Reply Brief for the Petitioner — United States v. Appalachian Electric Power Co.

Supreme Court brief1941

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THORS. on

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I, New River at the site of respondent's Project is navigable

water of the United States__........¢-..--.---1-.---- 2 m

A. The controversy is one of > Spi: Ase eae ae

B. Comparison with other rivers held navigable------_- cc

1. The DesPlaines River: - ------ Mideiidienhe << . &, -

es: I ee lS cing it 7 ee

3. The Colorado River-:--- ~~ --- firccceresee--- 8

C. The facts of navigability.~..-...---.......-.-... 9

1. The Allisonia-Radford and Wiley’s Shoals-Hip-

ES SET T I: Ee eee eae 9

; 2.. The Radford-Wiley’s Shoals, stretch idlnsdialasapn -" /j@ POL eee

ae 3. Physical characteristics: suitability for navi- ° &

eae ee ee eee Ae . oes —

Ny b. Natural obstructions and channels-=_-- tape x

4. Actual navigation: over the aay 7 ‘Shoals: oe ee tons :

RPT TNS CRI o oie gio oe sens 18 ‘4

‘a. The findings bel@w_....< 2-2... e alee fee

: _b. Respondent’s treatment of the mee. 20

D. The courts below applied. erroneous legal criteria of

1. Digiéulty of navigation. does not defeat ndviga-.

bility magn gpl ha argh Yon Ua ah fons a at ct jared toh hens sy

2. Irregularity . of the traffic dots not seas

vey eet” peragemperceroirsoem a uae es

oir . 5. Tt is lnanaterlal thet dite $ralfie wee an au:

: vs ‘ stantial part of commerce of ‘the region.... -

Abandonment of commercial navigation does

not defeat navigability .........-....-....

me 5. Absence of commercial profit is immaterial-_--.

IL. bcndint’a project must be licensed because it will ob-

Struct navigable capacity and affect the interests of i im > --: o-

casts weak sobs Ik eth lta ihcnlls eoabadepapeinons 30

.A. Impairment of navigable capacity POSES Fes esti tcgoin Sam oc

1. The Hinton-Glen Lyn streteh___......---.-- Bee =

- 2. The Kanawha and, Ohio Rivers......--.=:--- ’ $1 Laake Lae

B. ~The project will affect the flood-control plans on the 2 avait

* Ohio valley... ..5- ce nsndiccnigsandvcee PERE BS > 32-

A + a ot bd ‘

ee Pe ea eee eae tas

PUENTE PR eee TM, A eee) oe A FL OME RE LUE? HESS es '

ons ; , 7 ‘- a 3 cs u ‘ | | : 2

pres oa, III. The challenged provisions of the Rederal Power Act are

- @

A. Congress may prohibit respondent’s project. _.._._<-

i. If New River is navigable-_._ - - sal inewah aay ae

oe} a as = 2. If the project . ee as navigable

. xs . . he bd Py

| 1, The Jancis pr gedare anid issue... --_- td

pa ie 2. ep ues ae season in inter- '

est'in, water resourées__-.-____ 2.222) —

—{a)-Phe Government could jteelf, undertake x

-. the project and accomplish all of the

° e? conditions of the license___.;-"..-. ‘40 ©

; ue 4: (b) The Congress may either prohibit the

project’ or license its constructign on

4 eae conditions appropriate to's a

; ; t project. .._._- Ph eset ee gh,

Ne os ~* The charge o confiscation~...¢ 22.2222.

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©) bbvioss temneynctg cy bison te ix ea ‘ng

i e @ ¢ be 8

geese

5, iy See. “orrarions”

‘Alabama Power "0. v: Gulf Pawer Co., 283 Fed. 606... SPAR 5 43, 46

Alabama Power Co. v. Ickes, 302 U.S. 464___

Arizona v. California, 283 U. 8.423. okie mate Gio 29, 80, 40, 43, 42

Ashwander v. Tennessee Valley Authority, 297 U. 8. 288... 28, 29, 41

eA Te Berea College v. Kentucky, 211 U. 8. 45_....------.--.---. , 88

: 5 ee Bogardus v. Commissioner, 302 U.S. 34_...---.__- ee ee a

: - Broad River Power Co: v. Query, 288 U.8. 178-- 4... ---=-. a eee

> peep tate Oe v. United Statcs, 256 U.S. 118_______- > 6, 28,29 —

Fox River Co. v. Railroad Commission, 274 U. 8. 651.____- as. santas

; Helvering v. National Grocery Co., 304 U. 8. WR ee scase st ®

Helvering v. Rankin, 295 U.'8. 123.....~____.._ RTOS TS ae

a | —Helvering v. Tex-Penn Oil Co., 300 U. 8. 481... Set Gatstinn ee

: Labor Board v: Pennnyleania Greyhound Lines, 208 U. 8.”

: ee MOB ees ee ee Bais aa ED I ae RO 3

i eee . 9 Leovy v. United States, ‘177 U. Soe sere pee 3

r) vf Massachuseits v. Mellon, 262 U. 8.447... 22.224 “4

ge ge ye _ Mamas Pome Ou, Spr ee Coot, 38 9,

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‘4 Te eee a. 4, s 4

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2 te c & ‘

° . - PR: 4

o { pe es a ~ He

° . + ‘ - = €

. .7 ‘

_<~. . Oakidnd Club v. South Carolina Publio. Service Authity, 92.0" 4. *.

RS a Oa ees Geist} b Tmsspsicarcitaas 98. Ss fy

Scott v. Lattig, 227 U. 8. a Ba PRONE i EE RE Se

Steward Machine Co. v. Davis, 891 U. 8. 548_....----.--. / 44 peer 5 Sie

Susqueharna Co. v. Taz Commissione283 U.8.291...---. “.48°°° 5 fee

_. United States v- Chandler-Dunbar Co., 229 U: 8. 58.--2-- 44 = eer :. *

’ United States v. Esnault-Pelterie, 303 U. 8. 26..---------- aa . . :

United States v. Rio Grande Irrigation Co. 174U.8.600-. °34 | :-'° *, . bee »

. United States v. Utah, 283 U. 8. 64._!'_._-- . 4-08, 27, 28; 29, 30. oe. A,

> United States'v. West Virginia, 295 U. 8. 463__.....-_--- Se ee oer se AS

' Water’ Pewer Co. v. Water Commissioners, 168 U. S. 349. __ 28, 29 IN oS ae

Statutes: . _° ‘ +29 nib sae g ae

/ Federal Power Act: isis > ine : ae

Virginia ‘Acta of "1861-1862, Ch 50 * “ —- |

_ Miscellaneous: eeceets: We kw So ea Sea ; 2 :

- Annual Report, Chief of Engineers, 1876, Part IL, »PI985.. BO ello lo ae

OO Cama Bee: HOGI in iescccwicceidicicnincemenaudabinn ake py eset >

H. ‘Doe. 2, vol. ‘16, 57th Cong., Ist Sees pp. 3535-3536, .* oa

| eet Ses i Coen Sales 1001... AA

& at So

_H, Doe, 182, 72d Cong., Ist Sess., p..20-....------3---- SY eee ° i

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. “ON WRIT OF CERTIORARI TO THE UNITED STATES CIRCUIT

Inthe prem Gourtof fh ted Sates :

Octoser Tra, 1940

THE Unirep Statis‘or AMERICA, PETITIONER

a . ; G Vv. ‘ 7 F

: ‘AppaLMenran ELEcTRIC. POWER COMPANY

COURT OF APPEALS FOR THE FOURTH CIRCUIT

: REPLY BRIEF FOR THE PETITIONER

The brief for the’ respondent raises a host “of

minor controversies over detail. © These Ave shall

‘not attempt to meet, lest, a particularized rebuttal

‘ obseure . the, essential simplicity of the ‘issues

presented to this Court.’ Instead, we shall attempt

‘merely to provide a running outline of the major —

issues which are determinative of this case. |

ATG is Sle ‘deiirabe éxpaually to n that we do not”

concede that responden: is correct, on the issues. ah are

ad not seine, pore in sa a

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NEW RIVER AT THE SITE on nacronmorr’s’ PROJECT 1s

3 2: a Se .

N AVIGABLE WaTsh OF ae UNITED STATES a :

net |THE CONTROVERSY 18 ONE OF LAW es

‘Respindent ‘urges that. the: issues are those of

. fact, and that they are set at rest by the coneurrent.

findings of the courts below (Br. 17-19,-30-31).

= _ On the contrary, we aceept ‘the coneurrent findings |

of fact sige ec made by ‘the: courts ‘below and —. .

present to this Court only the legal questions 9 which ae

arise on those finding-. ae

. The respondent’ s contention that weé are fore-"

anual by concurrent findings i ig based upon a rather

catholic use of the term “fact.” If ie

self were simply a « fact, ” like a horse or the height

of a waterfall or the. passage of a boat, the issue J

would ‘ordinarily. be considered closed by concur-

rent findings below. But it is, of course, not a fact

in the sense of a physical object or ‘an historical ;,

event. It is conclusion which is derived by com-

. paring: (a) physical or historical facts, with (b)

legal criteria.. Cf, H elvering v..Rankin, 295 U. 8.

: 123, 131. Where both courts below have agreed on®

the Aint re physical or historical facts, those ‘

\ factSWill not be reexamined here. But this by no"

means exempts from review the legal criteria ap-

plied to those facts by the courts below.’

2 The ra eae of this Court illustrate that no uamais

- fda simple litmus can be applied to determine whether a

' . ’ given issue is one of fact or of law. It nee held the —s

ability it-

, ‘and Siingiiank he a patent (United Statés. v. Esnault-

Certainly neithes duthoniiy nor reason requires

* this’ Court to aceept. without. reexamination & con-

clusion that a river is ‘nonnavigable simply because.

it was reached by both lower courts. There has

‘been ‘a, century of litigation in which the legal

criteria‘ of navigability have been announced by °

* this Court, and. Congress in Seétion 3 (8) of. the

| Federal Power Act has supplied “its own definition. —

We present to this Court simply the legal question

whether these legal standards have correctly been *

SR AR ale % ek Ne eet ne ger aks

De eat ee Mee POE Wie nk: Beng

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applied to the facts of this river. For purposes. of.”

