Amicus Curiae Brief — Chemehuevi Tribe of Indians v. Federal Power Commission

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SUPREME: COURT, U. 8

IN THE

—S Supreme Court of the Hnited States

Ocroser TERM, 1973

CHEMEHUEVI TRIBE OF INDIANS,

ET. AL., No. 73-1380

Petitioners, Be

Vv.

FEDERAL PowER CoMMISSION,

)

Respondent. )

ARIzONA PowER CoMPANY, )

)

No. 73-1666

ET. AL.,

CHEMEHUEVI TRIBE OF INDIANS,

ET. AL.,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

BRIEF OF BUFFALO RAPIDS IRRIGATION

PROJECT; CUSTER ROD & GUN CLUB;

_ TONGUE-YELLOWSTONE BEET GROWERS; and

~ TROUT, UNLIMITED, as AMICUS CURIAE

Submitted by, JAMES H. GOETZ, 15 S. Tracy, Suite

8, Bozeman, MT., Attorney for amicus curiae.

;

INDEX

Page

INTEREST OF THE AMICUS CURIAE -...000 7

PE arin ccensicertee tac acstiiettcntan eo ncioeersineensenaveres 2

A. The Northern Great Plains .............2...2....---------- 2

B. The Colstrip Plants -.2...00..222...20.222.--2200--++ _ 7

C. Comprehensive estiation of Water

Resource Development ................22...--.22::+:-000000-- 10

CONCLUSION date Goi spc Bacecasbaneagnaevckcoeccnebehnigteas 17

APPOMIIS choca ie snk ie ee ee 19

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ARIE REE ERELRR EE. PRE LIEDER LID AOSE OG LOOELE t

lil.

IN THE

Supreme Court of the Wnited States

Octroser TERM, 1973

CHEMEHUEVI TRIBE OF INDIANS, )

ET. AL., ) No. 73-1380

Petitioners, )

f )

FEDERAL PowER CoMMISSION, )

Respondent. )

AR1IzONA POWER COMPANY, ) No. 73-1666

Et, Ala, a, )

Petitionery, )

v. )

CHEMEHUEVI TRIBE OF INDIANS, )

ET. AL., )

Respondent.)

On Writ of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

BRIEF OF BUFFALO RAPIDS- IRRIGATION

PROJECT; CUSTER ROD & GUN CLUB;

TONGUE-YELLOWSTONE BEET GROWERS; and

TROUT, UNLIMITED, as .1MICUS CURIAE

By consent of Petitioners, Respondents and Interven-

ing Petitioners-Respondents endorsed hereon, TROUT,

UNLIMITED, et. al., files this brief as amicus curiae.

es mance

=z”

CARRE ORO SSD Ae SIRO LE MRI LOW PAE iP ms

INTEREST OF THE AMICUS CURIAE

The amicus curiae, Buffalo Rapids Irrigation Project,

Custer Rod and Gun Club, Tongue-Yellowstone Beet

Growers, and Trout, Unlimited, have an interest in this

case in that they have pending before the Federal Power

Commission a Complaint and Petition to Show Cause’

(filed in July, 1973)” which poses the same questions as

those presented for decision in the instant cases, namely,

whether the massive coal-fired electrical generating plants

| presently proposed to be constructed at Colstrip, Montana,

+ by Montana Power Company and four Pacific- Northwest

+ utilities’, are subject to Federal Power Commission licens-

’ ing jurisdiction under both Section 4(e) of the Federal

+ Power Act, 16 U.S.C. §797(e), and the “project works”

4 provision of the same act, 16 U.S.C. §797(e), because these

« plants will divert for totally consumptive use massive

amounts of water from the Yellowstone River, a navigable

river.

2 Sais inpialay”

Siiligis laine A SRLasn raat Soa Dear sete

~ |! Section 18 C.F.R. §§1.6(a), (d), (1972).

| ? F.P.C., Docket No. E-8335.

+ * The other utilities are: Puget Sound Power & Light Co.,

Portland General Electric Co.; Washington Water Power

Co.; and, Pacific Power and Light Co.

GENRE ORME ALE LE REALL DIG A LILLIE PEO SLE LOEE DLE LLL EID

ARGUMENT

A. THE NORTHERN GREAT PLAINS

This brief does not attempt to treat the complex legal

issues in these cases in an exhaustive manner. That has

been done competently by the parties. The purpose of this

brief is to place before this Court a different factual

perspective — stemming from coal-fired electrical power

development on the Northern Great Plains —~so that this

Court will be able to reach the very important legal issues

presented in these cases with a more comprehensive under-

standing of the factual ramifications.

Montana and Wyoming contain under present calcu-

lations forty-six per cent (46% ) of the nation’s strippable

reserves of bituminous coal and lignite. Strippable coal is

found in this area (called the “Fort Union Formation” )

in seams of five (5) to two hundred fifty (250) feet in

thickness with ten (10) to two hundred (200) feet of

overburden’. Western coal, particularly that of the Fort

Union Formation, because of its iow sulfur content, is in

high demand to satisfy this nation’s seemingly insatiable

energy needs.° “ |

In 1970 and 1971, the United States Bureau of

Reclamation, in conjunction with a number of utilities

prepared the “North Central Power Study” which covered

the states of Idaho, Montana, Wyoming, Colorado, North

4 See: Melcher, Albert G., et. al., Wanted-A Better Approach

to Energy Planning, ROMCOE, Denver, Colo. See also,

“North Central Power Study,” Report of Phase I, Vol. Il,

Bureau of Reclamation. ~

See: Second Annual Report, Montana Environmental Quality

Council, October, 1973.

—

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Dakota, South Dakota, Nebraska, Kansas, Minnesota,

lowa and Missouri. One summary which demonstrates the

magnitude oi the potential coal development in that area

states as follows:

“Proven strippable coal resources in the region .

are capable of sustaining well over 200,000 mw

in thermal power plants of 1,000 mw or more,

with 35-year economic lives. This is only a small

part of the coal resource potential in the NCPS

area. Forty-two potential sites have been identi-

fied. Ten of these, each for a 10,000 mw plant,

are located in one area of about 30 by 70 miles

centered on Gillette, Wyoming .. .

(Footnote 4: ... A 10,000 mw plant will be about

14 times as large as the renowned ‘Four Corners’

plant at Farmington, New Mexico, was when it

first created the concern about air quality from

the Southwest power plants. The Four Corners

plant is being expanded to about 2,100 mw, still

about one-fifth the size of some contemplated ~

for the NCPS area... .)’”®

The development of electrical power from coal in the

Northern Great Plains area is largely dependent on the

supply of water. The 1973 report of the Montana Coal

Task Force states:

“Water controls all activity in this semiarid

region, and the industrial future of the Fort

Union coal fields is no exception because coal-

based development requires enormous quantities

of water for cooling and conversion. Because

_ © Id., Melcher, p. 10.

PW Trews

most of the coal fields are far removed from

existing surface water sources, the nature and

extent of development would depend on the quan-

tity of water made available at the mine site. A

large volume of easily accessible water would

allow extensive generating and conversion com-

plexes. If this supply is not provided through

several new storage facilities and an intricate

system of government pipelines, development

would be more restricted and probably concen-

trated on mining and export of coal.”’

The major potential source of water for Fort Union coal

development is the Yellowstone River system. The Yellow-

stone River begins high in the mountains of Yellowstone

National Park and winds its way in a northeasterly

direction through eastern, Montana, and flows into the

Missouri River near the Montana-North Dakota border.

Although several tributaries of the Yellowstone have dams, |

the main stem of the Yellowstone is essentially unencum-

bered by man-made developments. At all points in the area

of the coal development in question, the Yellowstone River

is navigable.” The effect that coal development will have

on the Yellowstone River has been stated as follows:

7 Coal Development in Eastern Montana, A Situation Report

of the Montana Coal Task Force, January, 1973, p. 9.

* Crow Tribe v. USA, Civil No. 214, U. S. Dist. Ct. D. Mont.,

Judge Jameson, October 1, 1963; (this decision found the

Big Horn river navigable to its confluence with the Little

Big Horn and therefore subject to Federal jurisdiction. The

Big Horn is a tributary of the Yellowstone. A fortiori, the

Yellowstone is navigable at least to its confluence with the

Big Horn, a point upstream from the Colstrip diversions.

, J

“One of the most significant coal-development

issues is the prospect of massive consumption of

water from the Yellowstone River and tributaries.

The U. S. Bureau of Reclamation projects a pos-

sible annual water requirement of 2.6 million

acre feet. This volume represents 29.7 percent of

the river’s average annual discharge (8.8 million

_ acre feet per year), and in a dry year, such as

those experienced in the early sixties, the river’s

annual discharge might be only half that figure.

The same projected level of consumption would

leave 1.8 million acre feet of water in the river in

such a year, or 20.5 percent of the average flow.

4 Once such industrial water consumption com-

mences, it may be expected to continue regardless

of the flow conditions, in the Yellowstone River

System. The market place will continue to demand

power.” :

xa Sagas

Thus, the problem of coal development and conversion into

electrical energy and the accompanying demand for mas-

sive amounts of water has become a focal one. The

recently-published study ‘sponsored by the sFord Founda-

tion and the National Academy of Sciences, Rehabilita-

do toa BEA NBS Wana |

® Supra., Note No. 7, p. 39. See also: Anderson, Bob, “Water

and Eastern Montana Coal Development,” Second Annual

Report, Montana Environmental. Quality Council, October,

; 1973. “What effect will massive diversions have on these

; flow regions? If all of the options and applications for water

i are realized, about 2.7 mafy (3,730 cfs) will be diverted;

presumably most or all of this water would be consumed.

_ A glance at Figures 1 & 2 clearly shows that the Yellowstone

often does not even have that much water...

6 .

tion Potential of Western Coal Lands, is quite blunt

about the problem:

“The shortage of water is a major factor in plan-

ning for future development of coal reserves in

the American West. Although we conclude that

enough water is available for mining and rehabili-

tation at most sites, not enough water cists for

large scale conversion of coal to other energy

forms (e.g. gasification or steam electric power).

The potential environmental and social impacts of

the use of this water for large scale energy con-

version projects would exceed by far the antici-

pated impact of mining alone. We recommend

that alternate locations be considered for energy

conversion facilities, and that adequate evaluations

be made of the options (including rehabilitation )

for the various local uses of the available water.”'°

(emphasis added )

Earlier this year, the rate of water diversions in Montana

became so alarming that Governor Judge proposed a 3-year

moratorium on water diversions from the Yellowstone

River (S.B. 728; the bill was passed). In introducing the

moratorium proposal, the Governor stated :

“With a near annual flow of about 9 million acre

feet of water at our border, options, applications

and requests have been made for approximately

1° Rehabilitation Potential of Western Coal Lands, A report

of the Energy Policy Project of the Ford Foundation,

National Academy of Sciences, Ballinger Publishing Co.,

1974, p. 6.

3,300,000 acre feet from waters in the Yellow-

stone Basin. In 1972, the Bureau of Reclamation

projected that 2.6 million acre feet would be

needed annually for coal development by the year

2002. In less than two years, that figure has

already been far exceeded, and all indications

are that this amount will grow significantly

within the immediate future.”™

B. THE COLSTRIP PLANTS

The specific interest of the amicus curiae is- focused

on the Yellowstone River in.Montana, and the massive

electrical generating plants which are being constructed

(or contemplated) at Colstrip, Montana. The Montana

Power Company, together with the Puget Sound Power

and Light Co., are currently constructing two plants at

Colstrip, Montana, with a proposed total capacity of 350

mw each. These two companies, together with three other

utilities have proposed two more plants at Colstrip, each

with a capacity of 700 mw.

These four plants will be coal-fired steam-generating

plants with wet cooling (i.e. water-consumptive ) processes.

They will demand substantial amounts of water with no

return flow to the river, as occurs with agricultural usage.

For the Colstrip Units alone, the water demand will neces-

sitate the construction of a 60-inch pipeline from the

Yellowstone River near Nichols.to the generating complex

at Colstrip, a distance of about 30 miles.'* Water consump-

tion for Units 3 and 4 will average about 16,000 acre feet

11 Senate Journal of the Forty-third Legislature of the State

of Montana, Vol. 1, p. 172.

'2 See: Note 7, Supra, p. 13.

a year with a maximum of up to 26,000 acre feet. Settling

ponds covering 60 surface acres will be necessary.'* These

withdrawals will affect navigability since pumping struc-

tures will be located in the Yellowstone River. The

* complaint filed by the parties amicus curiae with the Federal

Power Commission (Docket No. E-8335) has not been

acted upon by the FPC for over one year. The parties

amicus curiae are irrigation farmers (primarily growing

sugar beets) downstream from the Colstrip diversion who

are dependent upon a regular and adequate flow of the

Yellowstone River, particularly in the late summer and

early fall, and recreational users who make substantial

use of the Yellowstone River for fishing, hunting and

aesthetic purposes. The Montana Power Company appro-

priation will make use of surplus water from a government

dam—namely, the Yellowtail Dam on the Big Horn River.

a major tributary to the Yellowstone.

The water appropriation made on the Yellowstone

River by the Montana Power Company (dated December

16, 1970) claims an appropriation of 250 cubic feet per

second (112,200 gallons per minute) on all days and at all

seasons of the year.’* This appropriation was made pur-

13 Gill, Thomas J., “Montana Coal-Development in Process

1973,” Second Annual Report, Montana Environmental

Quality Council, October, 1973. Non-water effects relating

to the construction of proposed Units 3 and 4 include the

consumption of about 6 million tons of coal per year and

the construction of a 500 kilovolt transmission line between

Colstrip and Hot Springs, Montana, a distance of about 400

miles.

14 Montana Water Resources Board, 1970, Montana Power’s

Notice of Appropriation.

; Note: This appropriation equals approximately 181,000

acre feet per year. Approximately 20,000 acre feet per

year is consumed annually by a 1,000 mw electrical

suant to the traditional Montana Water Law based on the

prior appropriation theory — i.e. anyone has the right to

appropriate unappropriated water as long as such water is

put to beneficial use, Section 89-801 ; 89-802, Revised Codes

of Montana (-1947).’° The Montana Power appropriation

indicates the ease with which a person or a corporation can

take the public’s water. A part of the Yellowstone River

is being studied by the Bureau of Outdoor Recreation

for designation under the Wild and Scenic Rivers Act.

P.L. 90-542."° yet, a corporation with a stroke of the pen

can irreversibly dewater the stream. This total -lack of

Federal control over a river of national importance,'? which

is navigable and therefore subject to Federal jurisdiction.

is one of the unfortunate and anomalous consequences of

the failure of the Federal Power Commission to assert

jurisdiction. Given the magnitude of the potential generat-

ing capacity of the strippable coal reserves of the Northern

Great Plains, the first four Colstrip plants represent only

generating plant operating at full load and using an

evaporative tower for cooling (Rehabilitation Potential

of Western Coal Lands, Supra, p. 101). By these calcu-

lations, the appropriation by Montana Power could

suffice-for nine 1,000 mw plants.

15 These sections have been repealed and the general Montana

Water Law has been modified. See Section 89-866, et. seq.;

nevertheless the appropriation by Montana Power Co. may

‘well be at least partially valid by operation of the grand-

father clause, $89-872, Revised Codes of Montana (1947).

In any case, prior appropriation and beneficial use remain

the operative factors governing Montana Water Law.

16 See, Draft, “The Wild, Scenic and Recreational Potentials

of the Yellowstone River, from Gardiner to Pompey’s Pillar

in Montana,” prepared by Bureau of Outdoor Recreation,

Mid-continent Region, Denver, Colorado, May, 1974.

17 Tbid.

the beginning of a massive draining of the water resources

of the region. That this can occur without the regulatory

supervision of the Federal Power Commission, or any other

Federal agency, does violence to the goal of comprehensive

water resource planning that stimulated passage of the

original Federal Water Power Act of 1920.

C. COMPREHENSIVE REGULATION OF

WATER RESOURCE DEVELOPMENT

While there is undeniably substantial legislative his-

tory which seems to focus on the hydroelectric basis for the

development of the Federal Water Power Act of 1920, the

central purpose of the act was to provide for a comprehen-

sive scheme of water development vis-a-vis power produc-

tion. The Supreme Court discussed the history and purpose

of the Federal Water Power Act in 1946 in First lowa

Hydro-Lilectric Cooperative 0»Fedcral Power Commission,

328 U.S. 152. The Court described the general purposes

of the Act as follows: ae

“It was the outgrowth of a widely supported ef-

fort of the conservationists to secure enactment of

a complete scheme of national regulation which

would promote the comprehensive development of

the water resources of the Nation, in so far as

it was within the reach of the federal power to do

so, instead of the piecemeal, restrictive, negative

approach of the Rivers and Harbors Acts and

other federal laws previously enacted.

It was a major undertaking involving a major

change of national policy. That it was the iriten-

tion of Congress to secure a comprehensive

development of national resources and not merely

ma he

RAO Sh aN eh OT

to prevent obstructions to navigation is apparent

from the provisions of the act .. .” (emphasis

added) (at 172 note 17).

The legislative history of the Federal Water Power Act _

reveals that a variety of concerns motivated the passage

of the Act."* Among the concerns were: protection of

navigability, removal of,a disincentive for private hydro-

electric development se that increased private power

development would take place (by eliminating the uncer-

tainty as to what the government would do once ‘private

dams were built)'®; conservation of water resources

through comprehensive planning*’: and protection of the

public’s interest in its water from laissez-faire exploitation

by the corporations.

In 1919, Senator Jones of Washington, said in respect

to the 1919 version of the Federal Water Power Act:

“The development of our water powers is inti-

mately connected with the solution of such great

national problems as the national defense; exten-

sion of internal waterways: shortage of food;

conservation of coal, oil, and labor; irrigation

of arid lands; and railroad car shortage.”*

There was much debate over whether the powers of the

Commission under the 1917 Act (Rivers and Harbors Act

'S This amicus brief docs not purport to treat this legislative

history exhaustively “ince this has been done by the parties.

1% See Kerwin, J., Federal Water Power Legislation (1926), at

-* 202-207; sce also 1919 Cong. Rec. 244, Senate Debates.

*” 66th Congress, Ist Session; House Committee on Water

Power, Report No. 61, p. 3, p. 6.

