# 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%3A15 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1974 - **Citation:** 417 U.S. 944 ## Text Tue CHEMEHVEVI Triee ov INDIANS ET AL., Petitioners, = | Ge Oe ee Feperat, Power Commission, Respondent. Anwzona Pusiic Sznvice. CoMPANY ET AL., Petitioners, v. THe CHEMEHUEVI TRIBE OF INDIANS ET AL., | Respondents. —_———— FepreraL Power Commission, Petitioner, 3 v. THE CHEMERUEVI ‘TRIBE OF Tewrans ET AL., Respondents. On Writs of Certiorari to the Unifed States Court of Appeals for the District of Columbia Circuit BRIEF FOR THE MONTANA POWER COMPANY, PACIFIC POWER & LIGHT COMPANY. PORTLAND GENERAL «- ELECTRIC COMPANY. PUGET SOUND POWER & LIGHT COMPANY. AND THE WASHINGTON WATER POWER COMPANY. AS AMICI CURIAE (The names and addresses of Counsel appear on the inside cover.) Paess or Byron S. Avams Paurrina, Inc., Wasmineron, D. C. =>, . . : C mict lotunss for the A Ww. A TR LAD ABA DE IAN POLRDEA LO D TABLE OF CONTENTS : Page Dabereet: of the Amiel CORO 2c. 665 cc icSiseidsi ics 2 PS ook oe 5 Rhee sae ies be eaa nse Veet cuns 3 Conclusion i whsaw Cals Wik en bee W ae eenhaeee eee 14 TABLE OF CITATIONS STATUTES : Federal Power Act § 4(e), 41 Stat. 1065 (1920), as aménded, 16 U.S.C. § T97(e) 3... 2... cccceess passim Montana Environmental Policy Act, R.C.M. 1947, §§ 69- a ih oe ee ws oven ge he 11, 12, 13,14 . Montana Strip Mined Coal Conservation Act, R.C.M. eB A nee ee ey ree 13 Montana. Strip Mining and Reclamation Act, R.C.M. ge 8? Seen ee 14 Montana Utility Siting Act of 1973, R.C.M. 1947, §§ 70- hg vow os tw eken re kens nea na 11, 12, 13 Montana Water Use Act, R.C.M. 1947, §§ 89-8-103 ff... 13 Nationa! Environmental Policy Act § 102(2)(C), 83 Stat. 853 (1970), 42 U.S.C. § 4332(2)(C) ..... 8, 10, 11 Wild and Scenic Rivers Act, 82 Stat. 906 uae as amended, 16 U.S.C. §§ 1271 §. . 0 ove eens MISCELLANEOUS: Bureau of Reclamation, U. S. Department of - Interior, Appraisal Report on ah eae W, yoming Aque- WO TIT) ones tk kc cu rh fankcaces ee eNs sss 5, 7,8 Ecological Consulting Service, Report ‘e the Siete Power Company: A Study of the Effects of heagaae Withdrawal From the Yellowstone River (1974).. North Central Power Study, Report of Phase I cit | PEE ERROR BG IB Ne eI BOR ailetiedinieiineeeetbinieeaie IN THE Supreme Court of the United States OcToBER TERM, 1974 No. 73-1380 THE CHEMEHUEVI TRIBE OF INDIANS ET AL., Petitioners, v. FEDERAL Power ComMMIssion, Respondent. No. 73-1666 ARIZONA PUBLIC SERVICE COMPANY ET AL., Petitioners, v. THE CHEM)HUEVI TRIBE OF INDIANS ET AL., Respondents. No. 73-1667 FEDERAL POWER COMMISSION, Petitioner, % THE CHEMEHUEVI TRIBE OF INDIANS ET AL., Respondents. BRIEF FOR THE MONTANA POWER COMPANY, PACIFIC POWER & LIGHT COMPANY, PORTLAND GENERAL ELECTRIC COMPANY, PUGET SOUND POWER & — LIGHT COMPANY, AND THE WASHINGTON WATER POWER COMPANY, AS AMICI CURIAE The Montana Power Company, Pacific Power & Light Company, Portland General Electric Company, Puget Sound Power & Light Company, and The Wash- BORNE Oer nr Secs Ree een i 2 ington Water Power Compauy file this brief as amici curiae, pursuant to Rule 42 of the Court and with the consents of all the parties. INTEREST OF THE AMICI CURIAE The five amici are investor-owned electric utilities and are together the principal suppliers of electric energy for commercial, industrial, and residential purposes throughout the Northwest, serving parts of Montana, Wyoming, Idaho, Washington, California, Nevada, and Oregon, To meet the growing need for electrical energy in the Northwest, these utilities have jointly commenced construction of a coal-fired steam electric generating project at Colstrip, Montana, in the eastern part of the state and about thirty-five miles south of the Yellowstone River at Forsythe, Montana. The Colstrip project, which will ultimately have four generating units with a total capacity of 2100 mw, will use cooling water from the Yellowstone diverted pur-’ suant to an appropriative right under Montana law. The first two units of the Colstrip project: are. now being constructed jointly by two of the amici and are scheduled to begin operation in 1975, The remaining two