“the review*here, the concurrent finding rule may

be taken to preclude reexamination of those basic -

findings which were reached by courts, But

it cannot preclude review of the leg ‘eansequences ;

of those facts, or of the legal criteri _ which deter-

mine the conclusion as to -navii under th

. facts. The Moniello, 20 Wall. 430, 442; Leovy v:

U nited States, 177 U.S: 621, 628. .

. in the specific terms of this case; the problem i is

_ well illustrated by the two crucial conclusions of

Pelterie, 308 U. S. 26, 29-41), the existence of an obstacle

to colléctive bargaining ‘(Labor Board v. Pennsylwania

Greyhound Lines, 803 U. S. 261, 271), and the purpose of ar. ©

ble accumulation of corporate surplus (Helvering -

v: Wedonal

Grocery Co., 304 U. S. 282, 294-295) each to he

a: question of fact. (On the other hand, it has ‘eld the ques-

tions of whether the consideration included cash ‘(Helver-—

ing v. Tew-Penn Oil Co., 300 U.S. 481, 491), and whether

& payment was a gift or compeySation (Bogardus v. i

, 802 U. S. ee

‘quetions of mixed law and fat.

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the Cireuit Court of Appeajs as § to (1) actual navi- .

gation and (2) susceptibility of the stream to navi-

gation. It said (R. 2903, 2893) : Se ae

"The plaintiff has not shown that there was

interstate navigation on New River of such °

_ a substantial and permanent nature and of *

such general and common usefulness that it

would subject the river to Federal.ser vitude |

to the benefit of. navigation, ;

,* — * * : : * Me

A mete description of the physi¢al and

natural characteristics of the river" is very °

persuasive that it is not suspectible of thai

character of navigation which is necessary,

under the decisions above cited, to support

: the claim that it is pate Se pa water of the |

: United States. [Italics sypplied. 1. :

The italicized ‘portions of these passages are plainly ;

a decision d upon the legal definition of navi-

gable oe pe by. the court below. The spe-

eific rulings of law made by the court below which ~

we challenge here -are thosé which put aside the’ ~

evidence of actual navigation | and ‘suitability to _

navigation because the navigation (a) was difficult,

_ * Here, as frequently was the case, the majority of the

court below was speaking of New River generally, rather ~

than the 111-mile stretch here in controversy. Thugy when —

it speaks of depths of one foot or a few inches (R. 2893) or .

a slope of 7.1 feet per mile (R. 2895), it has referencs t>

the entire river, not to the stretch here involved, with low

water depths of 2 feet or more for 98 percent of the distance,:

and not less than one fi »« at any place, and rarely less than .

2 feet, and with an average slope of 4.4 feet per mile a kGgrh -

Br. 70, 64). setae

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. largely sone _of the interruption from a A we fe

~ ghoals and rapids, (b) was- irregular, (c) did/not

form an important part of the commerce of the

region, (d)- did not continue for a very long period, |

-and has been substantially nonexistent since con- -

struction.of the paralleling railroads, and (¢) was

not commercially p¥ofitable (see infra; pp. 26-30).

These rulirigs are each erroneous. This we shall

briefly indicate after sketching the er of New

River and its navigation. But the’ éXrors of the .

courts below, in contrast to the dissenti g opinion

of Judge Parker, seem most easily shown if the ©

opinions be read“@gainst the decisions of this Court

in which other rivers have been held navigable nat-—

withstanding the difficulti€s confronting naviga- |

| at, ae

tion; ~

N. 9

B. COMPARISON witH OTHER RIVERS HELD NAVIGABLE x

~In three cases this Court has held navigable riv- - *

ers which bear a close resemblance to New River.

. A brief discussion of the facts of those cases also

_ shows that navigation was at least as easy on the «.

' 111-mile stretch of New y River here in issue as on

those rivers.‘

- * Respondent offers tiie by which to compare the dite

ee of these rivers - bed New River (Rsp. Br. 138, after Rsp. ©

_ — + App. 287). Th

those parts now in issue, and in some cases all of the com-’

harts include allt of New River, not merely

pared. rivers, not merely those parts in. issue. in the cited

cases. Apparently because of the desire to’ include uncontro-.

_ verted parts of the streams, the charts are cast upon an

ralagg second distorted scale. The length of the streams is

1. The DesPlaines River—The portion of the —

: - .DesPlaines River in conitroversy in Economy Light.

& Power .Co. v. United States, 256 U. S.

113, w. about 45 miles in length, 60 per cent of

‘which;was pool water and 40 per cent shoals and

_ shallow water. The discharge was as much as 600.

. ¢. f. s. during an average of only 73 days per year.

_ The 58-mile trip from Chicago to the mouth of the:

“DesPlaines River could be accomplished without —

portage during only 48 days-of thé\year ; the por-

‘ tage would be less than 2 miles for only 73 days of + ©

the year, and less than 4 miles for only 116 days.

During the rest of the year, an average of 249 days, --

a portage of the boat itself ,would be required for -

lor 2 miles, and portages of the cargo from 11 to 15

miles according to the -water stage.’ - With the ex-

ception of an average period of 4 days per year, the

controlling depths over the rapids and shallows

- Were never more than 15 inches from- Lake Michi-

gan to the mouth of the DesPlaines, and such con- -

trolling depths were found along the better stretches

of the river only during an average period of 116, -

days per yout At all other times, the controlling

_ represented to a sitet of approximately 1 inch per 50 miles,

while the slope is represented on the scale of 1 i#fith to 260

feet. In cther words, the distortion i is sppeonimately | in the

ratio of 1 to 1,000. ~-

5 Indeed, at some stages a portage over the entire ania

“of the river was required. . H. Doc. 182, 72& Cong., 1st Sess.,

p. 20, quoting from Grakam and Phillips Report of ‘April

4, 1819 | | Aes

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anpttia were 212 biiehind or less. 256. Fed. 722, 793- :

796. : Q

Moreover, no navigation on the DésPlaines had.

taken place for’ almost 100 years. This being. trué,

. it was necessary to rely eritirely - upon historical

data for proof of such navigatjon as had formerly

existed." From the’evidence, the Circuit Court of

' Appeals found only 14 specific instances.of the use

- of the DesPlaines for edtamercial navigation, rang-

ing over a period of more than 150 yeats, between ~

the years 1673 and 1830, although the record showed. mM

less well authenticated evidence of many othertrips.. © _

The navigation. consisted chiefly « of fur trade, car-

riéd on in canoes and flat. boats ae

_ these-in use on New River | (256 Fed. at_797-798). >

. Upon these facts the Circuit Court of Ap came.

to the contlusion that the DesPlaines was naviga-

ble and it was upon. ‘this evidence that this Court

held that the actual navigation on the river was

such as to make it ee water of the United

States. aces oe Se |

2. The Fox ° River. ighitten | miles -of the

stretch of the . Fox. Paver under consideration. in

* The cia ciadlees seems to a much of the fact that,

aside from the few exploratory trips, we have not shown -

| navigation on New River in the Wistant past, and it claims

that lack of historical navigation constitutes evidence of

nonnavigability (Rsp. Br.: 44-45; Rsp: App. 39-53).

‘The grgument ‘is erroneous. Where there is evidence of. -

actual navigation within’ the memory of man, there is: —

obviously no need of searching into historical] records.

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The Montello, 20 Wall. 430, had in their natural éon-

dition an average fall of approximately 8 feet per

mile. - Within this reach the maximum fall was.

_ 29% feet. within a\distance of.only 34 of a mile,

while within another stretch of 214 miles there was,

a fall of 38 feet. (See Annual Report, ‘Chief of

Engineers) 1876, Part II, p. 235.) . Such slopes are-

not to be found in the Hinton-Allisonia stretch of.

New River. Coritinuous navigation: on the Fox,

River; by boats of shallow draft, was not. possible’

because of the obstructions in the form of shallows,

rapids, and falls, which made portages necessary.

Prior to. its improvemént by locks and dams,

the commerce on the lower Fox was conducted

‘by Durham boats, propelled by animal power ; and

‘the boats were comparable in size, draft, and capac-

ity to the keelboats used on. the New River (20

Wall. at 441; Govt..Br, 59). The trial court held

the entire lower Fox nonnavigable, but the decjsion

__ was reversed by: this Court.

3: The Colorado River. em United . States. v.

- Utah, 283 U.S. 64, this Court reviewed ang: sus-

tained the findings of Mr. Charles Warren, Special

Master in the case, in respect of the Colorado River

between Mile 176, above Lees Ferry, and the Utah-

_ Arizona Boundary (about 150 miles). His ind

ings were as follows:

I do not find that these rapids have’ claus

any substantial impediment to a’ boat going

downstream. Rowboats going upstream

. must ———o be "dragged or poled up

| thtough, but to a motorboat going upstream

these rapids form little vee except: in

times of extreme high water ;

found ‘difficulty in _ going down through some

of these rapids at low water, without hitting

upon rocks. Irrespective of the rapids, the’ |

ont ordinary’ velocities of the River present some

difficulty to boats making the upstream ‘trip.

Such velocities in the .50-mile stretch be-~ |

_ tween the mouth of the San Juan and the -

-boundary line-are 314-4 miles per hour for.

about half of the year‘and over 4%. for the

remainder of the year. * * Most of

the witnesses who made trips in. réwboats j

testified to being obliged to pole or drag. their

boats upstream in many places; and the 3

trips were, as a rule, long and difficult, m

particularly below the mouth -of gthe San.

, Juan where the volume and velocity of the

7 water were greater. (Report of the Special

Master, in No. 14, Original, October ine J

"1930, pp. 146-7.)

‘It seems evident that the controverted stretch a

New River, equally with those diseussed“above,

would similarly have been held navigable if the

proper legal standards had been pees hy the

~ courts below. % ee

' © THE 2 PACTS OF NAVIGAPTLITY

ie: The Allisonta-Radford and Wiley’ 's Shoals- zs

~~ Hinton Stretches.—Respondent seems unwilling to |

admit that these two ‘stretches, of 28 and 27 miles

rate geal are navigable; it: does: not, however,

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} © affirmatively urge that they are nonnavigable

(Rsp. Br. 41-43). Both tourtselow, by clear in-

ference, held these stre to be. navigable (R.

