Appendix — Montana Power Co. v. Federal Power Commission

Supreme Court brief1951

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APPENDIX

The Federal Power Act (Act of August 26, 1935, c. 687,

49 Stat. 838; 16 U.S.C. 791 et seq.)

Section 3(8)

Section 3(8) of the Federal Power Act defines “navigable

waters” as follows:

“ ‘Navigable waters’ means those parts of streams or other

bodies of water over which Congress has jurisdiction under

its authority to regulate commerce with foreign nations and

among the several States, and which either in their natural

or improved condition notwithstanding interruptions be-

tween the navigable parts of such streams or waters by falls,

shallows, or rapids compelling land carriage, are used or

suitable for use for the transportation of persons or property

in interstate or foreign commerce, including therein all such

interrupting falls, shallows, or rapids, together with such

other parts of streams as shall have been authorized by Con-

gress for improvement by the United States or shall have

been recommended to Congress for such improvement after

investigation under its authority.”

Sec. 23(a) - U.S.C., Title 16, Sec. 816:

“Sec. 23. (a) The provisions of this Part shall not be

construed as affecting any permit or valid existing right-

of-way heretofore granted or as confirming or otherwise

affecting any claim, or as affecting any authority heretofore

given pursuant to law, but any person, association, corpora-

tion, State, or municipality holding or possessing such per-

mit, right-of-way, or authority may apply for a license

hereunder, and upon such application the Commission may

issue to any such applicant a license in accordance with the

provisions of this Part and in such case the provisions of this

Act shall apply to such applicant as a licensee hereunder:

PROVIDED, That when application is made for a license

under this section for a project or projects already con-

structed the fair value of said project or projects deter-

mined as provided in this section, shall for the purposes

of this Part and of said license be deemed to be the amount

to be allowed as the net investment of the applicant in such

project or projects as of the date of such license, or as of

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the date of such determination, if license has not been issued.

Such fair value shall be determined by the Commission after

notice and opportunity for hearing.”

Sec. 23(b) - U.S.C. Title 16, Sec. 817:

“(b) It shall be unlawful for any person, State, or

municipality, for the purpose of developing electric power,

to construct, operate, or maintain any dam, water conduit,

reservoir, power house, or other works incidental thereto

across, along, or in any of the navigable waters of the United

States, or upon any part of the public lands or reservations

of the United States (including the Territories), or utilize

the surplus water or water power from any Government

dam, except under and in accordance with the terms of a

permit or valid existing right-of-way granted prior to June

10, 1920, or a license granted pursuant to this Act. Any

person, association, corporation, State, or municipality in-

tending to construct a dam or other project works across,

along, over, or in any stream or part thereof, other than

those defined herein as navigable waters, and over which

Congress has jurisdiction under its authority to regulate

commerce with foreign nations and among the several States

shall before such construction file declaration of such in-

tention with the Commission, whereupon the Commission

shall cause immediate investigation of such proposed con-

struction to be made, and if upon investigation it shall find

that the interests of interstate or foreign commerce would

be affected by such proposed construction, such person,

association, corporation, State, or municipality shall not con-

struct, maintain, or operate such dam or other project works

until it shall have applied for and shall have received a license

under the provisions of this Act. If the Commission shall

not so find, and if no public lands or reservations are af-

fected, permission is hereby granted to construct such dam

or other project works in such stream upon compliance with

State laws.”

Sec. 308(b) - U.S.C. Title 16, Sec. 825g(b):

“(b) All hearings, investigations, and proceedings under

this Act shall be governed by rules of practice and procedure

to be adopted by the Commission, and in the conduct thereof

the technical rules of evidence need not be applied. No in-

cas

ee a

formality in any hearing, investigation, or proceeding or in

the manner of taking testimony shall invalidate any order,

decision, rule, or regulation issued under the authority of

this Act.”

The Federal Water Power Act (Act of June 10, 1920,

Chapt. 285, Sec. 23, 41 Stat. 1075, U.S.C, Title 16,

Secs. 816, 817). (Before Amendment of 1935.)

“Sec. 23. That the provisions of this Act shall not be

construed as affecting any permit or valid existing right of

way heretofore granted, or as confirming or otherwise af-

fecting any claim, or as affecting any authority heretofore

given pursuant to law, but any person, association, corpora-

tion, State, or municipality, holding or possessing such permit,

right of way, or authority may apply for a license here-

under, and upon such application the commission may issue

to any such applicant a license in accordance with the pro-

visions of this Act, and in such case the provisions «his

Act shall apply to such applicant as a licensee hereunder:

PROVIDED, That when application is made for a license

under this section for a project or projects already con-

structed, the fair value of said project or projects, deter-

mined as provided in this section, shall for the purposes of

this Act and of said license be deemed to be the amount

to be allowed as the net investment of the applicant in such

project or projects as of the date of such license, or as of

the date of such determination, if license has not been issued.

Such fair value may, in the discretion of the commission,

be determined by mutual agreement between the com-

mission and the applicant, or, in case they can not agree,

jurisdiction is hereby conferred upon the district court of

the United States in the district within which such project

or projects may be located, upon the application of either

party, to hear and determine the amount of such fair value.

