# Amicus Curiae Brief — Chemehuevi Tribe of Indians v. Federal Power Commission > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0384%3A12 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1974 - **Citation:** 417 U.S. 944 ## Text Likes a CP bh Y 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. i, ; 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 - : Te. ORES AOE ERT IO RAE LON A BN af a3 che Ay Sale Wo _—- i eal van) Sina. ic as s are ov eb ea OY I ee Ree ey 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 2 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. — STI YS or ee oe Mek Sat Zt PLS Peri er re og zs ais saat ii it he {ois Aged RRR ae habe A uaa 4 3 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 4 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 4 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. 8 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 . 5 A 4 9 9 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. 10 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 4 ma he RAO Sh aN eh OT 11 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. - 12 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 | ee : 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 * 14 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 4 15 “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 17 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 ) 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 18 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 | 19 APPENDIX . , IN THE CHEMEHUEVI TRIBE OF,J NDIANS, ET. ‘AL., Petitioners, v. 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 oe 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 21 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 i 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 I. 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 10 13 20 <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 iv 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 ‘ 3 ! £ 5 | ‘ 3 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 v 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 vi 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 © Zuber v. Allen, 396 U.S. 168 (1969) ..... ee 46, 47 is < ix 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 | X 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 xi = 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 e - 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 a 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 s 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 N\ 4 4 3 4 j ¢ ¢ 4 | 4 i » 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. 2G 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 yy 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”). * S 2 = — 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 ce 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 ” — . Oe — 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 langua [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0384%3A12. Public record. Not legal advice.