- approved had been power, for the diver- for the Interior, charge agency ap- ment irrigation and other benefi- sion of water proving the 1905 Act. such transfers under water, cial said and to dam and back use of building a up dam at the said included the transfer This transfer "dam”, designated map giving, as point on operate which and maintain alleged, approximately, feed [sic] one hundred approved part explicitly of the Wilson’s 1906 head. Moreover, 23(a) 23(b) application. sections (J.A. 506). expressly prohibit from “affect- the Commission way” ing” "right of held the transferable (J.A. (J.A. 298-322), 45 11. See Exhibits 28-30 rendering by unlawfully it (J.A. 444-445), (J.A. 431-436), 422-427), 54 49 322 approved by Secretary electric having

as been dam and related facilities on the notes, and, Compa- the Commission right way granted at Little Falls and to Secretary ny “informed ... of the regulate rights. the transfer of such Since everything necessary transfer and did Development the Little Falls had been com- Indeed, permit for itself.” obtain time, pleted opinion at that his confirms gives Secretary in section 4 1905 Act foregoing analysis our that the 1905 Act authority to enforce the Act. This broad Secretary authorized the to confer such regulate any includes the rights and to authorize such construction. rights granted by the transfers of Secre- interpretation supported by Such tary the 1905 Act. plain language of the 1905 Act itself. passing applica In on Wilson’s contemporaneous interpretation necessary Department tion it was Department of the Interior is all the interpret of the Interior to the 1905 Act this, more to be deferred to in a case like Secretary interpret it is clear interpretation where the statute and its permitting grant Act alone as ed that Agency eighty years almost old. land, ing to use water and day Present constructions of an old statute approve building of the dam on non- likely are to be inaccurate for the obvious waters, and to transfer these is, reason that the older a statute the more rights. agency empowered to adminis difficult reconstructing is the task of contempora ter the 1905 Act thus made a Congressional intent. It is not for the interpretation neous of the Act to which Commission, later, eighty years attempt the Commission should have deferred. critique now niceties how the interpretation is well-settled that “the of an Interior, Secretary discretion, in his agency charged with the administration of fulfilled the mandate of the 1905 Act while a statute is entitled to substantial defer it was still fresh in Congress- minds of the Bacon, 132, 141, ence.” 457 Blum v. U.S. passed men agency who it and officials 2355, 2361, (1982), 102 S.Ct. 72 L.Ed.2d 728 designated who were to enforce it and sim- quoted Company in Aluminum Amer ilar statutes. As Mr. Justice Cardozo ob- Peoples’ ica v. Lincoln Utility Central served, District, 380, 2472, 467 U.S. 104 S.Ct. 81 practice peculiar has [Administrative] (1984); L.Ed.2d 301 Chevron U.S.A. v. Nat weight contemporane- when it involves Council, ural Resource 467 U.S. Defense ous construction of a statute the men 2778, 104 S.Ct. 81 L.Ed.2d 694 charged responsibility setting with (1984). partic This doctrine of deference is' motion, machinery making ularly Depart sound law in this case. parts efficiently smoothly work Interior, interpreted ment of the yet while are untried and new. longstand administered the 1905 had States, Norwegian Nitrogen Co. v. United ing experience administering similar 294, 315, 350, 358, 288 53 77 statutes, U.S. S.Ct. as was later demonstrated (1933) (citation omitted). L.Ed. 796 opinion See of the Interior Corp., v. Dry EEOC Associated Goods 449 expressed May 1923 reconsidera U.S. 600 n. 101 S.Ct. 823 n. May patent Big issued to tion of the (1981); (J.A. 538-45). 66 L.Ed.2d 762 v. Met Company Bend Transit See Trafficante Co., 205, 210, ropolitan Ins. 409 U.S. Big also United States v. Bend Transit Life 364, 367, (1972); Co., (E.D.Wash.1941). 34 F.Supp. S.Ct. L.Ed.2d 415 Electricians, opinion by interpreted he Power Reactor v. Co. 1529, 1539, right way the 1905 Act L.Ed.2d as a statute for U.S. S.Ct. *17 (1961). Indeed, operation hydro- the construction and of a 924 the construction the Secretary Department non-transferable. The Interior held that it actions of the the of already conclusively right way of build Interior have demon- could issue to Wilson a of Falls, strated and that held under the 1905 Act and maintain a dam at Little absolutely right are transferable. It is therefore clear such was transferable.

323 attempts blithely Clearly, right and oper the to maintain presently Commission Act, ate the Little Falls is based on of the 1905 the clear intent circumvent right-of-way existing dangers [previously] “valid of the of strong is evidence itself granted” exceptions. that falls within these statutes, long so after reinterpreting Department interpreted of Interior the enacted, interpreted, and relied have been agency the 1905 Act when that reconsid agencies alike. private parties and upon by application ered Power’s for a Application February IV. Having of the patent. compared the Act of 1901, 790, 15, 31 Stat. 1905 Act the Act Federal Power perma granting which authorized the of importance is the It of utmost etc., way, nent of Hubert rights of the realize that the Work wrote: Company in this case are Water Power then, Act, special differences, and that a special

based on The fundamental be general acts, whereas, by in effect over more the two are that prevails act tween GSA, 820, 834-35, right act of the conferred is 425 U.S. the 1901 acts. Brown v. 1968-69, 1961, permit, 48 of a mere revocable the L.Ed.2d 402 Sec 96 S.Ct. 535, Interior, Mancari, retary the under the Act of (1976); 417 U.S. Morton v. (in 2474, respects all 2482-83, 1905 similar to act of 550-51, 41 L.Ed.2d 94 S.Ct. 1905, 26 in the mat cases); March Stat. (1974) (citing v. Rodri 290 Preiser grant, ter of the extent and nature of the 475, 489-90, 1827, 93 411 S.Ct. guez, U.S. same), jurisdiction to and terminate (1973); 1836, 439 36 L.Ed.2d Fourco Glass implied fee such is a limited on an 222, Corp., 353 U.S. Transmirra Co. v. in the event the condition of reverter 787, 791-92, 228-29, 1 L.Ed.2d 786 77 S.Ct. grantee ceases use retain land Little, 504, (1957); v. 109 U.S. Townsend purposes indicated in said act of (1883); 12 27 L.Ed.2d 3 S.Ct. 1905, supra, of which termination Sands, Statutory 2A Con C. Sutherland fee way or limited is not vested (4th 1984). fact, In ed. struction 51.05 Interior, but in the “special being act” very Act is a 1905 effected, being upon good cause relatively small solely it is to the limited shown, proceedings only through had River on the southern area of the Depart jurisdiction without Indian Reserva boundary see, Interior, in this connec ment of the general A the more tion. construction of tion, Company v. United Kern River or the Rivers Har Federal (257 66 L.Ed. States U.S. S.Ct. [42 rendering Act had the effect of bors words, 175]). In both the acts other special Act would thus be void acts; right way 1901 and 1905 are suspect. Having highly settled appli general in its nature and grant former Secretary to Act authorized the cation, its nature special the latter necessary rights parties the application. build) maintain, operate approval to (J.A. 542) Thus it is facility, “in the Little Falls Department interpreted the boundary Spo clear that the along the southern Reservation,” legislation special as a Act authoriz- see n. kane Indian “rights ing of valid the establishment question of this case becomes central authorization “con- excep way” which included rights fall within the whether these building maintenance of a in sections sent” to recognized granted tion granted which was well hydroelectric 23(a) 23(b) Federal Power Act. significant 1920.13 is FPA, before June 816 and 817. U.S.C. §§ Interior, Af- merely many of Indian the Commissioner quotation above one fairs, fact, Agents field and all other Indian same effect. that could be cited parties in the enforcement replete involved with references to the record is so construction, sites,” "dams," understood it authorize "power and so on "construction” dam and operation Department and maintenance absolutely clear that that it *18 opinion Department that this of the ren- enlarge right of way granted May contemporane- dered on is a under the 1905 Act to oper- construct and interpretation ous of the Federal fact, Water ate the dam. the Commission’s application Power Act of 1920 and its argument recognize refuses to the full rights granted under the “right 1905 Act. way” statute, authorized granted which was consented to Commission, however, proposes now Secretary, and then balances its miscon- analysis a different of the 1905 Act and its against struction a result which assumes 23(a) 23(b) relation to sections of the validity of its misconstruction. All the Federal Act. FERC first states emphasis “enlargement,” etc., in reality part legislative history of the of sections attempt is an impose a standard differ- 23(a) 23(b): Those sections of the bill ent from statutory standard. The stat- originally provided as introduced for “re- expressly prohibits ute the Commission voking any permit existing or right valid doing anything that could be con- granted heretofore or as revoking strued “affecting any authority” or “ex- authority given pursuant heretofore isting right-of-way.” When that standard prohibiting law” instead of being their con- applied, is the Commission’s construction any permit strued “as affecting or valid clearly falls. existing right way authority” ... ... On June position Commission’s is Gif- Pinchot, ford revered as one of the right way fathers separate right from the movement, of the suggested conservation incongruous outcome, use it. This is an changing “revoking” “affecting” or- since under the 1905 and the laws of der to make it permits clear that revokable providing appropriation for the (like that created the 1901 Act from of rights water that the 1905 incorpo- Act departed) rates, the 1905 Act would not use of the beneficial become pas- irrevocable virtue of the implicitly water follows from acquire- sage of Federal Water Power Act of ment of the rights water and the land. The (1920) (“FWPA”). 41 Stat. 1075 rights Com- acquired the land were by “grant” mission now states in its Opinion current Secretary from the rights No. 117A that language 23(a) of section acquired by appropriation under the was intended neither to diminish nor en- laws of Washington with the “consent” of large rights pre-FWPA held under permits. Secretary. The title of the Act indi- 61,014. Thus, F.E.R.C. purpose cates that provide is to for “the Opinion FERC rules in its current No. acquirement of water lands [and] Power could continue to ... for sites for purposes, and the occupy lands of the Indian Reser- use said water.’’ The three beneficial vation and utilize waters Spokane go title, hand in hand. In keeping with the River for the Little development, Falls but the first section of the 1905 provides: operate could not continue to maintain “The to the use of the waters of the its dam without a license under section River ... with the consent of 23(b). view, In the Commission’s acquired ... be appro- ... “enlargement” would be an original priation under ... the laws of ... Wash- permits. result, 1906 and 1908 This ington.” The statute then continues: “the contends, Commission “strikes a balance ... empowered authorized and preserving between grant appropriator such the water [of pre-FWPA permits, refraining from en- ... land ... River] larging contends, authority;” it necessary such as shall be ... is, uphold that to Company’s position erection ... dams [of] [etc.] necessary other produce power. structures responsible the federal officials for administer- Appendix These ing construction, documents are set forth as Doc- the 1905 Act construed it to authorize the Petitioners, Reply ument No. operation 9 to the and maintenance of a Brief of overwhelming and constitute evidence that all dam.