“That ary person, association, corporation, State, or

municipality intending to construct a dam or other project

works across, along, over, or in any stream or part thereof,

other than those defined herein as navigable waters, and over

which Congress has jurisdiction under its authority to regu-

lace commerce between foreign nations and among the

several States, may in their discretion file declaration of

such intention with the commission, whereupon the com-

SRR an a EE MS AEE MI ER 8 ECON RB as me area inn i it

—A4—

mission shall cause immediate investigation of such proposed

construction to be made, and if upon investigation it shall

find that the interests of interstate or foreign commerce

would be affected by such proposed construction, such

person, association, corporation, State, or municipality shall

not proceed with such construction until it shall have ap-

plied for and shall have received a license under the pro-

visions of this Act. If the commission shall not so find,

and if no public lands or reservations are affected, per-

mission is hereby granted to construct such dam or other

project works in such stream upon compliance with State

laws.”

Revised Statutes, Sec. 3477 (10 Stat. 170, Title 31, U.S.C. ;

Sec. 203).

“203. Assignments of claims void. All transfers and

assignments made of any claim upon the United States, or

of any part or share thereof, or interest therein, whether :

absolute or conditional, and whatever may be the considera- ‘

tion therefor, and all powers of attorney, orders, or other t

authorities for receiving ayment of any such claim, or of

any part or share, thereof, shall be absolutely null and void, ;

unless they are freely made and executed in the presence F

of at least two attesting witnesses, after the allowance of such ’

a claim, the ascertainment of the amount due, and the issuing |

of a warrant for the payment thereof.* * *.”

The Act of February 15, 1901, c. 372, 31 Stat. 790, U.S.C,

Title 16, Sec. 79.

“Chap. 372 - An Act Relating to rights of way through §

certain parks, reservations, and other public lands.

“Be it enacted by the Senate and House of Representatives

of the United States of America in Congress assembled,

That the Secretary of the Interior be, and hereby is, author- :

ized and empowered, under general regulations to be fixed :

by him, to permit the use of rights of way through the

public lands, forest and other reservations of the United

States, and the Yosemite, Sequoia, and General Grant y

national parks, California, for electrical pon poles, and al

lines for the generation and distribution of electrical power, ta

and for telephone and telegraph purposes, and for canals,

ditches, pipes and pipe lines, flumes, tunnels, or other water

BPE SS RE

a om

conduits, and for water plants, dams, and reservoirs used to

promote irrigation or mining or quarrying, or the man-

ufacturing or cutting of timber or lumber, or the supplying

of water for domestic, public, or any other beneficial uses

to the extent of the ground occupied by such canals, ditches,

flumes, tunnels, reservoirs, or other water conduits or water

plants, or electrical or other works permitted hereunder, and

not to exceed fifty feet on each side of the marginal limits

thereof, or not to exceed fifty feet on each side of the center

line of such pipes and pipe lines, electrical, telegraph, and

telephone lines and poles, by any citizen, association, or

corporation of the United States, where it is intended by

such to exercise the use permitted hereunder or any one

or more of the purposes herein named: PROVIDED, That

such permits shall be allowed within or through any of said

parks or any forest, military, Indian, or other reservation

only upon the approval of the chief officer of the Depart-

ment under whose supervision such park or reservation falls

and upon a finding by him that the same is not incompatible

with the public interest: PROVIDED FURTHER, That

all permits given hereunder for telegraph and telephone pur-

noses shall be subject to the provision of title sixty-five of

the Revised Statutes of the United States, and amendments

thereto, regulating rights of way for telegraph companies

over the public domain; AND PROVIDED FURTHER,

That any permission given by the Secretary of the Interior

under the provisions of this Act may be revoked by him

or his successor in his discretion, and shall not be held to

confer any right, or easement, or interest in, to, or over any

public land, reservation, or park.”

By the Act of February 1, 1905, c. 288 (33 Stat. 628), the

Secretary of Agriculture was authorized to issue such per-

mits under the 1901 Statute for use of lands within national

forests reserves.

REGULATIONS

Department of the Interior (March 1, 1913 - 41 L.D. 532

et seq.)

“Reg. 19. Violation by a final permittee of any of the

provisions of these regulations, or of any of the conditions

of a permit issued to him thereunder, shall be sufficient

ground for revocation of such permit; but attention is called

to the statute under which these regulations are issued, which

provides:

“That any permission given by the Secretary of the In-

terior under the provisions of this act may be revoked by

him or by his successor in his discretion.

“No permit will be deemed to be revoked except on the

issuance by the Secretary of a specific order of revocation.

Change of jurisdiction over lands from one executive depart-

ment to another will not revoke but will change the ad-

ministrative jurisdiction over a permit for the occupancy

and use of such lands. The final disposal by the United

States of any tract traversed by a right of way permitted

under this act shall not be construed to be a revocation of

such permission in whole or in part, but such final disposal

shall be deemed and taken to be subject to such right of

way until such permission shall have been specifically revoked

in accordance with the provisions of said act.”

Department of Agriculture (Issued December 14, 1915).

“Reg. L-17. Permission to occupy and use National

Forest lands may be transferred to a new permittee under

the following conditions and not otherwise: The proposed

transferee shall file with the district forester of the district

in which the lands under permit are situated the decree,

execution of judgment, will, contract of sale, or other written

instrument upon which the proposed transfer is based, or

a properly certified copy thereof, also a written applica-

tion for the transfer. A stipulation binding the proposed

transferee to the performance of such of the old condi-

tions and of such new and additional conditions as the

Secretary may deem necessary will be prepared and sub-

mitted to the proposed transferee for execution and return

to the district forester; and thereupon, if the Secretary ap-

proves of the transfer and issues a new permit, the transferee

shall succeed to the rights and obligations of the original

permittee, subject, however, to such new and additional con-

ditions as shall have been embodied in said stipulation and

permit.”