*1 1919 Cong. Rec. 241.

of 1917, 40 Stat. 269) should be retained by the Commis-

sion under the 1920 Act. Although the 1917 Act was

expressly repealed, those favoring an expansive view of

the powers of the Commission wére assured that the

essence of the Newlands Bill (the 1917 .\ct) was retained.

After quoting from the 1920 bill (Secs. 4a and 4b),

Senator Jones said:

“ . . the splendid ideas of this great man have

been very largely incorporated in the measures

to which I have referred, and, while the pending

bill proposes to repeal the clause which provided

for that commission, Wwe are continuing in a legis-

lative way the great ideas of Senator Newlands

to a very great extent.””*”

Newlands had argued for a very comprehensive water

resources management system and the 1917 Act was passed

to implement that system although a commission had not

yet been appointed by the President under that Act.

While it is clear that much of the Congressional debate

focused on hydroelectric power, it is by no means clear

that the framers purposely omitted steam power from

Federal regulation as the Circuit Court suggests at p. 1231

of its opinion. This Court should, if possible, read the

statutes in a manner which would result in a rational

system of regulation by the Federal Power Commission.

The attempt by the Circuit Court to make a distinction

22 1920 Cong. Rec. 7772.

23 See 1920 Cong. Rec. 7725, Senator Hale: “The present

water-power act provides a method for getting permission

of the Federal authorities to erect dams and other obstruc-

tions on the navigable waters of the country.” (emphasis

added)

ee gy

soca Baw RAK Rr CED RE DM TR em |

: 13

(at p. 1232) between the use of fossil fuel to “elevate

water for storage purposes’’ and the use of fossil fuel to

heat water “to drive a turbine” is neither meaningful nor

compelled by the legislative history.

The legislative history indicates that Congress was

attempting to promote energy production through a rational

and comprehensive scheme of water development. This

Court should honor that attempt rather than sanction

disingenuous distinctions. Since the Taum Sauk case, FPC

v. Union Electric Co., 381 U.S. 90 (1965) did not squarely

face this issue and since the implemenitation of the obiter

dictum in that case would produce anomalous consequences,

that dictum should not control here.

Intervenors argue that:

“The quantities of water diverted and used by a

steam plant in boilers and cooling apparatus are

miniscule compared to the quantities required by

a hydroelectric project generating the same quan-

tity of power, and Congress, concerned with the

development of water power, had no reason to

concern. itself with the insignificant quantities

of water used by thermal plants.” (Intervenors’

brief, pp. 46, 47)

The obvious point neglected by the Intervenors is the

totally consumptive nature of the use of water by the steam

plants. At the Colstrip plants, for instance, there are no

plans for returning any of the water to the Yellowstone

River. The National Academy of Sciences study indicates:

‘Approximately 20,000 acre feet of water per

year ... is consumed annually by a 1,000 mega-

watt electrical generating plant operating at full

load and using an evaporative tower for

cooling ...

These figures represent the order of magnitude

of the consumptive use of water for energy con-

version and it is important to note that even with

the use of water-efficient dry cooling towers, coal

conversion processes will consume several million °

gallons per day of water ... Even these quantities

of water are not normally available at coal mine

sites in the western United States. In most coal

rich areas the local supply of ground or surface

water is insufficient to meet the consumptive use

requirements in conventional energy conversion

s924

processes.

The consumptive nature of the steam generators is the

factor which renders them, in many ways, more damaging

to this country’s navigable waterways than any hydro-

electric plant. These truly-national waterways, which are

being dewatered at the laisses-faire whim of the corpora-

tions, cry out for some scheme of comprehensive Federal

regulation.

In addition to the above, the legislative history of the

Federal Water Power Act reveals a distinct populistic

attitude on the part of many of the supporters of the bill.

In 1908 and 1909, President Theodore Roosevelt

vetoed several specific dam authorizations passed by the

Congress under the General Dam Act of 1906. Among

the conditions which Roosevelt indicated in his veto mes-

sage of April 3, 1908. as necessary for his acquiescence

were:

*4 Supra, Note 10, p. 101.

Vin WA Nea

“Third. There shall be a license fee or charge

which, although small and nomiral at the outset,

could be adjusted in the public interest.

Fourth. There should be provision for the ter-

mination of the grant at a definite time, leaving

the future to determine its course . . .”*°

The 1920 bill incorporated these provisions. Furthermore

the House. Committee on Water Power stated:

“Section 7 provides that in issuing preliminary

permits or licenses the commission may, in its

discretion, give preference to applications by states

and municipalities provided the plans of same are

deemed by the commission best adapted to con-

serve and utilise in the public interest and naviga-

tion and water resources of the region, and may

likewise give preference to the applicant the

plans of which it finds best adapted to .develop,

conserve, and utilize the navigation and water

resources of the region.’’*® (emphasis added )

Obviously, if the Federal Power, imission is going to

limit artificially its jurisdiction @@ hydroelectric develop-

ment, this mandate will be impossible to fulfill. The close

scrutiny by the Federal Power Commission of a hydroelec-

tric proposal on the Yellowstone River may be meaningless

or even counterproductive if a private utility can, without

any Federal guidance or control whatever, pirate massive

amounts of water from public streams for fossil-fueled

electrical production. At least in the Chemehuevi situation,

25 See: 66th Congress, Ist Session House Committee on Water

Power Report No. 61, pp. 2, 3.

26 Id at 6.

. 16

the United States Department of Interior had undertaken

some review of the plants in question (albeit, inadequate ).

At Colstrip, Montana, there has been no Federal environ-

mental impact statement prepared on the plants, and little,

if any, indirect Federal review. |

Finally, the giant cval-powered, steam generating

plants contemplated for the Northern Great Plains, and

now in their infancy at Colstrip, will result in hundreds of

miles of transmission lines constructed across the range-

land, carrying locally produced electrical energy to distant,

high-consumption regions of the nation. The prospect pre-

sents the irony of having enormous acreage of rangeland

permanently destroyed or disfigured and the most precious

resource of this semi-arid region drained from its rivers,

while the beneficiaries of this destruction reside in popu-

lation centers over a thousand miles away.

Although this Court has stated emphatically that,

“there is no question that the interstate transmission of

electric energy is fully subject to the commerce powers of

Congress,” Union Electric, Supra, at 94, there arises the

strong possibility that no Federal regulatory power will be

exercised over the construction of steam generators and

attendant transmission facilities in the Northern Great

Plains. Unless, in the instant case. the Federal Power

Commission jurisdiction is found to embrace coal-fired

plants as well as hydroelectric generators, precedent will

then lie for the uncontrolled exhaustion of the region's

water resources, despite the historic mandate for a compre-

hensive development policy based on conservation of the

limited navigation and water resources of the nation. To

base that precedent on the facile distinction between hydro-

electric and water-consumptive steam generators. will,

ironically, gut the fundamental purpose of the 1920 Act.

0 Ove el

RBI, lah ENA NT He 9 1

CONCLUSION

; a

For the foregoing reasons, and for the reasons set

forth by the Chemehuevi Tribe, et al., Trout, Unlimited, et.

al., as amicus curiac respectfully submit that this Court

should reverse the Circuit Court’s ruling that fossil-fuéeled

electrical generating plants are not ‘project works” under

the Federal Power Act, and should affirm the Circuit

Court’s ruling that fossil-fueled electrical generating plants

which use surplus water from a government dam are sub-

ject to Federal Power Commission licensing jurisdiction

_ under the Federal Power Act.

1 )

Respectfully OS,

ln DE

Jaahes H. Goetz |

pa for Trout, Hees. et. al., as

amicus curiae.

15 South Tracy, Suite 8

Bozeman, Montana 59715

a HOA MDT ED

CERTIFICATE OF SERVICE

This is to certify that the foregoing was duly served

by mail on the following persons on this ............ day of

Octcber, 1974: {

Joseph Brecher, Esq.

Native American Rights Fund

1506 Broadway

Boulder, Colorado

Attorney for Chemehuevi Tribe of Indians

(Respondent in No. 73-1666, Petitioner in No, 73-

1380)

Northcutt Ely, Esq.

Frederick H. Ritts, Esq.

Law Offices of Northcutt Ely

Watergate 600 Building

Washington, D. C. 20037

Attorneys for Arizona Public Service Company

( Petitioners in No. 73-1666, Respondents in No. 73- é

1380, [Intervenors Below]) | ;

Robert H. Bork, Esq.

Solicitor General’s Office

Department of Justice

Washington, D. C. 20530

Attorney for Federal Power Commission

(Petitioner in No. 73-1666, Respondent in No. 73-

1380)

s/James H. Goetz ae

JAMES H. GOETZ

15 South Tracy, Suite 8”

Bozeman, Montana 59715

Attorney for TROUT, UNLIMITED, et. a,

as amicus curiae,

Se ULE AMADEO LONI TE CLES BELT SENSE LEBEN ROT ONE IME EATEN YONG IS NR NT |

APPENDIX .

, IN THE

CHEMEHUEVI TRIBE OF,J NDIANS,

ET. ‘AL.,

Petitioners,

FrepERAL, Power COMMISSION,

Respondent.

AR1zONA PowER COMPANY,

ET. AL.,

Petitioners,

Vv.

CHEMEHUEVI TRIBE OF INDIANS,

ET. AL., , .

Respondent.

a ee eee bo ee ee ee

TO: ja idler. Esq.

Native Amreican Rights Fund

1506 Broadway

Boulder, Colorado *

“Supreme Court of the United States

Octosrer TERM, .1973

No. 73-1380

No. 73-1666

Attorney for Chemehuevi Tribe of Indians

_ (Respondent in No. 73-1666, Petitioner i in No. 73-

1380)

Chan

Northcutt Ely

Frederick H. Ritts

Law Offices of Northcutt Ely

Watergate 600 Building

Washington, D.C. 20037

Attorneys for Arizona Public Service Company

( Petitioners in No. 73-1666, Respendents in No. 73-

1380, [Intervenors Below] )

Robert .H. Bork

Solicitor General’s Office

Department of Justice

Attorney for Federal Power Commission

(Petitioner in No. 73-1666, Respondent in No. 73-

1380)

BUFFALO RAPIDS IRRIGATION PROJECT,

c/o Ed Norlin, Project Manager, Terry, Montana, CUS-

TER ROD & GUN CLUB, c/o Bryan Schoof, President,

Miles City, Montana, TONGUE-YELLOWSTONE

BEET GROWERS, c/o Willie Day, C B Route, Glendive,

Montana, and TROUT, UNLIMITED, c/o Lawrence

Reno, Reno & Judd, 646 Metropolitan Building, Denver,

Colorado, state that they are Complainants in Docket No.

E 8335 before the Federal Power Commission, that they

have asserted in their complaint that the Federal Power

Commission has licensing jurisdiction under Part 1 of

the Federal Power Act, 16 U.S.C. §§ 791a-823 to license

as “project works,” steam electric power plants*that obtain

cooling waters from navigable rivers of the United. States

(namely, the Yellowstone River in Montana); and that

the Federal Power Commission has jurisdiction to license

use by thermal-electric generating plants of “surplus

spree resem emi ae Se ti par eh

water” from any government dam; that they have a vital

interest, therefore, in supporting the position of the Cheme-

huevi Tribe in the above-entitled action, and, therefore,

request the consent of the parties to the filing by Buffalo

Rapids Irrigation District et. al. of a brief amicus curiac

in support of the position of the Chemehuevi Tribe of

Indians. ‘

Dated July 10, 1974.

s/James H. Goetz

JAMES H. GOETZ

15 South Tracy, Suite 8

Bozeman, Montana 59715 _

Attorney for Buffalo Rapids Irrigation

District, et. al.

CONSENT TO FILING OF AMICUS CURIAE BRIEF

We hereby consent, pursuant to Rule 42 of the

Supreme Court Rules, that the above amicus curiae brief

may be filed in this proceeding with the Supreme Court of

the United States.

s/JoserH J. BRECHER

JOSEPH BRECHER

s/Nortucutt Ey

NORTHCUTT ELY

s/Ropert H. Bork

ROBERT H. BORK

TABLE OF CONTENTS

RENE PEGE IUIES 5 oon nc enh eke sik nee rndnterevs

SUMMARY OF ARGUMENT ................-..

PATRI aig is ooo oh ee a howd yo eo ee edad

Il.

III.

THE STATUTORY LANGUAGE UNAMBIG-

UOUSLY GRANTS JURISDICTION; THUS,

IT IS UNNECESSARY TO RESORT TO EX-

TRINSIC AIDS TO CONSTRUCTION ......

A. The statutory language ..........6.++005.

B. The “plain meaning” rule ............6...

A MAJOR PURPOSE OF THE FEDERAL

POWER ACT WAS TO PREVENT PRIVATE

POWER INiERESTS FROM APPROPRIAT-

ING THE VALUABLE PUBLIC RESOURCE

OF THE POWER POTENTIAL IN NAVIGA-

BLE STREAMS; THAT IS PRECISELY

WHAT THE SIX PLANTS IN THIS CASE

PORN SOU 5 06 6 cn rien scersvenscecs

CONGRESS DID NOT CONSIDER WHETH-

ER STEAM PLANTS NEEDED TO BE REGU-

LATED IN 1920 BECAUSE THEIR OPERA-

TIONS HAD NO EFFECT ON THE HYDRO

POTENTIAL OF NAVIGABLE STREAMS,

BUT FUNDAMENTAL CHANGES IN THEIR

METHOD OF OPERATIONS HAVE NOW

BROUGHT STEAM PLANTS WITHIN THE

RANGE OF EVILS CONGRESS SOUGHT TO

REGULATE UNDER THE FEDERAL

POWER ACT; UNDER THESE CIRCUM-

STANCES, JURISDICTION SHOULD BE

CONSTRUED EXPANSIVELY ...........

A. The legislative history shows only that Con-

gress was not thinking about steam plants,

a ork a nk os i eas

<0 Er aD

a Rea

ire ne MPRA et ees. Sei

‘VIL.

‘5

TABLE OF CONTENTS (Continued)

B. Waile steam plants in 1920 had no effect on

waterways, new technology in the power

industry has completely changed the situation 28

C. The courts construe agencies’ regulatory man-

dates broadly in order to effectuate Congres-

- sional policy under new conditions ........ 32

D. The FPC has a broad mandate to integrate

federal activities relating to the effects of pow-

er production on waterways ............. 42

. NONE OF THE OTHER EXTRINSIC EVI-

DENCE COMPELS THE CONCLUSION

THAT THE FPC LACKS JURISDICTION ... 45

A. The Commission’s interpretation of the statute

ECON bs wh oe cheeses: 45

B. The Tamm Sauk Case... cece ewe ences 52

C. The title and preamble to the Federal Power

ME oko 4i sh 54

. THE COURT BELOW CORRECTLY RULED

THAT THE SIX PLANTS ARE SUBJECT TO

FPC JURISDICTION UNDER THE SURPLUS

WA Ree Ge oss vee koe et ee es 57

A. The construction urged by the petitioners

would render the surplus water clause nuga-

ik See ee ee re 58

B. There is no evidence that Congress intended

to give the surplus water clause any construc-

other than its ordinary meaning .......... 61

. PUBLIC POLICY CONSIDERATIONS SUP-

PORT FEDERAL POWER COMMISSION

FRAN BERN no hb 6 boo ed ese es 68

FEDERAL POWER COMMISSION JURIS-

DICTION HAS NOT BEEN OUSTED BY THE

“LAW OF TEE RIVER eho i ewww eee 76

ee Re ee reer 91

‘a . REGAL T RIMS Reh eS eo

iii

TABLE OF AUTHORITIES

Cases and Administrative Proceedings Page

Addison v. Holly Hill Fruit Products, Inc.,

Fae Wa rE EE og ie ce ceca 13

American P. & L. Co. v. SEC, 329 U.S. 90 (1946) .... 33

American Ship Building Co. v. NLRB,

FOP UE. Be CE ooo i ek ik vo ceccsas 46

American Surety Co. v. Baldwin, 287 U.S. 156 (1932) . 76

American Trucking Ass’ns, Inc. v. A.T. & S.F. Ry.,

Dt Ue Pe TED ak os sooo ee be ok bes 51

American Trucking Ass’ns, Inc. v. United States,

344 U.S. 298 (1953) ..... vtec eee e eee eeees 34

Arizona v. California, 373 U.S. 546 (1963) ....... 77, 82

Arizona Power Authority, 28 F.P.C. 769 (1962)

Oe as WO CED eo eo oss Sev i eek ce. 88, 89

Automatic Canteen Co. v. FTC, 346 U.S. 61 (1953)... 46

Barlow v. Collins, 397 U.S. 159 (1970) ............ 45

Board of Trade v. United States, 314 U.S. 534 (1942) .. 42

Brotherhood of R.R. Trainmen v. Baltimore &

Ohio R.R., 331 U.S. SIS C1947) . oo. ess 54, 55, 56

Bruce Transfer Co. v. Johnston, 227 lowa 50,

BOTT re UEP 6 es is nk 36

Cain v. Bowlby, 114 F.2d 519 (10th Cir. 1940),

COVE I SEE GE, Fa i os oe oe ks sks 36

California Oregon Power Co., 13 F.P.C. 1 (1954) .... 59

Caminetti v. United States, 242 U.S. 470 (1917) ..... 55

Carlson v. Landon, 342 U.S. 524 (1952) ........... 33

Central Maine Power Co. v. FPC, 345 F.2d 875

Coe Se oo ck eee ee ee 60

TABLE OF AUTHORITIES (Continued )

Cases and Administrative Proceedings (Continued) Page

Citizens to Preserve Overton Park v. Volpe,

491 US. 402 CiS71) es eee cieres. 50, 67

City of Lincoln v. Ricketts, 297 U.S. 373 (1936) ..... 13

Connecticut L. & P. Co. v. FPC,324US. 15 (1945) .+. 14

County of Marin v. United States, 356 U.S. 412 (1958) . 46

ie ~ r "7 oe .

