# Reply Brief for the Petitioner — United States v. Appalachian Electric Power Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386401_0311%3A06 ## Record - **Collection:** Supreme Court brief - **Document type:** Reply Brief for the Petitioner - **Published:** January 1, 1941 - **Citation:** 311 U.S. 377 ## Text Aa” THORS. on é P) é 3 pene 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 --: 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. _.._._ 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, $. é 4. e. - mys h : . ‘4 Te eee a. 4, s 4 a? SEI . 4. f : . = 2 te c & ‘ ° . - PR: 4 o { pe es a ~ He ° . + ‘ - = € . .7 ‘ _ 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 e . 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 4 1 @ . ola - ae x : o Ne a © ye “2 Be é a. oy ; ; 2. ee A Dy ‘ ~ ° - ‘ E rane nin te my rence ne: ieee % or . : ‘ Q .. : ‘ - © >; ave th * S Rx ¥ 5 ~D 3 x3 , 2 ‘ : nS ’ . aS v ° o 9 Se eaPares oa ) . “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 ; (1) y j : oe ‘ : . Z : 8 . > -@ e. . oes e: n (is ; \ aE ed i; mf + % ye ee it ‘Si F ? aT | | PEE ESTER TEEN OS SRION ~ al > r, ¢ Sama, 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 4 on #6 . \ 5 eT NG \ \ . 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 = ae . de : , ° * .. ne: $ . e : + ~ 4 ; 6 . “ mf 2 Oe 7 2 : 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. . ; @: 2 ehh . : ( ae . *. : a” Lod Sg... 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 ° 4 | 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, _— e rafts have Tins OR Ee era 2 Fee eee arena oe BA Aha eee Rn as aN oad Se Re pb he eet wil . eS aS >: : Pet y fe Ss FOR Rag hye t CABE aS aE EDS Sn Lee etc yume Se eae oy (ek SR a Sir Te f Re Ste oo: ee ee ee | } © 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 c *" _. 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 = r . . 5 . “ - é , ° *e - > + 5 ; 4 é on PR Loe ee, S507 Cae eae oat Bea NS nay NE AE LE AS NGI ee 54 vent | 13° 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). / ' 264995403 - eerie ae’ NB I foal a ine DEES BILD S Pett hh tye i ee a os ‘ioe ie ae set peed ghee nti «ay Vy a si ei PT ‘\ Rech ES ERAS IaH S HS aut Qo ar thee Cet SS € 2 aed. Se De aghax: tt : EY “ NT RRL Net ns ath peli AES en & 4 fe es some OL o@& ee he me a ‘ * * . ™ F - eb ARIUS SE oy CANINE Ba EOP RE RRR 2S ALANNA PRE RE” UB TAGS SAI BERRY. Foe See _&e . e 4 a: 18 '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 S, \, ea > g y f “4 \ *- 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 co . . re Ry, as ? on 2 Bite Sov Ree wi ; soe Cyt OEY ee. Dee Ne ctl le il Dh ltl Atego wee " ; 2 yd eeF én ke a Fe in by ae e4 a . . - . ‘ oe . ee ie Sa bse ae Loe es s4 a ve Be; Por 43 Rs as Tse) oo es ~~ 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 9 -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. * * * ¢) Z 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 ae & ~ sate renter hae 1 RS A se FC ae Pe ie ee me) oe Rete Mees wee ay CFE Sear Gh raat ae . sc eidicenititataiaeitd pedis ee Re 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 Sere er) H : * . TRAGER te Sa ra Elation 3 Yageny pee pea et gee SSRI ACRE AE MOR PS ee be ee eg AN nak Setdeeie oe Te eS ER CR RS RSC ER ERED SA a Pe Ait oe oe oo act eget on Pe pO PR OTE NG Pee AE % . hip, EP Nec cnet agen é Ye } Rito ar Shs fe eee take met hs arate Stpre sti) eee Rea SPREE TR ORE EME IP RIL LENS OS NS } EEE I VLE LSS HIN IIS 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, *~@ or NS 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. x DARIEN leis NARS See ROH OP Kae I PO AE See Py eas WA ¢ Cty Pans oP Roi tege » Sal aki eT dt at rm EY ay > | : 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 ¢ - OG rere epee te mer eginns POP BELL VIII LAL ILE f SFENG RATE 18 i OM LUD ea : Tie = ‘ = Bes Aegis tna iena dome PRE ME RRR EON ECU Aah Yi ae) RENAE I: at. 2 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- '” validity, if the Federal Power Act be construed to © ‘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 * RE: Ae é tree ae Sapa “ans SRS ee Sat © ae re : : 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 a ne a Fat O98 Cede iret. Pod inh a dr ae aie oe wz ae ‘ . 36 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 = t: . 42 | eee ei ~ ~ 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. ee ize it on the conditions. presoribed by 4 * on th . ? —_—_ ; : . 44 ry 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 eo a 45 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 : ry 4, - 4 . ERG eae IN Sew Game Gaeta ny irs. , Kae priy: 5 FS eS ep ut Es et ay ite ae ¥ : wet er, . Peter ° pg eNOS ae EOE ERE LE LENT IE I A IE ET ae ARS PE: | — : 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 oe : f ea Sine DOR Ra ERE ARRAN RARER, xara nba (ER Sn ee Se | ci etsy mage PRAT: LRA WAD SPST, 2 ISS ae ae BN AS aden eS GERAIS SPUN CE SSSPRKEL SiS CEE NS IE ENTERS RY, AS PRS NiMar ee Store ably NaS abe acs ‘ ‘ RMS a ana Be Sern PReSt See AT I 4 SSeS AE REN ON OHS dy Ya A re ie tt Ff i i 2 Sa is we ee 4 ie Fi eto i ; . . Ree a PEO ess Yee DL ne ‘ ee ECE APE PS AE eA ES a op EE IAD ed One eesti : . 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 i , 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, Grecory HANKIN, © ‘ Special Counsel, + | WILLarpD W.-GATCHELL, - Principal Attorney, Federal Powtr Commission. OCTOBER 1940, | ; © “ . “tae U1. $. GOVERNMENT PRINTING OFFICE: 1940 . --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386401_0311%3A06. Public record. Not legal advice.