“Reg. L-19. Violation by a final permittee of any of the

= \

provisions of these regulations, or of any of the conditions

of a stipulation executed by him or of a permit issued to him

thereunder, shall be sufficient ground for revocation of such

permit.

“No final permit will be deemed to be terminated except

upon formal revocation thereof by the Secretary and until

the permittee shall have had a reasonable time - not to exceed

90 days - within which to show cause why such revocation

should not be made.”

TABLE OF DISTANCES —A8—

Distances up the Missouri River from its mouth to some

of the points referred to in the record.

Location Mile Location Mile

Mouth of River 0 Ryan 2249

Yellowstone River 1690 Site “C” 2251

Big Muddy Creek 1735 Crooked Falls 2254

Poplar River 1785 Rainbow Falls 2254

Redwater Creek 1787 Colters Fall 2254

Wolf Point, Mont. 1811 Rainbow Dam 2254

Wolf Creek 1817 Black Eagle Falls 2258

Little Porcupine Creek 1850 Black Eagle Dam 2258

Milk River 1866 Great Falls City 2260

Fr. Peck Dam 1878 Sun River 2261

Blackfoot Creek 1965 Smith River 2290

Trover Point 1975 Ulm 2292

Musselshell River 2004 Cascade 2316

Carroll, Mont. 2041 Half Breed Rapids 2327

Two Calf Island 2067 Dearborn River 2337

Zortman Ferry 2078 Stickney Creek 2340

Cow Island 2082 Craig 2343

Snake Point Island 2087 Little Prickly Pear Creek 2348

Snake Creek 2089 Holter Dam 2351

Bird Rapids 2096 Oxbow Bend 2358

Lone Pine Rapids 2103 Cottonwood Creek 2362

Dauphins Rapids 2109 Beartooth Rapids 2365

Gallatin Rapids 2113 Elkhorn Creek 2367

Holmes Rapids 2119 Mann Gulch 2368

Judith River 2124 Picnic Gulch 2370

Drowned Mans Rapids 2126 Gate of the Mountains 2372

Pablos Rapids 2137 American Bar 2373

Steamboat Rock 2142 Hauser Lake Dam 2380

Coal Banks Landing 2170 Prickly Pear Creek 2381

Loma 2190 Stubbs Ferry 2390

Marias River 2190 French Bar 2395

Brule Bar 2196 Canyon Ferry Dam 2398

Fontanelle Bar 2197 Townsend, Mont. 2432

Fort Benton 2212 Deep Creek 2435

Highwood Creek 2237 Cow Creek 2445

Portage Coulee 2242 Toston 2447

Belt Creek 2244 Gallatin River 2474

Morony 2245 Three Forks 2475

Great Falls 2249 |

Page

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ee ea PR INUOE sci cesscssssinsviccizseassatscvnscetiavisssaavintessilsueivscorievbinieiorvice 2

RRO MU MIN ND 555 cosa is ceca cevaiccssieeuchisvalinigvuks sipapssaivasanan dadeyinleibarianson 2

SOUND Sasss5ss ca sseedsvivetinasiecraceciolentcsbisectusreinven 2

A. Navigability of the River 5

Actual use 6

Suitability for use 9

Improvements above Fort Benton 11

Congressional assertion of jurisdiction .........c.c.ccseseseee-e 12

B. Claimed authorizations to oceupy public lands .............000... 13

a. Hauser 13

b. Hebgen 15

MTA RNIN oi nesstanyscsiatsesedcxvesiusyasvnck oihevesbisiasbei sbeiiovns 16

Conclusion .......... isesbdsineUniscledievaraabieclpsed 33

CITATIONS

Cases:

Arizona Vv. California, 283 U. 8. 423....ccccccccscsscsesceeees . 38, 19

Ball, Daniel, The, 10 Wall. 557 23, 26

Belmont Bridge v. Wheeling Bridge, 138 U.S. 287 ..cccccccccccccossss 25

Brown v. Duchesne, 19 How. 183 25

Consolidated Edison Co. v. National Labor Relations Board,

SPE WE G2 EN, ROPE Aaiescobsiva cue sites cilviesasin pine daal chusencacsievincioebunecivens ieee? 18

Economy Light & Power Co. v. United States, 256 U. 8. 113

aseepisestss 18, 19, 20, 22

Georgia Power Co. v. Federal Power Commission, 152 F. 2d 5

PO vai ecsss sashes vccatn sau cagtanscnsstoeacondisieontstovsunidhicautessduos tsienctdesicskcoousns 1

Gray v. Powell, 314 U. 8. 402 30

Louisville § Nashville RR v. Kentucky, 161 U. 8. 677.....0.0... 25

Moline Properties v. Commissioner, 319 U. 8. 436 .....c.ccccccesee.0- 30

Montana Power Co., Re, 4 F. P. C. 213 29

Montello, The, 20 Wall. 430 18, 19, 20, 21, 22

National Labor Relations Board v. Pennsylvania Greyhound

Lines, Inc., 303 U. S. 261..... 27

National Licorice Co. v. National Labor Relations Board,

309 U. S. 350 27

Novo Trading Corp. v. Commissioner of Internal Revenue,

113 F. 2d 320 ee 30

Oklahoma v. Texas, 258 U. 8. 574 22

Opp Cotton Mills v. Administrator, 312 U. 8. 126 ..ccccccccccososeos... 18

Panhandle Eastern Pipe Line Co. v. Federal Power Com-

mission, 324 U. 8S. 635 4

Pennsylvania Water & Power Co. v. Federal Power Commis-

sion, 123 F. 2d 155, certiorari denied, 315 U. 8. 806........ 18, 23, 26

Seaboard Air Line Railway v. United States, 256 U. 8. 655.... 30

Schenley Corp. v. United States, 326 U. 8. 432 30

Southern California Edison Co., In re, 7 F. P. C. Ann. Rep.