eka iat ebtoe poems

‘

Crane v. Commissioner, 331 U.S. 1 (1947) .......... 13

D.C. Federation of Civic Ass’ns v. Volpe, 459 F.2d. 1231

(D.C. Cir. 1972), cert. denied, 405 U.S.1030...... 50

Dugan v. Rank, 372 U.S. 609 (1963) .............. 90

Ex parte Collett, 337 U.S.55 (1949) ...........20%% 62

Eyster v. Centennial Bd. of Finance,

DELILE. SUP CIBTT) iv cee cvc ns Pee es ee 61

Fairport P. & E. R.R. v. Meredith, 292 U.S. 589 (1934) 15

FCC v. Pottsville Broadcasting Co.,

Pe Sa re Ce on co he rr Ken eee nes 45

FPC v. Niagara Mohawk Power Corp.,

NP i Ee CAPD ok oo 6 ot ook kha ee cease 79

FPPC v. Oregon, 349 U.S. 435 (1953) ...5........ 60, 79

FPC vy. Union Elec. Co. (Taum Sauk),

381 U.S. 90 (1965) ... 25.5% 4, 23, 41, 42, 52, 60, 73

First lowa Hydro-Elec. Coop v. FPC,

Dee We Re CLO) 5 os oa ee ee eet 24, 79

Fishgold v. Sullivan Dry Dock & Repair Corp., |

Te ts ee Ok es a ho ee es a hones 46

Great Northern Ry. v. United States,

PED Uae BOE COD oa csv 0 cas es 54

TABLE OF AUTHORITIES (Continued)

Cases and Administrative Proceedings (Continued) Page

Greene County Planning Bd. v. FPC, 455 F.2d 412

(2d Cir. 1972), cert. denied, 409 U.S. 849 ...... 84,90

Hammer v. Dagenhart, 247 U.S. 251 (1918) ........ 41

Helvering v. Hallock, 309 U.S. 106 (1940) ......... 51

Helvering v. Hutchins, 312 U.S. 393 (1941) ........ 13

Jerome H. Remick & Co. v. American Automobile

Accessories Co., 5 F.2d 411 (6th Cir. 1925),

Cr I. or a ee es rw oo ck es 36

Johnson v. United States, 163 Fed. 30 (1st Cir. 1908) 33, 43

Kastigar v. United States, 406 U.S. 441 (1972) ...... 52

Lynch vy. Alworth-Stephens Co., 267 U.S. 364 (1925) .. 62

Maillard v. Lawrence, 57 U.S. (16 How.) 251 (1853) .. 61

Malat v. Riddell, 383 U.S. 569 (1966) ............. 13

Metlakatla Indian Community v. Egan,

369 USS. 45 Be 8 eee ee ee ee 88

Montana Power Co. v. FPC, 445 F.2d 739

(D.C. Cir. 1970), cert. denied, 400 U.S. 1013 ..... 84

Montgomery Charter Serv. v. Washington Metro. Area

Transit Comm'n, 325 F.2d 230 (D.C. Cir. 1963) .. 62

Morton v. Mancari, ___ U.S. ___, 41 L.Ed.2d 290

(Nos. 73-362 and 73-364, June 17, 1974) ........ 80

McCaughn v. Hershey Chocolate Co.,

Ba he BOO TEGO) os Fie SS; 27

McMillan v. Noyes, 75 N.H. 258, 72 Atl. 759 (1909) .. 37

Namekagon Hydro Co., 12 F.P.C. 203 (1953),

Oa, 216 F260 Jor (ee Cir. 1954) . Wo oo es cs, 84

’

oe . pre ji pie Nes

TABLE OF AUTHORITIES (Continued)

Cases and Administrative Proceedings (Continued) Page

Nantahala Power & Light Co. v. FPC, 384 F.2d 200

(4th Cir. 1967), cert. denied,

FOO Ee POS 6 oh ee cs Sei es 46, 60, 85, 87

National Broadcasting Co. v. United States,

SEP Ue US Cre) ns vk ba bcd nce kev akes ewes 35

National Home, D.V.S. v. Wood, 299 U.S. 211 (1936) . 13

NLRB v. Brown, 380 U.S. 278 (1965) ..........05. 45

NLRB v. Plasterers’ Local Union, 404 U.S. 116 (1971) . 67

Newman v. Arthur, 109 U.S. 132 (1883) ........... 36

Northwestern Elec. Co. v. FPC, 321 U.S. 119 (1944).. 88

Old Colony R.R. Co. v. Commissioner,

MOSUL. See CASS) oo ioe oes 13

Ozawa v. United States, 260 U.S. 178 (1922) ....... 28

Packard Motor Co. v.NLRB,

Bo ee ee CIPS ones ceceseeus 17, 19, 74, 75

Permian Basin Area Rate Cases,

S50 UE TAT COGS) a sw bc hie oe oe es es ge ae

Phelps Dodge Corp., 29 F.P.C. 552 (1963) ......... 89

Phelps Dodge Corp. v. NLRB, 313 US. 177 ( 1941)... 33

Phillips Petroleum Co. v. Wisconsin,

347 UB. G72 IGF). aa sb oes eek case 25, 46, 70,72

Pickhardt v. Merritt, 132 U.S. 252 (1889) .......... 36

Pike v. United States, 340 F.2d 487 ,

CO Sa, TF) oe ec tae hc seu aee ee 55

Posedas v. National City Bank, 296 U.S. 497 (1936).. 80

Power Reactor Dev. Co. v. Electrical Union,

SOT OE: 296 CISGU it Goi en ee 47

Vii

TABLE OF AUTHORITIES (Continued )

Cases and Administrative Proceedings (Continued) _— Page

Public Utilities Comm'n v. Attleboro Steam

& Electric Co., 273 U.S. 83 (1927) ...........0% 40

Public Utility Dist. No. 1 of Skamania

County, Washington, 32 F.P.C. 444 (1964) ....... 84

Rainwater v. United States, 356 U.S. 590 (1958)...... 52

Rochester Tel. Corp. v. United States,

rd ss Be ok 00 at he hoe os Bs ok ees 45

Safe Harbor Water Power Corp. v. FPC,

124 F.2d 800 (3rd Cir. 1947),

cert. denied, 316 US. O63. i.0 cic ccc e sb eC OR 46, 47

“ Scenic Hudson Preservation Conference v. FPC,

354 F.2d 608 (2d Cir. 1965), .

cert. denied, 384 U.S.941 ..............4.. 12, 84, 90

Schwegmann Bros. v. Calvert Distillers Corp.,

OOk Ue ee eo kk ok baer ee eo tes 90

SEC v. Chénery Corp., 318 U.S. 80 (1943) ......... 45

SEC v. Sterling Precision Corp., ,

S95 Fae Bee CO, TOR) rs ies hee er eas 46

Sierva Club v. Morton, 405 U.S. 727 (1972) ......... 89

Swift & Co. v. United States, 316 U.S. 216 (1942).... 88

Trustees of Dartmouth College v. Woodward,

17 US. (4 Wheat.) SIS CISD) os ins do seins OS:

Udall v. FPPC, 387 U.S. 428 (1967) ....... 24, 83, 84, 90

United States v. Chandler-Dunbar Water Power Co., _

BED Gi eo (RROD. ho ener EIR es 60

United States v. Darby, 312 U.S. 100 (1941) ........ 41°

United States v. Dupont De Nemours & Co.,

SDS Ws POO AIS ATS ccc es cv cukes Sp ele 46

United States ex rel. Chapman v. FPC,

S49 UB. 153 CRS acces cide cs 23, 42, 85, 87

AEE, GRRE LIL AON AOA

viii

TABLE OF AUTHORITIES (Continued )

Cases and Administrative Proceedings (Continued) Page

United States v. Grand River Dam Authority,

363 U.S, 229 (1960) ...... a sc Wen e 61

United States v. perregs Mill & Pica Co.,

Ee Sanne oe nO 58.

United States v. ica 348 U.S. 528 (1955) ...... 58

United States v. Missouri Pacific R.R.., |

es ee rr ne 14

’ United States v. Oregon, 366.U.S. 643 (1961 ) Lee, 14

+ United States v. Price, 361 U.S. 304 (1960) .\..... 51, 52

_ United States v. Public Utilities Comm'n,

} 345 U.S. 295 (1953) +......--- eee. S o.oo BOs 19» 39

"United States v. Southwestern Cable Co.,

| 392 US. 157 (19GB) 22. eee cece cecscevvnces 34

_ United States v. Students Challenging Regulatory

4 Agency Procedures (SCRAP),

eo ee eee 89

4 United States v. United Mine Workers of America,

: oe en 3 ee. pre 51

. Volkswagenwerk v. Federal Maritime Comm'n,

ES so ss ok Fed knes cee swess 45

Washington Market Co. v. Hoffman, |

; 101 U.S. 112 (1879) ....... OSS ee ee 58

Wisconsin Tel. Co. v. City of Oshkosh,

62 Wis. 32, 21 N.W. 828 (1884) ............... 36

Wong Yang Sung v. McGrath, 339 U.S. 33 (1950).... 51

- Woolford Realty Co. v. Rose, 286 U.S. 319 (1932) .... 62

TABLE OF AUTHORITIES (Continued )

Statutes Page

Ns uc Vi ip hve ieee tees 71

i wdvcnsoccoscavecres 64

Federal Power Act, 16 U.S.C. § § 792, et seq. ..... PASSIM

oc vec cnn vcvuee> ters 86

NN ae OE Te 88

oe, i coe cnssndunueas 64

SOUR 6921 oso. eee PRG ere. 63

iis vic n cot ThaRe pascens 64

os co ia ceudes cee tenke 64

MSUSC 6 521-422 .... 2.6... <: gg Se re 63

OSC. Fh6l ite ..! 3: eS ee as kaa > 716

OR Be ek AA, he cvs ine de ou 77, 80

BE OIE GS POET PEO CE EET 81

RS ete eg BS er er eer ee? ere 81

ee EGS 5c. Me ooo Cece ces eoups 81

ES ae hee 15

Br I) og cs si. oc ce ee ees 64

NT i a vncccccecSarccsss. 65

ee UND og occu ocak udpescsdpues 49, 54

OT FE ERS eras: 49

RR EI ALES SOOO OEE: 81

iCPR ALISO) «32-05-00: SE ee ROE 85

Te OI gs ak. Kas vacds a ee 85

18C.F.R.§1.22..... Yee Po Pre) nee 85

18 C.F.R. § 1.30(g)........ SR eencs tudes beenuas 85

2 PMA sm” PALE nT OH ee TE Tekh eid ae ote Me Wan ie ee ee ae oe

3 = ee a |

TABLE OF AUTHORITIES (Continued)

Congressional Materials Page

H.R. 16053, 63rd Cong., 2d Sess. (1914) asa ewewnes 65

H.R. 16673, 63rd Cong., 2d Sess. (1914) ........... 22

H.R. 6971, 92d Cong., Ist Sess. (1971) ........000. 73

H.R. 6972, 92d Cong., Ist Sess. (1971) .........0.. 73

3 U.S. Code Cong, & Admin. News, 90th Cong.,

2d Sess. 3730 (1968) .... 2... 0. 0... cee eee 88

H.R. Rep. No. 842, 63rd Cong., 2d Sess. (1914) ....22, 23

H.R. Rep. No. 1312;90th Cong., 2d Sess. (1968) ..... 90

S. Rep. No. 906, 93rd Cong., 2d Sess. (1974) ........ 90

S. Rep. No. 92-1015, 92d Cong., 2d Sess. (1972) ... .24, 69

Hearings on Problems of Electrical Power Production

‘in the Southwest Before the Senate Comm. on

Interior and Insular Affairs, 92d Cong., 1st Sess.

(Comm. Print 1971) ................ 29, 30, 68, 6°

Hearings on H.R. 5277 and Related Bills Before the

Subcomm. on Comn.unications and Power of the

House Comm. on Interstate & Foreign Commerce,

@ 92d Cong., Ist Sess. (Comm. print 1971) ......... 74

51 Cong. Rec. 13680 et seq. (1914) ....... eevee 27

56 Cong. Rec. 9912 (1918) 2.0.0.0... eee eee ee eee, 61

>? Cong. Roc. 4632.C1919) os hacia eased ccaw es 61

59 Cong. Raf 77354( 1920) 2... ce eee ee 43

59 Cong. Rec. 9658 (1920) .... 0. eee eee eee ee eee 66

_ 38 Fed. Reg. 7554 (1973) ......... hasan 69

39 Fed. Reg. 10582 (1974) ...........0 00. eee 69

TABLE OF AUTHORITIES (Continued)

Miscellaneous authorities Page

Ass’n of the Bar of the City of New York,

Electricity and Environment: The

Reform of Legal Institutions (1972) ............. 30

COMMENT:

The Four Corners Power Complex: Pollution

‘on the Reservation, 47 Ind. L. J. 704 (1972) ...... 24

P. Cootner & O. Lof, Water Demand for Steam

Electric Generation (1965) .......0..c0 ccc eees 43

Department of the Interior, Southwest Energy Study:

Summary Report (1972) ................ 24, 69, 90

14 Encyclopedia Americana (1972) ............6. 63

W. Gatchell, Jurisdictional Problems Under the

Federal Water Power Act of 1920,

14 Geo. Wash. L. Rev. 42 (1945) .............. 12

J. Kerwin, Federal Water-Power

Legislation (1926) ........... 21, 22, 25, 27, 49, 65

C. Meyers, The Colorado River, '

19 Stan. L. Rev. 1 (1966) ...........8........ 80

Note, Expanding Jurisdiction of the FPC and the

Problem of Federal-State Conflict,

18 Vand. L. Rev. 1847, 1861-62 (1965) ......... 20

G. Pinchot, The Long Struggle for Effective Federal

Water-Power Legislation, 14 Geo. Wash.

| Rev. DUPPOS) oes ce eee teens ewe eee 21

F. Smith, The Politics of Conservation (1966) ....... 50

2A Sutherland, Statutory Construction, (4th ed. 1973). 33

xii

TABLE OF AUTHORITIES (Continued )

Miscellaneous authorities (cont:nued) Page

D. Swain, Federal Conservation Policy 1921-1933

CP9G2F cance ee epee ae OMe ee eee eee eesseans 49

F. Trelease,-Arizona v. California: Allocation of

Water,Resources to People, States, and Nation,

19GS DOD. Cl. ROY. 198 ios cas tausian ees es 78, 82

2 Waters and Water Rights (Clark ed. 1967) ........ 61

- Supreme Court of the United States

OCTOBER TERM, 1974

No. 73-1380

THE CHEMEHUEVI TRIBE OF INDIANS, ET AL.,

Petitioners

= Vv.

FEDERAL POWER COMMISSION

No. 73-1666

‘ ARIZONA PUBLIC SERVICE COMPANY, ET AL.,

Petitioners

Vv.

THE CHEMEHUEVI TRIBE OF INDIANS, ET AL.,

No. 73-1667

FEDERAL POWER COMMISSION,

Petitioner

Vv.

THE CHEMEHUEVI TRIBE OF INDIANS, ET AL.

On Writs of Certiorari to the United States Court of

Appeals for the District of Columbia Circuit

BRIEF FOR THE CHEMEHUEVI TRIBE OF

INDIANS, ET AL.

INTRODUCTION

The issue in this case is whether a new technological phe-

nomenon, the energy complex, fits within the regulatory

scheme contained in a statute enacted a half century ago,

an, eo

long before such a development could have been foreseen.

A consortium of private power companies is in the process

of erecting a network of energy-producing facilities in the

“Four Corners” region of the Southwest. The major features

of this energy complex are six huge electric generating plants

fueled by locally available strip mined coal.’ These six plants

are interconnected by ultra-high voltage transmission lines,

which enable them to form one huge power-producing grid

to supply load centers in metropolitan areas on the fringes

of the Four Corners region. All draw immense amounts of

cooling water from the Colorado River system. Two of the

plants will draw their cooling water from Lake Powell, which

is impounded by the Glen Canyon Dam, a federal reclama-

tion project. The other four depend on upstream government

dams for a dependable supply of cooling water. Together,

their impact on the flow of that stream is significant.

Electricity is produced by three different methods: steam

power, water power, and atomic power. (The latter method

is not involved in this case and will not be discussed further. )

At a steam power plant, a fossil fuel, such as coal, is used to

convert water in a boiler tosteam. The expansion of the steam

turns a turbine which is then used to generate electricity.

Large quantities of cooling water are needed for this process

in order to increase the efficiency of the steam expansion

process.

Water pov ., or hydroelectric power, uses the force of

water falling over a dam to drive a turbine, which then gener-

ates electricity. All six power plants involved in this case are

steam plants.

The Chemehuevi Tribe of Indians, the Cocopah Tribe of

Indians, the Committee to save Black Mesa, and the individ-

1The six plants include Four Corners and San Juan, near Farmington, New

Mexico; Huntington Canyor, near Price, Utah; Navajo, on Lake Powell,

near Page, AriZona; Mojave, at the Southern tip of Nevada; and the Kai-

parowits plant, now in the advanced planning stage, to be located some-

where on the Kaiparowits Plateau on the Utah side of Lake Powell.

—_ oe

ual respondents are all residents of the area affected by the

Southwest Energy Complex. The Sierra Club is a national

organization dedicated to restoring and preserving environ-

mental quality, many of whose members reside in the same

area or use it for recreation. (These parties are referred to in

this brief as “the Indian respondents.”) Dismayed by the

major environmental degradation associated with the opera-

tion of the six plants and apprehensive that these impacts

would increase as the plants expanded, the Indian respon-

dents were shocked to learn that there was no agency, state

or federal, exercising any effective regulatory authority over

the Southwest Energy Complex.

This, despite the fact that § 4(e) of the Federal Power

Act, 16 U.S.C. § 797(e), gives the Federal Power Commis-

sion jurisdiction to issue licenses “to citizens of the United

States . . . for the purpose of constructing, operatings and

maintaining dams, water conduits, reservoirs, power houses,

transmission.lines, or other project works . . . for the develop-

ment, transmission, and utilization of power across, along,

from, or in any of the streams . . . over which Congress has

jurisdiction. . . .” The same section also authorizes the is-

suance of a license “for the purpose of utilizing the surplus

water or water power from any government dam.”

Since the operations of the six piants clearly fall within

both of these statutory definitions, the Indian respondents

filed a complaint with the Commission, requesting it to order

the owners of the six plants to show cause why they should

not be required’to apply for licenses under the Federai Power

Act (App. la). The commission, sua sponte, dismissed the

complaint, alleging that it had jurisdiction over hydroelectric

but not over steam plants under the Federal Power Act (App.