325 currently by limited fee held the Com- development power or able of benefi- for 2. pany. Id. use said water----” § cial of of the waters of right to the use “[T]he Thus proposes the Commission ac first provided in the as for Spokane River” tually right to of way obliterate the for the Act, way just of of another section rights use of its beneficial water appropriator may ben- recognizing that holds, Company currently limited fee “the erec- water eficially his use implied non-use, Big with reverter for see development ... for the tion ... dams [of] (E.D. Co., F.Supp. Bend Transit matter, practical in power.” As a of Id.... Wash.1941), forcing it to apply for a statute, rights and the context of fifty year term, run license to for a at the land, grant- appropriated, consented to and right of to end which the maintain and development power,” of could ed “for the operate up be dam would for license. by a not be in other than dam. used obviously Company’s right This affects way: having the right Instead of to use ruling of the Commission’s effect power the “lands ... ] [a] site[ Washington of its strip Power would be to purposes, the beneficial use of said operate maintain right way to valid perpetuity long so water” as it is used Falls, to Little effect the dam at production power of electric or However, applicable right. revoke that use, and some other beneficial the water so recog- upon the Commission relies statutes law, long Washington as consistent with continuing any “valid validity nize the Company merely would'have 23(b), and existing FPA right-of-way”, § li produce for the term of the construed provide “shall not be Washington This affect Pow cense. existing any permit or valid affecting prohibited right way in a manner er’s prior granted to June right way ... 23(a) (b) of the Power sections Federal authority here- affecting 1920 ... or as Washington is ex Act. Therefore Power FPA given pursuant law.” tofore empted being the statute from 23(a), U.S.C. § § operate now apply for a license now, some require For Commission facility Falls under the maintain Little completion construc- years after the exist Federal Power Act because “valid tion, licensed Little Falls dam be granted prior to ing right-of-way [was] Washington may continue Power so 23(b), FPA 16 U.S.C. June 1920.” § use” of the “beneficial its water 1906-10, clear- acquired by appropriation question here the We need not reach existing right way ly would “affect” the compensation would be due for what deny very way: It would concrete acquisition revocation Washington Power the to the benefi- Falls property rights Little Power’s the dam cial use the waters diverted state, mu- development. No hydroelectric also license. It would without further now con- entity or federal seeks to nicipal drastically all the real reduce the value of property under eminent domain. démn the present property involved. license voluntarily Washington Power Nor does require Washington Commission seeks right way for exchange its valid seek to operate and maintain acquire Power to 23(a). And since a license under section would, facility granted, if the Little Falls Federal holds that the Power this case years. expira- expire fifty Upon after being re- Power from exempts Washington tion, development Falls could Little presently to ac- by the quired Commission trans- appropriated by the United States or develop- the Little Falls quire a license for party. other ferred some do we under the Federal in ment compensated need to be Power would li-a of whether such not reach issue according to the “net invest- only this event “taking” be a censing requirement would much ment formula” which well be to the Consti- the Fifth Amendment transfer- than market value of the less moreover, clear, terway It is exist- the United States in tution. 1906-10 Little Falls did when the consented ing grant- to and ed any necessary authority develop- lack Little Falls 1911 on *20 construction, ment in with accordance the 1905 We operation its mainte- Act. for will deal continuing operation with both contentions. its nance or for Power is Washington there- maintenance. The river in its relevant stretches was apply for or fore not to obtain a navigable when Little Falls devel- present subject Thus it is not at license. opment place. took At provi- that time the formula, investment” the cost-based “net sion of the 1905 Act con- authorized the projects are Commission concludes operation struction and of the Little Falls authority. pre-FWPA without dam and the “beneficial use” of the water rights appropriated under of laws analysis that It follows from this Wash- Washington. option, has ington Power therefore but required, exchange is not its current Spokane River starts as the outlet of of under the a license Feder- Couer Lake in d’Alene Idaho and flows noted, al Power Act. It should also be generally join northwest for 105 miles to however, occupy the river in Washington Columbia River Mile at to use the flow of the stream 317 above the Snake River. From acquired under the 1905 and Wash- source to its confluence with the Columbia ington property law and are under it has repre- a total fall of feet. This Short, Thompson that law. v. 6 Wash.2d average sents an fall of 10.2 per feet mile (1940)(appropriative right 106 P.2d 720 length. naviga- over its entire The river is property); real v. Wenatchee ble within from Lake Idaho Couer d’ Aleñe Tedford Dist., 127 Wash. 221 P. Reclamation eight Falls, Idaho, miles Post five (1923)(same); McNeal, v. 328 Madison 171 Washington-Idaho miles east of the bound- (1933) (right ap- Wash. 19 P.2d 97 ary, where is a drop there natural of 40 flowing propriated naturally water inor feet. This stretch the river incorporeal control works is an heredit- lake to Post Falls is not obstructed ament). rapids Since the 1905 depth subse- and in had a fair 1932 due to enactments, incorporated quent these as- the back water from the Post dam. Falls pects Washington property floating logs law refer- The is the only commerce ence, Congress already river, on approved eight has this mile section of acquisition property rights entirely in which is in Idaho. the water acquired Spokane River developed subsequently, As will be 1905 Act and the law of the 97 miles of the river below Post Falls appropriation. It is therefore clear that was navigable not shown to be either present be law cannot construed to Idaho or when Little Falls was government simply authorize the federal developed. From foot of Post Falls to property paying just seize without Spokane Washington, the head of Falls in compensation, any than more it could seize line, 20 miles west of state the river which had land authorized the through comparatively flows a wide government federal sell and which had valley average level has an fall 10 but already private parties, been sold to with- per Spokane feet or more mile. is a Falls paying just compensation. out series of falls cascades with a natural relatively drop of about 150 feet. It is also Navigability Spokane V. River during high sea except shallow contending Logs In addition to son. had floated from the lake that the Com- been pany apply must no for a license because the Post Falls in Idaho but there was is, fact, navigable general practice driving logs Post “now” below Falls, Washington, Little line into the Commission also con- Falls across the state evidentiary navigable tends that the River a so far as this record demon- wa- 291, 298-99, 406-08, strates, occasionally high water S.Ct. L.Ed. except (1940). Report years ago. As the many Engineers Army states: “Below the river Falls is not to row impractical either navigable except and never was logs drive between boat or short This stretch of the stretches.” season, during low water Post Falls through deep canyon river flanked “flows five months averages which about way.15 by high lands” most of the With an rapids many year, account mile, average drop per of 10.8feet the river Dur- depth water. very shallow high velocity and thus flows with its “bed water, three ing high about the season boulders, composed principally ... year, velocity of the months of great many rapids; cause a *21 naviga- great commercial water is so that by is also obstructed numerous river 16 impractical and uneconom- tion be improvements of falls.” “No this river ical excessive due have, (1932) by ever been authorized Con- 17 no require____ is There boats would gress.” physical The of characteristics Spokane River indicate that the record to river, in as described the official re- for highway has been used as ever ports Army Engineers, of the thus made it commerce, not the river is interstate nonnavigable from Falls to Post its mouth. commonly useful generally and development The Little Falls located agriculture. trade or River 70 miles below Post Spokane (emphasis Report Ex. 87No. of Falls, Spokane 45 miles below Falls and 29 (J.A. 621). The