114, 115, 2900-2902). The evidence, summarized in *

our’main brie? (Govt. Br. 35-38), shows that these -

‘stretches were ‘extensively navigated and constitute

navigable waters of the United States.

The only controversy. raised by respondent i is-as

to the distance above. Hinton which should be in-

| cluded i in the plainly navigablé stretch.’ Respond-.

ent prefers to*place its end*at Round Bottom ‘-

Cre7k, where the Virginia-West Virginia state line -

_ crosses New River.’ But its own chart (opp. Rsp.

Br. 50), shows that the federal improvement ex-._

tended beyond Tespindeyit’s location of the state

~ _ line, and the court below held (R. 2901) that the

_ improved stretch reachéd for F something less shana

a mile into Virginia.’ ,

This is ‘Important: fs ‘ith respect to” our ‘argument

(Govt. Br. 79-81) -as to impairment of the navigable.capac- .

‘ity of the interstate stretch between Hinton and Glen Lyn,

* The docation of the state line cannot’ seriously be chal-

lenged by respondent. -Its own property man (Ex. No. 188,

Vol. I, 9) and the. latest U. S. Geological Suc vey map (Ex.

185,, Vol. I, 8) alike show the state line at Reund Bottom

waa Lage aoa Creek, 24.5 miles above Hinton ; it persists,“ howeve

_ placing: this line one mile upstream, ,at Wiley’s - oe

although this is demonstrated by the record to be erroneous

(R. 1140-1150).

« *The District Court perhaps implied, but certainly did’

: not hold, that the navigable stretch extended only. 23 or 24

above Hinton, to Wiley’s Falls, ae miles above Hinton (Ex.

leaerier ; miles above Hinton (R. 114y. But it is, undisputed that ~

Dit) Shees reached from McDaniel’s: Falls, 18 miles

_. tion, however, we shall examine the physical char-

a pe 5 aire 1H ; se stent s A " SS a. 3 ~

2. The Radford-Witey’ 8 Shoals + Stretgh _his —— i

leaves for. consideration. only the 56-mile' siretch -. ae. ie as Vit

of New River between Wiley’s Shoalsand Ra@ford. © q Cee |

We shall indicate the general nature of the,facts ~ oe

shown by the record and found by the lower couffs <— i

as to the physiciil characteristics of this stretch and a

‘as to the actual navigation over it. Then-we shall » = * =

show that'the legal definition of navigable waters - .

of the United States is fully’ a: to that:

portiorr of New River. i . Gest

3. Physical Characteristics: ‘Suitability for Nav- = .

ib igation. —-The next section will sketch the substan- more

* tial commercial navigation recognized by the lower - _ ee

courts ‘to have moved over this 56-mile. stretch of . ify

New’ River. This havigation, even if ignored as * og an a

proof of actual navigation, should be. conclusive - . . :

‘that the» river. was suitable for navigation. and ‘\

therefore navigable (Govt. Br: 61-62). In this sec- ~

Or letie

acteristics of the river and, shalf show, without the 3

a aid: -offered by the extensive” evidence of actual nav-

_ igation, that on the concurrent findings of the ee

~ * eourts below this stretch of New River should have : Mot

been held suitable for ‘navigation and therefore g

“navigable. . - ‘

Since there is no ‘question: that’ the “water Mone

is sufficient for nayigahility (Govt. Br. 62-63), the .

question i is simply<whethgr (a) the velocity of the ©

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196, Vol. x p. 2) and that the federal improvement reached Ane

through Wiley’ s.Falls to Wiley’s Shoals,.27 miles above .

Hinton (Ex. 38, R. 2388; Ex. 39, R. 2395). sci eh ae IE

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. eurrent is too great, ‘or (b) the obstructing shoals

“and fall@ are too formidable to permit’ naviphtion.

_ Neither is the ease. _

(a) Velocity . of Clietand One of the fiicboee =

which determine velocity of current. is ‘the slope of

the river, Neither court. below made a finding as —

to the slope of the river in the Allisonia-Hinton ~

stretch (see R. 114, 2895, 2900-2901). We do not

understand that respondent questions that the _

average s,ope in this entire stretch is 4.4 feet per

mile, or that it is 3. 8 feet in the Hinton-Wiley’ s

Shoals stretch, 5. 0.feet in the Radford-Allisonia

stretch, and 4.4 feet,in the intervening Wiley’ 8

Shoals-Radford stretch (Govt. Br..64; Rsp. App. :

.. 8-18). Instead, it selects isolatec. portions of the

middle stretch which have a much greater slope

“than, the average and offers these portions as char-

_ acteristic.” Since we do not deny the existence of a

number of shoals and rapids which appear in this

stretch, or thatthe slope is considerably greater «

than the average in occasional places, there is no

controversy over the elope 6 of the part of New River a

here in issue.

1° Respondent reljes upon Ex. No. 196, Vol. I, ‘which in. .

turn is based upon: ‘the Hutton survey of 1872 (Ex. 81, R.

22°9-2989). That survey shows that in tlie plainly navi-

* “: gable Allisonia-Redford stretch’ one mile hds a fall- of 13

feet and another a fall of 10 feet (miles 27 and 32; R.

2283), In ‘the Radford-Wiley’s Shoals stretch, reach.

ing twice as far, the two worst mile: are those with a fall of

- Illand 70 feet, eae | (miles 100 and 65; R. 2286, 2285).

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Velocity of current, of course, is not fixed by

slope alone, but is also influenced by channel depth ,

and width. Therefore the best evidence of velocity

"ig direct measurement. A -Government witness, |

‘using a current meter (R. 930), measured the river _

. velocities at.each of the 41 rapids.and shoals in the

Wiley’s: Shoals-Radford stretch ; his results show

current velocities varying from 1.to 4.4 miles per

hour (Govt. Br. 70). Respondent abuses the wit-

_ ness,” but has offered at no- point in the extensive

record any measurements to show that the veloci-

tres were in fact. greater than-those shown by. the.

Government’s measurements.

The District Court made no finding as to velocity,

| but the Circuit Court of Appeals found that there-.

2 were ‘pools of comparatively still water’’, and that

- “the stream velocity varies at the shoals and rapids

_, from 3 to 5 miles per hour” (R. 2895).

The only finding made by the courts below, and

the only evidence in the record, therefore, indicates

"The abuse: is unwarranted. One .need only glance_

through the cross-examination from which respondent has _

‘culled isolated sentences | (Rsp. App. 22-24; R. 930-984)

to see that the witness Was in no sepse discredited by ques- 7 ¢

tions directed. only to that end. Respondent’s use of the —. -

District Court’s criticism of th : Government’s testimony on,” .

power waves (R. 130-131) to ‘discredit testimony on other

pafts of the case (Rsp. App. 29) is transparently unfair. :

12 Even. this statement of the court below gives an -ex- |

aggerated picture of the velocity, . since it is a paraphrase

of an engineer’s survey of the upstream stretch between Lead

Mines and Wilson Creek, which we do not; now contend bo

be navigable (R. 2850). /

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that the maximum velocity, at the worst of the

rapids and shoals in the Radford-Wiley’s Shoals

stretch, is 5 miles per hour or less. While we’rec-

ognize that navigation w uld be difficult or uncom-

7 fortable,at occasional shoals, the velocity of 5 miles

per hour or less is, even at these places, well within

the limits of navigability (R. 276, $27, 1102, 2296, .

| 2367).

- (b) Natural Obstructions and Channels. —The ie

District Court mentioned the shoals ‘and rapids

found in New River, but in no case did it confine its

discussion of these obstructions to parts of the-river .

within the 111-mile stretch now in issue (R. 108,:

' 117). The .Cireuit. Court of eals placed con- .

siderable emphasis upon these, shoals and rapids

(R. 2900-2901). Neither court estimated the total

length of these shoals nor the average depth in the

channels through them. Government witnesses,

estimated that the shoals extended over 15 per cent

of the Wiley’s ‘Shoals-Radford stretch (R. 905, ef.

Ex. 31, R.'2282-2287). Respondent urges-that they’

covér more than athird of the distance (Rsp. App.

32-36). The controversy, which doubtless turns on

18 In the 73-mile reach of the navigable Snake River _

(Scott v. Lattig, 227 U. S. 229, 239,242} between Riparia,

Washington, anfl Lewiston, Ziska. the Army Engineers i in

1901 reported 37 rapids or bars totalling 15. miles in length .

or 21%. of the entire reach. The minimum velocity found

over these rapids was 4 miles per hour and the maximum

velocity 8.08 miles per hour. (Annual Report of the Chief

of Engineers, 1901, pages 3535, 3536, 57th vi Ist“ Sess.,

re Oe

H. Doc. 2, Vol. 16.)

the point where a shoal can be adid to end is imma-

terial. The only question of importance is the ex-

tent to which there are ve na channels through.

the shoals.

, Respondent piideitty does not urge in terms

that channels through the shoals are nonexistent,

even in the natural state 6f the river, or that they

- were impassably narrow, but rather that the water -

depth, was too shallow for navigation over the

ledges and shoals (Rsp. App. 36-39). It relies: for

this solely upon various reports of the Army Engi-~

neers. All of these except one describe the entire

New River “ or the stretch reaching from n

. _ all the way to the North Carolina line. The one

_ report relating to,the 111-mile stretch now in con- »

troversy, heavily émphasized by respondent. (Rsp.

App. 37}, is directed specifically at a shoal in the

plainly navigable Allisonia-Radford stretch.*

Respondent’s reliance upon the Engineer’s re-

ports, moreover, defeats its purpose, for their de+

scriptions of the low water over the shoals and

_ Yapids are applicable equally to’ the plainly’ navi-

gable Allisonia-Radford and Wiley’ 8 Shoals-Hin-

ton stretches as well as to the Radfordi-Wiley’ S

%¢ Conklin Report, 1934 (R. 9710). “ tig

* Reports of Chief of Engineers, 1881 (R. 2370, 2876) ;.