22a). After an application for rehearing was denied by the

Commission (App. 28a), the Indian respondents appealed to

the United States Court of Appeals for the District of Colum-

a ae

bia Circuit, pursuant to 16 U.S.C. § 825/(b). In a lengthy

opinion (App. 38a-112a), the Court of Appeals ruled that the

Commission did have jurisdiction to license steam electric

plants that use surplus water from a government dam and

remanded the case to the Commission to determine whether

the six plants were, in fact, using such water, and whether the

Commission’s jurisdiction was “affected in any way by the

jurisdiction of any other federal agency.” However, the Court

ruled that steam plants were not covered under the project

works clause, relying primarily on its reading of the legisla-

tive history of the Federal Power Act, prior administrative

construction, and dictum.-to that effect by this Court in FPC

v. Union Elec. Co., 381 U.S. 90 (1965). The government

and power companies then petitioned this Court for writs of

certiorari and the Indian respondents filed a cross-petition on

the “project works” portion of the decision. All three petitions

were granted by this Court on June 10, 1974.

—_5—

SUMMARY OF ARGUMENT

1. Section 4(e) of tic Federal Powe: Act, 16 U.S.C. §

797(e), authorizes the Commission to issue licenses for the

purpose of constructing “project works” for the development

of power on any stream over which Congress has jurisdiction.

The coverage of the statute is not specifically limited to

“hydroelectric” power and the facilities at the six plants in-

volved in the case fall within the definition of “project

works.” Furthermore, the six plants are indisputably using

“surplus water or water power from a government dam” in

their operations. Thus, under the literal language of the stat-

ute, the six plants are subject to licensing jurisdiction under

two separate clauses of the Act.

Under the “plain meaning” rule, there is a very strong pre-

sumption that a statwtc should be interpreted literally, without

resort tc extrinsic aids such as legislative history, if the statu-

tory language is unambiguous. Only if a literal reading would

lead to a result completely at variance with the statutory

purposes may the Court depart from the strict language of

the statute.

2. Application of FPC licensing jurisdiction to steam

plants, far from subverting the intention of Congress, would

further a basic purpose of the Federal Power Act — to curb

attempts by private power interests to appropriate for them-

selves the public’s valuable resource in the power potential

of navigable streams. This was one of the most important

objectives Congress had in mind when it passed the Federal

Power Act.

3. The legislative history invoked by the government and

the power companies does not show that Congress affirma-

tively intended to limit FPC jurisdiction to water power

plants, as opposed to steam plants, forever and under all cir-

cumstances. It merely shows that the Congress was not think-

ing at all about whether steam plants should be regulated

when it enacted the Federal Power Act. Such a showing is

insufficient to vary the unambiguous language of a statute.

Congress’ failure to consider regulation of steam power

plants was understandable because it was concerfhed with

supervising the use of water by the power industry. Since

steam plants at that time jiad vircually no effect on waterways,

their regulation would not have been necessary to carry out

_ the statutory purpose. However, technological changes which

have made possible the development of today’s steam electric

energy complexes have rendered that assumption inaccurate.

Today, in fact, large steam plants can have a much greater

effect on waterways than any hydroelectric facility.

Comprehensive legislation designed to regulate the activi-

ties of an industry for the public’s benefit is broadly construed

by the courts so that new developments which could not have

been anticipated by the drafters of the legislation are deemed

to be covered by the act, in order to ensure that its general

purposes will be carried out. To do otherwise would impose

an impossible burden on the Congress: to anticipate and

name every conceivable type of activity that should be subject

to regulation.

4. None of the other extrinsic factors urged by the power

companies and the government compel the conclusion that

the statute does not mean what it says. The Commission’s

interpretation, though long-held, is erroneous, is not support-

ed by an intelligible reasoning process, and is not entitled to

the respect accorded to a contemporaneous administrative

construction of a new statute. This Court’s dictum indicating

that the Commission has no jurisdiction over steam plants

should not govern in this case. It was reached in a non-adver-

sary context and based on the assumption that steam ower

plants have no effect on waterways.

5. The court below was correct in its ruling that the six

plants are jurisdictional under the surplus water clause. To

accept the interpretation of the power companies and the

government that the clause applies only to hydroelectric

plants would render it nugatory, in violation of a cardinal

principle of statutory construction. The term “surplus water”

had a definite, established meaning, independent of water

power at the time the Federal Power Act was passed and

there is no evidence that Congress did not use the term as it

was commonly understood.

_ 6. The environmental degradation associated with the op-

erations of the six plants in this case offers an eloquent testi-

monial to the need to-fill the “regulatory gap” under which

the siting of steam power plants has escaped federal regula-

tion. The Federal Power Commission, itself; has recom-

mended that it be given precisely the powers that the Indian

respondents claim it already has. Whatever difficulties there

would be in implementing such jurisdiction under the terms

of the Federal Power Act would be more than offset by the

advantages to be obtained by following Congress’ original

intent to achieve comprehensive regulation of the Nation’s

waterways. |

7. The regulatory authority of the Federal Power Com-

mission discussed above is not superseded by. the broad water

allocation authority of the Secretary of the Interior under

the “Law of the Colorado River.” The nature and purposes

of the powers given to the two agencies are substantially

different. Concurrent jucisdiction over various phases of the

same project is relatively common in federal administrative

law and the courts are cognizant of this phenomenon. Fur-

thermore, the language of the statutes which, it is claimed,

ousts the FPC from jurisdiction on the Colorado River actu-

ally indicates that Congress specifically meant for that

jurisdiction to continue. Administrative actions by both the

ht gaa ae ills

FPC and the Interior Department confirm this interpretation.

Finally, water for two of the six plants involved in this case

are not at all under the jurisdiction of the Secretary, so at the

very least the issues remain justiciable as to those two plants.

_9_

ARGUMENT

I. THE STATUTORY LANGUAGE UNAMBIGU-

OUSLY GRANTS JURISDICTION; THUS, IT IS

UNNECESSARY TO RESORT TO EXTRINSIC

AIDS TO CONSTRUCTION. '

This case involves the fundamental question of whether a

statute should be construed so that it means what it says,

or whether highiy debatable historical theories and attempts

at psychoanalysis of Congressmen in office more than a half

century ago will prevail over common sense and the English

language. The court below ruled that one clause of the statu-

tory section in question “does indeed mean what it says”

(App. 101a), but that another clause does not. The govern-

ment and the power companies argue that neither clause

means what it says, citing legislative history that shows Con-

gress never thought about the problem involved in this case,

at all /The Indian respondents suggest that speculation about

the probable views of an ancient Congress and Commission

concerning a technological phenomenon that could not then

have been anticipated should not be allowed to override the

plain and obvious meaning of the words Congress wrote.

Even if one elects to ‘pursue the will o’ the wisp of “legis-

lative intent,” one finds that the power companies’ activities

here are precisely the type of evil Congress had hoped to

curb through regulation by the Federal Power Commission.

In effect, the power companies argue that they may, by means

of the back door, appropriate the public’s valuable owner-

ship of an almost priceless resource —— the power potential

in the Colorado. River — because they have discovered a__ .

technological means to do so which Congress did not have

the foresight to anticipate half a century ago. But Congress

used general language in the Federal Power Act so as to

avoid this kind of result. The courts, realizing the practical

impossibility of drafting any regulatory statute so as to an-

—10—

ticipate all future technological changes, consistently apply

that general language to new developments in the regulated

industry.

A. The statutory language.

The controversy in this case revolves around the meaning

of two clauses of § 4(e) of the Federal Power Act, 16 U.S.C.

§ 797(e). That section authorizes the Federal Power Com-

mission to issue licenses, inter alia, for two purposes:

[FJor the purpose of constructing, operating and

maintaining dams, water conduits, reservoirs,

power houses, transmission lines, or other project

works necessary or convenient for the development

and improvement of navigation and for the de-

velopment, transmission, and utilization of power

* across, along, from, or in any of the streams or

other bodies of water over which Congress has:

jurisdiction. ...

[O]r for the purpose of utilizing the surplus water

or water power from any Government dam. .. .'

The term “project works” mentioned in the above para-

graph is defined as “the physical structures of a project... .”

16 U.S.C. § 796(12). “Project,” in turn, is defined as a

complete unit of improvement or development,

consisting of a powerhouse, all water conduits, all

dams end appurtenant works and structures (in-

cluding navigation structures) which are a part

1The Federal Power Act provides for enforcement of the Commission's

licensing jurisdiction in § 23(b), 16 U.S.C. § 817(b):

It shall be unlawful for any person . . . for the purpose of de-

veloping electric power, to construct, operate, or maintain any

dam, water conduit, reservoir, powerhouse, or other works inci-

dental thereto across, along, or in any of the navigable waters

of the United States . . . or utilize the surplus water or water

power from any Government dam, except under and in accor-

dance with the terms of . . . a license granted pursuant to this

chapter.

a eo

of said unit, and all storage, diverting, or forebay

reservoirs directly connected therewith . . . all

miscellaneous structures used and useful in con-

nection with said unit or any part thereof, and all

water-rights, rights-of-way, ditches, dams, reser-

voirs, lands, or interest in lands the use and occu-

pancy of which are necessary or appropriate in

the maintenance and operation of such unit. 16

U.S.C. § 796(11).

There can be 10 doubt that the six power plants involved

in this case fall within the language of the “project works”

clause. The power companies are, in fact, constructing, oper-

ating and maintaining the types of facilities mentioned in §

4(e). such as water conduits, powerhouses and transmission

lines, for che development and transmission of power across,

along, from, or in navigable streams. The statute does not

require that the project works be used to generate hydroelec-

tric power, but merely “power.”

There is virtually unanimous agreement on this point. The

court below conceded: “It is true, as petitioners point out,

that the literal language of § 4(e) appears to include steam

plants” (App. 53a). But the Court of Appeals was convinced

that extrinsic factors, such as the Power Act’s legislative

history, militated against such an interpretation. The gov-

ernment, too, concedes that “the bare words” of the statute

“do not themselves conclusively limit that subsection’s appli-

cability to hydroelectric power plants” (Brief, p. 15).

V.'lard Gatchell, former general counsel of the Federal

Power Uv nmission, aiso expressed the opinion that the “proj-

ect works” clause authorized jurisdiction over steam plants:

Under this grant of authority, the Commission

could issue a license for a steam-electric power

plant located on a navigable stream, which utilized

the water of such stream for condensing purposes

—12—

and transmitted the power so generated across,

along, or from such stream. Also, a power develop-

ment utilizing steam rather than water power as a

generating force could well have most of the physi-

cal structures listed in Section 3(11) of the statute’

in the definition of “project.” Thus, there is no

express limitation of the licensing authority to hy-

droelectric power plants as distinguished from

steam-electric power plants. W. Gatchell, Jurisdic- .

tional Problems Under the Federal Water Power

“Act of 1920, 14 Geo. Wash. L. Rev. «2, 44

(1945).

Only the power companies attempt to argue that steam

plants cannot be “project works,” asserting that some of the

structural and hydraulic features listed in the statutory defi-

nition alte found only at hydro plants, not steam plants: “The

steam plant’s water system is keyed to pumps, not turbines,

lifting water uphill, not directing it downhill, for consumption

in conversion of energy supplied by fuels, not by falling

water” (Brief, p. 45). But this Court has already ruled

against this position. FPC v. Union Elec. Co., 381 U.S. 90

(1965), held that the Commission had licensing jurisdiction

over pumped storage projects. Pumped storage projects,

like steam plants, use energy supplied by fossil fuels to

pump water uphill. This water is stored in a reservoir, to

be released and allowed to run downhill to provide an addi-

tional power supply at peak demand periods (App. 80a, n.

98). (It takes about three units of heat energy to produce

two units of potential hydro energy at a pumped storage

plant. See Scenic Hudson Preservation Corference v. FPC,

354 F.2d. 608, 612 (2d Cir. 1965), cert. denied, 384 US.

941.)

It is equally indisputable that the six plants are using

“surplus water from a government dam” for the purpose of

developing electric power and the court below so found

a | oe

(App. 101a). The “surplus water” clause is discussed at Point

V of this Brief.

B. The “plain meaning” rule.

The “plain meaning” rule has long been a cardinal princi-

ple of statutory construction. Indeed, the court below briefly

acknowledged the existence of this principle (App. 54a) and

then proceeded to ignore it. Perhaps the best statement of

this doctrine was made by Mr. Justice Frankfurter in Addi-

son v. Holly Hill Fruit Products, Inc., 322 U.S. 607, 617

(1944):

We should of course be faithful to the meaning

of a statute. But after all Congress expresses its

meaning by words. . . . To let general words draw

nourishment from their purpose is one thing. To

draw on some unexpressed spirit outside the

bounds of the normal meaning of words is quite

another.

The opinion went on:

After all, legislation when not expressed in techni-

cal terms is addressed to the common run of men

e and is therefore to be understood according to the

sense of the thing, as the ordinary man has a right to

rely on ordinary words addressed to him. 322 U.S.

at 618.

See also Malat v. Riddell, 383 U.S. 569, 571 (1966); Crane

vy. Commissioner, 331 U.S. 1, 6 (1947); Helvering v. Hutch-

ins, 312 U.S. 393, 396 (1941); City of Lincoln v. Ricketts,

297 U.S. 373, 376 (1936); Old Colony R.R. v. Commis-

sioner, 284 U.S. 552, 560 (1932).

As we showed above, the language of § 4(e) unequivo-

cally and unambiguously covers steam plants. In an uninter-

rupted line of cases, this Court has indicated that where

there is no ambiguity, there is “nothing to construe.” Na-

tional Home, D.V.S. v. Wood, 299 U.S. 211, 216 (1936).

se 3

ie, | en

In United States v. Missouri Pacific R.R., 278 U.S. 269

(1929), this Court declined to consider the import of Con-

gressional debates on a bill because:

.. Where doubts exist and construction is permis-

sible, reports of the committees of Congress and

statements by those in charge of the measure and

other like extraneous matter may be taken into

consideration to aid in the ascertainment of the

true legislative intent. But where the language of

an enactment is clear and construction accord-

ing to its terms does not lead to absurd or imprac-

ticable consequences, the words employed are to

be taken as the final expression of the meaning

. intended. And in such cases legislative history may

not be used to support a construction that adds to

or takes from the significance of the words em-

ployed. 278 U.S. at 278.

See also United States v. Oregon, 366 U.S. 643, 648 (1961)

and Connecticut L. & P. Co. v. FPC, 324 U.S. 515, 527

(1945), in which this Court h-'i that general language in

the Federal Power Act favoring state regulation “cannot

nullify a clear and specific grant of jurisdiction [to the FPC],

even if the particular grant seems inconsistent with the broad-

ly expressed purpose” (emphasis added).

Mr. Justice Jackson, in his usual eloquent fashion, ex-

plained why the plain,meaning rule makes Sense:

I should concur in this result more readily if the

Court could reach it by analysis of the statute in-

stead of by psychoanal¥sis of Congress. When we

decide from Icgisfative history, including state-

ments of witnesses at hearings, what Congress

probably had in mind, we must put ourselves in the

place of a majority of Congressmen and act ac-

cording to the impression we think this history

should have made on them. Never having been a

a, |. oe

Congressman, I am handicapped in that weird en-

deavor. That process seems to me not interpreta-

tion of a statute but creation of a statute. United

States v. Public Utilities Comm'n, 345 U.S. 295,-

319 (1953), concurring opinion.

(The majority had entered into an examination of legislative

history in United States v. Public Utilities; Comm'n because

it felt the statutory language was ambiguous and also to see

whether the literal words would bring about an end “com-

pletely at variance with the purpose of the statute.” 345 U.S.

at 315.)

This principle has been applied by this Court in two deci-

. sions that are analogous to the present case. In Fairport, P.

& E. R.R. v. Meredith, 292 U.S. 589 (1934), this Court was

called upon to decide whether the Federal Safety Appliance

Act, 45 U.S.C. § § 1 and 9, could be invoked by a motorist

who was hit by a train. The train was not equipped with

power brakes, as required by the Safety Act. In Fairport,

as here, it was argued that the Safety Act occupied a narrow

field and was “intended only for the protection of employes

and travelers upon the railroads, and has no relation to the

safety of travelers upon highways or of the public generally.”

292 U.S. at 594. There, as here, the literal language of the

statute unquestionably covered the fact situation before the

Court, and the activity complained of was plainly within the

range of evils with which Congress intended to deal (see

Point II infra), but there was some legislative history indi-

cating that Congress may not have believed that the coverage

of the statute would extend that far. And there, as here, the

title of the statute seemed to restrict its coverage. Nonethe-

less, the Court ruled that the Safety Act could be invoked

by persons other than employees and passengers. Because

of the peculiar relevance of the Court’s reasoning to the pres-

ent case, a rather lengthy quotation is in order:

The contention of petitioner is that the Federal

— 16—

Safety Appliance Act was intended only for the

protectbn of employes and travelers upon ihe

railroac, and has no relation to the safety of trav-

elers ugon highways or of the public generally.

Very lilely, the primary purpose in the mind of

Congres was to protect employes and passengers.

So muci is indicated by the title — “An act to

promote the safety of employes and travelers

upon ralroads,” etc. And this is borne out by the

history of the legislation. President Harrison in

his firstannual message to Congress called atten-

tion to he need of legislation for the better pro-

tection of the lives and limbs of those engaged in

operatirg the interstate freight lines of the country,

and esp:cially the yard men and brakemen, and

expressed the view that Congress had power to

require iniformity in the construction of cars used

in intertate commerce and the use of apErONe?

safety appliances upon them.

But w: are asked to hold that the t:tle expresses

the sole ntent of the act, and this involves a ques-

tion of satutory construction. The title of an Act

and the 1istory leading up to its adoption, as aids

to statutory construction, are to be resorted to only

for the pirpose of resolving doubts as to the mean-

ing of the words used in the act in case of ambi-

guity. [ctations] But here the words of . . . the act

speak plinly and nothing ir the nature or opera-

tion of he legislation requires, or suggests the

necessity Of, an appeal to extrinsic aids to deter-

mine thdr meaning . . . [T]he installation and

use of power brakes . . . so obviously contribute to

the safety of the traveler at crossings that it is

hardly probable that Congress could have con-

—~it—

templated their inapplicability to that situation.