(1927) 142 ...... 27, 30

Sunshine Coal Co. v. Adkins, 310 U. 8. 381 27

United States v. Appalachian Power Co., 311 U. 8. 377

paren ers 17, 18, 19, 20, 21, 23

United States v. Arizona, 295 U. 8. 174 4

United States v. California, 332 U. 8. 19 32

(I)

Page

United States v. City and County of San Francisco, 310 U. S.

16 : 32

United States v. Utah, 283 U. S. 64 20

Wisconsin Public Service Corp. v. Federal Power Commission,

147 F. 2d 743, certiorari denied, 325 U. S. 880................ 18, 19, 26

Statutes:

Act of June 8, 1894 (28 Stat. 91) 13

Act of June 3, 1896 (29 Stat. 202) 12, 13

Act of March 23, 1900, c. 88, 31 Stat. 50.......cccccccccesesesesceceeeses 25

Act of February 15, 1901 (31 Stat. 790, modified by 33 Stat.

628, 16 U. S. C. 79, 522, 43 U. 8. C. 959)........ 2, 4, 13, 15, 27, 37

Act of April 28, 1904 (33 Stat. 570) 13

Act of February 1, 1905 (33 Stat. 628) 14, 38

Act of April 12, 1906 (34 Stat. 111) 13

Act of February 20, 1907 (34 Stat. 912) 13

Act of February 27, 1915 c. 68, 38 Stat. 816 : 25

Federal Water Power Act (41 Stat. 1063, as amended by 49

Stat. 838, 16 U. S. C. 791a et seq.) :

Sec. 3(8) 2, 3, 17, 20, 21, 35

Sec. 23(b) 2, 5, 26, 35 |

See IUD A: bas sinsahn eas sqabsensoen ceastentonad eases kine tuscenpeaneinlanuasoncleaiiebal 18, 36 |

See. 313(b) 4, 18

Federal Water Power Act, 41 Stat. 1063 2

Rev. Stat. 3477 31

River and Harbor Act of July 13, 1892 (27 Stat. 88).............0 12

= and Harbor Act of August 18, 1894 (28 Stat. 338,

D. Sinbkesinabickanss ov ssesh chsghsitiaaiesbobateestatae oeatababoasadasdassaasnrast a eksh a biaiansa 11

River and Harbor Act of March 3, 1899 (30 Stat. 1121, 1151) 4

River and Harbor Act of 1935 (49 Stat. 1028, 1034)................ 24

33 U. 8. C. 21-55 : 25

Montana Laws, Territory, 1867, 4th Reg. sess., p. 109.............. 8

Miscellaneous:

Annual Report of the Chief of Engineers for the Year 1901.... 9

Annual Report, Chief of Engineers (1947) 25

History of the Pacific States, Hubert Howe Bancroft (1890) 7

House Doc. No. 238, 73rd Cong., 2d sess., pp. 12, 268, 269 .... 24, 25

H. Rep. No. 910, 66th Cong., 2d sess., Pp. 7......cccceccsecseseeeeseeresees 23

Journals of Lewis and Clark 7

36 Land Decisions 579 14, 27

41 Land Decisions 150 13, 27, 28

41 Land Decisions 532 27

32 Op. A..G. 525 14, 32, 38

Regulations, Dept. of Agric., Forest Service Use Book, 1907

p 43, 1908, p. 55, 1911, pp. 32, 33 14, 28

5 Wigmore, Evidence (3rd ed.), Secs. 1422, 1597, 1598............ 18

RETREAT SIR er aa eee og ches een ony

Anthe Supreme Court of the United States

OcToBER TERM, 1950

No. 518

THE Montana Power CoMPANY, a corporation,

PETITIONER

FEDERAL PowreR COMMISSION

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE FEDERAL POWER COMMISSION

IN OPPOSITION

OPINIONS BELOW

The opinion of the Federal Power Commission

(R. 54-98) is reported at 77 P.U.R. 299. The opin-

ion of the Court of Appeals (R. 1670-1676) is re-

ported at 185 F. 2d 491.

JURISDICTION

The judgment of the Court of Appeals was en-

tered on October 4, 1950 (R. 1683). A petition for

rehearing, filed on October 18, 1950 (R. 1677), was

denied on November 1, 1950 (R. 1681). The peti-

tion for a writ of certiorari was filed on January

26,1951. The jurisdiction of this Court is invoked

under 28 U.S.C. 1254(1) and under Section 313(b)

of the Federal Power Act.

(1)

POLAR ARE NG AS ST

QUESTIONS PRESENTED

1. Whether the Missouri River, at the sites occu-

pied by six hydroelectric developments owned and

operated by The Montana Power Company consti-

tutes ‘‘navigable waters” as defined in Section 3 (8)

of the Federal Power Act.

2. Whether The Montana Power Company occu-

pies public lands at its Hauser and Hebgen devel-

opments “‘under and in accordance with the terms

of a permit or valid existing right-of-way granted

prior to June 10, 1920”’ within the exception con-

tained in Section 23(b) of the Act.