1882 (R. 9382); 1883 (R. 2394); 1885 (R. 2405) ; 1886 (R.

2407) ; 1891 (R. 2418) ; 1897 (R. 2416). The reports, it is

true, each repeat that the conditions obtain “throughout.

this distance,” but are plainly pot directed’to the specific /

stretch in controversy. _

: Cuyler Report, 1879 (R. 2339-2340).

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Shoals stretch.” The only report which is directed |

specifically. at the stretch now in issue is that. of

Major ‘Altstaetter in 1912, He said (R, 2422) ::

* * * From a study of the. gauges at

Radford and Hinton and other, sources7it

appears that at extreme low water.” the con-

trolling depths over the bars may drop. to

‘Jess than 1.foot: This is due to the great

. rapidity of the current, the drop between.

these two places being about 348 feet. The

‘ headwaters of the river being in some of

the ‘highest mountains. east ‘of the Rockies

a good discharge is ordinarily maintained,

and 2 feet found over the bars.

~~ From Hinton to the vicinity of Glenlyn. a

_ boat drawing 2 feet will have sufficient

depth of water for navigation at practically

all times. -Mean stage conditions give °3

feet Wver nearly all bars:

‘ever, partakes of the characteristies -of a.

mountain stream, with very rapid current

_and bad rapids, and therefore navigation is

_ dangerous on it.. [Italics added. ] oa

The only actual measurements offered in evi-

_ dence were those of a Government witness which

_ + The 1873 réport stated that “the extent and kind of im-.

- provement required for the betterment of thé river is about

» 16

: _the same throughout” (R; 2296).

_ 48 The italicized qualification also serves to reconcile the »

otherwise divergent reports as to the shoal depths. The

Conklin report of 1934, as does the Altstaetter report of 1912,

expressly relates its estimaté.of minimum depths to low °

water.

are shown by the latter report to be prised greater.

ey Var ye ae

ant REA ORR Bio

The river, how-

The Gontrolling depths “at practically all a’

Pi 4

showed, at ordinary’ summer low water flow :

‘(B. 906), that only at four places wouldthe channel - © ss

depths fall below 2 feet. (Govt. Br. 70-71). ao are ie

The District Court made no finding as to channel: : if

depths; the Circuit Court of Appeals described the : i

-entire river, not the stretch here in issue, in terms ae

of shoals which frequently had only a few inches . © ec ie genes

. of water (R. 2893, 2895). When speaking of the . = _.

stretch between Radford and the West Virginia = ei a ie

_ line, it said the river had “serious obstacles to navi- } : fe

gation * * * consisting of several difficult falls, YA wee

and ‘many long rapids and shoals’? (R. 2900), but | Re

it did not find these to be impassable or the water j ue

depths to be inadequate. ae

It seems to us that a fair appraisal of the ¢ evi- LF u

dence and the statements of the court below would ' zi) a |

indicate that there were several falls or shoals ee: . Z ie ae

would be rather difficult’ to navigate during § riods ; es

_ of high-water, and which would doubtless require

portage or pulling the boat in times of okive: e low

water. We do not see that the legal cone lusion—

of navigability will vary whether these difficult 4

stretches numbered two, six, or a dozen in the 56- ; ‘, 1;

mile stretch. But, if this number be material, it |

is to be noted-that neither court below made a find- ; |

‘ing,on this question and that the only definite evi-

dence in the record shows that there are only three

_ or four shoals or rapids ‘which would introduce-ex-

ceptional difficulty to navigation (Govt.' Br. 70-

_ recognized, this- navigation. Howe

said (R. 114): I

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'n), and these shoals constitute less than 3 pat

“of the 111-mile stretch (R. 905).

‘A, Actual Navigation Over the Wiley’ 8 Shoals- |

Radford Stretch—We think that there is no oceca- :

S. sion for this Court ty go behind the findings of the --

lower courts on the facts of actual navigation. If

the record facts should be material, however, we_

must point out that they are Seriously distorted by |

. respondent,

(a) The Findings Below —Neither siiet below

denied the existence of actual navigation over this

stretch of New River. The District Court, in con#

trast to the respondent (Rp. Br. 47-56, Rsp: App.

96-135) and the Court below (R. 5902), not only

_ did not-reflect on the credibility of the many wit---

“hesses who testified to this navigation, but j te terms |

e vourt

there is a vagueness didnt the extent to

which it occurred and indications that such .

trips were irregular, were attended with dif-

_ ficulty, and formed no appreciable part of

any commercial transportation which’ took

place on the river. :

1 We shall not prudeng the controversy’ as to whether the

_ Government’s or the respondent’s photographs more truly

' represent the shoals in New River (cf. Govt. Br. 72, Resp.

Br. 40, Resp. App. / 24-29). -Either collection of photo-

graphs shows a river ‘easily navigable except for several dif-

ficult but not necéssarily imypassable shoals, one or two of

which might indeed be impassable at moderately low water.

The depth at Sifford’s Falls, it may be noted, is errone-

7 ously printed as “1 to 8” feet instead of-1 foot in the tabuls- -

tion in our main briet (Cort, Be. hes

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*- 19 .

The Circuit Court of Appeals similarly recognized -

this navigation but approved the finding of the .

District Court and, in addition, n, declared (R. 2903) :

such trips could be made only at particular

timeés when there was unusually, high water;

that even then navigation was not only diffi-

cult ‘but dangerous; that while the boats at» ,~ .

times may have carried some country prod-

-uce there was nothing like. an established

trade and commerce * * *; and-that the

duration of such use of the keelboats was for:

"a few years only and has been nonexistent

for more than 50 years.:* * * there was

‘also testimony: of nonexpert witnesses sub-

mitted by the defendant to the effect that the

attempt to commercially use keelboats was *

unsuccessful and unprofitable: fee a

In terms of concurrent findi both ek |

then, have found (a) there was some navigation;

(b) it was difficult; (¢) it was irregular; and (d)

the Wiley'’s Shoals-Radford stretch did not at any

time form an. important artery for the actual com-

mercial tran@Portation of the region. .We do not

attack these concurrent findings. We do submit

that, as a matter of law,.these findings show that

’ New River was navigable in this 56-mile streteh. _

The Circuit Court of Appeals evidently felt that

. something niore was needed to-show nonnavigabil- —

ity. It introduced the following statements of fact

and law, which were neither found nor made the

basis of legal conclusions by the District Court:

(a) navigation was possible only at times of un-

usually vai water; (b) the navigation. was short

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lived | said has been iionexisient- for 50 years; and -

( he was not commercially profitable.

e propositiens of law introduced by the Court,

_ of Appeals are shown ‘in the next section to be.

wrong. The added statement of fact, that navi-

gation was possible only at times of unustally high

water, is not a concurrent finding of fact ghd is con-

tradicted by the record 20 ‘(Goyt. Br. .

There is, then, no need to plungg“into thie ex-

- tensive record of this case to determine the precise

extent of the navigation over this stretch of the

river. We are content to rest on the findings of

actual navigation made by both courts below.

(b) Respondent’s Treatment of the Record.— ~

“However, we are not willing to allow to go unchal-

lenged respondent’s intemperate attack upon Judge |

-Parker’s summary of the evjdence (Rsp. Br.

2° Respondent attempts to support this finding by refer-

ence to isolated statements that a “tide” was necessary fot

satisfactory navigation (Rsp. App. 120-122). But - this.

condition of the river, the. testimony of many of these _.

witnesses and of other witnesses shows, meant simply

a stage of the river which was above the extreme sum-

mer low water. Howard (R. 217); Collins (R. 220);

Breeding (R. 259-260);. Redpath (R. 275); Farmer

(R. 292); Smith (R. 361); Medley (R. 380); Snod-

grass (R. 304): Lane (R. 396); Smith (R. 398) ; Kenley

R : 401-102); Reed (R. 407). Respondent’s own. witness

Knode stated that a trip down to Hinton was accomplished |

at “ordinary, not extra high” tide (R. 1572). So, too, ffie

, engineers’ reports make plain that the low witer which

stopped navigation was: simply the low water of summer-

‘time and not, as respondent would have it, anything less than

_ a “flood tide.” See 1880 Report (R. 2361); 1882 Report

(R. 2385).

52-56) or its procrustean operations upon our tab-

ulation of the evidence (Rsp. Br. 48-52).

A fair means of illustrating the liberties respond-

ent has taken with the-record, without too greatly

expanding this brief in order to reply to an irrel- i

evant charge, is to take the first item under each

of the six categories of reasons which respondent

offers (opp. Rsp. Br. 51) for eliminating evidence ~

from our tabular summary of the record (found |

opp. Govt. Br. 48).

(1) “‘Incorreet Use of Testimony as Actually Re-

corued’’: The first of 55 items eliminated under this

heading is line 2 B, representing navigation from

Hinton to Glen Lyn, Virginia (Govt. Br. 178;

R. 482-485). The witness Calloway testified that

construction material for the Norfolk & Western

Railroad. wag shipped to Hinton by railroad and.

- boated up to.a place between East River and Glen

. Lyn., The only possible inaccuracy in our ‘use of

this testimony is calling the destination Glen Lyn

instead of a point 1% to +49 of a mile downstream

from Gies Lgp".... 2 2 8k

_ ™ Respondent also attacks the testimony of this witness

_-because he stated that a man “came there with his au

_ during the period 1881 to 1884 to supervise the loading and

shipment of the material up the river (Rsp. Br. 50}. This

is a natural slip'of the tongue, made‘after a genergtion of

auto transportation. In any event, Calloway’s testimony

was supported by the testimony of the witness Reed, Who

actually operated the boats (R. 405-407); by Peters, who . '

' transported supplies to the Norfolk and Western Railroad —

(R. 319-320),; by Dickinson, who saw the shipment of the

material (R. 393); and by the reports of the Chief of En

gineers: 1885, R. 2406; 1882. R. 2898.

