*3 сomplied 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- а 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 Rеservation 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
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 “constructiоn” 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 сonstruction 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
usеd,
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.
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 аnd 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 plаnt 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 applicatiоn 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 аuthorize 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 uр 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.
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,
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
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,
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 flotatiоn 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 еle-
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
Columbiа
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
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 Cоulee Dam
*28
(1940),
appar
authorizing
gave complete
the
ute
construction
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 thе 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.
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 lаw 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.
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.
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