STATUTES INVOLVED

The pertinent provisions of the Federal Water

Power Act (41 Stat. 1063, as amended by 49 Stat.

838, 16 U.S.C. 791a et seq.) and of the Act of Feb-

ruary 15, 1901 (31 Stat. 790, modified by 33 Stat.

628, 16 U.S.C. 79, 522, 43 U.S.C. 959) are set forth

in the Appendix, infra, pp. 35-38.

STATEMENT

The petition in this case seeks further review

of that portion of the order of the Federal Power

Commission (Commission), issued on December

7, 1948, requiring The Montana Power Company

(Company), petitioner herein, to file applications

for license under the Federal Power Act for seven !

The Commission’s order, as issued, applied to the Com-

pany’s nine developments. As to one of these projects, Madi-

{ son, however, the Company has never questioned the necessity

of a FPC license; the Company admits that that project

NEL I EL I EIR ELIE IOP SH AIS te Bac ARNO Ys meat acts

hydroelectric developments which the Company

owns and operates in the watershed of the upper

Missouri River (R. 99-105).?

In so far as here pertinent, the Commission in

its order held that the 263 mile reach of the Mis-

souri River between Fort Benton (mile 2212 *)

and Three Forks (mile 2475) both in the State of

Montana, on which six of the developments here

involved (Morony (mile 2245), Ryan (mile 2249),

Rainbow (mile 2254), Black Eagle (mile 2258),

Holter (mile 2351), Hauser (mile 2380)) * were

located, constituted ‘‘navigable waters’”’ as defined

in Section 3(8) of the Federal Power Act, infra,

occupies public land without a permit (R. 79) and had applied

to the Commission for a license therefor (R. 60). The remain-

ing project, Canyon Ferry, was purchased from the Com-

pany by the United States in 1949, subsequent to the filing of

petition for review; the remand below of that phase of the

ease to the Commission for further consideration in light of

: these changed circumstances, the Company concedes (Pet. 2),

is not a ground for certiorari although the Company does

reserve the question should certiorari be granted (Pet. 2).

, ? The proceedings leading up to the issuance of this order

were begun by a show cause order issued by the Commission

on July 27, 1943, why the Company should not apply for

appropriate authorization for these developments (R. 12-14).

Extensive hearings were held before a Trial Examiner and

the Company was permitted to file exceptions to his report

and orally to argue the case before the Commission (R. 61).

3“*Fort Benton (mile 2212)’’ indicates that Fort Benton

is 2212 miles from the mouth of the Missouri River, that is,

from where the Missouri River joins the Mississippi River

above St. Louis, Missouri.

*Each of these developments includes a dam across the

River, a reservoir, a powerhouse and incidental works (R. 55).

RGN aaa AILS ae n earn avekear micas “che generat ail

—

p. 35 (R. 101-104, 61-78), and that since the Com-

pany made no claim to authorization so to obstruct

the River,’ licenses therefor were required (R.

105). Further, as to the Hauser project and the

seventh development here involved, Hebgen, which

is located on the non-navigable Madison River,®

the Commission rejected the Company’s claim that

by virtue of permits issued to its predecessors in

interest by the Secretaries of Agriculture and In-

terior prior to 1920, but never transferred to it

in accordance with applicable regulations, its oc-

cupancy of public lands at these developments was

“‘under and in accordance with the terms of a

Pe NE ee ee

° Before the Commission and the court below, the Company

claimed as to Holter that the permit which had been issued to ;

a predecessor in interest under the Act of February 15, 1901 ;

(31 Stat. 790), a publie land right-of-way statute (infra,

- pp. 37-38) and which, the Commission found had been validly

transferred to it (R. 81-82) authorized it also to oceupy naviga-

ble waters. Both the Commission and the court below rejected

that contention (compare the 1901 Act with River and Harbor

Act of March 3, 1899 (30 Stat. 1121, 1151; United States v.

Arizona, 295 U.S. 174) and the Company has now apparently

abandoned that claim. In its petition, however, the Company

attempts to reserve a question as to statutory authorization

for Holter to occupy navigable waters (Pet. 17, fn. 8), but this

reservation comes too late; the Company had not raised this ;

issue in its application for rehearing before the Commission :

(R. 106, 126-130) or in its Petition for Review (R. 2, 7).

Section 313(b) of the Federal Power Act; ef. Panhandle

Eastern Pipe Line Co. v. Federal Power Commission, 324

U.S. 635, 649.

® Hebgen consists of a dam and reservoir but no generating

facilities and is located about 110 miles up the Madison River,

which joins the Gallatin and Jefferson Rivers at Three Forks,

Montana, to form the Missouri River (R. 59).

—

permit or valid existing right-of-way granted prior

to June 10, 1920” (Section 23(b) of the Act, infra,

pp. 35-36) ; the Commission, accordingly, held that

these projects were not exempt from the licensing

provisions of the Act (R. 103-104, 82-92). The

Commission finally held, as an additional basis for

requiring licensing, that the Company’s develop-

ments, particularly when they were operated as

an integrated unit, affected the navigable capacity

of the Missouri River below Fort Benton (R. 104-

105, 93-98).