292 US. at 594-95.

Packard Motor Co. v. NLRR, 330 U.S. 485 (1947) is

another case in which this Court opted for an expansive read-

ing of the coverage of a regulatory statute on the basis of its

broad language, despite substantial evidence that Congress

did not discuss, and therefore presumably did not intend,

such wide jurisdiction. The question was whether the Na-

tional Labor Relations Act (“NLRA”) required Packard

io enter into collective bargaining with a union made up

entirely of foremen. The statute conferred the right to collec-

tive bargaining on “any employee.” The company contended,

however, that foremen more flearly fit into the statutory

definition of “employer”: “Any person acting in the interest

of an employer, directly or indirectly. . . .” Thus, the com-

pany reasoned, foremen were not covered by the Act.

This Court first noted that it “is too obvious to be labored”

that “foremen are employees both in the most technica! sense

at common law [and] in common acceptance of the term.”

330 US. at 488. As for the definition of “employer,” which

seemed to include foremen and thereby to place them outside

the Act’s protection, the Court reasoned that every eraployee

is required to act “in the interest of the employer.” Thus,

foremen should not be consigned to the employer category

(and consequent exemption from the NLRA) just because

they advance the company’s interests.

Expressing awareness that foremen, even if they do act for

the employer in dealings with manual laborers, “still have in-

terests of their own as employees” (330 U.S. at 489), the

Court noted that nothing in the language of the NLRA indi-

cated that Congress had withheld protection for foremen

taking collective action to advance those interests.

The Court refused to examine proffered extrinsic aids to

interpretation: “There is, however, no ambiguity in this Act

ne ee ee ee eee

— 18 —

to be clarified by resort to !egislative history, either of the

Act itself or of subsequent legislative proposaly which failed

to become law.” 330 U.S. at 492.

The dissenters argued that the legislative history (which

the majority declined to peruse) strongly indicated that Con-

gress did not want foremen to be covered under the Act. The

dissent noted that: “The evil at which tie Act was aimed was

the failure or refusal of industry to recognize the right of

workingmen to bargain collectively.” 330 U.S. at 496. Ac-

cording to § 1 of the NLRA, this refusal to bargain had

been the cause of strikes and other disruptions. But, the dis-

senters pointed out, workmen, not foremen and other man-

agement personnel, had been aggrieved and were striking.

They also noted that the statute was replete with references

to “workers” and “laborers,” but never mentioned supervi-

sors. 330 US. at 497.

Finally, the dissenters argued, if Congress had intended

for foremen to be covered, that fact would have been men-

tioned somewhere in the legislative history. But they found:

[N]o trace of Congressional concern with the prob-

lems of supervisory personnel. The reports and

debates are barren of any reference to them,

though they are replete with references to the func-

tion of the legislation in protecting the interests of

“laborers” and “workers.” 330 U.S. at 498. —

This same sort of “legislative history” is invoked by the

government and the power companies. They point out that

the Federal Power Act contains several references to water

power, but none to steam power. (See, e.g., power companies’

Brief, pp. 45-46; government’s Brief, pp. 16, 17-18.) And

they note that the debates indicated a concern for promoting

and regulating hydro plants, not steam plants. (See, e.g.,

power companies’ Brief, pp. 55-56; government’s Brief, p. |

23.) These are precisely the kinds of arguments rejected by

—19—

this Court in the Packard case. The teaching of Packard is

clear: in the face of unambiguous statutory language that ap-

pears to include a type of activity within its coverage, a court

will not do violence to the plain meaning merely because

Congress did not allude to that type of activity specifically

in the course of enacting the legislation.

The opinion below conceded the general validity of the

Indian respondents’ “plain meaning” argument. But the

Court of Appeals maintained that, though the statutory lan-

guage was unambiguous, it was still justified in examining

and relying on extrinsic evidence which it believed led to the

conclusion that the straightforward interpretation of the stat-

ute was inappropriate. It relied on the narrow exception to

the “plain meaning” rule for cases in which “the literal words

would bring about an end completely at variance with the

purpose of the statute,” described by the Court in United

States v. Public Utilities Comm’n, 345 U.S. at 315.

Common sense indicates that this exception would be ap-

plicable only rarely, since Congress seldom enacts statutory

language whose meaning is “completely at variance” with its

intent. Therefore, it appears obvious that anyone seeking to

invoke this exception has a heavy burden of persuasion.

. While the government and the power companies offer a great

deal of evidence which, they contend, shows that Congress

did not intend to include steam plants in the jurisdiction of

the Commission, nowhere do they show how that jurisdiction

is “completely at variance” with the purpose of the Federal

Power Act. They simply could not do so, for, as the Indian

respondents show in the next section, FPC jurisdiction over

steam plants would in fact further one of the basic pur-

poses of the Federal Power ‘Act.

—20—

II. AMAJOR PURPOSE OF THE FEDERAL POWER

ACT WAS TO PREVENT PRIVATE POWER IN-

TERESTS FROM APPROPRIATING THE VALU-

ABLE PUBLIC RESOURCE OF THE POWER

POTENTIAL IN NAVIGABLE STREAMS; THAT

IS PRECISELY WHAT THE SIX PLANTS IN THIS

CASE ARE DOING.

The Indian respondents do not quarrel with the assertion

that a primary purpose of the Federal Power Act was to

promote the development of hydroelectric (as opposed to

steam) facilities (see, e.g., government’s Brief, pp. 19-23;

power companies’ Brief, p. 52, and Supplement, pp. 45S-

46S). But that was not the only purpose of the legislation. As

Arizona Public Service Co., et al. noted in their brief below

(p. 24), the early conservationists, who were the strongest

backers of the Federal Power Act, were intent on protecting

and making sure that the public recei: .c adequate compen-

sation for “the valuable asset of water power potential.”

The conservationists were particulatly anxious to stop

the private power interests from appropriating this resource

for themselves, without any supervision by or benefit to the

public. As the court below noted, they “decried what they

saw as a great giveaway of the Nation’s water resources to

private interests and a callous disregard of the interest of the

public in a comprehensive system of water management that

would benefit the public at large” (App. 62a). See also Note,

Expanding Jurisdiction of the FPC and the Problem of Fed-

eral-State Conflict, 18 Vand. L. Rev. 1847, 1861-62 (1965).

Gifford Pinchot, characterized by Arizona Public Service Co.

as “the leader of the conservationists” and a “champion of a

great cause” (brief below, p. 25), did not mince words on this

subject. In one law review article, he wrote:

Until 1905, when the first steps were taken to bring

about effective regulation and control by the gov-

ernment of the right to erect and maintain power

ae, ), om

dams, the custom of Congress to give away these

extremely valuable rights continued unbroken.

Unless some other interest happened to be after

the sare power site, all that was necessary was to

get a bill introduced in Congress and sit by and

watch it pass as a matter of course.

This time-worn habit of Congress to give away

the public property was, of course, wholly unneces-

sary and wholly without excuse. G. Pinchot, The

Long Struggle for Effective Federal Water-Power

Legislation, 14 Geo. Wash. L. Rev. 9 (1945).

At various points, Pinchot called private power interests

that sought to usurp the power potential in publig waters

“water power grabbers” (/d. at 16), their acts “piracy” (Id.

at 17), and their objective “plunder” (/d. at 18).

_ The leading scholar on the history of the Federal Power

Act describes how this massive pilferage occurred:

[Njo one can deny the influence and power of an

enormous business interest with funds to employ

talented, persuasive, lobbying attorneys. For ten

years, tremendous pressure was brougiit to bear

upon Congressmen by power companies. It is not

to be wondered at. It is the old story. When clever

legal representatives of rich corporations could

fashion their arguments to play upon those preju-

dices of legislators built upon theories of state

sovereignty or of Jaissez-faire, they were all but

invincible. J. Kerwin, Federal Water-Power Legis-

lation 8 (1926).

This same theme — a determination to stop the monopo-

listic power industry from grabbing off the Nation’s water-

ways — runs strongly through the Congressional committee

reports on the Federal Water Power Act of 1920 and its

predecessors. For example, the court below quotes from the

» see

—, = alent SE UN

~ SE a OE RES RA

—2?—

House report on H.R. 16673, one of the earliest versions of

the Federal Water Power Act (App. 63a):

Experience has taught us that in the past the pri-

vate monopolizaticr. of natural opportunities has

not only deprived the general public of their nat-

ural right to a proper share of the benefit which

should accrue from them, but such monopolization

has given to those possessing it a proponderance

of influence and of power in our industrial and

civic life which is little short of a menace to our

institutions.

We have awakened none too soon to the necessity

of preserving under public control these great nat-

ural opportunities for the creation of wealth, which

belong to the public and which could constitut2 a

serious source of danger to equal liberty and fair

opportunity if transferred in perpetuity to private

ownership.’

The report presented data developed during committee

hearings showing that a few very large corporations con-

trolled virtually all the water powér then in existence. It

concluded that the public interest demanded continuing gov-

ernment control over water so thai it would not be “developed

as perpetual private monopolies.”

The report of the House Committee on Public Lands which

accompanied the earliest antecedent of the Power Act, H.R.

16673 (the “Ferris bil”), passionately declared that to allow

private power companies to appropriate for themselves the

1H.R. Rep. No. 842, Development of Water Power, etc., 63rd Cong., 2d

Sess. 11 (1914).

2Jd. at 14, President Theodore Roosevelt, another ardent champion of the

conservationist cause, also condemned the “evils of monopoly” by the power

companies and urged Congress to “stop giving away the property of the

people in the flowing waters.” Address vetoing the Rainy River Project

(1908), quoted in J. Kerwin, supra at 118.

—23—

power potential in navigable streams “ceases to be a mistake;

it becomes a crime.” H.R. Rep. No. 842, 63rd Cong., 2d

Sess. 10 (1914). See also FPC v. Union Elec. Co., 381 US.

90, 98, n. 11 (1965).

The power companies in the present case are nonetheless

succeeding in appropriating this public resource for their

own benefit for the purpose of producing electric power; in

the process they are actually diminishing the hydroelectric

power production capacity of public power facilities. Mean- .

while, the agency charged by Congress to prevent this evil

blithely asserts that, though the literal language of its ena-

bling statute seems to authorize action, and though it believes

that its intervention in such a situation would be a desirable

policy (see pp. 73-74 infra), it cannot act, because Congress

did not mean it to do so.

The six power plants involved in this case will withdraw

250,000 acre feet of water annually, over 2 percent of the

flow of the Colorado River, for cooling purposes and pro-

jected increases in power plant capacity along that River and

its tributaries may ultimately raise this total to 5 percent*®

(App. 52a). Almost none of this water will be returned to the

River. Thus, this huge electric power complex will diminish

the potential for production of power at federal hydroelectric

facilities at Boulder, Glen Canyon, and other downstream

government dams by a substantial amount. If ever there was

a “need for integration of federal activities of waterways”* —

the function of the FPC — this is it.

A second major purpose of the Federal Power Act was to

secure “a complete scheme of national regulation which

would promote the comprehensive development of the water

resources of the Nation. .. .” First lowa Hydro-Elec. Coop. v.

8This cooling water is an integral part of the steam electric power produc-

tion process (see p. 43 infra).

4United States ex rel. Chapman v. FPC, 345 U.S. 153, 167 (1953).

6 lye DENSA heheh —

tay eee DAS NK

—24—

FPC, 328 U.S. 152, 180 (1946). This goal is separate and

distinct from that of promoting the development of water

power. Indeed, the comprehensive planning responsibility

imposed by § 10(a) of the Federal Power Act, 16 U.S.C.

§ 803(a), may sometimes dictate that “deferral of construc-

tion would be more in the public interest than immediate

construction. . . .” Udall v. FPC, 387 U.S. 428, 449 (1967).

The disastrous impact of the Southwest Energy Complex

on the environment and the water economy of the lower

Colorado River basin is notorious.° ‘The Senate Interior Com-

mittee attributed this chaotic situation primarily to the “in-

adequate planning and coordination” of these activities by

the numerous state and federal agencies that were involved.°

This is the very type of planning and coordination authority

Congress thought it was giving to the Federal Power Com-

mission. But because of the Commission’s dogmatic and

somewhat bewildering refusal to exercise the powers given

to it by Congress, poor electric power site planning, of which -

this case offers a glaring example, will continue. This un-

necessary “regulatory gap,” which has so far been felt only

locally, will rise to the level of national insanity if the present

inertia is allowed to continue. As the court below noted,

steam electric power plants are expected to be using 600

billion gallons of cooling water a day by the year 2000, an

amount equivalent to one-half the total daily runoff of the

entire country (App. 50a-51a). The effect of this tremen-

dous water use by steam plants on the power potential in

navigable streams is self-evident and so is the propositios that

allowing it to continue unregulated flies in the face of Con-

gress’ intent.

5See generally S. Rep. No. 92-1015, 92d Cong., 2d Sess. (1972); Comment,

The Four Corners Power Complex: Pollution on the Reservation, 47 Ind. L.

J. 704 (1972); Department of the Interior, Southwest Energy Study: Sum-

mary Report, pt. 9 (1972). See also Point VI infra.

8S. Rep. No. 92-1015, supra at 24.

— as.

Once again, we are observing what President Theodore

Roosevelt decried when he vetoed a bill to allow a private

company to construct a dam on the James River in 1909:

“The great corporations are acting with foresight, singleness

of purpose and vigor to control the water powers of the

country, by trying to place themselves in a ‘twilight zone’

from any regulation.”* Quoted in J. Kerwin, supra at 122.

‘The “twilight zone” mentioned by President Roosevelt has now become a

“regulatory gap.” See the discussion of Phillips Petroleum Co. v. Wisconsin,

347 U.S. 672 (1954) in Point VI infra.

III: CONGRESS DID NOT CONSIDER WHETHER ~

STEAM PLANTS NEEDED TO BE REGULAT-

ED IN 1920 BECAUSE THEIR OPERATIONS

HAD NO EFFECT ON THE HYDRO POTEN-

TIAL OF NAVIGABLE STREAMS, BUT FUN-

DAMENTAL CHANGES IN THEIR METHOD

OF OPERATIONS HAVE NOW BROUGHT

~ STEAM PLANTS WITHIN THE RANGE OF

EVILS CONGRESS SOUGHT TO REGULATE

UNDER THE FEDERAL POWER ACT; UNDER

THESE CIRCUMSTANCES, JURISDICTION

SHOULD BE CONSTRUED EXPANSIVELY.

‘A. The legislative history shows only that Congress

was not thinking about steam plants, at all.

So far, we have argued that a detailed analysis of the

legislative history of the Federal Power Act is unnecessary

because jurisdiction over steam plants is conferred by the

literal language of the Act and is in harmony with one of its

basic purposes. Therefore, this Court need look no further

before concluding that the statute should be applied literally.

But even if this Court is persuaded that we must wade

through the mass of legislative documents offered for our

_amusement and delectation, we find that at best they only

support the inference that the 1920 Congress was not think-

ing about regulating the steam plants of that day. As we

show later in this point, that was natural because steam

plants were then irrelevant to the problem under considera-

tion. With perhaps one exception, there is no evidence that

Congress actually meant affirmatively to exclude steam

plants from jurisdiction forever, regardless of changes in

circumstances.’

The Indian respondents agree with the government (Brief,

p. 21) that the Federal Power Act, at the time of its enact-

ment, would have appeared to be “directly” concerned with

water power.” We also agree that on the rare occasions when

the sponsors of the Act mentioned steam power at all, it was

only in the context of comparing it with water power (App.

65a). But this is not the same as saying that Congress actively

'The one direct reference to possible steam plant regulation cited by the

petitioners is this dialogue at a committee hearing between Calvert Townley,

a power company official, and Congressman Taylor of Colorado (govern-

ment’s Brief, pp. 21-22; power companies’ Supplement to Brief, p. 43S) :

MR. TAYLOR. You have spoken about the handicaps that are

against water power development as compared with steam. The

steam plants are not subjected — or will not be subjected, gen-

erally speaking — to the governmental regulations that this bill

rcvides for will they? :

MR. TOWNLEY. No, sir.

MR. TAYLOR. And they will no®be subjected either to the pay-

ment of Federal royalties?

MR. TOWNLEY. No, sir.

Townley was one of the leading power Helen Wot J. Kerwin, supra

at 241. It would have been passing strange for \him to give an expansive

reading to the proposed Commission's jurisdiction in view of the power in-

dustry’s long and bitter struggle against any regulation, at all. Taylor, too,

was an opponent of federal regulation. and a champion of the policy of

making water power dams as attractive as possible to private capital. See 51

Cong. Rec. 13680 et seg. (1914). Thus, we have here a gratuitous colloquy

between two allies opposed to extensive regulation of power companies,

who have seized the opportunity to spread their views on the record. There

is no evidence that the full Congress knew of, much less approved of, these

views. Because of the notorious susceptibility of Congressional hearings to

propagandizing, the courts have wisely ruled that statements made at hear-

ings “are without weight in the interpretation of a statute.” McCaughn v.

Hershey Chocolate Co., 283 U.S. 488, 493-94 (1931).

*It is interesting to note that the same sentence quoted for this proposition

goes on to express the view that a subsidiary purpose of the Federal Power

Act was to achieve “a favorable and stabilizing effect on the whole power

industry” (App. 67a) (emphasis added).

—28 —

intended to limit FPC jurisdiction under all circumstances

and forever to hydro plants. As we showed in Point I, the

“plain meaning” rule establishes the presumption that unam-

biguous statutory language means what it says. To overcome

that presumption, the petitioners must show that Congress

affirmatively intended to exclude such jurisdiction.

To paraphrase the language of Chief Justice Marshall in

Trustees of Dartmouth College v. Woodward, 17 U.S. (4

Wheat.) 518, 644-45 (1819):

It is not enough to say that this particular case was

not in the mind of [Congress] . . . when it was

adopted. It is necessary to go farther, and to say

that, had this particular case been suggested, the

language would have been so varied, as to exclude

it, or it would have been made a special exception.

The case being within the words of the rule, must

be within its operation likewise, unless there be

something in the literal construction so obviously °

absurd, or mischievous, or repugnant to the general

spirit of the instrument, as to justify those who ex-

pound the [statute] in making it an exception.