Army Engineers, 1932 miles from confluence with the Colum- not logs during high water does floating of (J.A. 637-42). According bia River is a of the River establish that stretch Report Army Engineers of in 1932 v. Rio “navigable” stream. United States the Spokane there was no commeróe on Co., 174 U.S. Irrigation &Dam Grande report concluded: River. The further 770, 773, 1136 690, 698, 43 L.Ed. 19 S.Ct. Logs 17. have been floated down the (1899) (“The logs, poles and mere fact Falls; there Spokane River Post but a stream occasional- rafts are floated down general practice driving of has been no high times of water does ly and in Falls, present logs below Post river”) add- navigable make it a is to practice lumbering interests Waters, ed); 511, n. 65. 16 67 Am.Jur.2d rail- bring logs to their mills either waterway of the A is a river road cars or auto trucks. if it a continuous constitutes United States exception of the one 18. With purposes highway capable use quoted in letter mentioned boat [a] other transportation and commerce with 13, paragraph there is no record custom- foreign states or countries Post Spokane and boat traffic between is con- in which commerce ary modes such Falls. made or which ducted useful, it 19. If the river were ... navigation given reasonable available purposes, such Ball, been used for 10 Wall. would have improvements. The Daniel 563, days of settle- especially in the earlier 557, 563, 19 L.Ed. 999 77 U.S. 430, 441, of other Montello, ment before (1871); 20 Wall. The transportation. (1874); means believed 430, 441, 22 L.Ed. 391 United U.S. physical characteristics Utah, 283 U.S. S.Ct. v. States to use this river explain the failure (1931); Appala- river States v. L.Ed. 844 United Co., navigation. purposes 311 U.S. chian Electric Power 16. Id., 14. 1932; Army Engineers, Ex. No. Report ¶ 4. 621-25). (J.A. 13¶ 17. Id., ¶ 14. 15. Id., 5.¶ navigable portion Spo-

20. The United States and carried out River, portion respect which is these with Spokane kane be- duties River. n. Falls and d’ See Their tween Post Coeur Aleñe official infra. reports carry particular weight. thus Lake, wholly within the State of Ida- lies Geological Survey official maps U.S. ho. Spokane length, over its River entire Spokane It is concluded that Couer Lake to d’Alene its confluence with navigable waterway River is not West, the Columbia 105 miles indi- United, States, because inter- cate that numerous railroad and highway Wash., Spokane, state stretch —between bridges over cross River. Falls, Idaho —is neither Post used Mile Index of the River from Lit- susceptible being nor used its or- tle (undated) Falls to d’ Lake Couer Aleñe dinary highway as a com- condition bridges (10 indicate cross river merce.18 bridges highway railroad and 22 bridges) nonnavigable character of (J.A. 637-42). Yet the official List of River from its mouth to Falls is Bridges Navigable Over Waters April 21, Report corroborated States, compiled by United the Chief of Symons, Corps Engi- Lt. T.W. Engineers, Army, United States and re- neers, Army, transmitted U.S. Sec- January vised to U.S. Government *22 retary of to the United States Senate War Office, 1936, Printing did not include any response April Senate of Resolution bridge “Spokane the over River.” This 1882, “[rjespecting navigable the waters of publication the Army Engineers of consists Upper the River its Columbia and tributar- printed pages, of 461 every and includes ies.” highway railroad or bridge that crosses Spokane through The River flows ... any navigable water of the United States. very a cañón similar that Co- No where publication does this official lumbia, about feet below and the “Spokane mention the River.” The conclu- general plains of to the level the south. inescapable this, sion is from and all its by falls, It is many rapids broken and prior Reports River, on the Spokane see n. entirely and unnavigable. is From its Army Engineers found that the Falls, Spokane up mouth about seven- Spokane navigable. was River not miles, ty very deep this cañón is and If Spokane navigable the River awas cross or difficult to traverse. water of United the the States at time the (J.A. 766-70) added). (emphasis Ex. 159 As Secretary gave Interior his of consent to page nonnaviga- indicated at above the appropriate Wilson to and use the Little Spokane bility of the River below Post rights, approved Falls water and the sever- Falls by was also confirmed in 1905 applications rights way al for necessary of 623). Engineer ground (J.A. to build and maintain the his actions Department Army War and may of have been violation the Rivers Corps Engineers agencies of are the that Harbors U.S.C. 403. This are study report directed to on requires plans building that for a dam rivers, empowered nation’s and they are that navigable waterway would obstruct a approve Rivers and Harbors Act of the United States be consented to plans dams, etc., bridges, that would Congress approved by the Chief of navigable obstruct Engineers rivers of United Army. and the States. investiga- Their duties apparently included This was not done the case of Thus, tions in the necessary Spokane field determine the Little Falls dam. if the waterway navigable whether streams were waters of River was a Engineers Army 18. Id. River Chief and the List of Bridges Navigable Over the Waters the United judicial 19. We take notice United States (1936) pursuant States to Fed.R.Evid. 201. Geological Survey maps covering Spokane place respectable evidentiary no support at the time and covered vanees United States applications prin- Wilson Com- this conclusion. It claims reliance approval cipally logs Interior’s on pany, some flotation from Post Falls, Falls, Riv- insufficient under the have been Idaho to However, ap- Act. such early days; ers Harbors but it advances no sub- not because river proval was sufficiently proba- stantial evidence that is navigable. not tive sup- to conclude that such flotation ports navigability. a claim of does finding, is in The Commission’s error any advance from evidence which it could evidence, Spo- without substantial any reasonably logs concluded that navigable. findings, kane River was ever down floated river below Post Falls interpretations the War conclusions high except during periods Army Engineers Department conclu- above only point then to a Falls. sively demonstrate time The Commission has not advanced one iota facility was constructed Little Falls of of evidence of commerce char- unnavigable.20 entirely River acter over the 70 miles of the from However, not recog- does the Commission Spokane Falls to confluence its with the any necessity to the evidence nize evaluate This is Columbia. fatal Commis- features, physical to be river’s Development sion’s claim. The Falls Little by the official influenced conclusions this stretch 45 miles about below Reports Army Engineers, which con- Spokane. only probative stitute the reliable evidence presented navigability on the issue of —an items evidence Commis- largely determined issue that 23-24) (pp. upon support sion brief relies facts. navigability claim of the flotation of logs the short distance Post Falls argues