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(2) “Duplication”: The first of 23 items elimi-—

nated under this heading is line 3 B; representing

navigation from Mack’s Creck to New River

Bridge, near Radford (Govt. Br. 178; R. 218). Re-

spondent says the trip is duplicated by line 3 A, rep-

(R. 218). This item, alone of those discussed here,

- permits an arguable justification for respondent’s

elimination. The witness Collins . testified that

‘they used to run from eight to ten of these boats

_ from Mack’s Creek on New River down to New

River and from New River to Hinton’’ (R. 218).

This might be a technieal duplication if the same

boats invariably continued.on te Hinton after stop-

resenting navigation from “Mack’s Creek to Hinton ©

ping at New River Bridge, but itseems more prob- |

able that the boats frequently terminated their

journey at the New River Bridge depot, as the tes-

timony would equally imply.”

22 The testimony of this witness of navigation by bateaux .

betwéen ‘Mack’s Creek and Hinton, relied upon by Judge

- Parker (R. 2926-2927), which the witness personally ob-

served as a passenger on the boats operated by his father, is ©

attacked by respondent because Collins stated that the shoals

and ledges iti a portion of this reach of the river had “wing

walls and channels and sluices through them” (Rsp. App.

133). The witness first stated that “there was a sluice

_ through there” and that one shoal had a “wing dam” (R.:

220-221). Then respondent’s counsel placed the words

“wing walls, channels, and sluices” in

Radford and Wiley’s Falls (Resp. App. 133) is incorrect.

mouth of the wit- -

ness in his question, to which the witness answered in the -

affirmative (R. 221). Moreover, respondent’s statement that

there was no improvement in the 60-mile section between :

This section of the river was improved to some extent by | 5

(3) “Hearsay”: The first of 27 items eliminated -

under this heading js:line 2 A, representing naviga>

~~ tion upstream from Hinton (Govt. Br. 178 ; R. 482-.

485). The witness was assistant to the freight man- _

ager at the Hinton station of the Chesapeake &

_ Ohio Railroad and testified that freight consigned

to Hinton.was boated upstream. Naturally, he did -

not leave the station to see if the freight actually

went up the river (R. 484) ; equally naturally, his

knowledge of the intended ‘route of the freight is —

the full equivalent of actual observation. Judge

Paul emphatically oo hearsay objections of .

. this nature.”

. (4) “N gt Otmamerciak Items”: The first of 10

items eliminated under this heading is line 4 C, rep-

resenting navigation from Mack’s Creek to Hinton

- (Govt. Br. 178; R..252). .The goods transported

were gcvernment property used in cutting the chan-

the State of Virginia during the war between the states, as

is: evidenced by the Report of the Chief of Engineers for

1879 (Ex. 35, R.-2342). (See also Virginia Acts of 1861-

18@2, Ch. 50.) The War Department reported that this im-

‘provement by ‘the Confederate States had been “injudi-

ciously located and poorly built” (R. 2342). . :

*3 He said (R. 262): “Mr. Abbott, as far.as the hearsay

feature of it is concerned, there are certain things that can

only be proven by hearsay. Suppose someone would ask

you about wheré your older’brother had gone to college and

-he had’ gone to Princeton. You may not have gone to °

Princeton, and you may never have seen him when he was

at Princeton. Certainly you would be able, if testifying,

to say where he had gone. *.* * Some things can only

be proven that way, particularly things of this na-

ture. * * *

¢)

nel, boated down to Hinton for the purpose of sale.

Only fine-spun constitutional theory would suggest

that the items were ‘“‘non-commercial”” because the

Government rather than : a private ete was the —

- vendor..

(5) ‘Testimony Inconsistent With Other Evie

‘dence i in the Case”’: The first of 8 items eliminated

‘under this heading is line 6 ©, representing naviga-

tion from Hinton to' Shuniate’s Falls (Govt. Br.

178; R. 393 *). The witness Dickinson testified that

the Nerfolk & Western Railroad boated its con-

struction supplies over this reach; J udge Parker

accepted his testimony (R. 2927). Respondent cites .

as inconsistent evidence: testimony as to the con-

struction of another railroad at a point about, 50

miles upstreain from ‘the construction in question .

(R. 1650) ; testimony from the same witness that

the stone for the Norfolk & Western abutments was

shipped downstream from Pepper’s Ferry, 46

miles upstream and just below Radford (R. 1652) ;.°

a testimony that this same witness did not know for

a fact that the supplies were shipped up from

Hinton, although he did not know that they were

not so shipped (R. 1654) ; and a general reference _

_to seven pages of argument in its brief (Rsp. App.

100-107) which need not be analyzed in detail.

2 The record’ reference is errorieously given as R. 394-.

395.in both our brief (Pp. — and that of respondent (opp.

P. 51).

It is to be noted again that Judge Paul did not

in any way reflect upon the credibility of any of

these witnesses (see R. 114).

(6) ‘Testimony Inconsistent With Well-Known

Facts’’: The first of 10 items eliminated under this

heading is line 1 A, representing navigation from

Eggleston’s Springs, to True, West Virginia (Govt.

Br. 178; R. 458). Respondent seeks. (Rsp. App. -

133) to impeach the testimony of the witness An-

-derson, which was accepted by J udge Parker

(R. 2926), for. two reasons: (a) because the wit-

ness first stated that the trip which he was describ-

ing was made in 1870, when as a matter of fact it

- was made in 1879, and (b) because he stated that

_ the trip was made at night. (a) But almost in the

next breath after referring to the year 1870, the

- witness, without comment or suggestion or ques-

tioning by: counsel or by the court, stated that the

trip was made in 1879 (R. 459).. (b) The witness’

statement that this trip was made at night is com-

pletely corroborated by the te8timony of respon-

dent’s witness Talbott, who testified that boatmen

made the down-stream trips at night (R. 1542).

— \Respondent undertakes to deny that the reason

for the cessation of navigation was the construction

of paralleling railroads (cf. Govt. Br. 37-38, 52;

Rsp. App. 137, 140). The Engineers’ Reports

(1891, R. 2756-2757 ; 1913, R. 2431) and a mass of

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testimony * nmust completely be disregarded if re-

spondent’s position, is to be accepted. The District

“Court made no finding on this point; the court be-

low indicated. at least a Lajanes agreement with

-our position (R. 2908). :

D. THE courts BELOW APPLIED ERRONEOUS LEGAL CRITERIA OF

- oN AVIGABILITY

We have, then, a relatively simple factual pic-

ture, established both by the concurrent findings

of the courts below and by the indisputable evidence

in the record: Of the 111 miles between Hinton and

Allisonia, the 27 miles above Hinton and the 28°

- miles below Allisonia seem plainly to be navigable.

__ The intervening 56-mile stretch does not differ ap-

preciably in its physical characteristics from these

stretches ; its slope, natural obstructions, and water —

vol»me are substantially the ‘same. A passable

ee -channel exists through all except.a very few of the

: shoals and rapids. The actual commercial naviga-—

‘tion oni-this stretch of the river has been consider- ©

: ' able and amply demonstrates both navigation in

\ fact and susceptibility to navigation. Yet the

courts below have minimized or ignored the legal —

weight of this navigation because it, (a) was diffi-

cult, (b). was irregular, (c) did not form an im-

portant part of the corzmerce of the region, (4) ‘did

ag Harvey (R.'186) ; Linkous (R. 205) ; Sanend (R. 210) ; |

Breeding. (R. 255); Snyder (R. 263); Farmer (R. 295) ;

Snidow (R. 302) ; Snodgrass (8. 304) ; Skeen (R. B40) 5

— (R. 469). :

" notContinue for a very long period, vial has been ©

: substantially nonexistent since construction of the -

paralleling railroads and (e) was not serena

profitable. |

We do not contest the fact that each of these sles

tations upon New River navigation .existed. We

- do contest the legal proposition that they. are suf-

ficient to prevent this interstate stretch of the river

from being held to be navigable waters of the

United States. Judge Parker, recognizing these

facts, concluded that the river was navigable. The

Only issue presented as to navigability, we believe,

is the question of law as to the standards by Which

navigable waters of the United States are to be

determined. Under both the Federal Power Act

and the decisions of this Court that om on was ~

wrongly decided below.

1. Difficulty of Navigation Poes Not Defeat : 4

Natigability—The only factor which makes New | |

River navigation difficult is the presence of shoals

and rapids; in. the 56-mile stretch there are a

. few places which during the low water months

might require unloading a keelboat drawing 2 feet

of water, and a number of places where navigation |

would not be easy: Section 3 (8) of the Federal

Power Act in terms declares streams to be navi-

gable ‘‘notwithstanding interruptions between the

navigable parts of such streams or waters by falls, _ *

shallows, or rapids compelling -land carriage.”’ -

This Court has repeatedly applied the same judicial _

definition. -The Montello, 20 Wall. 430, 443 (where

SMBH IEE LED

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portages: up to 2 miles Wore Siren Ecpnomy

Light Co. v. United States, 256 U. 8. 113, 122 (where

portages from 2 to 1] miles were generally neces-

sary) ; United States v: Utah, 283 U. 8. 64, 86; Ash-

wander v. Tennessee Valley Authority, 297.U. 8.

’ 288, 329; Water Power Co. v: -Water Commis-

_ stoners, 168 U. 8. 349, 359 (Govt. Br. 57, 66-67).

2. drregularity of the Traffic Does Not. Defeat ;

| Navigability. —Section 3 (8) of the Federal Power .

Act declares that navigable waters of the United

States means streams which ‘aie used or suitable

for use for the transportation of persons or prop- _

erty in interstate or foreign commefee.’” An. ir-

regular.use, obviously, is both a use and persuasive

evidence of suitability for use. N or do the deci-

sions of this Court import any requirement that the

river traffic must mgye on a regular schedule or be

continued nr’ ‘approximately uniform volume from

year to year. United States v. Utah, 283 U.S. 64,

82, is conclusive that sporadic navigation, inter- -

rupted by long periods of complete disuse, i is suffi-

cient (Govt. Br. 57-58).