The Court below affirmed the Commission’s

order, holding (1) that the Missouri River above

Fort Benton constituted ‘‘navigable waters’? and

(2) that the Company did not have authorizations

to occupy public land at Hauser and Hebgen ex-

empting thera from the licensing requirements of

the Act (R. 1671-1676). The facts relevant to these

issues, as found by the Commission, which in most

respects are undisputed, may be summarized as

follows:

A. Navigability of the River: The Missouri

River is formed by the confluence of the Madison,

Jefferson and Gallatin Rivers at Three Forks

(mile 2475) in southwestern Montana (R. 64).

Generally, it flows northeasterly to a point about

30 miles beyond Fort Benton, and thence easterly

to southeasterly to its confluence with the Missis-

sippi River near St. Louis (R. 64). From Three

Forks to Stubbs Ferry (mile 2390) the River runs

for about 85 miles with a tolerably uniform fall

averaging five feet per mile (R. 1387). At Stubbs

Ferry the Missouri enters ‘‘a nearly continuous

canyon section’’ (R. 1387) which extends for 74

miles to Cascade (mile 2316) with an average fall

of 3.8 feet per mile; in this reach are the Hauser

and Holter Dams (R. 71). This is followed by the

Long Pool ‘‘a name descriptive of its character”’

(R. 1388) with a fall of 0.5 feet per mile, having

a length of 55 miles and ending at the mouth of

Sun River (mile 2261) (R. 71). For the next 17

miles to the mouth of Belt Creek (mile 2244) the

River drops 520 feet in passing through the Great

Falls of the Missouri, in which are located the

Company’s Black Eagle, Rainbow, Ryan and

Morony Dams (R. 65, 55). For the 32 miles below

- Belt Creek to Fort Benton, the average fall is 5

feet per mile (R. 71).

Actual Use: For the steamboats which came up

the River from St. Louis, the Great Falls pre-

sented a natural barrier (R. 65). As a result, Fort

Benton was sometimes labelled the ‘‘head of navi-

gation,’’ and until 1888, when the advent of the

railroads curtailed the demand for water trans-

portation, steamboat traffic up to Fort Benton

flourished (R. 64-65, 543-558, 1014-15, 1434). The

record shows, however, that three steamboats from

Fort Benton successfully navigated the River to

points more than 30 miles upstream from Fort

Benton and back (R. 65, 215-216, 1013, 1141-1142,

1207, 1450). Similarly, steamboats operating above

the Great Falls were confined there, portages be-

ing made around the Falls only with smaller craft;

for this upper part of the River, the “‘foot of

navigation”? was sometimes placed just above the

Falls (R. 1207; Ex. 17(a) (1880), p. 1474).

Before 1900, there was considerable use of the

263-mile reach of the River above Fort Benton,

the Falls always requiring a portage around them.

A number of exploratory and Government survey

trips were made in manually-powered crafts of

various sizes, notably the 1805 expedition under

Lewis and Clark, whose party made a successful

ascent to Three Forks and beyond (R. 64-65, 1357-

1383, 1549-1575). In 1872, Thomas P. Roberts, an

engineer for the Northern Pacific Railroad, in the

course of a survey of this part of the River, de-

scended the River from Three Forks to Fort Ben-

ton in a skiff (R. 66, 1147-1208).” In addition,

Hubert Howe Bancroft’s (1890) ‘History of the

Pacifie States’’ records the use of the River be-

tween Stubbs Ferry (mile 2390), about 85 miles

below Three Forks, and Fort Benton for the trans-

portation of large numbers of miners returning to

* Roberts concluded that the River above Fort Benton

could be relied upon for navigation without improvement

and his report supported a plan for a steamboat link between

Fort Benton and Three Forks, trans-shipping freight around

the Falls (R. 66, 1195-99). The Roberts’ report was regarded

as so useful that the Secretary of War approved its publica-

tion for use of the Army Engineers (R. 1147).

the States following the 1864 discovery of gold

where Helena is now located; according to Ban-

croft, a stage line was established to carry pas-

sengers from Helena to a point on the River

whence was operated a line of mackinaw boats

carrying passengers to Fort Benton, portaging

around the Falls (R. 66-67, 1415-1419).° This use

of the River apparently started soon after the 1864

discovery of gold in Helena, probably diminished

soon after 1868 when most of the gold had been

extracted, and ceased around 1870 when the placers

were exhausted ; clearly, however, the business was

lively around 1866-1867 (R. 67).°

Between 1867 and 1900, there was extensive in-

trastate use of the River between Stubbs Ferry

and Great Falls for the downstream transporta-

tion of loose logs and large rafts of lumber (R. 66,

417-418, 1142-1146, 1209, 1224-1228, 1263-1265,

1328-1329). Also, several small steamboats were

placed on the River above the Falls, for the most

part in the period after the close of the navigation

era below Benton (R. 66). This operation con-

8 Although no description of these boats is available, it seems

certain that they were manually-powered and probably were

—_— large sharpens, vbateaux (R. 67).

® Bancroft’s aecount is confirmed (1) by advertisements

of the boat service in contemporary Helena newspapers (R. 67,

1417, 1139-1141, 1210), and (2) by an 1867 legislative grant

of an exclusive privilege for a portage-toll road to the Mis-

souri River Falls Wagon Road Company (Mont. Laws, Terri-

tory, 1867, 4th Reg. Sess., p. 109.) (R. 67)

pertewyeca shea Nee pe oo ke “p 2s a =

a a PR ROR ee ee

es ek ts a a

tinued until around 1900 and was confined prin-

cipally to the 55-mile stretch known as ‘‘Long

Pool,’’ located immediately above the Great Falls

(R. 66, 391-397, 563-564, 1313-1315, 1323-1327,

1343, 1354, Ex. 17(b) (1892) p. 1906, (1895) p.