The Commission’s brief *23 always Spokane to Falls are itemized and their a Spokane “naviga- River has been complete deficiency probative as evidence waterway of the United States.” ble However, Brief, pp. pointed margin.21 out in the FERC 23-24. it ad- 1881, (2) Department investigated map "allegedly” identify- is 20. In the War the Exhibit 130 a ing Spokane public highway Spokane it was a for River and determined not navi- the River as 186, Sess., Cong., by Washington gable. logging the No. activities as declared Sen.Doc. 47th 1st 1211, (J.A. 764-70). (R. 750). (1982); Legislature J.A. How- Exhibit 159 in 1875 ever, the entire is "Declared Public while river 13, 1892, July to the Act of 27 Stat. Pursuant Highway Logging by of for 88, Army Corps Engineers the of undertook to 1875,” only it is from Lake Couer d’ Aleñe Spokane the River "wor- determine whether was Spokane is "Past Falls that the river marked: thy improvement.” Report Annual of The 1893 Thus, Usage Logging.” even this bit of weak for Engineers it of the Chief of concluded was not. that does not indicate inconclusive evidence 9, Opinion No. 117A 11 n. 25 F.E.R.C. See at Columbia, Spokane to the the river Falls 61,024; Washington Supple- at from 1f stretch, the Falls was ever which includes Little Appendix, No. 2. mental floating logs. marking the on used In fact for 1905, Army Engineers the In the District of Usage Logging” map the indicates that "Past Corps Engineers of wrote that the river not was stopped Spokane Thus the conclusion Falls. Falls, navigable downstream from Post Idaho Usage no "Past is that there was obvious (J.A. 623). Spokane Logging” Furthermore, to the Columbia. Falls 1932, Army Engineers, In the Chief of after an marking map the on the mere investigation, river was determined the not navi- prove Spokane above Falls is insufficient (J.A. 621-25). gable The river was therefore navigability requisite of a of because lack officially non-navigable determined to be at Lit- stretch river as to when this indication tle Falls four on different occasions. map logging.” does not "for This used First, 126, (1) probative as to time of evidence cites Ex. No. a constitute the Commission year "logging” it or as whether pamphlet published that occurred in 1952 entitled “Steam- high times water. was limited to of boats in Timber.” contains a brief This (3) pamphlet enti- log "early days” Exhibit No. 127 is a 1958 a in reference to drive (J.A. 736-39). Empire” Spokane tled Falls "Sawdust McGoldrick’s Mill not far above i.e., (J.A. 735) (R. 1193-96), erected early pamphlet recites that a "sawmill spring" [was] "in Spokane high on the banks of 1873] ... [in water time. In the deficient prior contradistinction evi- United completion States of see (J.A. Grand Coulee 765), Dam navigability of dence Commission also Reports Army of Engineers advances, itemized Report Army Corps of supra. 20, n. Engineers navigability Spo- 1932, quoted even as late as as kane River description Our above of the Commis- above, and described constitutes substan- sion’s excursions search of evidentiary evidence length tial the entire support, record, some outside the and all River was not navigable a Spokane constituting river of probative data dubious val- successful, opinion Judge near the falls ... was not April of the District through large logs saws could not cut reference "now” is another indication River____” (R. were (J.A. floated down the 1197- high 742). judge water time also 738). Again, publication J.A. fully stated: “The are facts before me ...” logs lacks reference to time the (J.A. 743) unnecessary "It and that: to discuss floated down the river. There is no indication as to the time of English naviga- the old rule and definition of a year logs were floated. (J.A. 746). ble stream" He did state that the (4) allegedly Exhibit No. 129 "contains an "Spokane River is size sufficient and of such log newspaper of a account drive down the (R. public as to highway” channel be held a Spokane (R. Spokane River to Falls" J.A. 746), obviously J.A. speaking but he was 747). page This claim at 24 of the Commission's river in Idaho above Post Falls. That brief is bizarre. It claims that its assertion of always short stretch of the River in Idaho was navigability supported newspaper story a navigable, only considered to be but from the Spokane newspaper ain of June 1884 re- Falls, lake to Post in Idaho. porting "Tom Johnson was drowned to- (6) The Commission brief also cites a state- day driving logs couple while miles from publication ment in Exhibit No. 133. This is a Aleñe, (J.A. Fort Couer d’ River" reports entitled "American Lumberman” which 747) But Fort Couer d’ Aleñe August that on a United States Mar- was built in 1878 on a "thousand acres near the Spo- shal" handed down a decision" that the outlet, where lake d’ [Couer Aleñe] drains (R. navigable kane River was a stream into the River. Much of this thousand 756). quotation J.A. The exact is: City acres is now within the boundaries against complaint Spo- case of (J.A. 733). Couer d' Alene” Couer d’ Aleñe is in & Company violating kane Idaho Lumber Idaho about 12 miles east allowing the federal statutes sawdust Thus, driving logs couple state line. one “a river, other refuse navigable enter clearly miles" from the Fort in Idaho stream, the United States marshal Falls, likely and most east of Post Idaho. The following has handed down decision: always recognized river above Post Falls was "That the defendant allow did refuse and navigable, Idaho, only but within and Johnson’s other material enter the river from its drowning navigabili- does not indicate interstate mill." ty. newspaper's statement that Tom "has a "That the river is a stream.” Helena, (J.A. 747) brother in Montana” is insuf- *24 "And that the defendant has violated the support necessary ficient to the interstate ele- naviga- statute when it threw this refuse in a log ment for the traffic. river, navigation ble whether it obstructed (5) (R. 1202-07, 741-46) No. Exhibit J.A. not.” 429, opinion, is an 50 Fed. a U.S. District subject by higher The decision is to review a Court, Idaho, 9, Judge, 1892, April Circuit D. court ... quotes from which the Commission’s brief the (J.A. 756) This does indi- not "Spokane statement is of River suffi- cate whether the mill was in Idaho or Wash- cient size and of such a channel be as to held a ington, and 1207, there was no indication (R. where public highway” 746). J.A. But this is Likewise, pres- dumped. was sawdust it is holding opinion not the the Court. The con- tinues, ently considered statement of the Mar- but the Commission omitted brief (J.A. 756). equivalent a shal is to court decision following significant statement: this indica- “If foregoing The sets forth all evidence that production is tion a full confirmed support facts, of the brief Commission asserts in its far waters must so flow unfettered that Spokane of its claim that the navi- public River was a transpor- be utilized gable (J.A. 746). probative purposes” water of the United States. The tation The omission is telling Reports Engi- Army effect of official of the and adverse to the conten- Commission’s Spokane tion. neers that the was navi- River never a gable waterway sought This was a case the United far oversha- in Idaho States which an injunction against foregoing placing one Post dows the claims to evidence advanced ob- Spokane prevented structions in the The River that the Commission. Commission’s conten- floating logs foregoing supports down the a its stream lot of it “now" tion that evidence just obviously has above such obstructions. Since the date claim is deficient. 2,100,000 power plant develop horsepow- of the ue, tenuousness demonstrate navigability. conclusions on contemplated $392,000,- er at a Commission’s total cost of 61,027 ¶ 61,002 at 25 F.E.R.C. also See depression in It created a dollars. lake (Butler, Chrmn., dissenting). The Commis 5,000,000 long miles stored over height of review reaches the de novo sion’s Improving acre feet of water. navigability however, when it holds absurdity, Spokane very River was one of its navigable always has been Spokane River purposes. minor improvement was neces only one because so, is, construction make it sary to While the Dam Grand Coulee did Coulee River of the Grand on the Columbia lake, navigable create it is absurd to in the Dam, largest concrete structure it is suggest that the sort of “artificial aid” engineering great One world.22 retroactively that would convert the entire century, this the Grand Coulee marvels navigable River into Spokane water of in the long lake created 51-mile Dam States a time the United back to when 29 miles canyon and backs water Columbia the aid dams were constructed with canyon tributary up man-operated mules wheelbarrows. Little Falls the tail race below the River to theory practically would make Such all 61,- ¶ 61,002 at development. 29 F.E.R.C. navigable; gnarliest streams rivulet in might the Rockies made to accommo views this apparently The Commission craft pleasure energy date if the and enor “artificial project as the sort of immense capital outlay mous it took to build Grand Supreme navigation to aid” to the task. The Coulee devoted to Su Appala in v. referred United States Court preme Court was not so as to miss obtuse Co., 311 U.S. chian Electric problem deciding Appalachian. (1940). L.Ed. 243 25 F.E.R.C. S.Ct. wrote, Appalachian Thus the Court in 61,005. ¶ 61,002 implausible. This is quite right saying court “The district limited where Appalachian the situations improve there are obvious limits to such naviga susceptible being made a river is affecting navigability. These lim ments as and need given “a balance between cost ble necessarily degree.” are a matter of improvement would be at a time when Navigability 311 U.S. at 407 n. 26. Grand at 407-08. 311 U.S. useful.” achieved must be at a reasonable cost. improvement Dam was not Coulee an million “contemplated” cost of $392 need to make reasonable cost and was (1933)dollars, not a “reason depression cost navigable. River tributary Spokane make cost” to able extraordinary improvement its mouth only from navigability river conclude, may safely Little Falls. We fol minimal—only from with the confluence Court, Appalachian that as a lowing the race below the Columbia tail mean degree did not matter the Court Development. to the rea Falls As Little propor titanic include concrete works of cost, v. Tax Mason Co. sonableness long)24 (550 high feet feet tions Comm’n, 302 U.S. 58 S.Ct. *25 involving “high engineering skill (1937), 236, L.Ed. 187 recites 82 money” as expenditure of vast sums project, originally contem as Grand Coulee improvements navigability. reasonable plated by Department the War v. Dam & Irri States Rio Grande United Interior, included a dam Department of the 699, 770, Co., 690, 174 19 S.Ct. gation U.S. high to be feet above Coulee 370 at Grand 773, (1899); Appalachian, L.Ed. 1136 43 (550 actually cons high feet as low crest, 408-09, at 299-300. 4,290 at 61 S.Ct. tructed)23 311 U.S. long 192, Comm’n, (1981). U.S. at v. Tax Mason Co. Records 269 24. Book World 22. Guinness 236, supra. at S.Ct. high. is 555 feet Monument Encyclopedia. World Book controlling: to this Spokane, At all times relevant case are “Below the river navigable. Spokane River It was not is not and was navigable except never stretches____” navigable properly was found not to 87, 29, short April Ex. assigned duty that those to whom 1932. And never found it neces- physical of the features of the evidence sary to consent to the of any erection Army Engi in all the river as described bridges many over the river. No sub- reports century, over half a neer’s see n. stantial evidence contradicts these conclu- 20, probative supra, convincing are evi sions upon or the facts are navigable fact not dence of the that it was based. is nothing There in this record in development fact when the Little Falls which suggests that when the Little Falls Thus, was constructed. terms of dam was it navigable erected obstructed a the 1905 Act and Wil portion navigable of river of the United son were authorized to construct the Little States, if even some intrepid lumberjacks development obtaining Falls without manage, during high did water some 65 to approval Department of War or Chief 45 upstream Falls, miles from Little Engineers, it Army since could not be logs float some down a stretch short anticipated, thirty years some before the river. fact, largest that concrete dam in histo time, At present part ry someday flood the lower reaches River the Little Falls Devel- Valley to the tail race opment to recognized the Columbia is now navigable below Little Falls and make navigable by Corps as the Army Engi- part formerly of a stream that was all but (J.A. 634-35). neers This was due to the impassable by canoe. completion of the Grand Coulee Dam as we give Commission’s failure ade- 61,003. note above. 25 F.E.R.C. at quate Army naviga- deference the 1932 Thus the jurisdic- Commission would have bility report reports, and all its earlier see tion to license new structures built on n. supra, further shown its selec- navigable portion now of the River (the reading tive report Exhibit 159 cannot, under the Federal Power Act. navigability). reading This the Com- however, expunge the fact the determi- mission, however, support does no more to nations river was not finding than navigability does its when the Little Falls was au- viewing Grand Coulee as a reasonable navi- constructed, thorized and so doing gation aid. The conclusion the 1893 provision evade the of section 23 of the report naviga- river was not “provi- Federal Power Act that none of ble, 1161,002 61,024 25 F.E.R.C. at n. present sions” of the Act shall “be con- report to use the selective manner affecting strued any permit as or valid attempt Commission does in its to sup- existing right granted ... [before port navigability conclusion of is to affecting June ... or 1920] its own contradict evidence and make a given pursuant ... to law [before mockery of the properly deference owed to 23(a), June supra. 1920].” findings authoritative on the river’s navigability relevant times to this The Commission claims reliance on our case. earlier in Pennsylvania decision Water & FPC, (D.C.Cir.1941), Power Co. v. 123 F.2d 155 something Even if there were denied, rt. 62 S.Ct. U.S. through Commission's bizarre route ce (1942), proposi 86 L.Ed. 1205 question, neglects navigability it the doc- operator hydroelectric tion that an of a trine that a river be found be navi- project rely previous holding on a could gable nonnavigable in part part. Utah, nonnavigability by 1904 of 64, 89-90, v. United States 283 U.S. *26 438, 445-46, Harbors Act (1931).