See also Ozawa v. United States, 260 U.S. 178, 195 (1922).

B. While steam plants in 1920 had no effect on waterways,

new technology in the power industry has completely

“changed the situation.

It is true, as the court below pointed out (App. 90a), that

steam plants in 1920 supplied the bulk of the Nation’s power

and that those plants were water-cooled. But we submit it

was wrong to infer on that basis that Congress intended not

to include them within the FPC’s jurisdiction because “any

legislation intended to regulate comprehensively the inter-

relationship between the production of power and the effi-

cient management of water resources would surely have taken

account of the existence of these water-using steam plants”

(App. 90a).

‘ — 29 —

The fact is, however, there would have been no reason for

Congress to consider regulating steam plants in 1920 to

achieve this result. To all intents and purposes, steam power

plants then had no effect on navigable waters. The largest

steam plant then in existence was only 60 megawatts, and the

total steam generating capacity for the entire country was

only 8,900 megawatts. Together, the Nation’s power plants

used a total of 178 million gallons of water per day (App.

86a, n. 111), equivalent to about 199,000 acre feet of water

per year.* This is less water than the six plants of the South-

west Energy Complex, alone, will use.*

Aside from the fact that 1920’s power plants used so little

water, the way in which they used it made for a minimal im-

pact on waterways. For they returned virtually all their cool-

ing water to the streausiis, sO iat it could be used again for

other purposes, such as downstream hydro generation. Also,

the steam power plants of those days had to be located near to

their load centers, because ultra-high voltage transmission

lines, which have since made long distance shipment of power

possible, were then unknown. Thus, the imperceptible impact

steam plants had on waterways was even further diluted be-

cause that impact tended to be spread out evenly across the

Nation.

However, in the past decade a technological revolution has

occurred in the power industry, which has led to the emer-

gence of an entirely new phenomenon, the energy complex.

This revolution was described by an. official of the coal com-

pany that supplies the fuel to the Four Corners plant.® He

“There are 325,851 gallons in an acre foot (the amount of water necessary

to cover an area of one acre to a depth of one foot). Thus, the daily cooling

water used by all power plants in 1920 was about 546 acre feet.

'The six plants will consume 250,000 acre feet of water per year (App. 52a).

5Testimony of Albert L. Reeves of Utah Construction & Mining Co., coal

supplier for the Four Corners power plant, in Hearings on Problems of

Electrical Power Production in the Southwest Before the Senate Comm. on

Interior and Insular Affairs, 92nd Cong., 1st Sess., pt. 1, at 75 (Comm. Print

1971) (hereinafter “Southwest Power Plant Hearings”).

— 30 —

commented )n the “technological advances . . . based on the

economics ¢ scale” achieved by the power plants involved

in this suit a “major breakthrough” in the field of energy

conversion. [his major change was made possible by three

new technigles: the development of new equipment that

made strip nining of low-heat value Western coal economi-

cally feasibl:; the design of new types of generating units,

much larger han any previously known; and the development

of technolog to transmit large amounts of electricity over

long distances.

Now, sevial utilities, serving widely scattered load cen-

ters, can pod their resources to construct a handful of huge

electric powr plants at distant locations, convenient to

sources of fiel and water. By means of an interconnected

network of itra-high voltage transmission lines, these few

plants are abe’te supply a large percentage of the electricity

demand of st geographical areas.° This system results in

substantial St Savings to the power companies and has the

secondary alvantage of shielding the appalling environ-

mental impaits of the energy complex from their urban cus-

tomers’ congiousness. The trend toward clusters of giant

power plant units is predicted to revolutionize the power

industry. It is¢stimated that plants of 500 megawatts or more

will probably account for 90 percent of the totai steam gen-

erating capadty in the Nation by 1980.7

When sevéal mammoth power stations are located in the

same watersled, they can have an overwhelming impact on

6A power comp#Y Consultant estimated that five of the six plants involved

in this suit woul! Supply one-third of all electricity sold by the intervenors

in 1980 at load¢°-ters that include Los Angeles, San Diego, Phoenix,

Tucson, Las Ves, Salt Lake City, and environs. See 1 Southwest Power

Plant Hearings, “P'4 at 65. For further details on the workings of an energy

complex, see thet¢stimony of the President of Public Service Company of

New Mexico at Southwest Power Plant Hearings, supra at 41.

7Ass’n of the Barof the City of New York, Electricity and the Environment:

The Reform of 84! Institutions, p. 1-7 (1972).

—_. |

the entire stream regimen. The six plants involved in this case

will withdraw permanently up to a quarter million acre feet

of water annually from the Colorado River system; as we

noted above, this is more water than all the steam plants in

the entire country used in 1920. The six plants are withdraw-

ing more than 2 percent of the River’s flow (App. 52a).

Projected increases in generating capacity at these and other

projected plant sites would raise that total to 5 percent (Jd.).

The figures on steam plants’ use of water nationwide stag-

ger the imagination. As we noted above, in 1970, steam

plants with a capacity of 298,000 megawatts (App. 86a, n.

110) used 120 billion gallons of cooling water a day, one-

third of the total water used for all purposes (App, 86a, n.

111). By the end of the century, estimates are that steam

power plants will use 600 billion gallons of water a day, equal

to one-half the total daily runoff in the United States (App.

Sla).

Besides the enormous increase in the quantity of water

now used by steam plants, the quality of that usage has also

changed, so as to add further to the impact of their operations

on waterways. In arid areas like the Southwest, power piants

usually evaporate all the cooling water they withdraw; none

of it is returned to the stream. The reason for this is that the

cooling process raises the salinity level of the cooling water

substantially. In river systems such as the Colorado, where

salinity is already a problem, any additional salt load would

be intolerable. Therefore, power plants such as those in the

Southwest Energy Complex permanently and substantially

diminish the total volume of the River, and thus, the hydro-

electric power potential at all downstream water power sites.

The net effect of these changes was pointed out by the

court below (App. 86a-87a): “Giant complexes such as the

Four Corners plant will withdraw (often permanently) such

large amounts of water that the power potential of majority

™ wn eal

elds eS

(oe

[sic] waterways will be affected adversely to an extent greater

than that of hydroelectric facilities’ (emphasis added).

The legislative history adduced by the petitioners shows

only that Congress was not thinking one way or the other

about the question of whether steam plants should be licensed.

Such a showing is not enough, under the test laid dgwn by

Chief Justice Marshall in the Dartmouth College case, to vary

the plain meaning of the statute. The petitioners are also

required to show that if someone had had the prescience to

anticipate the development of the energy complex and had

asked Congress if it meant to regulate its operations, Con-

gress would have said “no.” There is not a scrap of evidence

to show such an intent; indeed, in view of Congress’ expressed

desire to curb the power companies’ appetite for free public

resources described at Point I, it is highly unlikely that Con-

gress would have deliberately chosen to allow them to help

themselves to the capacious feast they are now enjoying, while

leaving the public to pick up the whole check.

Congress’ failure to consider the need to license steam

plants in 1920 was entirely understandable in the light of

their miniscule effect on waterways at that time. But because

of major technological changes in the power industry, un-

foreseeable at that time, the impact of steam plants on the

Nation’s waters is now highly significant. A broad reading

of the statute is now required if Congress’ aim to curb private

power interests’ capture of the public’s water resource is to

be achieved.

C. The courts construe agencies’ regulatory mandates

broadly in order to effectuate Congressional policy

under new conditions.

The courts interpret jurisdictional statutes so that inde-

pendent federal agencies responsible for regulating a signifi-

cant portion of an industry’s activities are given a broad

mandate to bring their regulatory practices into line as the

times change.

As Sutherland has noted:

Legislation is often written in terms which are

oroad enough to cover many situations which

could not occur to mind at the time it is enacted.

And so a Statute, expressed in general terms and

words of present or future tense, will be applied,

not only to situations existing and known at the

time of the enactment, but also prospectively to

things and conditions that come into existence

thereafter. 2A Sutherland, Statutory Construction

§ 32, p. 229 (4th ed. 1973):

See also Johnson v. United States, 163 Fed. 30, 32 (1st Cir.

1908) (Holmes, J.).

This Court agrees:

The legislative process would . . . bog down if

Congress were . . . required to appraise before-

hand the myriad situations to which it wishes a par-

ticular policy to be applied and to formulate

specific rules for each situation. Necessity therefore

fixes a point beyond which it is unreasonable and

impracticable to compel Congress to prescribe de-

tailed rules... . American P. & L. Co. v. SEC, 329

U.S. 90, 105 (1946).

See also Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 194

(1941; Carlson v. Landon, 342 U.S. 524, 542 (1952) and

cases cited ibid. at notes 36 and 37.

This Court, recognizing the fluid nature of the issues that

concern regulatory agencies, such as the FPC, has often con-

strued their statutory authority broadly, so as to take changed

circumstances into account. Thus, in American Trucking

en ee

Ure tR Ga aA Mine EL

| oe BESET SEEN

— 34—

Ass’ns, Inc. v. United States, 344 U.S. 298 (1953), the issue

was whether the Interstate Commerce Commission had ex-

ceeded its jurisdictional authority by promulgating regula-

tions governing the use of leased equipment by ’:censed motor

carriers. |

It was argued that the words “regulation of leasing prac-

tices” were not found in the statute and, therefore, the ICC

had no authority in this area. This Court held at 344 U.S.

309, 310:

[We do not think] it a reasonable canon of interpre-

tation that the draftsmen of acts delegating agency

powers, as a practical and realistic matter, can or

do include specific consideration of every evil

sought to be corrected. But no great acquaintance

with practical affairs is required to know that such

prescience, either in fact or in the minds of Con-

gress, does not exist. Its very absence, moreover, is

precisely one of the reasons why regulatory agen-

cies such as the Commission are created, for it is

the fond hope of their authors that they bring to

their work the expert’s familiarity with industry

conditions which members of the delegating legis-

latures cannot be expected to possess. [citations

omitted]

One important reason for construing agencies’ jurisdic-

tion broadly is that rapid strides in technology, such as the

development of the energy complex, make previous limita-

tions obsolete. For example, in United States v. Southwestern

Cable Co., 392 U.S. 157 (1968), the question was whether

the Federal Communications Commission could assume jur-

isdiction over cable television. This Court stated:

Certainly Congress could not in 1934 have fore-

seen the development of community antenna tele-

vision systems, but it seems to us that it was precise-

ly because Congress wished “to maintain, through

—35—

appropriate administrative control, a grip on the

dynamic aspects of radio transmission,” that it con-

ferred upon the Commission a “unified jurisdic-

tion” and “broad authority.” Thus, “[u]nderlying

the whole [Communications Act] is recognition of

the rapidly fluctuating factors characteristic of the

evolution of broadcasting and of the correspond-

ing requirement that the administrative process

possess sufficient flexibility to adjust itself to these

factors.” Congress in 1934 acted in a field that was

demonstrably “both new and dynamic,” and it

therefore gave the Commission “a comprehensive

mandate,” with “not niggardly but expansive pow-

ers.” 392 U.S. at 172-73. [citations and footnotes

omitted ] ;

In National Broadcasting Co. v. United States, 319 US.

190 (1943), the Supreme Court sustained the power of the

FCC to issue regulations governing chain broadcasting. Al-

though the statute establishing the FCC limited its jurisdic-

tion to the licensing of individual broadcast stations, this

Court approved the agency’s regulatory scheme providing for

comprehensive and detailed standards for operation of

broadcasting networks. The basic standard articulated by the

Court for determining the validity of Commission jurisdic-

tion was whether the activity, if unregulated, could “frustrate

the purposes for which the Communications Act of 1934 was

brought into being. .. .” 319 U.S. at 219.

This Court conceded that the Communications Act of

1934 “does not explicitly say the Commission shall have pow-

er to deal with network practices found inimical to the public

interest.” “But,” the opinion continued, “Congress was act-

ing in a field of regulation which was both new and dynamic.”

The Court described the legislative setting of the 1934 Act,

which was remarkably similar to that of the Federal Power

Act: “Congress moved under the spur of a Widespread fear

ei ERR RT

— 36 —

that in the absence of goveriimental control the public inter-

est might be subordinated to monopolistic domination in the

broadcasting field.” And the Court concluded that Congress

did not attempt “an itemized catalogue of the specific mani-

festations of the general problems for the solution of which it

was establishing a regulatory agency. That would have stereo-

_ typed the powers of the Commission to specific details in

regulating a field of enterprise the dominant characteristic

of which was the rapid pace of its unfolding.” 319 U.S. at 219.

Indeed,

[I]t is a general rule in the construction of statutes

that legislative enactments in general and compre-

hensive terms, and prospective in.operation, apply

to persons, subjects, and businesses within their

general purview and scope, though coming into ex-

istence after their passage, where the language fair-

ly includes them. Cain v. Bowlby, 114 F.2d 519,

522 (10th Cir. 1940), cert. denied, 311 U.S. 710.

See also Newman v. Arthurg 109 U.S. 132, 138 (1883);

Pickhardt v. Merritt, 132 U.S. 252 (1889).

The rule in Cain v. Bowlby has been applied in any number

of situations. See Jerome H. Remick & Co. v. American Auto-

mobile Accessories Co., 5 F.2d 411 (6th Cir. 1925), cert.

denied, 269 U.S. 556 (copyright laws violated by playing

tune on commercial radio without permission, even though

radio not yet invented when Copyright Act adopted); Bruce

Transfer Co. v. Johnston, 227 lowa 50, 287 N.W. 278

(1939) (statute allowing suit against railroads, stages, and

_ car lines held to apply to trucking, though internal combus-

tion engine had not yet been invented at time statute was

_ passed) ; Wisconsin Tel. Co. v. Oshkosh, 62 Wis. 32,21 N.W.

828 (1884) (statute authorizing incorporation of telegraph

company also includes telephone company).

—_ 37

A turn-of-the-century New Hampshire opinion dealt with

an earlier transition period in che power industry — a shift

from the use of water, as a foxce to move milling and other

machinery by direct mechanical means, to its use in the pro-

duction of electricity. In McMillan. v. Noyes, 75 N.H. 258,

72 Atl. 759 (1909), the question was whether a dam built

to provide hydro power fell within the terms of a statute

giving flowage rights to “a water mill, and a dam to raise the

water for working it, and for creating a reservoir of water,

and for equalizing the flow of the same. . . .” The court had no

trouble concluding that a power plant fit within the definition

of “water mill.” We take the liberty of quoting the opinion at

some length because it deals with so many of the contentions

in this case:

But it is said that the Power Company does not

bring itself within the terms of the statute because

it is not maintaining “a water mill” in connection

with its dam. That it has erected a building, and in-

stalled the necessary machinery for the conversion

of the water power secured by its dam into electric

power, is conceded. The machinery is run by water

power, and in the ordinary use of language the

establishment might be termed a “water mill”; that

is, a mill operated by water power. That the mill in

question falls within the literal meaning of the

statute is evident. It is argued, however, that the

legislative purpose was to encourage the establish-

ment of manufactories operated by water power,

that a water mill is a structure where some useful

article, or articles, is manufactured by machinery

driven by water power, and that electric energy,

though conserved for industrial purposes by the ap-

plication of water power to intricate machinery, is

not a manufactured product. If it is admitted that

the present flowage act was passed, as its title indi-

— | oe

cates, for the encouragement of manufactures, the

question remains whether the accumulation of elec-

tricity for commercial use may not be deemed a

manufactured product within the meaning of the

statute. That electrical energy was not of much

commercial importance 40 years ago, and was not

one of the mechanical products which the Legisla-

~ ture then had in mind, is not conclusive evidence

that it does not fall within the list of articles whose

manufacture the Legislature intended to encotr-

age. A holding that the Legislature intended to

limit its encouragement to mill owners who manu-

factured such articles as were known and used pre-

vious to 1868 would plainly be an unreasonable

construction of the act, not required by its lan-

guage, and not supported by the public policy upon

which it was based. 75 N.H. at 263-64, 72 Atl. at

762 [citations omitted].

... [T]he question here is .. . whether, upon a

reasonable construction of the verbally unre-

stricted language used, in view of the general pur-

poses ef the act as applied to the present state of

mechanical and scientific enterprises, the genera-

tion of electricity by machinery propelled by water

power is such a manufacturing enterprise as the

Legislature intended to encourage. A negative an-

swer can only result by unreservedly adopting the

so-called rule of strict construction, and imputing

to the Legislature a purpose to restrict the opera-

tion of the act to ancient mills, like the old-fash-

ioned gristmills and sawmills. But existing legisla-

tion of a general character, which is not specially

restricted, must receive a construction based, in

part at least, upon the present state of society, and

not entirely upon the long-discarded customs in

vogue at the time of its original enactment. To say

” — .

— 39—

that the only mills covered by the statute are grist-

mills and sawmills because anciently there were no

other mills or manufactories would be as absurd as

to insist that a water mill means a mill run by a

primitive water wheel. General legislation is in-

tended to operate in futuro, and ordinarily io apply

to new conditions caused by the progress of in-

dustrial enterprise. 75 N.H. at 265, 72 Atl. at 763.

The Indian respondents submit that a compelling analogy

is offered by the decision in United States v. Public Utilities

Comm'n, 345 U.S. 295 (1953). The main issue was whether

the FPC had rate-making jurisdiction over sales in interstate

commerce of hydroelectric power to the Navy and a Cali-

fornia county, pursuant to Part II of the Federal Power Act.

Section 201(a) of the Federai Power Act, 16 U.S.C. § 824,

gives the FPC jurisdiction over interstate transmission and

sale of electricity “to extend only to those matters which are

not subject to regulation by the States.” The utility claimed

it was subject to rate-making supervision only by the Cali-

fornia Public Utilities Commission, and not the FPC, point-

ing to § 20 of Part I of the Act, 16 U.S.C. § 813. That section

allowed the FPC to set rates for interstate sales of power pro-

duced at licensed plants, if the state involved did not do so.

Since California had endeavored to regulate rates in this case,

the company argued, § 20 precluded-Commission jurisdic-

tion. ——

This Court rejected this reasoning. The cout conceded

that Congress. probably did not, in fact, intend to give the

Commission authority to regulate such rates, because the way

the power industry, operated at that time was such that fed-

eral jurjsdéettOn was unnecessary:

Admittedly, § 20 contemplated state regulation.