3. It is I mmaterral That the Traffic Was An In-

. substantial Part of Commerce of the Region —So

. long as there bea real commercial use of the river,

whith neither court below has denied, it is wholly

immaterial what proportion of the congmerce of

‘the region is carried on the river. Section 3 (8)

of the Federal Power Act, defines navigability in

terms of streams which are ‘‘used, or suitable*for

use.” A small commerce, equally with a large,

*~@

shows both use dnd suitability for use. And the

decisions of this Court compel the same conclusion. |

United States v. Utah, 283 U. 8. 64, 79, 82 (lumber

rafts on the Grand River; only occasional com-

mercial trips on the Green and Colorado Rivers); - |

Water Power Co. v. Water Commissioners, 168

U. S. 349, 359 (logs and rafts). In Ask@ander'v: |

Tennessee Valley Authority, 297 U.S. 288, 329,

‘the Court found the .Tennessee River navigable.

although it ‘in its present condition * * * isnot

adequately ie hae for commercial navigation,

and traffic is small.’ :

\ 4, Abandonment of Commercial Navigation

Does Not Defeat Nawigability. —Section 3 (8) of

~ the Act, in speaking of streams which “are used or

suitable for use’? exclifdes any thought that aban-

-.donment of actual use, which leaves suitability for

use unaffected, can destroy navigability. And‘it

‘has been conclusively settled that a river does not

become nonnavigable because its commercial navi-

gation has been abandoned. The DesPlaines River

had.been out of use for almost a century, “but a hyfn- —

dred years is a brief space in the life of a nation,”’

‘and if federal control of navigable waters is fo be

.abandoned ‘‘it is for Congress, not the courts, so to

‘declare.’? Economy Light. Co..v. United States,

256 U. 8. 113, 124; see also Arizona v. California, ;

283 U. 8, 423, 453-454. . as

5. Absence of ‘Commercial Pfofit is Immate- —

rial.—The suggestion of the court below, that the ©

unprofitable nature of New River navigation -

BOER SOS AIS ae a

' 30

means the river is nonnavigable, | hias hee aecepted :

in no other case and does ‘not seem to be _-

explicitly urged by respondent in this Court. The

notion that the United States has jurisdiction only —

- over streams which carry a profitable navigation

finds no support in the Act and is contradicted by ~

the decisions of this Court. See Arizona v. Cali-

fornia, 283 U. 8. ‘423, 453-454 ; United aren v.:

Utah, 283 U.S. 64, 79, 82."* ;

Every one of the legal grounds advanced by the

courts below, therefore, is contradicted both by the

Federal Power Act and the -decisions of this

Court. Had the lower courts applied the correct

legal standards to the facts of New River as they

understood them, their conclusion would of neces-

sity have been that the 111-mile stretch now in issue

was navigable water of the United States.

iy II

RESPONDENT’S PROJECT MUST BE LICENSED BECAUSE IT

WILL OBSTRUCT ‘NAVIGABLE CAPACITY AND AFFECT

_ THE INTERESTS OF INTERSTATE COMMERCE

_ A. pe enue OF NAVIGABLE —r-

1. The Hinton-Glen Lyn Stretch—We have

stated that there is no dispute but that the re- |

spondent’ 8 Peaseet will i impair whatever navigable.

** In United States v. Utah, the Special Master, affirmed by

this Court, specifically found that navigation on the Green _

River was unprofitable, and specifically ruled that this factor

was iimatezial. Report of Special Master, No. 14, it

7 Oct. term, 1980, pp. 110-111. ,

” ‘31 ; *

capacity exists.in this stretch (Govt. Br. 79-80).

Respondent, relying upon an ambiguous'sentence

_ in the majority opinion below (R. 2909) does actu-

ally deny this self-evident fact (Rsp. Br. 63-64)

but offers ‘tio reason to explain why an intermit-

tent rise and fall of 4 feet or more would not im-

pair navigation over a 2 to 3 foot channel (Govt. .

Br. 79-80): And, as we have shown (Govt. Br.

80-81), this interstate stretch of New River is

. navigable as a mattér of law (see supra, p. 10).”

2. The Kanawha and Ohio Rivers.—In our main

‘brief we attempted to paint:a picture of the effect :

’ of respondent’s project upon the navigable capac- —

a6: ity of the Kanawha and Ohio ri vers ; we had hoped

to put this. beyond controvers ‘by relying upon re-

spondent’s witnesses and upon undisputed evidence

(Govt. Br, 77-79, 81-85).. In this we underesti-

mated the possible extent of controversy; respond-

ent vigorously attacks both our facts and our con--

clusions (Rsp. Br: 63-83; Rsp. ‘App. 164-178).

Whether or not respondent’s intendéd method of

operation will impair downstream navigable capac-— |

_ ity.seems to us to be a question of fact. Although -

* Respondent emphasizes that the proposed Bluestone -

dam will completely eliminate navigation between Hinton

and Glen Lyn .(Rsp. Br.'64). It is not entirely clear

whether this dam will be equipped with a barge-lift, since ©

the piaris include that as future installation (R. 1350, 1387).

But, i in any event, the dam will create a slack water pool,

wholly navigable, extending upstream for 36 miles when the

dam is full (R. 1350). This pool will reach well across

the state line and — Glen gn.

DARIEN leis NARS See ROH OP

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> | : e 32

the concurrent findings of the court below seem to

- ._* ug to be erroneous, we do not at this juncture of the

Bore re ‘ease ask the Court to go behind those findings.” |

; . This leaves only the two: legal questions: (a)

whether the courts below correctly looked to re-

spondent’s intended method of operation instead of —

; _ its ‘possible method of operation; and (b) whether

iy ee the effect of downstream dams can. properly be

. _ relied upon in the inquiry as to impairment of navi-

gable capacity. These rylings we have shown tobe ~

erroneous (Govt. Br. 85-89). If the.lower courts

were held wrong on this ground, there would be no

| findings: as to the fact of impairment of the na‘7i-

wee yf gable capacity of these rivers, since their findings

were interwoven with their legak premises. —

B. THE PROJECT T WILL tiga {THE FLOOD CONTROL PLANS FOR

OHIO Fn sgeed

Respondent, v we think, does not successfully elim-

inate the rather evident fact that its project -will

have an adverse or a beneficial effect upon flood

control according, to the manner in which it is oper-

ated . Br, 109-112; see Rsp. Br. 89-91).. In-

, any uncontrolled dam and reservoir of neces- —

Sity is plainly a menace to a flood-control program. —

The project: can, it is true, aid in flood control if

By ; - the reservoir waters are drawn down prior to the

i + flood and the flood stages reduced by storage. But,

| ae on the other hand, if the reservoir is full when the ©

? 28 It should eeiitinle be noted -that these findings dé not

A 3 _ + @@ver the effect of respondent’s project upon flood-control .

es 5S ‘- . and the impairment of navigable capacity thus resulting.

a ¢

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: Tie = ‘ = Bes Aegis tna iena dome

PRE ME RRR EON ECU Aah Yi ae) RENAE I:

at.

flood crest reaches the project, it will be of no aid

and may well be of considerable harm. Since the

respondent insists (Rsp. Br. 90, 91, 110, 117) that S

it is operating a project for power and not for flood .

control, there will be occasions when it will hold the |

reservoir full to the last-minute and then accent 1-

- ate the flood damage by the release of stored water

on the flood crest (R. 625-626, 987-990, 1289),

Regulation by a federal agency will odin this:

method of operation. |

In the event; of a concurrent flood over other trib- —

utaries of the Ohio, the-problem is much more com-

_ plicated. ‘In that situation the desirability of low-

ering the Radford reservoir in advance of an ap-

proaching flood must be weighed in the light of the ©

flood crest from other tributaries of the Ohio River.

_ Releases from all of the reservoirs.on these tribu- _

taries must be coordinated and timed so that the

crest from the several streams will not reach the

main stem of the Ohjo at the same tinie. An inte-

gration of flood-control operations is absolutely

essential. One central authority must therefore

determine when and to what extent the reservoir.

is\to be lowered. Because. floods- do not respect.

State lines, this authority must be vested in some

agency of the Federal Government. |

III -

. THE CHALLENGED PROVISIONS OF THE FEDERAL POWER

‘ACT ARE CONSTITUTIONAL .

Respondent urges two general stoenile of in-

‘apply to its project. First, that there can be'no

. project on a nonnavigat le stream, especially if the

protection of navigation (Rsp. Br. 121-138).

of the United States over navigable waters (Rsp.

690, settled the power of Congress to forbid or li-

ever, that while Congress has power to. prohibit

_ > it cannot make the construction - a dam on non-

“navigable capacity downstream. It is somewhat

constitutional authority to require a license for a

project does not impair navigable capacity (Rsp.

Br. 107-120). Second, thai if a license could be

required, its conditions could not go beyond the.

Neither argument i 18 valid.

A. CONGRESS MAY PROHIBIT pe. aa PROJECT

| LF New River IsN avigable. nciiteas vig-"

orously asserts various limitations upon the power

Br. 109-110), but. it does not and cannot deny the

full power of Congress to forbid structures erécted

in navigable waters of the United States... :

2. If the Project Adversely Affects Navigable

Capacity—We should have thought that United

States v. Rio Grande Irrigation Co., 174 U. 8:

cense structures in nonnavigable streams which

threaten downstream navigable capacity.

- Respondent contends (Rsp. Br. 113-116) how-

the construction of projects .in. navigable waters, -

navigable waters -“‘illegal per se’, but may. only °

forbid such operafion of the dam as would i impair &

difficult to understand the point of the argument

sinee, wherever thé project is located and what-

TEAM OS GROSSE. LR ET cn 1 eo REE EES FE

en : So ae SEES Bas pe AU Se we

ever tel “is applied to it, the power to forbid is —

based on the power to protect navigation and navi-

gable capacity. The contentions of both the re-

| spondent and petitioner as to the power of Con-

gress to license the project on the conditions pre-

seribed by the Federal Power Act are equally ap- |

plicable whether the project is called illegal per

se or whether it is forbidden because it threatens

to impair navigable capacity. — .