51 844 War under Rivers and S.Ct. 75 L.Ed. Mary in respect project Insofar this case with another is concerned the au- river), findings (a Army Engineers bridge thoritative land on the as im- same navigable only mainte- States but was within Penn- erection and consent plied in Penn- structure company’s sylvania. It had never submitted the loca- nance case involved Pennsylvania sylvania. plans tion and for the dam for the statuto- Federal Power Com- by the order a 1938 rily required authority. federal In thus Company obtain a Power that the mission admitting that the dam was erected in wa- 23 of the Federal section license under navigable that were single ters “within a built between its dam Act for Power state,” i.e., given Pennsylvania, the re- Brief, 5) (FPC p. 1905 and company section quirements of was Holtwood, near Penn- River Susquehanna Here, however, theory. hung its own decision forth below our As set sylvania. the record reflects that Little Falls dam clearly distinguishable is Pennsylvania any not erected in waters that were was facts, precedent on the and is navigable Washington. Even if within develop- respect to the raised with issues were, is there considerable force to Little Falls. ment at argument special found First, Pennsylvania court in 3,1905, applicable only to the Act of March going back to evidentiary record that the along Spokane River the southern bound- finding supported the Commission’s Reservation, Spokane Indian ary of the had navigable a riv Susquehanna was that the provided complete a alternative to section 9 when the Holtwood the United States er of compli- and Harbors Act and of the Rivers constructed, while the evidence Dam was was all that was ance therewith respect to the here with right-of-way” the “valid ... re- establish navigable a river of it was not quired by section 23. States, the Little FallsfcDam when United Third, Pennsylvania Company Power built.25 was right-of- “granted never ... ... was Second, Holtwood dam was not built by any authority” federal ... [or] pro- right way because on a “valid” authority, such as Wilson and and Har- 9 of the Rivers of section visions consent, grant here Water obtained Pennsylva- fatal to Act of 1899 were bors Secretary from the and authorization Company point to and the could nia’s claim with the 1905 Act. Interior in accordance authority. provided, statutory Section no Company Pennsylvania Power Hence the alia: inter exemptions sec- not entitled to was “may be structures such [dams] here to Wash- are available tion which legislature built and which are fatal ington Power navigable across rivers ... a state It follows contentions. Commission’s portions wholly lie within a & Pennsylvania Water the decision state, single provided the location and Co., application to this case has no approved to and plans are submitted development satis- Little Falls Engineers Secretary and the because the Chief of exemp- com- 23 conditions for Army construction the section before fies menced____ Little Falls tion, Spokane River at relevant times to shown at the was not added).26 33 U.S.C. § navigable on a stretch have been Susquehanna Company contended river, or intrastate. interstate navigable river of the United not a was ever obtained no authorization p. supra. 25. See discussion at Dam and to build the Holtwood federal official ruling that the the FPC’s court sustained Congress authorizing special act of was no there a of the dam was Susquehanna at the location develop- Little Falls construction. The such despite a the United States water of grounds (1) distinguishable on both ment — ruling of War that the state, i.e., in 1904 authorized of the Interior only navigable Penn- in one river sylvania, (2) conformed project, the authorization Pennsylvania Railroad and that Congress. special Act of bridge over the to build therefore had However, Grace, Maryland. de river at Havre *27 334 court, citing requirements