And it may well be, as indicated by the congres-

sional hearings, that Congress quite frankly chose

the local authorities to regulate the bulk of inter-

| een Pawek ine

£8 ens

YEnS

Pepsi ey

— 40 —

state sales of electricity from licensed projects. In

fact, a contrary view would have been almost as-

tonishing as an historical proposition, for neither

the large interstate operations of electric utilities

that have developed during the last thirty years,

nor the concomitant desirability of federal regula-

tion, could have been foreseen in 1920... .

So we may assume that Congress, as a policy judg-

ment, accepted and adapted the substantial tradi-

tion of local utility regulation to power production

licensed under the federal Act. 345 U.S. at 302-03.

However, the Court noted, Congress’ assumption con-

cerning the efficacy of state regulation was incorrect; this

Court ruled a few years later that such regulation is an un-

constitutional burden on interstate commerce. Public Utilities

Comm'n v Attleboro Steam & Elec. Co., 237 US. 83

(1927). Thus, § 20 “assumes what Attleboro held did not

exist — state authority to reach interstate sales of energy

for resale... .” 345 U.S. at 304. “But,” the Court added,

“there is no evidence that this was done with any firm intent

to settle with the states a power essentially national.” 345

U.S. at 303. The Court noted that the intent of Congress in

enacting Part II was to “fill the gap” in rate regulation left

by Attleboro, and that there was no hint that Congress in-

tended to leave that gap wide open for licensed hydro power

under § 20, but to shut it for power produced by steam

generators or unlicensed hydro plants, which are not subject

to the apparent exception of § 20.

This case, too, reveals a dangerous “gap,” through which

the Colorado River is flowing, unregulated, into the hands

of the power companies. Here, too, the argument against

jurisdiction is based primarily on a legislative history that

shows Congress laboring under an assumption that is no

longer true. But, as United States v. Public Utilities Comm'n.

shows, when supervening events (e.g., changes in the law or®

ay |, pore

new developments in technology) prove that assumption in-

valid, this Court will not permit the power companies to evade

regulation. Instead, it will apply the literal language of the

statute, in order to effectuate the overall purpose.

The same reasoning was applied by this Court in FPC v.

Union Elec. Co. (the Taum Sauk case), 381 U.S. 90 (1965).

There, the issue was whether Congress had intended to sub-

ject to FPC licensing requirements only those power plants

that had an effect on interstate commerce by navigation, or

whether all hydro plants which affected interstate commerce

in any way would be covered. The power company noted

that the debates on the Federal Power Act were replete with

lengthy arguments about navigability, but were silent on

other aspects of the commerce power, such as the sale of

electricity across state lines. This Court conceded this was

true, speculating that the silence might have been due to two

factors: the limited construction of ihe commerce power then

prevailing under the rationale of Hammer v. Dagenhart, 247

U.S. 251 (1918) [overruled in United States v. Darby, 312

U.S. 100 (1941) ]; and Congress’ reluctance to “inject other

constitutional issues into the ongoing debates.” 381 U.S. at

105. The Court also noted that a lack of debate on this ques-

tion was to be expected. The issue then was “largely theoreti-

cal,” since, until the advent of the pumped storage plant, any

hydro plants large enough to serve interstate markets would

also have used enough water to affect the flow or level of

downstream navigable waters. 381 U.S. at 105, n. 21.

“But,” this Court concluded, “the Act which emerged from

these debates . .. was couched in terms which reached beyond

the control of navigation and forms no support for the propo-

sition that Congress intended to equate the ‘interests of com-

merce’ with those of navigation.” 381 U.S. at 105-06. Once

again, the Court turned to the literal language of the statute

to effectuate the broad purpose of Congress, despite legisla-

tive history indicating Congress might not have thought the

hy Blea SRS

Ae lot in te A MSY

er iy ae

coverage of the statute needed to be that wide. The Taum

Sauk case is discussed in more detail at Point IV-C, infra.

D. The FPC has a broad mandate to integrate federal ac-

tivities relating to the effects of power production on

waterways.

The court below conceded the “undeniable appeal” of this

_ argument, but ruled that it “nonetheless fails” for two basic

reasons: this Court’s dictum to the contrary in FPC v. Union

- Elec. Co., 381 U.S. 90 (1965) (discussed in Point IV), and

_ the Court’s conception of the limited role of the Federal

_ Power Commission. The Court of Appeals declared that “the

_ FPC does not have a broad, abstract mandate either to regu-

late the electric power industry or to engage in comprehensive

planning for the utilization of our major waterways.”

But this Court does not agree with this characterization;

it has stated that the FPC is the agency which was given

_ broad powers by Congress to put into effect “a general power

itis i Nasa Bala es sR A os

policy” and to achieve “integration of federal activities af-

fecting waterways.” United States ex rel. Chapman v. FPC,

345 U.S. 153, 167 (1953). Its “functions and powers,” the

Court continued, are “comparable to those of the Interstate

Commerce Commission in the field of transportation.” 345

U.S. at 168. The ICC does have the sort of wide-ranging

powers to meet changing circumstances that, according to

the opinion below, the FPC lacks:

The stuff of the process of [rate making] is fluid

and changing — the resultant of factors that must

be valued as well as weighed. Congress has there-

fore delegated the enforcement of transportation

policy to a permanent expert body and has charged

it with the duty of being responsive to the dynamic

character of transportation problems. Board of

Trade v. United States, 314 U.S. 534, 546 (1942).

a |.

It is true, as the court below points out, that the Federal

Power Act does not authorize licensing for non-power related

improvements, such as irrigation facilities (App. 29a). But

no One is contending that such jurisdiction éxists. We merely

assert that the use of water from navigable streams for the

purpose of producing electric power is licenseable.® As the

court below acknowledged, the use of cooling water by steam

plants is an integral part of the power production process it-

self, necessary to coax more power from the fuel burned:

This cooling process is a matter not of conve-

nience but of economic necessity. As the steam is

exhausted into the condenser and cooled by the

water, it condenses to liquid, thus occupying a

smaller space than it did formerly and producing

a partial vacuum. This vacuum at the exhaust of

the turbine permits the entering high-pressure

steam to undergo greater expansion, and hence

deliver more energy to the turbine rotor, than if it

expanded only to the pressure of the atmosphere.

Roughly, the over-all efficiency of producing use-

ful work from high-pressure steam can be in the

40 to 50 percent range if the exhaust steam is con-

densed by use of cooling water, whereas it will be

only 30 to 40 percent if the turbine exhaust is

directly to the atmosphere. . . . P. Cootner & O.

Lof, Water Demand for Steam Electric Generation

8-9 (1965). Quoted at App. 91a-92a, n. 128.

The Indian respondents urge this Court to adopt the phi-

losophy of Mr. Justice (then Judge) Holmes in Johnson v.

United States, 163 Fed. 30, 32 (1st Cir. 1908):

A statute may indicate or require as its justifica-

“It is interesting to note that at least some Congressmen believed that cover-

age of the Power Act might extend far beyond this range. Senator Thomas:

“[T]here is not a man in your State who can build a cow track or a sheep’s

bridge across one of your streams without coming down here to Washington.

... 59 Cong. Rec. 7733 (1920).

—44—

tion a change in the policy of the law, although it

expresses that change only in the specific cases

most likely to occur to the mind. The Legislature

has the power to decide what the policy of the law

shall be, and if it has intimated its will, however

indirectly, that will should be recognized and

obeyed. The major premise of the conclusion ex-

pressed in a statute, the change of policy that in-

duces the enactment, may not be set out in terms,

but it is not an adequate discharge of duty for

courts to say: We see what you are driving at, but

you have not said it, and therefore we shall go on

as before.

—45—

IV. NONE OF THE OTHER EXTRINSIC EVIDENCE

COMPELS THE CONCLUSION THAT THE FPC

LACKS JURISDICTION.

A. The Commission's interpretation of the statute is

yot controlling.

The court below (App. 74a-75a) and the petitioners

(government’s Brief, pp. 25-30; power companies’ Brief, pp.

53-55) rely heavily on the FPC’s construction of the statute.

That interpretation should not govern here. First, and most

important, this is a question of statutory construction, which

has always been recognized as an area uniquely entrusted to

the courts. Unlike administrative decisions involving techni-

cal facts or policy judgments, where the judicial branch prop-

erly defers to agency expertise, the courts do not hesitate to

overrule erroneous interpretations of the law. See Barlow v.

Collins, 397 U.S. 159, 166 (1970); Rochester Tel. Corp. v.

United States, 307 U.S. 125, 136 (1939); SEC v. Chenery

Corp., 318 U.S. 80, 94 (1943): FCC v. Potisville Broadcast-

ing Co., 309 U.S. 134, 146 (1940); NLRB v. Brown, 380

U.S. 278, 292 (1965).

In Volkswagenwerk v. Federal Maritime Comm'n, 390

U.S. 261 (1968), this Court reversed a Maritimé Commis-

sion ruling that it lacked jurisdiction, based on a narrow read-

ing of its governing statute. Justice Stewart noted:

_. .. [T]he courts are the final authorities on

issues of statutory construction . . . and “are not

obliged to stand aside and rubber-stamp their af-

firmance of administrative decisions that they

deem inconsistent with a statutory mandate or that

frustrate the congressional policy underlying a stat-

ute. ... The deference owed to an expert tribunal

cannot be allowed to slip into judicial inertia. ...”

390 US. at 272. [citations omitted]

by bed ed eh

—46—

The fact that the agency arrived at its erroneous conclusion

early on and has clung to it through the years does not thereby

convert its previous incorrect interpretation into an accurate

statement of the law which binds the courts. “Consistent error

is still error.” Phillips Petroleum Co. v. Wisconsin, 347 U.S.

672, 678, n. 5 (1954); see Nantahala Power & Light Co. v.

FPC, 384 F.2d 200, 206, n. 12 (4th Cir. 1967), cert. denied,

390 U.S. 945. In the Nantahala case, the appellant pointed

out that the FPC had consistently supported its position in its

First Annual Report, a 1923 decision, a statement by its chief °

counsel in another annual report, and Congressional testi-

mony by its solicitor and general counsel. The court observed,

“more significant, more precise and more authoritative than

the observations of the Commission and its employees is the

unadorned language of the Act.” 384 F.2d at 206.

A host of other cases apply the general rule that adminis-

trative construction of a statute must yield to the plain lan-

guage and overall scheme. See American Ship Building Co. v

NLRB, 380 U.S. 300, 316 (1965); County of Marin v.

_ United States, 356 U.S. 412, 420 (1958); United States v.

DuPont De Nemours & Co., 353 U.S. 586, 590 (1957);

Automatic Canteen Co. v. FTC, 346 U.S. 61, 74 (1953);

Zuber v. Allen, 396 U.S. 168, 192-93 (1969).

The Commission’s protestations that it lacks jurisdiction

- over steam plants all were asserted in a non-adversary context

in its annual reports, testimony before Congress, and in a

_ formal decision in which no one contended that licensing

_ was required (see government’s Brief, pp. 25-28). This Court

has held that non-adversary determinations do not have the

force of law. Fishgold v. Sullivan Dry Dock & Repair Corp.,

- 328 U.S. 275, 290 (1946). This principle applies in general

+ to “uncontested administrative construction” (SEC v. Ster-

- ling Precision Corp., 393 F.2d 214 (2d Cir. 1968) ) and to

‘the FPC in particular. Safe Harbor Water Power Corp. v.:

—47—

FPC, 124 F.2d 800 (3rd Cir. 1941), cert. denied, 316 U.S.

663.

Another factor which might have lent authority to the

Commission’s interpretation is lacking in this case, contrary

to the assertion of the court below. The Court of Appeals

quoted this Court for the proposition that administrative con-

struction is entitled to particular respect when it “involves a

contemporaneous construction of a statute by the men

‘charged with the responsibility of setting its machinzry in

motion, of making the parts work efficiently and smouthly

while they are yet untried and new.” Power Reactor Dev. Co.

v. Electrical Union, 367 U.S. 396, 408 (196!), quotec' at

App. 76a. Such a contemporaneous construction “caries

most weight when the administrators participated in crafting

and directly made known their views to Congress in commit-

tee hearings.” Zuber v. Allen, 396 U.S. 168, 192 (1969). The

court below apparently assumed that the First Annual Re-

port by the FPC actually was such a “contemporaneous con-

struction” by the first commissioners. This is not the case.

The First Annual Report was put out by the second Federal

Power Commission, made up of members of the newly-elected

Harding Administration. Not only had these men not been

instrumental in passing the Federal Power Act, but they were

actively opposed to governmental curbs on the private power

industry.

The campaign to enact the Federal Water Power Act was

a highly partisan struggle between two opposing coalitions.

One group consisted primarily of the power companies and

other industrial spokesmen, allied with Western legislators

who wanted to protect the states’ control of water rights

against any federal encroachment. The leaders of this group

were frequently heard to argue that water power development

must be made attractive to private capital and therefore gov-

ernment interference with the profit-making potential of the

industry should be held to a minimum. They also often pro-

— 48 —

claimed their belief that the government had no property

interest in the waters of navigable streams, and therefore was

not entitled to charge for its use. Their eagerness to promote

water power development (which had so far been stymied by

cumbersome and conflicting statutory requirements) caused

them ultimately to acquiesce in the enactment of legislation

creating the Federal Power Commission, in order to move

the situation off dead center. But at every turn, they pushed

for the narrowest possible range of federal jurisdiction and

control.

On the other side were the early conservationists and op-

ponents of big business monopolistic tendencies, the erstwhile

“trust busters.” They also wished to see water power develop-

ment go forward, but were determined to make sure that the

_ government, in the course of encouraging private capital to

_ develop natural resources, presumably for the public’s bene-

_ fit, did not surrender the public’s property to a few wealthy

_ entrepreneurs. These men recalled the gross abuses of the

_ government’s giveaway of millions of acres in railroad land

_ grants and coal leases; they were determined that the public’s

_ interest in the power potential in navigable streams and the

comprehensive development of its waterways would not share

_ asimilar fate. Thus, they battled for tight federal supervision

_ over the location and timing of private water power develop-

- ments, as well as provisions to assure adequate monetary

_ protection for the public by way of annual charges, regulation

’ of rates, and other financial aspects, and the ultimate possi-

; bility of recapture of the power site by the government.

, sade) 49 chy Dh eal eas ee nea iit uaa an em kala lS eS

ND BERR PAN ADRS RRR ieee iE AAR OE ON et : ce

_ The conservationist forces were spearheaded by members

_ of the Wilson Administration and that wing of the Republican

_ Party which had been associated with the Progressive move-

_ ment of Theodore Roosevelt. The three Cabinet officers who

_ were to make up the first Commission were among the most

- enthusiastic and skillful supporters of the legislation; they

' participated extensively in the drafting process. See the letters

B cgay as

ae oe

quoted by the court below at App. 66a-70a, n. 62;' J. Kerwin,

supra, Chap. V. But these men served as commissioners for

iess than a year. They were swept out of office by the Harding

victory of 1920. The officials who replaced these conserva-

tionists had diametrically opposing views on the need to rein

in the power companies. The leading historian on this subject

describes the situation as follows:

Clearly, the ascendency of the Republican Party

during the 1920’s. tended to weaken the FPC. Es-

sentially opposed to federal regulation, the domi-

nant Republican philosophy was sympathetic to the

position of the large power corporations. Albert

B. Fall, W. M. Jardine, Hubert Work, John W.

Weeks, Patrick J. Hurley, and Ray Lyman Wilbur,

all of whom served on the FPC during the 1920's,

were conservatives who desired above all to help,

not hinder, private power. Under their benevolent

direction, the Power Commission became an in-

nocuous service agency, not a regulatory board.

D. Swain, Federal Conservation Policy, 1921-

1933 114 (1963).

Congressman Frank E. Smith of Mississippi, the eminent

historian of conservation politics, agrees:

Throughout the 1920’s the federal interest in

hydroelectric power development was supposedly

under the protection of the Federal Power Com-

mission, the cabinet agency created in 1920. Most

of the Cabinet members who Served on the commis-

sion during this period of its existence were frankly

sympathetic to private power interests whenever

1Until 1930, when the Federal Power Act was amended so as to make the

FPC an independent agency, the Commission was made up of the Secretaries

of War, Interior and Agriculture. See 41 Stat. 1063 (1920), amended 46

Stat. 797 (1930). (Franklin K. Lane, one of the signers of the letter quoted,

was replaced as Interior Secretary by John P. Payne, another conservationist,

who actually sat on the FPC. )

ee 6 gm

Be kiss ae

—

BR RASS, ee asas WEI

they opposed public power development. The com-

mission exercised no powers of regulation, and

probably would have been an outright service

agency of the power companies but for the integrity

of its secretary, O. C. Merrill. F. Smith, The Poli-

tics of Conservation 171 (1966).

These were the men who signed the Commission’s First

Annual Report. To rely on their views as to what the previous

conservationist Congress had iri mind is akin to asking a fox

to help design a burglar alarm system for a henhouse.

_ As to the consistency of the Commission’s views, the Indian

respondents submit that it actually constitutes bureaucratic

inertia, more than anything else. Virtually all the Commis-

sion’s disclaimers of jurisdiction cited by the government

(Brief, p. 26, n. 24) are one-line reassertions of the original

Annual Report’s conclusion. Stripped of its gaudy plumage

of “contemporaneous construction,” the Commission’s origi-

nal disclaimer is left to stand on its own merits, which are

somewhat less than spectacular. The entire subject of this

litigation, FPC jurisdiction over steam plants, which pro-

duced aa opinion below of more than 70 pages in the Court

of Appeals (App. 38a-112a), was disposed of in three de-

clarative, sentences (see government’s Brief, p. 25) without

one word of analysis, nor a single supporting authority. One

searches in vain for even a hint of the reasoning process which

led to this determination. The courts look with deep suspicion

on legal opinions which offer “nothing to support the conclu-

sion but the conclusion itself.” D.C. Federation of Civic

Ass’ns v. Volpe, 459 F.2d 1231, 1243 (D.C. Cir. 1972),

cert. denied, 405 U.S. 1030; cf. Citizens to Preserve Overton

Park v. Volpe, 401 U.S. 402 (1971).