2227, (1898) p. 1850). Some steamboats were en-

gaged in the local, commercial carrying of freight

and passengers (R. 66).’°

Suitability for Use: From Three Forks to Fort

Benton, except in the Falls section, there was a

sufficient quantity and depth of water during most

of the navigation season, beginning about April 15

and ending about November 1, to support the light-

draft navigation formerly customary on the upper

reaches of Western Rivers (R. 70; Item F, p. 671,

733).

As to the adequacy of the channel, the Commis-

sion noted that between Three Forks and Stubbs

Ferry, the River varied in width from 250 to 600

feet ; between Stubbs Ferry and Great Falls, from

200 to 1000 feet (R. 70, 1182-1197, 1193-1195).

From Three Forks to Great Falls, there existed a

low water depth of not less than 2.5 feet, except in

15 places of which only five were below two feet

(R. 70), the least low-water depth found was 1.4

7°The Annual Report of the Chief of Engineers for the

Year 1901 (Ex. 17(b)) combining figures for traffic between

Great Falls and Cascade with those for traffic between Cascade

and Stubbs Ferry shows a total of 2,528 tons of freight and

11,175 passengers carried (p. 2394).

CaaS So ESI Ctl 8 ay Hate eh RL BE OE EMER

feet (R. 70, 1182-1193). As to the reach between the

Falls and Fort Benton, Roberts, in his survey

(supra, p. 7), found no depth less than two feet

and Captain Maguire of the Army Engineers re-

ported in 1883 that it might be navigated although

its slope would render navigation difficult (R. 70-

71; Ex. 17(a) (1883), p. 1342).

The Commission found that, outside of the Falls

section, the average slope did not exceed five feet

per mile (see p. 6, supra). In addition, while the

eurrent was swift at points between Fort Benton

and Three Forks, it was not so excessive as to pre-

clude navigation (R. 71) ; War Department exam-

inations revealed the swiftest current to be no more

- than five miles per hour (R. 71, Ex. 17(a) (1880),

p. 1474), less than at points in the Ohio River.”

The only serious obstructions between Fort Benton

and Three Forks, excepting the Falls section, were

Half-Breed and Beartooth Rapids and while there

are many accounts of actual passage through these

Rapids, no boat met with disaster here—a marked

contrast with the numerous wrecks which occurred

11 Roberts in his report compared conditions with those

on the Ohio River, saying:

At but few points is the current as swift as it

is in Glass-House Ripple, below Pittsburgh, where it

is over seven miles an hour at times, or as swift as it

is at Letart’s Falls, two hundred and thirty-two miles

below Pittsburgh. [R. 71, 1203-1204.]

ne a Rn ee

in the clearly navigable lower Missouri River (R.

71-72, 1008-1013).

The Commission further found that the charac-

teristics of the River were such that relatively

little improvement would be required to obtain

an unobstructed 2.5 foot channel permitting light-

draft navigation from Fort Benton to Belt Creek

below the falls and from the mouth of the Sun

River above the falls to Three Forks (R. 72). An

1880 War Department plan for improvement above

Great Falls would have provided a channel three

feet deep at low water from Great Falls to Cas-

cade and a 2.5 foot channel thence to Stubbs

Ferry; as finally revised in 1898, the cost of the

project of 130 miles was estimated as $213,646.50

(R. 72, Ex. 17(c) (1915), pp. 1896-1897). Simi-

larly, Roberts’ 1872 proposal for a narrow-gauge

rail link, including the cost of two steamers above

the Falls, was estimated at $247,800 (R. 72, 1195-

1199).

Improvements Above Fort Benton: In 1880,

Army Engineers expended about $15,000 for rock

removal and construction of wing dams at and

near Beartooth and Half-Breed Rapids (R. 73,

Ex. 17(a) (1881), pp. 1671-1672).’* Later, by the

River and Harbor Act of August 18, 1894 (28

12 Earlier, in 1878-1879, private operations by The Montana

Navigation Company had accomplished some removal of rocks

and construction of wing dams (Ex. 17(a) (1881), p. 1671;

R. 1250-1251).

Stat. 338, 358), Congress extended the upper

limits of the River under improvement to Stubbs

Ferry, directing that $20,000 be expended between

the Falls and Stubbs Ferry (R. 73-74). Between

1895 and 1899, $65,933.73 was expended in remov-

ing obstructions and constructing wing and closing

dams (R. 74, Ex. 17(c) (1915), pp. 1896-1897).

Operations were suspended in 1899 because of lack

of funds and absence of incentive to further im-

provement (R. 74, Ex. 17(c) (1915), p. 1897). Ap-

propriations for work above the Falls ceased with

the Act of June 3, 1896 (29 Stat. 202, 231-232)

(R. 74).

Congressional Assertion of Jurisdiction: Con-

gress authorized and directed surveys and exami-

nations of the River between Fort Benton and

Three Forks, and the resulting reports of the

Army Engineers consistently reflected its naviga-

ble status (R. 75, 1883-1393, Ex. 17(b) (1891), pp.