units will be built by ali the amici and are scheduled to commence operation in 1978 and 1979, Fuel for the project will be supplied by a nearby coal ‘mine operated by a subsidiary of one of the antici. The interest of the amici in the instant proceedings is twofold. First, the Buffalo Rapids Irrigation ‘Project, Custer Rod & Gun Club, Tongue-Yellowstone Beet Growers, and Trout Unlimited (hereinafter to- gether ‘‘Buffalo Rapids”’) have jointly filed a ceom- ‘plaint with the Federal Power Commission to require the amici to obtaima license from the Commission for 3 the Colstrip project under Section 4(e) of the Federal Power Act, 41 Stat. 1065 (1920), as amended, 16 U.S.C. §797(e). That proceeding thus raises in the Com- mission the issues now pending before this Court respecting the construction of Section 4(e) of the Act. Second, Buffalo Rapids has filed an amicus brief in this Court in which it argues that the projected use of Yellowstone water for the Colstrip and other projects demonstrates the need for reading the Act broadly, enough to embrace steam plants within the Commission’s licensing jurisdiction. The arguments based upon the relevant statutory language, legislative history, and the precedents in support of the position of the Solicitor General and of the Arizona Public Service Company et al. have been adequately preseited in the briefs of those parties. We shall therefore simply note our agreement in general with those arguments and with the position that Congress in enacting Section 4(e) of the Act did not intend that the Commission embrace steam electric generating plants within its licensing jurisdiction. We shall, however, respond to the ad hominem argu- ments made by Buffalo Rapids, because those argu- ments erroneously are based on unsupportable factual assertions about the Colstrip project of these amici. ARGUMENT The central contention of Buffalo Rapids through- out its brief is that although the legislative history of the Act ‘‘seems to focus on the hydroelectric basis for the development of the’’ Act, the Court should give a broad reading to the Act “to provide for a com pre- hensive scheme of water development vis-a-vis power production’? (Br. at 10; emphasis in original). With- 4 out this broad reading, argues Buffalo Rapids, there will be no adequate federal regulation of steam power plants using water from rivers such as the Yellow- stone; and corporations like the amici, by exercising state appropriative rights, will ‘‘pirate’’ these waters and ‘‘dewater’’ rivers like the Yellowstone ‘‘with the stroke of the pen’”’ (e.g. Br. at 9, 14-16). The example Buffalo Rapids offers the Court in support of the foregoing position is the use of Yellowstone water by the amici for the Colstrip project, allegedly by way ‘of “‘a different factual perspective’ from the use of Colorado River water by the ‘‘Four Corners plants”’’ (Br. at 2-3). We show in this brief that Buffalo Rapids’ ‘factual’? charges are untrue and sharply disputed. The Court has no record before it respecting the Yellowstone which would lend any support for a reading of the Act so broad as to embrace the licensing of steam plants. The analogy to the Colstrip project is not apt, both because of the very small amounts of water involved as compared with the flow of the river and with uses other than for power generation, and because of the extensive federal and state regulation and environmental review to which the Colstrip project is subject apart from FPC licensing. 1. We agree with Buffalo Rapids as to the need for “factual perspective’’, especially respecting the charges made about the Colstrip project and the al- leged ‘‘dewatering”’ of the Yellowstone River by the amici. The facts are that the average annual flow of the Yellowstone into the Missouri River, just east of the Montana border in North Dakota, is about 9 million 7 SEPSIS Sat ON Spit AES 5 acre feet.