The court below deduced that the Commission’s interpre-

tation had received a legislative imprimatur because it had

been transmitted to Congress, and there were no complaints

from the legislators (App. 76a-77a). See also government’s

Brief, pp. 26-30. The government also alluded to the fact that

the Commission has asked Congress for jurisdiction, but

again, no action was taken (Brief, p. 27).

A similar “ratification-by-silence” argument was rejected

in Wong Yang Sung v. McGrath, 339 U.S. 33 (1950). In that

case, the Immigration Service contended that its hearings in

deportation cases were not subject to the Administrative Pro-

cedure Act. The Service had submitted legislation specifically

seeking exemption from the A.P.A. to Congress, but it was

not passed. It argued that Congress was therefore aware of

the Service’s contention, and the fact that it had taken no ac- ’

tion disagreeing with that contention made it “at least argu-

able that Congress was prepared to specifically confirm the

administrative construction by clarifying legislation.” The

Court disposed of this argument in short order: “We do not

think we can draw that inference from incompleted steps in

the legislative process.” 399 U.S. at 47. See also Helvering v.

Hallock, 309 U.S. 106, 119-20 (1940), in which the Court

said, “To explain the cause of nonaction by Congress when

Congress itself sheds no light is to venture into speculative

unrealities.”

And, as this Court observed in American Trucking Ass’ns,

Inc. v. A. T. & S. F. Ry., 387 U.S. 397, 418 (1967):

The advocacy of legislation by an administrative

agency — and even the assertion of the need for it

to accomplish.a desired result — is an unsure and

unreliable, and not a highly desirable, guide to

statutory construction. The possibility of its use to

prove more than it means may, but should not,

deter administrative agencies from seeking helpful

clarification of autiiority or a fresh and specific

congressional mandate.

See also United States v. United Mine Workers of America,

330 U.S. 258, 281-82 (1947); United States v. Price, 361

—52—

U:S. 304, 312 (1960); Rainwater v. United States, 356 US.

590, 593 (1958).

B. The Taum Sauk case.

The court below (App. 80a-83a, see esnecially 88a), the

government (Brief, pp. 30-35), and the power companies

(Brief, pp. 52-53) lean heavily on this Court’s dictum in

FPC v. Union Elec. Co., 381 U.S. 90 (1965) (the Taum Sauk

case), to the effect that the Commission has no jurisdiction

over steam plants. The general rule is that dicta in previous

opinions does not bind this Court. Kastigar v. United States,

406 U.S. 441, 454-55 (1972). The peculiar circumstances

of the Taum Sauk case suggest even more strongly than usual

that this rule should govern in this case.

Taum Sauk, of course, did not involve a steam plant at all,

but a pumped storage plant, which is concededly a hydro-

electric facility, although it does possess some of the impor-

tant attributes of a steam plan (see p. 12 supra). Steam

plants were drawn into the discussion for this reason: the

power company argued that the Commission did not have to

apply for a license for the Taum Sauk plant because it was

located on a non-navigable headwater of a navigable stream,

and would have no effect on interstate commerce by water or

navigation. Congress intended to invoke only its power over

commerce in navigable waters, and not its plenary power over

interstate commerce, in the Federal Power Act, the company

-asserted. Therefore, the company reasoned, since its facility

would have no effect on water commerce, it was not subject

to the licensing requirement of 16 U.S.C. § 797(e). This

~ Court rejected this argument, finding that the language of the

statute, together with the discerned “breadth of the federal in-

_ terest.in hydroelectric projects expressed in the 1920 act,”

compelled the conclusion that “the preoccupation of the Com-

mission and the [Congressional] committees with navigation,

while not without significance, does not overcome the clear

wae

import of the language and the purposes of the Act.” 381

U.S. at 109.

If FPC jurisdiction were held to extend to its pumped stor-

age project on a non-navigable stream, argued the power

company, an “anomalous consequence” would result. It

would mean that steam plants would also be licenseable be-

cause they, like pumped storage plants, generate electricity

for sale in interstate commerce, and there would be no logical

basis for distinguishing between the two types of plants. But

since everyone, most notably including the FPC, the adverse

party in the litigation, assumed that steam plants are not

licenseable, the Commission’s jurisdiction must rest on the

narrow navigation power, rather than the broader interstate

commerce power.

This Court found its way out of the “conundrum” by em-

phasizing that Part I of the Federal Power Act

. . is concerned with the utilization of water re-

sources and particularly the power potential in wa-

ter. In relation to this central concern of the Act,

the distinction between a hydroelectric project and

a steam plant is obvious, and meaningful, although

both produce energy for interstate transmission.

381 U.S. at 110.

As the Indian respondents showed above in Points II and

III, this distinction is not obvious and meaningful, because

steam plants, such as those in the Southwest Energy Complex,

“will withdraw (often permanently) such large amounts of

water that the ‘power potential’ of majority [sic] waterways

will be affected adversely to an extent greater than that of

hydroelectric facilities’? (App. 87a). This Court proceeded

on the incorrect assumption that steam plants do not affect

waterways in Taum Sauk, because none of the parties had any

reason to apprise it of the facts discussed in this brief — the

power company, the government, and the court below had

LEP LLEL RAP A LODE ALE EM

es ae

cat Wi

PSE RNA TR Lat

—54—

all assumed the lack of FPC jurisdiction over steam plants. As

indicated above (Point IV-B) , determinations (or in this case

assumptions) that are non-adversary in nature do not have

the force of law. When important facts Were not brought to

the Court’s attention in a previous case, its holding is not

controlling in any subsequent litigation. Great Northern Ry.

v. United States, 315 U.S. 262, 279 (1942).

We agree with the government that the Taum Sauk lan-

guage does not foreclose “further consideration of the issue

presented here,” but emphatically disagree with its assertion

that its reasoning “warrants at least substantial weight in de-

ciding the present case” (Brief, p. 35). That language is mere

dictum, announced by this Court in a non-adversary setting

without the benefit of an exposition on the crucial facts

brought out in this case. The Indian respondents are entitled

to a full day in court on their claim; we urge this Court to

consider it now on its merits. a

C. The title and preamble to the Federal Power Act.

It is argued that the original title and the preamble to the

Act show that steam plants were not to be regulated (App.

72a-73a; government’s Brief, pp. 16-17). The Act was origi-

nally entitled “the Federal Water Power Act” and the pre-

amble denotes the statute as: “An Act to create a Federal

Power Commission; to provide for the improvement of navi-

gation; the development of water power; the use of the public

lands in relation thereto, and to repeal [a previous act], and

for other purposes” (41 Stat. 1063).

In general, titles are of little value in statutory construc-

tion. In Brotherhood of R.R. Trainmen v. Baltimore & Ohio

R.R., 331 U.S. 519 (1947), the railroad sought to base its

restrictive reading of a statute on its title. The Court rejected

its argument as follows:

That the heading .. . fails to refer to all the matters

which the framers of that section wrote into the

“eet

a. oe

text is not an unusual fact. . . . Where the text is

complicated and prolific, headings and titles can

do no more than indicate the provisions in a most

general manner. .. . As a result, matters in the text

which deviate from those falling within the general

pattern are frequently unreflected in the headings

and titles. Factors of this type have led to the wise

rule that the title of a statute and the heading of a

section cannot limit the plain meaning of the text.

331 U.S. at 528-29.

It is obvious that the Federal Power Act does far more

than create a commission, provide for the improvement of

navigation and development of water power and related uses

of public land and accomplish a repeal — the only subjects

mentioned in its title. Among other things, the Act gives the

Commission authority to conduct investigations on various

aspects of power production and transmission (§ § 4(a) and

(g)). It outlaws combinations and agreements to restrain

trade or fix prices (§ 10). It authorizes the Commission to

regulate licensees’ rates, service, and issuance of stock under

certain situations (§ 20). It grants the power of eminent do-

main to licensees (§ 21), and confers jurisdiction on district

courts to hear license revocation proceedings (§ 26). The

Act’s preamble, of course, does not refer to all these matters

and could not be expected to do so. “[T]o attempt to refer to

each specific provision would often be ungainly as well as

useless.” Brotherhood of R.R. Trainmen v. Baltimore & Ohio

R.R., 331 U.S. 519 at 528 (1947).

These diverse features of the Act, as well as the Commis-

sion’s incipient authority to license steam plants on navigable

streams, are subsumed under the broadly-inclusive last three

words of the title, “for other purposes.” Words such as these

have been read broadly by the courts. See, e.g., Caminetti v.

United States, 242 U.S. 470, 489 (1917); Pike v. United

States, 340 F.2d 487, 489 (9th Cir. 1965).

— 56 —

The government acknowledges the validity of this princi-

ple, but seeks to escape its force by citing, out of context,

additional language in the R.R. Trainmen case for the propo-

sition that the title and preamble may still be used as “tools”

to vary the plain meaning of the statutory text. The full text

reads: ‘

For interpretative purposes, they [titles] are of

use only when they shed light on some ambiguous

word or phrase. They are but tools available for the

resolution of a doubt. But they cannot undo or limit

that which the text makes plain. 331 U.S. at 529

(emphasis added).

Again, the “plain meaning” rule governs.

wees ST ses

V. THE COURT BELOW CORRECTLY RULED

THAT THE SIX PLANTS ARE SUBJECT TO FPC

JURISDICTION UNDER THE SURPLUS WATER

CLAUSE.

The court below ruled that the six plants are subject to

the jurisdiction of the FPC because they were “utilizing the

surplus water or water power from any Government dam.”

It expressed its belief that this clause, in contradistinction to

the “project works” clause, “does indeed mean what it says”

(App. 101a). This belief was fostered by two factors. The

first was the actual language employed in the clause:

Initially, it should be observed that the “surplus

water” clause does not refer to the licensing of

“project works” as does the “constructing, operat-

ing, and maintaining” clause. The words “project

works” in the latter clause follow the words “for the

purpose of,” and they are not found at all in the

“surplus water” clause even though that clause is

introduced by a second “for the purpose of.” By

their terms, then, the two licensing provisions of

§ 4(e) encompass different activities, and it does

not follow that the limitation of the reach of the

“constructing, operating, and maintaining” clause

of hydroelectric projects requires reading a similar

' limitation into the language of the “surplus water”

clause. App. 100a-101a.

The second factor was that, unlike the situation with re-

spect to the “project works” clause, the court found little

relevant extrinsic evidence on the meaning of the surplus

water clause. But what little it found, principally statutes.and

court cases, evidenced a governmental desire to control both

water and water power produced at governmental projects.

The government and the power companies disagree with

that conclusion, maintaining that the legislative history

Wits Lee aden CRORE

Ppitescnicns.

ron { ee

which, they claim, shows Congress’ intent not to liceiuse steam

plants under the “project works” clause is equally relevant

to construction of the “surplus water” clause. In addition,

the power companies contend, the legislative history indicates

that Congress believed that the term “surplus water or water

power” really was a synonym for “surplus power.” The Indian

respondents have already addressed the first_ proposition in

Points II through IV. In this point, we confine our discussion

strictly to the surplus water clause.

A. The construction urged by the petitioners would render

the surplus water clause nugatory.

The government (Brief, pp. 44-50) and the power com-

panies (Supplement to Brief, p. 2S and passim) contend that

“surplus water Or water power” must mean the same thing

as “surplus power,” because only the use of water from a gov-

ernment dam for the purpose of generating hydro power

is covered by the surplus water clause. This proposition, in

addition to violating common sense, transgresses against sev-

eral canons of statutory construction. The most important of

these was expressed by this Court in United States v. Men-

asche, 348 U.S. 528, 538-539 (1955): “It is our duty ‘to give

effect, if possible, to every clause and word of a statute,’

[citation] rather than to emasculate an entire section as the

Government’s interpretation requires.” In Washington Mar-

ket Co. v. Hoffman, 101 U.S. 112, 115 (1879), Mr. Justice

Strong called this a “cardinal rule of statutory construction.”

See also United States v. Lexington Mill & Elevator Co., 232

U.S. 399, 410 (1914).

But if the meaning of the surplus water clause is restricted

solely to the licensing of the use of water power from a gov-

ernment dam, there would be created a double surplusage in

the statutory language. First, the words “water and” before

“water power” would be rendered meaningless, because the

only use to be licensed, the development of hydroelectric

power, would already be covered by the term “water power.”

The Commission, itself, has recognized that surplus water

and surplus water power do not mean the same thing. In

California Oregon Power Co., 13 F.P.C. 1 (1954), the Secre-

tary of the Interior contended (as the government claims in

this case, see Point VII) that authority given to him under the

reclamation laws of 1906 and 1939 to grant power privileges

at government dams superseded FPC jurisdiction at those

dams. The Commission observed:

... The 1906 and 1939 Acts authorize the Secre-

tary to lease “surplus power” or “power privilege.”

These Acts seemingly relate to the sale of electric

power or the lease of water power including head

and water, but not to the sale or lease of water as

such. Where there is available stored water not to

be used in irrigation, which represents storage over

and above that needed for jrrigation, and which

would otherwise flow unuse@ down the main chan-

nel of the stream, that water is “surplus water,”

and, if used for power development, would require

a license from this Commission. Thus there is a dis-

tinction to be drawn between “surpius power” or

“power privilege” in the reclamation laws, and

“surplus water” from a Government dam as used in

the Federal Power Act; and we are here concerned

with surplus water only. 13 F.P.C. at 4.

Second, the petitioners’ narrow construction would render

the whole surplus water clause redundant. Under their read-

ing, every facility that would be covered under the surplus

water clause would already be subject to jurisdiction under

the “project works” clause. The surplus water clause would

therefore add no new subject of jurisdiction. The government

attempts to counter this compelling argument by hypothesiz-

ing a theoretical situation where the surplus water clause

applies but the project works clause does not. It concedes

—

that any hydro plant located on a navigable stream or on the

headwater of a navigable stream which affects downstream

uavigability would be subject to regulation under the project

works clause. See FPC vy. Union Elec. Co., 381 U.S. 90, 93

(1965); Central Maine Power Co. v. FPC, 345 F.2d 875

(1st Cir. 1965); Nantahala Power & Light Co. v. FPC, 384

F.2d 200 (4th Cir. 1967), cert. denied, 390 U.S. 945. Project

works with no effects on navigation still must be licensed if

* located on federal lands. FPC v. Oregon, 349 U.S. 435

\ (1955). Furthermore, the Union Electric case held that the

- Commission had “project works” jurisdiction over hydro

‘plants which, though their operations had no effect on navi-

- _ gability, produced power which is ultimately shipped in inter-

state commerce. The government then is left only with one

‘possible category of hydro plant that would not otherwise

be jurisdictional under the project works clause: “a hydro-

electric facility located on a non-navigable waterway, on

private land, generating electricity solely for intrastate trans-

mission, and in no other way affecting commerce, would re-

_ quire a license if, but only if, it were using surplus water from

_ a federal dam” (government’s Brief, p. 58).

ative pais tS RB Ba Be

While ingenious, this theory is lacking in one important

_ respect — there were no such facilities in 1920 and, to the

best of our knowledge, there still are none today. This is so

* because the federal government would have no constitutional

- _ basis for erecting a dam on such a stream, since by definition,

neither its power over navigable waters nor its authority to

regulate interstate commerce can be invoked. As the law was

understood in 1920 (and as it may well be today), the power

_ of the federal government to construct dams was based ex-

clusively on its authority over navigable waters. See, e.g.,

United States v. Chandler-Dunbar Water Power Cog 229

U.S. 53, 72-73 (1913), in which this Courtfound that since

the primary purpose of a government dam was the “‘legiti- -

mate” one of improving navigation, the secondary aim of

producing and selling wair was permissible. See generally 2

‘ “

ae Pega seb aaisigne " Nae eras ee NM get TOSI eon!

—<61 —

Waters and Water Rights 5-15 (Clark ed. 1967); cf. United

States v. Grand River Dam Authority, 363 U.S. 229 (1960).

All statutes authoriasng federal dams at that time contained

at least “a perfunctory reference to navigation as the basis of

the specific project.” 2 Water and Water Rights, supra at 14.

The tie-in between federal water projects and the navigation —

power was considered so fundamental that federal dams were

denoted “navigation dams” in some of the forerunners of the

Federal Power Act. See, e.g., 57 Cong. Rec. 4632, 4635

(1919), 56 Cong. Rec. 9912, 9913 (1918)..Indeed, the

power companies recognize the perceived need at the time the

Federal Power Act was debated to use navigation as a “juris-

dictional peg” to exercise control over water resources (Sup-

plement to Brief, p. 11S).

The government does not point to a single instance of a

government dam built before 1920 that was not constructed,

at least ostensibly, to aid navigation; we suggest no such

example exists. Therefore, its effort to find an application

for the surplus water clause which applies solely to hydro

(as opposed to steam) plants that would not otherwise be

covered by the project works clause fails. The surplus water

clause can have independent significance only if construed

to cover facilities other than hydro plants.

B. There is no evidence that Congress intended to give the

surplus water clause any construction other than its

ordinary meaning.

In Point I, we discussed the “plain meaning” rule, under

which the courts look to the literal janguage rather than ex-

trinsic sources to construe a statute. In general, the “plain

meaning” is to be determined from “the popular or received |

import of words.” Maillard v. Lawrence, 57 U.S. (16 How.)

251, 261 (1853). See also Eyster v. Centennial Bd. of Fi-

nance, 94 U.S. 500, 503 (1877). The courts will not accept

a construction that requires a “reading of the words of the

]

ORCL

statute in a strained or unnatural sense.” Woolford Realty

Co. v. Rose, 286 U.S. 319, 327 (1932).

To read the words “surplus water or water power” to ex-

clude water and mean only power, we submit, is to bring

this case within the reach of Woolford Realty — “The meta-

morphosis is too great to be viewed without a shock.” 286

U.S. at 327. The construction urged by the petitioners consti-

tutes a “curious, narrow, hidden sense that nothing but the

exigency of a hard case and the ingenuity and study of an

acute and powerful intellect would discover.” Lynch v. Al-

worth-Stephens Co., 267 U.S. 364, 370 (1925).

The petitioners base this rather amazing bit of statutory

construction on legislative history which, they claim, shows

that Congress used the terms “surplus water” and “surplus ~

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