In New- Pennsylvania, of the Rivers and Har- v. port Bridge Co. United bors Act would in & Cincinnati have been a different 470, 480, 470, 480, States, 105 U.S. posture. 15 Otto But since the stream was not (1881), super- time, 1143 held that “the navigable 26 L.Ed. at that the Rivers and Har- Congress navigable and control vision bors Act was not violated the construc- in waterways ‘is continuous its nature’ and tion of the right way was supervision part power no of this ‘will acquired validly existing under then law. presumed to have been surrendered un- jurisdiction Such as the Commission ” manifestly less it was so intended.’ gained subsequently have over the lower support F.2d at 162. This case would part of the stream the erection of the as it relies on the deci- Commission insofar Project subject Grand Coulee was to and jurisdiction support sion to its over limited section 23 of the Federal Power proposed for new structures stretches of Act.28 FERC’s under the Federal “navigable that are wa- Act, by 23, specifi- virtue of section ters of the States.”27 United cally the compulsory licensing excludes existing power dams constructed under a rights acquired by Washington Pow- right-of-way” granted prior “valid to June approved by er from Wilson and the Secre- 10, acquired. 1920—valid means valid when conditioned, tary of Interior were not how- ever, remaining nonnavigable, on the river The Commission boldly nonetheless em- exemptions nor are in section 23 so leg- barked on a belated excursion into the fact, enacted, they conditioned. when history islative of the Federal Power Act of to, expressly to, related and were limited predecessor, 1935 and its the Federal Wa- acquired in validly past “pur- 1920, spirit terTower Act of in the same — 23(a). suant law.” This is an obvious it purported which undertook its historical existing reference to law at the time the investigation study of the 1905 Act. Its permit way granted or explicitly provided the 1905 acquired. Congress in its continuous su- hydroelectric Spo- pervision navigable waterways could along kane River boundary southern legislated projects occupying have that all Reservation, attempted Indian nonnavigable waterways of the United show the Act fact did not autho- require States would licenses if the rivers rize the construction dams. Its they occupied subsequently naviga- became research into the Federal Power Act of ble, if even did not licenses need be- similarly purports to demonstrate that prior existing rights fore and had way. exceptions they say. do not mean what But did not take this course. It 61,011. 25 F.E.R.C. at See just opposite: did preserved It all valid 23(b) theory Commission’s as to section is acquired by grant pursuant logic difficult to summarize and its is some- prior 10, against being to law to June opaque. From the what House Senate by being required “affected” to obtain a reports, H.Rep. Cong., No. 74th 1st operate. license to 16 U.S.C. 817. §§ (1935) S.Rep. Sess. No. 74th (1935), naviga- Cong., language

If the 1st River had been a Sess. ble river of the Appalachian United States as it United v. States Electric not, necessity Co., complying with Power U.S. 61 S.Ct. FPC, Similarly navigable. part Montana v. Power Co. to make a small of it But that (D.C.Cir.1950) completely F.2d 491 distin- argument refuses to take into account then ex- guishable decisions, because the Commission had before it isting Supreme engineering Court in that case substantial evidence that the Mis- existing limitations around 1905 and that even naviga- souri River in the relevant section was possible when Grand Coulee became and was ble. Id. at That is 494-97. not the case here. improvement erected it was a more enormous expected reasonably than could have been recognized Commission con- Spokane Riv- would be undertaken to make the 's always navigable that the river was be- time. er relevant all it needed was the Grand Coulee Dam *28 (1940), appar authorizing gave complete the ute construction 85 L.Ed. 243 FERC infer, though language to its ently authority, pre-1920 means and thus whether the unclear, Federal Power Act and exception Federal applies the Power Act acting together and Rivers Harbors Act the to it. is not But this such a case. Where operation of the or prohibit maintenance that a power develop- record discloses waterway on a without any dam clearly ment was constructed 1910 and Commission, even those a license operated has been and maintained continu- F.E.R.C. pre-FWPA authority. that have ously complete and under valid ¶ 61,002 61,013. at granted prior to the creation of the Com- mission, development Little interpretation as the Falls astonishing The FERC’s 23(b) is, prohibi- clearly prohibits eviscerate the was and the statute section placed any on clearly tion author- construing obligation Commission from ity possessed “affect” Commission retroactively require subsequent licens- existing rights way, including valid ing by the Commission. in this case. those at Little Falls Section jurisdiction That the Commission’s does 23(b) unequivo- of the Federal Power developments pre- not extend to with valid cally states that shall be unlawful for “[i]t authority is absolutely FWPA clear from construct, operate any person ... plain language section 23 of the in ... the navi- maintain dam In Federal Power Act. accordance with gable waters of United States ... ex- provisions of the 1905 Act the Secre- cept under in accordance with the and tary gave Interior “consent” to his permit right- existing or valid terms of ” and Water Power Com- Wilson of-way granted prior to June (the pany appropriators) acquiring “the exception spe- Thus this in section runs Spo- the use waters of construction, cifically operation and by appropriation kane River ... in power dams. Yet maintenance pursuant to the laws the State of mandate, face of this clear and the similar and, keeping pur- in Washington”; with 23(a), section the Commission at- import of Act, poses in the title of the 1905 declared tempts rely legislative history, on granted said “appropriators he land on completely par- unpersuasive for the erection of dams reservation ... that, ticularly ingenious history at to con- development power ... for the [etc.] statute, clude that “the common use of said water.” beneficial [and] prohibits ongoing op-

with the 1935 statute language of the 1905 33 Stat. 1006. activities well as initial eration construc- to the providing “[t]hat perverted tion activities.” Id. This con- River ... use of the waters prohibition converts the the stat- struction may acquired by appropriation ... ... be imposes pro- on ute the Commission into a id., Washington [law],” implicitly under ... “operate or hibition on those who maintain right to construct a dam includes the existing right-of-way any dam ... [on an] only by Little Spokane River at Falls as prior granted 1920.” If that to June possible of a dam was it construction can deduced from the construction be appli- appropriated River to be waters anything possible. statutes cable then pur- beneficially used “for example egregious This is of an an poses.” Id. rely legislative history in attempt sum, Little Falls at clear of Con order to circumvent the intent use power purposes “for the beneficial it is gress. There cases where oper- was constructed and of said water”29 develop given power unclear whether a 1905 Act. compliance in full with the ated and continues ment was fact constructed reasonable contention There is no operated maintained under valid to be time, given nonnavi- contrary. At pre-FWPA authority, or whether the stat- 29. Title 1905 Act. river, applicable was no the “extraordinary lengths” there

gablity to which the required any law fur- attempt federal or Commission reaches in state to “ex- Existing authority. only federal laws ther jurisdiction tend its over Little Falls Dam.” of dams obstructions required approval 61,027 (Butler, 25 F.E.R.C. navigable, that were interstate streams Chrmn., Indeed, dissenting). one can hard- *29 Thus, it cannot be substan- or intrastate. ly impression avoid the that the Commis- tially questioned on this record that the sion, jurisdiction determined to seize over grant, Secretary’s and which in- consent property the Washington Water “right-of-way” for the statutori- cluded the Company, simply Power decided not to let “valid,” ly purposes, was and it is stated expressed the intent of stand purposes grant- “right-of-way” the for the way. cannot a We countenance such protected the that is and which Commis- ed gross misconstruction of the statute. illegally sion to Given the seeks “affect.” title of the Act that refer to provisions and VI. Conclusion “erection of ... dams ... for the devel- the opment it is that the Act clear power”30 (1) It is that: concluded dams, etc., did authorize the “erection” of Company by appropriation Water Power power appropriation water for acquired the water and the lawful purposes. incorporation into the 1905 right way the construction of a dam Federal Act the water laws of the State divert, store and beneficially use the Washington, riparian under which own- subject waters of the River and nonnavigable right ers on streams had the title, interests, rights, now owns the au- appropriate rights, to build dams to thority right way necessary for the empowered in effect the construction, operation and maintenance of Interior, by acquiring his “consent” to wa- (2) Development; Little Falls Power rights by appropriation ter under Wash- prior etc., rights, June 1920 such law, ington authorize erection of acquired granted in accordance dams, etc., granted on lands reservation special (33 with the Act of March appropriator. apparent an It is also 1006) Stat. and the laws of Secretary correctly interpreted Act; applicable by (3) made such the con- requiring 1905 Act his authorization to operation tinuous and maintenance of the dam,” given. “erect was There Little Development by Falls Power prior no act in effect federal to Washington Company Water Power is ex- Company 1920. The therefore had both empted application from the of the Federal complete authority to build dam at the 23(a) (b), Power Act sections right time of construction and valid 816, 817, Act; (4) U.S.C. said Com- §§ way purpose granted for that before June Opinions mission Nos. 117 and 117-A and which is all that is thereto, pursuant Orders are violation of 23 exception apply. the section Act, section 23 of the Federal Power are