‘ This is net of all depletions—municipal, agricultural, and industrial. At normal operation, which will not be reached at least until some time in 1979, the Colstrip project will divert from the Yellow- stone for consumptive use about 30,000 acre feet per year, or only about one-third of one percent of the river’s present average annual fiow.? That miniscule diversion for Colstrip should be contrasted with the average annual diversion for agricultural purposes by Buffalo Rapids. During the period from 1966 to 1971 Buffalo Rapids and three other reclamation projects diverted annually an average of 424,000 acre feet — 1 Caleulations of the amount flowing into the Missouri differ. One measures the average annual flow from 1911-1970 at Sidney, Montana, a few miles downstream from the North Dakota border, at 12,980 efs, or about 9.4 million acre feet. Ecological Consulting Service, Report to the Montana Power Company: A Study of the Effects of Water Withdrawal From the Yellowstone River, Table IX at 39 (1974) (‘‘Data taken from Water Resources for Mon- tana, Part I. USDI, USGS, 1961-1971’’). The Bureau of Ree- lamation’s Appraisal Report on Montana-Wyoming Aqueducts (1972), p. 3, estimates that the ‘‘{a]verage annual discharge into the Missouri River is about 8.8 million acre-feet’’. For these pur- poses we accept the estimate of Montana Governor Judge in a state- -ment relied upon by Buffalo Rapids (Br. at 6) as to ‘‘a near an- nual flow of about 9 million acre feet of water at our border.”’ 2The annual consumptive use for Colstrip of about 30,000—out of 9 million—acre feet assumes normal operations at 80% of ca- pacity. The diversion will be pursuant to an appropriative right claimed and to be perfected under Montana law, and no water will be purchased from the United States. Given the small amount of water to be diverted and the fact that state regulatory authorities will require the project to be equipped with a storage pond capable of supplying the plant’s requirements for nearly two months, the Colstrip diversion will not be dependent upon the regulation of the stream flow by a government dam. Thus, there is no support for the allegation by Buffalo Rapids (Br. at 8) that the amici will use ‘‘surplus water’’ from a government dam within the meaning | of Section 4(e) of the Act. 5 3 : s if | RRR WR EN tae Cotas 6 nearly fifteen times that calculated for Colstrip.* The average annual diversion during that period by the Buffalo Rapids irrigation project alone was 84,561 acre feet. Under the doctrine of prior appropriation applicable in Montana, these agricultural uses are fully - protected against the Colstrip or any other subsequent use. These circumstances illustrate, first, the fact that the Colstrip diversion will not have any significant impact on the flow of the Yellowstone — and no impact at all on existing uses. These circumstances also demon- strate that FPC licensing jurisdiction over steam plants will not itself give the federal government com- _ prehensive authority to regulate the use of water from the Yellowstone or any other river. Moreover, in addition to the demands for water for reclamation- agricultural. projects, there are. significant additional demands for industrial, municipal, recreational, and agricultural uses which would not be covered’by FPC licensing jurisdiction over steam plants. Beyond the Colstrip project, there is no evidence before the Court or otherwise available of which we are aware giving any meaningful estimate of the future demands on the Yellowstone of the magnitude com- plained of by Buffalo Rapids. The Colstrip project is the only steam generating plant currently under construction which will use water from the Yellow- stone River system. In making its sensational allega- tions concerning potential uses, Buffalo Rapids relies 3 Ecological Consulting Service, supra n. 1, Table Vid~et 35 (‘Data taken from Crop Production Summary, Federal Reclama- tion Projects—Region 6. USDI, Bureau of Reclamation, 1966- re ae P 4 See n. 3 above. aaa 7 (Br. at 2-3) on halite far ‘‘potential’’ electric’ power development in a multi-state area from the ‘North Central Power Study,” a joint federal-industry study which was not continued after its first exploratory phase. It is clear even from its description by Buffalo Rapids, however, that that Study did not attempt to estimate what development would ultimately take place. Rather, the primary fecus