3. If the Project Adversely Affects the Flood

Control Program.—We have shown that the inde-. /

pendent authori y of the United States with -

respect to wood control alone, divorced from

navigation, need not be considered in. this case

because floods on the New, Kanawha and Ohio

rivers have an immediate impact upoh navigable

capacity and navigation ‘facilities. (Gove. Br. 104-

106; supra, pp.-32-33).. If the project will ad-

versely affect the flood control program, then, it

will also adversely affect navigable capacity and

navigation facilities. The analysis of the preced-

ing subsection is therefore fully applicable.

4. If the Project Affects the Interests of Inter-

state Commerce.—We have urged that the Federal

_ Power Act requires that respondent’ s project be

licensed even though its. effect upon navigable ca-

pacity or flood control programs might under some

plans of operation be beneficial rather than adverse

(Govt. Br. 94-101). That argument need not be

repeated here, nor need we answer respondent’s

attack. ae Br. 91-95) upon that construction

ne a

Fat O98 Cede iret.

Pod inh a dr ae aie oe

wz ae ‘ .

oe | &§ aa of Section 23; the issue is the familiar inquiry,

. largely unaided by the legislative history, whether

- or not Corigress meant its language to be taken in

a broad or a narrow sense. If the Court should

agree with our construction of the Act, and if it

should find the project would not have an adverse

effect but rather might havea beneficia] and possibly

an adverse effect upon navigable capacity and flood

\- eontrol according to its method of operation, we.

\ submit that Congress:still has power to prohibit or |

\ to license its construction. Since an uncertain or

intermittent benefit is the practical equivalent of

_ an adverse effect, ‘the argument is the same as

though navigable-capacity or flood control were im-—

paired. And, even if the effect of the project be.

viewed as purely’ beneficial, there is yet power to

prohibit; our argument on this score has already

been made at length (Govt. Br. 94-112).

. ° 7

B. CONGRESS HAS FULL POWEK TO IMPOSE THE CONDITIONS RE-.

QUIRED IN LICENSES UNDER THE FEDERAL POWER ACT

}

Respondent makes a general attack upon all —

- conditions of the licenses which are elaimed to be

unrelated to the protection of navigable waters or

‘which, although. related to navigability, restrict

- the use of ‘its property without the payment of.

| compensation (Rsp. Br. 122-123): In particular,

_ respondent attacks (a) fhe requirement that the

” project be best adapted to a comprehensive plan

| _ . for navigation, power, and “‘other beneficial uses’”’

. | (Sec. 10 (a)) and (b) the recapture clayse and —

’ bd . ° } i

y 9 is tia hee hhh et ee I TS EL ETON IN EIN HET NITED eee

5 bt a (a ae Teh

spelt AG, CRE ee Gites catee ahaa sh Me ds Seance

a's pate

related provisions permitting, the Goverment, on

- expiration of. the license period and after two

| ——s- years’ notice, to take over the project on pay-

ing the licensee’s net investment (Sec. 14) and

providing for the maintenance of the project and»

reduction of nct investment while the project re-

mains under private management (Sees. 10 o-

..- 10(a)). ;

Respondent’s objections to the conditions re-

.-quired in licenses under the Federal Power Act

seem to be a blend of commerce clause and due

process objections (Rsp. Br. 121-128). As we un-

derstand its position, it may be epitomized as, first,

iin cbjéection that the federal government can im-

pose no condition which is unrelated to navigation

and, second, an objection that the conditions.

amount to a taking of its property without just

“compensation. The: brief of North Carolina,”

amicus curiae, urges the frat of these propositions

(N.C. Br. 8-12, 15-24). re

~ - Ttmay. be observed at the outset that respondent

. a»

: waters. In-either case construction of its: project

8. is forbidden by Section 9 or 10 of the Rivers and

- Harbors Act of 1899. Whatever success might at

tend respondent’s attack upon the Federal Power

*° The page proof of the brief indicates that other parties 3

are expected to be signatory in its final form.

is in no position to attack these conditions if its

’ project is located in navigable waters of the United |

States or impairs the navigable capacity of those -

38 .

Act, it would therefore still be subject to the in- |

junction prayed by petitioner, Since respondent -

would gain no relief from a decision of invalidity,

_. it would seem not to be in a position to raise its

constitutional attack upon the Federal Power Act.

- Of. Berea College v. Kentucky, 211 U. 8. 45, 54; '

. Alabama Power Co. v. Ickes, 202 U. S. 464, 479-480.

_ Each. condition, however, is a reasonable and

valid requirement for the United States to exact

as a condition to ifs ‘permission to build a dam _

which otherwise would be forbidden.

. 1. The Scope of the Constitutional Issue. —Sinee

the United States has power to forbid construction

or operation of respondent’s project, it has corre- _

sponding power to permit the project to be con-

structed and operated if prescribed conditions are- —

observed. The proposition is incontestable as a

matter of logie and is amply supported by. the au-

thorities (Govt. Br. 130-131). ‘Respondent does

not seem to dispute that, if the Government can

_ forbid the-structure, it may permit it upon some

conditions. Its attack is based instead on the

ground that only those conditions can be required

which relate directly to navigation -(Rsp. Br. 121).

Since we do not urge that-all of the ednditions pre-

‘seribed by’ the Act relate to navigation alone, the

constitutional issue reduces itself to the narrow

inquiry whether the power to forbid the construc- i

tion and operation of the project, because of its

relation to ‘navigation and navigable capacity, in-

cludes the power to permit its” construction and

sa payik fe aa Ee ss ie OE se Tay Se cin See ae Ata Mi Se

ts BESS ions We RESET OPE

Ber Fy

39°

operation upon prescribed conditions, some of

which do not relate to navigation alone.

We can still further delimit the scope of the |

_ issue. We do not urge that the United States can

attach any conditions whatever to its license for

_ construction and operation; it may be assumed that

they must be designed to further or to protect a -

legitimate federal interest. Indeed, it may be as-

sumed that the conditions must not onl,” fulfill a

legitimate federal purpose but. that this purpose | ~

- must also be one which bears some relation to the

source of the licensing power. |

In short, then, { this case merely requires the Court

to decide whether the power of the Government to

license the project permits it to attach conditions

reasonably designed to advance and to protect. the

‘interests of the United States in regard. not only ,

to navigation and flood control but also i in respect

of power development, conservation of water re-

" ‘gources,-and the other aspects of an integrated river

development which can be made to serve the pubiie

welfare. | f

_ . There is, therefore, no need to reply to the at-

tacks of respondent (Rsp. Br. 117, 127) and amicus —

curiae (N..C. Br. 14, 21-24) so far as they are di-

_ rected at the exaction of conditions having’ no rela-

tion to a proper federal interest in the development

- and integration of water resources. .

2. The Condttions Further a. Legitimate Federal

Interest in Water Resources.—The respondent con- __

tends. that Congress may regulate the rights of a —

tee MIE SIRE ys SLA IE

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liparian owner only to the extent required for nav-

igation. .From this premise respondent argues °

. tha Congress may not say that the project is not

an impairment to navigation by issuing a license

and at the same tinie forbid the project save on

conditions allegedly unrelated to navigation (Br.

134-136). :

The simplest answer is that, the constitutional

authority of Congress is not limited to the power to

prohibit an unlicensed impairment to navigation.

- The Congress may also authorize or jtself construct.

a project for navigation.and flood control which, if

undertaken by.a private party without congres-

sional consent, could be forbidden as an obstruc-

tion. Arizona v. California, 283 U. S. 423, 452. .

(a) The Government Could Itself Undertake the

Project and Accomplish All of the Conditions of .

the Ligense.—The amicus curiae brief seems to con-

"fine its attack on the interest of the Federal gov-

ernment in the license conditions to the limited is-

sue whether the Government could itself construct:

the project (N.C. Br. 20). But, as we have shown,

the United States could itself erect a dam and

' power plant above Radford if the stream were nav- /

igable, or if the dam aided downstream navigation,

_ or-if it were an integral factor 'i in the flood-conttol 3

“program (Govt, Br. 119-120). |

‘Apart from questions of ‘initials: treated

“below, respondent objects to this conclusion only

because-its project is simply a power project (Rsp.

Br. 110, 117, 130, ata But, | because roupecsieist

mFS

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- views its 0 own ‘project only as a power project, it by

no means follows that the same project‘would not be

a navigation and a flood-control project if it were

undertaken by the United States. The power pur--

poses, which naturally enough provide the project’s

sole interest to respondent, would in the hands of

the federal -government be merely subordinate

_ means to larger nonpecuniary ends. See Arizona

v. California, 283 U. S. 423; Ashwander v. Tennes-

see Valley Authority, 297 U. 8. 288; New Jersey v..

Sargent, 269. U. 8S. 328, 335-336 ; statement of

Senator Root, 49 Cong. Ree: 3058.

If the United States had itself undertaken

. construction and operation of the project for navi-

gation and flood control, it plainly could have ac-

~ eomplished ‘éach of the conditions to the license to

which respondent objects.. It would be unthink- |

able that the Government could-not- ensure thé at its

project be best adapfed to a comprehensive. plan

for improving waterways, developing ‘power re-

sources, and other public uses (See. 10.(a)),° Ari-

zona v. California, 283°U- S. 423 ; Ashwander .

Tennessee Valley Authority 297 U. S:.288. And :

-_ sinee Congress could, construct the project, it may -

obviously reserve'the: ‘rightto take it over (Sec. 14) *

a atid prescribe related conditions as to the mainte--

nance of the project and the conditions of recapture |

(Sees, 10 (¢)710 (d)), sy) enh eR ciaase

It follbws.that each of the conditions prescribed.

' Le. the Federal Power “Ket for licenses relates to a

5 z legitimate federal interest, arising out of theuse

’

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of streams which are navigable or which affect nav-

igability, and that the United States is not tres-

passing upon forbidden ground when it’ uses its -

. power to forbid construction and ae of the —

project to accomplish these ends. |

_(b) The Congress May Either Prohibit the Proj-

‘ect or License Its Construction on Conditions Ap-

_ propriate to a Government Project.—It is obvious

_ that a project located on a navigable river may con-

stitute a physical obstruction to navigation even

; though it also creates a navigable channel (cf. Ari-

zona v. California, supra), and it is equally clear

. that a dam of a.nonnayvigable stretch of the river.