The appropriation, construction to the invalid extent seek to re- complied with the quire Washington Compa- terms and Water Power maintenance Act, ny conditions of the 1905 and section 23 a license for the apply for obtain prohibits operation Power Act Federal continuous and maintenance of doing anything from Development, Commission the Little Falls Power acquired. would “affect” so are therefore reversed to such extent. The Energy Commission remarked on case is to the Chairman remanded Federal Id., 23(a) (b) 2. We have Sec. considered Commis- not be "affected’’ under the FPA may argument jurisdiction argument sion’s that it base exception, the coordination is without of the Little Falls coordination merit. We have considered the Commission’s developments with other over which FERC has remaining arguments and find them without jurisdiction. Since we have found that Wash- merit. ington a Power has valid navigable Act if for further action Regulatory Commission Second, opinion. the dam with time was built? did not inconsistent given right-of-way Company by Judgment accordingly. include build Third, dam? is FERC now barred col- dissenting: MIKVA, Judge, Circuit estoppel requiring Washington lateral majority’s extensive and Despite the apply Power license? questions in this case complex opinion, straightforward. 23 of quite Section are I all these questions Because believe that Power 16 U.S.C. 816- the Federal §§ negatively, should answered I (FPA Act), (1982) states that uphold the FERC decision. may operate dam on person no being without of the United States waters A. Scope the Federal Power Act the FPA. There an ex- licensed under *30 person question The FPA requirement: a need first is whether the ception to this right-of- applies Spokane if he a dam on not be licensed obtained to the the River at dam the FPA be- question the before the build all. There is no that river is in 1920. came effective navigable waterway. majority, now a The however, that because it was feels not navi- Washington Water Power Petitioner (I gable the dam was when built will as- (Washington the Company Power or Com- sume, true), that this is in arguendo, or operates a dam the Little Falls pany) at passed, 1920 the FPA when that the Spokane River the Wash- section of project Little not Falls is covered the claims that it ington Company state. Power Act. This approach terms of the the not to obtain a license under is overly it has flaws: is an restrictive two First, it contends FPA for two reasons. interpretation scope, it statute’s navigable Spokane the River was not that ignores other of the FPA that (1908-11), the sections dam at the time the was built give jurisdiction. the Commission not so FPA its terms does the Second, Washington argues Power apply. an majority undertakes exhaustive is applicable, even if the FPA the dam that as to examination of evidence whether right-of-way valid pursuant was built navigable either the river was when (the in 1905 1905 given special statute dam or when the Power Act was was built (The right-of- Act). Company bought the misses the passed. I think this discussion Wilson, original grant- way from David circuit it point; case law in this makes Act). This, Company ee under the 1905 is not as plain jurisdiction FERC’s that claims, exception brings it within the out- In majority as the assumes. constrained lined in of the FPA. 23§ v. Fed Water & Power Co. Pennsylvania Energy Regulatory Commis The Federal Commission, 155, 123 F.2d 162 eral Power Commission) (FERC rejected sion denied, (D.C.Cir.1941), 315 cert. U.S. Company arguments these ordered (1942), 1205 a dam 62 86 L.Ed. S.Ct. Washington apply for a license. Water Susquehanna River refused owner on Co., (CCH) ¶ 61,039 Power F.E.R.C. statutory permit continue apply for a (1981). rejected also The Commission alia, operations. argued, He inter that his Washington Power’s claim that FERC was in reliance on he dam had built imposing require the license barred Secretary of War’s determination estoppel. ment collateral finding After navigable. river was navigable, the currently river was deciding uphold the whether to Com- control court said that Commission’s decision that the Little Falls dam mission’s waterways was “continu licensed, over the nation’s this court must answer should be nature,” con adding cannot be First, ing in simple questions. “[i]t is relatively three think, sidered, we beyond jurisdiction [in § Power existing obstruc- meant allow and the Federal Power of the Commission FPA] unregulated naviga- long generating land as it is used so tions to continue (CCH) 61,039 electricity. at the United States.” Id. 15 F.E.R.C. ble See streams 61,070-71. is conceded all Company Because it at Should the Power parties stop using purpose, in this case the land for this title maj. today, op. see an navigable government. is This is would revert finding non-navigability will not not, earlier majority suggests, as the a determina- jurisdiction under the Commission’s longer defeat tion that Power no has Act. the Power only good title to the land. It means that government reversionary has interest attempt distinguish majority’s non-use, the event of inter- by saying that Pennsylvania Water gives jurisdiction. est FERC only jurisdiction will reach new PERC’s unpersua- River is projects on applies A that the FPA final reason language ignores It sive. petitioner’s operates along is that it dam says person may that a not build or other, projects licensed to form an with a dam on a river with- maintain “integrated development.” unit of out a license. Because now may li well settled that the Commission Little must navigable, the dam at Falls non-navigable projects, cense even those on statute, compliance maintained with rivers, if affect interstate commerce. findings non-naviga- despite any earlier v. Federal Commission Union majority’s jur- bility. The effort to restrict Co., Electric 381 U.S. 85 S.Ct. previous is as isdiction to a state nature (1965). testimony L.Ed.2d 239 There was *31 concept antediluvian as it sounds. Such a Judge the Administrative Law be before impossible make it for strongly supports that the notion that low protect regulate waterways, our inland part larger Falls dam is of a the Little many portions waterways because of such plants generating network of that sells non-navigable. at one time another were power both intra- and interstate. One wit measure, parsimonious given the This testified, example, Compa ness design grand system of a national of water- ny controlled releases from the en water ways, treats our rivers as if development to enhance tire backyard wading pools. generation general at Little Falls. See ly Washington Project, 48 F.P.C. navigability if the river’s current Water Even (1972). Congress’s powers give jurisdiction, over did not the Commission enough are broad independent grounds finding there are interstate commerce 23(b) may projects that affect applies. FERC license all that the Power Act Section it, the river is or not. gives jurisdiction of the FPA a whether FERC over Corp., 4 F.E. Power facility “any part Niagara dam or electric if it is on See Mohawk ¶ 61,009 (1978) (CCH) (eight projects of the .... reservations of the United R.C. unit). (1982). licensed as one States.” 16 U.S.C. 817 Fed- See § Oregon, eral Power Commission v. response majority’s to these bases (1955) U.S. 75 S.Ct. 99 L.Ed. 1215 them with the jurisdiction is to dismiss (acts relating appropriation not do says In a footnote it wave of its hand. limit Commission’s license water ap- finding a that the Power Act because reservation). power project government plied in this case would “affect” the Com- 3(2) A “reservation” is defined § (which prohibited by FPA pany’s rights FPA to mean interest land owned 23(a)), apply. the statute must not § 796(2) States. 16 U.S.C. United § op. argument n. But this Maj. at 63 (1982). logically it assumes that the Com- flawed: Company require the dispute there that the mission not In this case is no license; Washington Power since reversionary United has a interest obtain a States license, any to obtain a along Spo- does not have the land the north bank of would “affect” kane; change requiring it to do so Washington Power has title to the (the reasoning just majority could mean “consume.” The therefore right-of-way; its repeatedly points not Company purpose must out that the goes) the license, FPA must not so the encourage power a electric obtain the statute was below, if, suggest I But apply. production, but this does not mean a fortio- right to build granted a Company was not ri that a dam was intended. As FERC jurisdic- then FERC by the a dam below, opinion hydro- noted in not all ground be defeated tion cannot obstructing projects electric involve the riv- Compa- a license would affect requiring (CCH)1161,039 61,078 er. 15 F.E.R.C. n. fact, li- require ny’s rights. normally 18. Creation obstructions rights now en- enlarge the cense would legislation, discouraged in river and it is Power; this is also joyed my colleagues not as clear to me as it is to 23(a). prohibited gives grantee that the Act on its face Act did or did not the 1905 Whether to construct a dam. separate right to a dam is a grant the build language Because statute is whether the Federal question from ambiguous, legislative turn to we histo- Whether applies in the first instance.