of the Study was simply to identify locations within a five-state area where suf- ficient strippable coal reserves and water supply could be made available to support generating plants of 1000 mw or more. ° The other sources relied upon by Buffalo Rapids (Br. at 3-5) are equally hypothetical. They clearly rely either upon the North Central Power Study (see Br. at 3) or upon the Burean of Reclamation’s Appraisal Report on Montana-Wyoming Aqueducts (1972) (see Br. at 5). That reportfalso the first phase of a study project whose funding was not continued, only “‘identifie[d] water resources ... that may be available for development’. of coal resources in the Northern Great Plains states ‘to convey water from sources to points of possible use’’ ( Report, Cover Letter of the Project Direetor, April 1972). The report assumed, ees investigation of its own, a maximum ultimate demand of 2.6 million acre feet per ' year — an assumption based upon certain contracts giving options to purchase water in the future from the Bureau of Reclamation, ‘indicated interest’’ in additional water by ‘‘[e]nergy companies”’, and the -“reeently completed power study’’ discussed above (Report at 11). The report concluded, nevertheiess, | . Seé, c.g.. North Central Power Study, Berets of Phase I at 11 (October 1971). s ’ ihr ape 8 that even ‘‘in the driest vear,”’ and ‘‘after meeting all existing water uses. and after having supplied potential industrial water needs,”’’ ‘‘there will be ample water to"meet fuiure municipal. and agricultural needs”’ (Report at 31).° Buffalo Rapids points to a number of ‘‘options”’ and ‘‘applications’’ for the purchase of Yellowstone water fromm Bureau of Reclamation dams for industrial uses referred to in the foregoing-Appraisal Report (Br. at 5,6). But i#*making its charges that the river will be ‘‘dewatered’’ as a result, Buffalo Rapids assumes that all such options and applications will be exercised or granted to the maximum extent. In 1967 the Department of Interior began entering into option contracts for the sale of water stored behind Bureau of Reclamation dams in the Yellowstone and Missouri River systems, and several applieations for additional option contracts have been filed but not granted. However, in papers filed by the Department of Interior within the last few weeks in litigation in the District of Columbia, it was revealed that no such option con- tracts have been entered into since 1971; that ‘*[nJo water has been released pursuant to [these] options or contracts’? dating back to 1967; and that ‘‘no applications for release of water pursuant to options or contracts’? are now pending.* Moreover, it cannot ®The report noted that an “environmental impact statement as required by the National Environmental Policy Act of 1969 will be prepared prior to initiating feasibility investigations’’ Report at 30). 7 Affidavit of William W. Lyons, Deputy Under Secretary of the Department ofj Interior at 5; Answers of Defendant Rogers . C. B. Morton, Secretary of Interior, to Plaintiffs’ Revised Supple- mental Interrogatories to Federal Defendants, Nos. 27, 28 (Novem- ber 1974), Sierra Club Et Al. v. Rogers C. B. Morton Et Al., Civil Action No. 1182-73 (D. D.C.), appeal pending, No. 74-1389 (D.C Cir.). 9 be determined from an application or claim (by con- tract or appropriation) for an amount of water how much water will ultimately be put to beneficial con- sumptive use. For example, the initial appropriation claim tiled under Montana law for the Colstrip project vas for 181,000 acre feet of water per year, but the total annual consumptive use now projected for the entire Colstrip project will only be about 30,000 acre feet. It cannot be assumed that other so-called esti- mates of future water claims upon the Yellowstone of the kind relied upen by Buffalo Rapids will not prove similarly greater than original ‘safe’? estimates.® In short, the facts régarding the Colstrip project do not support Buffalo Rapids’ extravagant claim that a broad reading of Section +(e) of the Act is necessary to prevent a ‘‘dewatering’’? of the Yellowstone. The Court should not be asked to base its construction of an Act of Congress on unproven and untrue assertions that ‘‘corporations”’ are about to ‘‘pirate’’ the Yellow- stone and ‘‘dewater’’ that river. 