> may both i impair navigable capacity in one stretch

of the river and. substantially i improve navigation —

on other stretches. Likewise, a water-déexelopment |

project. may impait channel depths but provide

: substantial flood-control storage. Water-storage

'” reservoirs may aid or impair flood control accord-

ing to:their method of operation. Whether the.

advantages of a project-offset the disadvantages is:.

: obviously a ‘question for Congress rather than the

' private operator. to determine. The Government

thay. therefore construct a project for navigation

"and flood control which private individuals are for--

bidden to undertake without congressional. con-

gent. Arizona’ oy, California, supra, at 452.

- Since the Ggvernment may of course do through

an agent or licensee what it may do directly, it may

both forbid private development and license . con-

ied ¢°

. Ore,

a a

vesiaciis by its own agent for navigation sit flood

control. It was upon this settled proposition tl

constitutional law that the Federal Power Act was

- designed (Govt. Br. 114-119).

The -respondent’s contention that Congress can-

not compel it ‘to obtain a license’ as a condition of -

exercising a property right which it plready enjoys

(Br. 117-118) is probably directed only to the ques- :

tion of compensation, but so far as it bears on the

_ Scope of federal powers it is plainly beside the.

mark. ~Respondent:assumes that Congress cannot

the Federal Power Act, the respondent has no legal

- right to undertake a power development without a.

license. The’sole inducement to aecept the offer, —

therefore, ‘is that respondent may thereby obtain

power benefits to which it j is not otherwise entitled.

80 Several vias have recognized that the ‘Weeties of the

Federal Power Commission is for many ‘purposes simply

thé agent of the federal government. Alabama Power Co.

-v:. Gulf. Power Co., 288 Fed. 606 (D. Ala.) ; Oakland Club v.-

South Carblina. Public Service AuthoMty, 110 F. (2d) 84 —

(C. C. A: 4th)... For many purposes, of course, the licensee

is not to be regarded a8 a technical agent of the United

States. Susguehgnna Co. v. Taw Commission, 283 U..S. 29

" 293-294; Broad River Power Co. v. Query, 288 U. 8. 1

180-18}, But, whatever the _preferable nomenclature, the

. licensee édvances appropriate federal purposes when it con-

' structs the project and conforms to has re sent conditions.

ize it on the conditions. presoribed by

4 * on

. ?

—_—_ ; : . 44

The offer of such economic. benefits is not the exer- -

cise of compulsion, and any acctptance of the offer

- is wholly voluntary... Cf. Steward Machine Co. v.

Davis, 301 U.S. 548, at 589-590; Massachusetts v.

Mellon, 262 U.S. 447,480.

3. The Charge of Confiscation —Respondent, me

jects, finally, that the conditions of the license are

unconstitutional because they take: its property

without just compensation (Rsp. Br. 123-128).

It complains, in this regard, that the Act takes its

- property (a). by restricting its use and (b) by the

recapture provisions of Section 14. .

(a) Power Rights—The objection to the restric-

tions upon respondent’s use of its property relates

only to its property interest in its power rights.

All uses of its lands are open to it without re-

_ striction, except only their use to construct a dam .-

_and power plant in the streamewhich will affect

navigation or navigable capacity. This use of

- these riparian lands has a compensable value only

with regard to whatever power rights attach to

riparian lands along ‘a- stream yen a utilizable

fall.

. If the United States had itself sisstinrtalosin to

construct the project, it would not have been re-

quired to compensate respondent for its power -

rights. United States v. Chandler-Dunbar Co.,°

. 229 U. S. 53, settles that an upland owner can have

no compensable property in the flow of a stream

ae eo ae

which can be utilized only in a manner which the

Government can forbid. The case is directly ap-

plicable and conclusive if respondent’s project is

‘ Ioeated in navigable waters of the United States.

_ will impair navigable capacity or flood control. -

Its reasoning is equally applicable if the project

. The decision proceeded upon the ground that the

_ Government may forbid in order to proteet down- ~° ~

riparian lands could not be devoted to power pur-

poses without the construction of a project which |

the Governmént could forbid. 229 U.S. at. 70-71.

On like principle, no compensation for power value :

“is required if the ripa:

n lands on a nonnavigable

oc esmeanee be devoted to power purposes with-

out regulating the stream in a manner which. the

stream navigation and navigable capacity. In that

case, as fully. as though it were located in navigable

waters, the project can be built or operated only

With the permission of the @gvernment. Against:

‘the Government, then, there can be no property

rights in that water flow which can be utilized only »

- with its permission..

| ernment chooses to license private capital to ac- _

*complish the same ends in its place.

‘Since there would be no duty to compensate re- |

_ spondent for its power rights if the lands or project -

were condemned by the United States, there can’

be no taking without just compensation if the Gov-

“The property

’ right, in either case, is nonexistent against the Gov-

REDD oe fe

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: 46.

tea. - ernment. _ It cannot be doubted that, if the Com-

mission had licensed a power company other than

respondent to construct a project at the Radford |

site, the licensee could condemn \respondent ’s ri-.

- parian lands under Section 21 of the Federal

Power Act without making compensation for |

power value. ‘Alabama Power Co. v. Gulf Power.

Co., 283 Fed. 606 (D. Ala.). The respondent

cannot complain if the Government offers to per-"

i mit respondent itself to enjoy the power benefits

/. under the license vestrictions. Viewed in another

light, the Federal Power Act is simply the offer

of a bargain’to the licensee: the United States

defers its right to take the power rights for its own

use without compensation, and the licensee in turn

accepts the terms of the license as the price of re- .

taining its right to develop the power resources for |

_ its own profit. The Constitution does not require

that the Government go through the formality. of —

_ instituting “condemnation proceedings before it |

- undertakes to offer a mutually ‘advantageous bar-

gain to private capital. |

(b) The Recapture Clause. —Respondent objects —

that the powev of the United States:to take over

- the project, after the expiration o€ the 50-year li-

cense, at its net investment cost, or at its fair value

if that be lower, is an unconstitutional confiscation

of its property without just: compensation (Resp.

.Br, 125-123, 133-138). We have shown, on the

BN eh hie yes ee Ain ile te 60: ben eee ee cage SOA

Bae ces PRES RI AS ORE Ss RMIT SELLE EAE Se CLS SENT IE RED ge

e .

| 47

"other hand, that Section 14 is a reasonable ‘condi-

tion for the United States to attach to its permis- —

- sion to. construct and’ operate the project (Govt.

Br. 139-141), and that it would be a valid enact-

-ment even if there were no power to prohibit the

project (Govt. Br. 141-144)..

We sée no reason to supplement the discussion

An our main brief. We may, however, point out

that respondent’s attempt (Rsp. Br. 136) to distin-

-guish Fox River Co. v. Railroad Commission, 274 —

U.S. 651, serves only to show that case to be conclu-

sive of the issue here. The Wisconsin statute, as

does the Federal Power Act; grantéa a license for __

the construction of a hydroelectric plant subject to ;

the condition, inter alia, that the state could. recap-

ture the plant at the end_of the license period upon

the payment of an amount urged to be less than

the ‘‘fair value’? which would be required by the

Constitution if the state were to condgmn the proj-

ect. Respondent seeks to distinguish the case on

the grounds (1) that.th states have power to en- —

gage in the electric poy 2r business, and (2) that

the states, so long as they do not confiscate vested

property rights, may establish such riparian prop-

erty laws as they choose. Neither ground is tenable.

. (1) The United States, as we have shown above, has

‘full authority to construct and operate a project .

such as respondent’s. (2) The reservation that the

‘States may not confiscate vested property rights

: f

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. 48

ignores the very, aqndetion: in’ issue here, which.

is the charge ‘that the Federal Power Act eon-

f@ates respondent’s property through the opera-

tion of the recapture clause. And, it may be noted,

whatever property rights. the states may have in

the power rights and the flowage of water do not.

reach to the power plant and equipment. "

Respondent’s attempt to distinguish the munici-

pal franchise cases is equally unpérsuasive ¢ef.

Govt. Br. 140, Rsp:-Br. 136). Just as the munici-

_pality may condition use of its streets, which it has

power to forbid, on rates or recapture which other-

wise would be confiscatory, so the United States

may condition its consent to the use of streams by °

' structures which: would affect navigation - and

navigable capacity.. None is compelled to accept

- the use of either the streets or the streams; and

whether the source of the power to forbid is pro-

prietary or regulatory is wholly immaterial.”

*1In our main brief we advange as an alternative (Govt.

Br. 140) argument that respondent cannot now challenge

the recapture provisions, which- would operate, if at all,~

only after a period of 50 years (Govt. Br. 137-139). In~

Montana Power @o. v. Federal Power Commission, 112 F.

(2d) 371, 374 (C. C. A. 9th), decided since our main brief

‘was printed, the court so ruled. It. said: “The United

States has not taken, has not threatened to teke; and cannot:

for about fifty years,.take the line in question. Under these

circumstances, we think petitioner has no standing to raise

the quéstion. New Jersey v. Sargent, 269 U. S. 328, 3395.

United States v. West Virginia, 295 U. S. 468, 474. . * -* #9

, PT a ae

: aie pains J eae ots gee eect ASS MN korea ees eS IE 9S

. ‘

CONCLUSION

For these reasons, in addition to those set -out

in.our main brief, it is respectfully submitted that

the decision of the court below should be reversed,

j@ Francis BIDDLE,

os Solicitor General.

JOHN W. AIKEN, . |

WakRnre W. GARDNER, |

- | Metvrin -H: SIEGEL,

- Special Assistants to the Attorney y General.

Wuuiam 8. YouneMAN, Jr.,

General Counsel,

Davip W. RoBINson,

‘ Special Counsel, +

| WILLarpD W.-GATCHELL, -

Principal Attorney,

Federal Powtr Commission.

OCTOBER 1940, | ;

“tae

U1. $. GOVERNMENT PRINTING OFFICE: 1940

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.