Act Elections, ry. Allen v. State Board the Power Act jurisdiction has FERC 817, 834, 22 U.S. 89 S.Ct. L.Ed.2d ques- by begging the cannot be determined (1969). Although determining congres- rights, reject- then petitioner’s tion of science, always imperfect intent is an sional somehow affect ing all claims that would very specific the fruits of the search are rights. those precise question this instance. we continuing jurisdic- has Because FERC emphatically answer- face was asked rivers, part the nation’s because tion over Congress. during ed the debate As project Falls is on United of the Little notes, following exchange majority reservation, the dam is and because States place: took interstate network that affects part of a Mr. Dalzell: How is the water commerce, the Federal Power I believe that used, by dams in the river? to be the crucial applies to this case. So *32 They probably Mr. will dam the Jones: Little Falls question whether the becomes willing is a matter are river. This li- exception project fits within time____ to take care of at some specifically, did the censing requirement: future right a dam? 1905 Act include build From committee is Mr. Dalzell: what reported? this bill Act B. The 1905 on Mr. From the Committee Jones: gave right Act to dam the If the 1905 Indian simply It affects Indian Affairs. river, required to petitioner then is not per- means provides lands and 23(b) under of the Power obtain a license permanent rights. acquire can sons provides that no li- Act. This subsection Lovering: carry right Does it Mr. operates a person if a cense is to dam the river? right-of-way with a dam accordance valid no, not at all. That Mr. Jones: Oh year FPA granted before matter, up, go have to if it came would into effect. went Foreign on Interstate and the Committee language of the Act. begin with the We They to take their have Commerce. grantee right to gave The 1905 that. chances on Spokane. Depsite “use” waters (1905)(emphasis Cong.Rec. 2413 assurances, I not con- majority’s am legislative intent how the I do not know meaning of “use” plain vinced that bill, drafter of the clearer. The could be a dam. “Use” right includes the to build Jones, answer to a gave unqualified an Mr. occupy” the riv- mean “consume and could Act does question very specific waters, a dam would cer- in which case er —the a dam. right to construct give the included; hand it not on the other tainly be mightily majority appropriated strives and unsuc- water needed to language Washington law, Wilson, cessfully origi- to twist the above into and that speculates grantee, carefully that when nal something else. took all the neces- sary steps. it Lovering points asked “Does are Mr. These not dis- [the Act] river?”, pute. carry right question to dam he actu- There is no that Wilson ally say validly “Should this bill be con- obtained all rights given by meant remains, question sidered the Committee Interstate and the 1905 Act. The Foreign Maj. though, op. Commerce?” at 316- as to the extent of the Lovering Mr. reasoning is that granted. only Congress Because Its could proper give permission committee inquired about be- to dam the waters on a reservation, juris- grantee’s Committee had federal compli- cause Commerce navigable waterways. Why only diction over ance with state law means that he (and why in question this should be asked everything received the state could form) only this when moments before Mr. give him. had said that the water

Jones was not The fact that the Interior inter (and therefore did not have to be preted the statute right to include the Committee), considered the Commerce change analysis. build dam does not majority problems. should cause the some When the intent of is as clear and The court also finds an irreconcilable unqualified here, as it is the actions anof plain meaning conflict between the enforcement officer cannot be allowed to gives right statement that the bill no Ruiz, override it. Morton v. 415 U.S. construct a and Mr. Jones’ earlier 94 S.Ct. 39 L.Ed.2d 270 “[t]hey grantees] statement will [the (1974) (courts agency should not defer probably dam the river ... at some future interpretations that are inconsistent with my time.” To mind the two statements are congressional purpose); ITT World Com perfectly parties consistent. All the in- munications, Inc. v. Federal Communica expected volved that whoever received the Commission, (D.C. tions 725 F.2d probably to use the water would dam Cir.1984) (agency construction of statute eventually. the river But the to do so accepted should be unless inconsistent with bill; therefore, not included it is intent). congressional obvious It is ulti grantee a matter the would have to take mately for this court to decide what stat care of “at some future time.” If the mean, legislative utes consistent with the grantee assignee or his did wish to build a intent. later, get specific dam he would have to interpretation The common-sense permission Congress; because the not, believes, majority 1905 Act does as the give right, Act did “[t]hey Nothing make the statute void. *33 have to take their would chances on that.” right-of-way Federal Power Act affects the interpretation gives This simple, obvi- granted: right that to use the meaning everything Congress- ous to adjoining land. But because the men said. It is also consistent with the legislative history crystal makes it clear general grants rule that should be con- give right that the Act did not to con- strictly public strued in favor of the a struct FERC now has the against Sands, grantee. 3 C. Statutes require that Power obtain a Statutory Construction 60.02 at § operate project. license to the Little Falls (4th 1974). 64.05 at 120 ed. § Estoppel C. Collateral proper meaning given

Once the is legislative history, majori- I also do not think that the Commission rest of the ty’s collaterally estopped in this case. Peti rationale loses much of its force. The ‘is ado, example, Big court makes much tioner relies on v. Bend about United States (E.D.Wash. Co., F.Supp. the effect of state law on the 1905 Act. 42 459 Transit 1941), govern- majority pains point support The its claim that the takes out that

341 asserting rights granted by the 1905 Act. from Whether precluded ment right only gave right to use to construct a dam was included 1905 water, Big dam it. Bend compensation not to in the owed to the land own- deciding actually assumed without question court er does not affect the of whether gave respondent utili- 1905 Act that the potential should be valued for its land The Power right to build a dam. ty the site, agri- or for its as a current argues that this case bars Company question cultural use. Because the before FERC, through relitigat- from government, necessarily decided the Big us was ing question. court, estoppel collateral Bend does not apply. res policy the doctrines of behind estoppel pre- is to and collateral judicata preclude It also would be unfair to were, relitigation issues that vent discussion of the main issue this case. been, previously 18 tried. See should have Although litigant the United States was a Cooper, A. Miller & E. Federal Wright, C. suit, previous present and is here (1981). and Procedure Practice FERC, through party in fact the real keep a preclusion for this is to reason One interest is the Indian Tribe. go through the being from forced to party originally was the Indian Tribe that raised point expense relitigating trouble and argument the Little Falls dam Id.; v. already it has won. United States proceedings should be licensed be- Mendoza, 154, 104 S.Ct. 464 U.S. low. Because the Indian Tribe did not have (1984). Although is no there L.Ed.2d 379 Bend, litigate Big a chance to the issue in requirement mutuality longer a firm it would unfair now to bar the Tribe suits, the two Allen v. parties between fully pressing its claim. 411, 66 101 S.Ct. McCurry, U.S. (1980), litigant seeking L.Ed.2d 308 estoppel collateral must still show Conclusion

invoke I affirm the Commission’s decision (1) actually Company apply the issue must have been require the Power

litigated; project. Little Falls a license for the the statute —the to “use” words of (2) “actually the issue must have been ambiguous enough justify river—are necessarily determined a court legislative history. an examination of the jurisdiction” in competent the first history This makes it so clear trial; and granted by was not to dam the river (3) preclusion the second trial must Act, majority’s attempt not work an unfairness. mystery. prop- muddy the waters is a Our Associates, Inc. v. American Jack Faucett leg- reliance on er concern about excessive Telephone Telegraph, 744 F.2d congressional in- history when the islative — (D.C.Cir.1984), denied, U.S. cert. not overwhelm us vague should tent -, (1985), 105 S.Ct. 83 L.Ed.2d 982 I is clear. Because think when the intent Justice, citing Department v. Otherson changed the intended majority has (D.C.Cir.1983). INS, 711 F.2d meaning the 1905 I dissent. points to be made in favor of collat- satisfy three-part estoppel do not eral *34 Although Big Bend court obvi-

test.

ously permission to build believed Act, 42 included in the 1905

dam was

F.Supp. at this determination was

necessary holding of the case. in a condemna- simply

court decided that along proceeding,

tion the value of land included the value