2. Nor is a strained reading of the Act to provide the FPC licensing jurisdiction necessary to prevent “the uncontrolled exhaustion of the region’s water resources,’ as Buffalo Rapids claims (Br. at 16). The Buffalo Rapids brief asserts that unless this Court gives licensing jurisdiction to the Commission ‘‘a pri- vate utility can, without any Federal guidance or control whatever, pirate massive amounts of water 8 The Notice of Appropriation by the United States for the Buf- falo Rapids reclamation project, Dawson County, Montana Docket No. 193324, dated June 17, 1938, was for 1,340 cfs from the Yellow- stone system, or approximately 970,830 acre feet per year, more than ten times the average annual diversion of 84,561 acre feet for that project some thirty years later. 10 from public streams” (Br. at 15), and that ‘‘water- ways’’ like the Yellowstone, ‘‘dewatered at the laissez-faire whim of the corporations, ery out for some scheme of comprehensive Federal regulation”’ (Br. at 14). But the claim that there will be no adequate regulation if the Commission does not reg- ulate disregards the pervasive federal and state reg- ulation and: envitonmental review of every phase of the Colstrip project; “the exainple Buffalo Rapids proffers for the Court’s attention. To be sure, there is no other federal licensing juris- diction over the siting per se of steam power plants. However, because of the **checkerboard”’ arrangement of federal and privately owned lands in the Great Plains and in Montana in particular, federal regula- tion, with environmental review, is pervasive. Thus, the federal approvals which the owners of the Col- strip project either have sought or will seek include permits for the construction of transmission lines across federal lands, the granting of new mining leases of federally owned coal necessary to provide fuel for later stages of the project, and approval of mining plans. Each of these approvals by the Departments of Interior or Agriculture will require an environmental impact statement under Section 102(2)(C) of the National Environmental Policy Act, 83 Stat. 853 (1970), 42 U.S.C. § 4832(2)(C), and that impact state- ment will take into consideration the essential features of the project and their impacts, if any, upon the relevant environment. Indeed, the Bureau of Land Management of the Department of the Interior and the\Forest Service of the Department of Agriculture have ulready commenced the preparation of an environ- mental impact statement under NEPA respecting these 11 ‘ and other aspects of the Colstrip project; and the Deputy Under Secretary of Interior has directed that the impact ‘‘statement should cover the power- plant, its transmission line, the water pipéline, the -coal mine, and anv related ancillary facilities and rights-of-way.’’* And, should application ever be made to the Bureau of Reclamation by the developers of Colstrip or any other industrial project for actual purchase and delivery of water, Interior has made it clear that an environmental impact statement will be required under NEPA in each instance. " Additional legislation for regulation and environ- mental review by the State of Montana covers every aspect of thé Colstrip project.. The Montana Environ- mental Poliev Act, R.C.M. 1947, §§ 69-6501 ff., is virtually identical to NEPA on the federal level and applies to all state actions with respect to the con- struction of a power plant and all associated facilities, as well as all coal mining activties. Under the Montana Utilitv Siting Act of 1973, R.C.M. 1947, §§ 70-801 ff., no power facility may be constructed or ® Memorandum to the Director, Burean of Land Management, from William W. Lyons, Deputy Under Secretary, U.S. Depart- ment of Interior (February 22, 1974). 1° Letter from Martin H. Oleson, Jr.. Acting Regional Director, Bureau of Reclamation, U.S. Department of Interior, to all holders - of option contracts under the Industrial Water Marketing Program (May 20, 1971). '! Buffalo Rapids suggests the possibility of further federal reg- ulation in the form of inclusion of a ‘‘part of the Yellowstone River . . . under the Wild and Scenie Rivers Act,’’ 82 Stat. 906 (1968), 16 U.S.C. §§ 1271 ff. (Br. at 9). As Buffalo Rapids’ brief itself reveals, however, the portion of the river under study reaches ‘*from Gardiner to Pompey’s Pillar in Montana’”’ and is no closer than forty miles upstream from the amici’s point of di- version. 12 operated in Montana without a certificate of environ- mental compatibility apd public need by the Montana Board of Natural Resources and Conservation. Ap- plications under this act are now pending for permis- sion to construct the second phase of the generating plant, two 500 kv transmission lines, and a pipeline to earry.water from the Yellowstone River to Colstrip. ” A six-volume draft environmental impact statement respecting these applications has been prepared pur- sant to ‘‘MEPA’’,”* and some nineteen public M tings have been scheduled. The Montana Board of Natural Resources and Con- servation has already passed upon applications by the. amici under the Siting Act to construct the facilities necessary to divert water from the Yellowstone for use in connection with the first phase of the generating plant, including the construction of a water pumping station, water pipeline, and power transmission line from the river to Colstrip (Order of March 1, 1974).” 12 The construction of the cenerating plant itself for the first phase of the Colstrip project was commenced prior to the enact- ment of the Siting Act and is therefore not covered by that Act. However, as the discussion in the text discloses, the associated fa- cilities and environmental equipment necessary for the operation of even this first phase are cov.yed by the Siting Act. 13 Montana Department of Naturai Resources and Conservation, Draft Environmental Impact Statement on Colstrip Eiectric Gen- erating Units 3 & 4, 500 Kilovolt Transmission Lines and Asso- ciated Facilities (November 1974). 14 Letter announcement of the Montana Dept. Nat. Res. & Cons. (October 10, 1974). 15 Thus, Buffalo Rapids asserts incorrectly (Br. at 6) that the Montana legislature has passed a ‘*3-year moratorium on water di- versions from the Yellowstone River.’’ The statute suspends the g-anting of new permits for appropriations for three years or until ‘‘a final determination of existing rights has been made’’ 13 The action taken by the state with regard to these facilities was preceded by an environmental impact statement as required by ‘‘MEPA”’’.”® A similar appli- eation by the amici for a transmission line from Col- strip. to Broadview, Montana was cousidered and approved by the Board of Natural Resources and Con- servation (Order and Certificate. of November 15, 1974), and the Board had before it an environmental impact statement as to this portion of the project also.” Moreover, the Montana Utility Siting Act, R.C.M. 1947, §§ 70-801 ff., requires the State Department of Health and Environmental Sciences to certify that a proposed power facility will not violate established state and federal air and water anti-pollution stand- ards. The first phase of the Colstrip generating plant has been so certified by that Department (Permit No. 513-111472, April 23, 1973) after the preparation of an environmental impact statement which assessed all the various water and air pollution control equipment with which the Colstrip project is to be equipped.” All mining operations associated with the Colstrip project are governed by the Montana Strip Mined Coal Conservation Act, R.C.M. 1947, §§ 50-1401 ff., which under the state’s new Montana Water Use Act (R.C.M. 1947, §§ §9-8-103 ff). Moreover, the Act ‘‘does not apply to applications to appropriate water for use by a utility facility for which a cer- tifieate of environmental compatibility and public need is granted pursuant to the Montana Utility Siting Act of 1973’’ (R.C.M. 1947, § 89-8-109), as is the case with the proposed diversion for the Colstrip project. 16 Tssued by the Mont. Dept. Nat. Res. & Cons. in January 1974. 17Tssued by the Mont. Dept. Nat. Res. & Cons. in June 1974, with an addendum in October 1974. 18 Tssued by the Mont. Dept. Health & Env. Sciences in March 1973." 14 requires approval of mining plans on an annual basis by the Montana Department of State’ Lands. Finally, the Colstrip mining operations are also governed by the Montana Strip Mining and Reclamation Act, R.C.M. 1947, §§ 50-1034 ff. That Act may well be the strictest mining reclamation law in the United States and requires a mining operator to submit reclamation plans for approval and to post a bond that all acreage disturbed by strip mining is to be successfully re- claimed.” And, all approvals ofgmining and reclama- tion permits under these statutes must also be accom- panied by environmental impact statements under ‘*MEPA’”’, Whatever may be the case in other river basins, then, the state and federal regulation respecting steam power plants in Montana which draw water from the Yellow- stone River or its tributaries is pervasive. Aeccord- ingly, there simply is-no substance to Buffalo Rapids’ argument that this Court should read the Federal Power Act broadly on the ground that without FPC licensing jurisdiction there will be no adequate regu- lation. CONCLUSION There js nothing in the record of this case or in the arguments of counsel for Buffalo Rapids which would warrant stretching Section 4(e) of the Federal! Power Act in the fashion urged by the Chemehuevi Tribe and by Buffalo Rapids. The dimensions of future develop- 19 Surface Mining Permit No. 00003, issued on December 17, 1973 by the Department of State Lands to the Western Energy Company, a subsidiary of one of the amici operating at Colstrip, requires a bond of $2,796,860 for reclamation of the acreg cur- rently being mined. 15 ment of steam electric generating plants in the Yellowstone River system cannot be predicted at this time, but the facts regarding the Colstrip project clearly do not support Buffalo Rapids’ argument in. favor of FPC jurisdiction. Instead, they demonstrate the absence of any need for such a strained reading of the statute. A project that will divert only one-third of one percent of the average annual flow of the Yellow- stone River and which has been and will be scrutinized in virtually every detail by agencies of both federal and state governments, surely cannot accurately be said to demonstrate that the nation’s rivers either are ‘‘being dewatered’ “with a stroke of the pen”’ or ‘‘ery out for some scheme of comprehensive Federal regulation’ by the Federal Power Commission. Moreover, since the amount of water needed for the project is so small com- pared with known agricultural, municipal, and other industrial uses, even the strained :reading of Section 4(e) of the Act would not confer upon the Commission the authority necessary for a comprehensive regulation of the river. For these and other reasons advanced in the briefs of the Solicitor General and the Arizona — Public Service Company ct al., the decision of the court of appeals should be affirmed insofar as it held that the ‘project works” clause of Section 4(e) of the Act does not apply to steam generating plants and reversed inso- far as it held that the ‘‘surplis water’’ clause does apply to steam plants. There is no warrant for any other reading of the statute. Respectfully submitted, 16 ee eet Tei Francis M. SHEA RicuHarp T. Conway 4 Davip BootH BEERS : SHEA AND GARDNER 734 Fifteeuth Street, N.W. _ Washington, D.C. 20005 Wruiam H. CoLpiron MELVYN RYAN 40 East Broadway Butte, Montana 59701 : Warren Hastinas ! 621 S. W. Alder Street Portland, Oregon 97205 Dovc.ias P. BIEGHLE WILLIAM S. WEAVER PERKINS, COLE, STONE, OLSEN & WILLIAMS 1900 Washington Building Seattle, Washington 98101 ALLAN P. O’KELLY PAIneE, LOWE, CoFFIN, HERMAN & O’KELLY 1400 Washington Trust Bank Building Spokane, Washington 99204 RicHarp D. Bacu Rives, BoNYHADI & DRUMMOND: 1400 Public Service Building 920 Southwest Sixth Avenue Portland, Oregon 97204 Attorneys for the Amigf Curiae WRU eit Of Counsel: SHEA AND GARDNER 734 Fifteenth Street, N.W. Washington, D. C. 20005 Dated: January, 1975 Beeiwsivien 5g RAG RAY a ” Ay By Se Zs --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0384%3A15. Public record. Not legal advice.