3733 et seq.; Ex. 17(b) (1894), p. 1780; Ex. 17(a)

(1880), pp. 1473-1474). Also in the River and Har-

bor Act of July 13, 1892 (27 Stat. 88), Congress

directed the War Department to make an exami-

nation of the River from Three Forks to Canyon

Ferry to determine at what points, if any, use

might be made of water power for manufacturing

or other purposes, ‘‘without unreasonably im-

pairing the navigability of that portion of said

river.’’ (R. 75) Furthermore, as already men-

tioned, supra, this page, Congress extended the up-

per limits for improvement of the River to Stubbs

Ferry and appropriated funds for use in making

improvements (R. 75). In addition, Congress re-

peatedly recognized the Missouri River as a navi-

gable water of the United States in authorizations

for construction of dams at various points all the

way from Fort Benton to Three Forks, and in

each instance it made express provision for pro-

tection of interests of navigation.

B. Claimed Authorizations to Occupy Public

Lands. (a) Hauser: The Company’s claimed

authorization to oceupy public lands at Hauser

is based on two permits issued in 1907 to Helena

Power Transmission Company (Helena), the com-

pany which began construction of the Hauser Dam

in 1905 (R. 83). One permit was issued to Helena

in January 1907 by the Secretary of the Interior

for a right-of-way over certain of the public lands

involved ‘‘in accordance with the provisions of the

act of February 15, 1901—31 Stat. 790—and the

regulations present or future thereunder’’ (R. 83).

This permit contains no provision allowing its

transfer or assignment but in regulations ap-

proved by the Secretary of the Interior on Au-

gust 24, 1912 (41 L.D. 150, 170), it was provided

that a permit may be transferred upon conditions

there specified ‘‘and not otherwise’’ (R. 84). The

18 Act of February 20, 1907 (34 Stat. 912) ; Act of April 12,

1906 (34 Stat. 111) ; Act of April 28, 1904 (33 Stat. 570) ; Act

of June 8, 1894 (28 Stat. 91) ; Act of June 3, 1896 (29 Stat.

202, 231-232).

RSET Py Ee

second permit was for the other public lands at

Hauser and was issued to Helena in March 1907

by the Department of Agriculture.’* This permit

on its face states that it ‘‘shall not be transferable’’

and is ‘‘terminable at the discretion of the For-

ester’? (R. 83). Succession to another’s benefits

under this permit required surrender of the origi-

nal permit whereupon the Agriculture Secretary

in his discretion might issue a new permit for the

remainder of the term (Regulation L-16. Use

Book, Department of Agriculture (1911) pp. 32-

33) (R. 85).

The Company acquired possession of these

permits in the following manner: In 1909, Helena

was merged with United Missouri River Power

Company which in 1906 had acquired all of its

capital stock (R. 83). Through a foreclosure sale

all of the assets of the United Missouri River

Power Company was acquired by the Missouri

River Electric and Power Company whose capital

stock was shortly thereafter in turn acquired by

the Butte Electric and Power Company (R. 83).

On December 12, 1912, the latter company and its

several wholly-owned subsidiaries, including Mis-

souri River Electric and Power Company, were

merged into The Montana Power Company, which

had been formed for that purpose (R. 83). In

14The Act of February 1, 1905 (33 Stat. 628) transferred

to the Secretary of Agriculture authority under the 1901

statute to issue such permits for use of lands within forest

reserves, See 36 L.D. 579, 581; 32 Op. A. G. 525, 527.

neither case was any effort made by the Company

to obtain the transfer of these permits to it in its

own name. Neither permit has been cancelled or

revoked; and the Company has paid the annual

rentals due on the Agriculture permit since its

organization in 1912, and on the Interior permit

since 1930, when such payments were first required

(R. 989-990).

(b) Hebgen: The Company’s claimed authoriza-

tion to occupy public lands at Hebgen is based on

two permits issued by the Secretary of Agriculture

in 1914 and 1915 respectively to the Montana Res-

ervoir and Irrigation Company (Reservoir Com-

pany) which had been organized in 1906 for the

purpose of constructing and operating Hebgen.

One permit issued to Reservoir Company under

the 1901 land-permit statute supra, p. 13, infra, pp.

37-38, was a Final Power Permit covering 13,415.5

acres of public land flooded by the Hebgen Res-

ervoir (R. 91-92); Article 4 of this permit ex-

pressly allows its transfer under conditions therein

specified ‘‘and not otherwise’’; no transfer could

be made without the prior approval of the Sec-

retary to whom was reserved the power to impose

upon the transferee ‘‘new and additional condi-

tions’’ (R. 92)."* The second Agriculture permit

15 The full text of Article 4 reads:

This Permit and the permission granted hereunder

to oceupy and use National Forest lands may be trans-

ferred to a new Permittee under the following condi-

tions, and not otherwise : The proposed transferee shall

- 16

was granted to Reservoir Company in October

1915 and covered an additional 84.5 acres of public

land occupied by a ‘‘camp site.’’ This permit

specifically provided that it ‘‘is not transferable”’

(R. 92). The Company acquired possession of

these permits in May 1934, when it acquired all of

Reservoir Company’s property in exchange for

the latter’s outstanding stock which the Company

had held since as early as 1916 (R. 92). Neither

of these permits has been revoked or cancelled,

nor has the Company sought or obtained the ap-

proval of the Secretary of Agriculture for their

transfer (R. 92). The Company, however, has

since 1935 paid the annual rentals due under the

Final Power Permit (R. 989).

ARGUMENT

1. (a) The Commission’s holding that the por-

tion of the Missouri River here involved is a

file with the District Forester of the District in which

the lands to be occupied are situated the decree, execu-

tion of judgment, will, proposed contract of sale, or

other written instrument upon which the proposed

transfer is based, or a properly certified copy thereof,

also an application by the proposed transferee in the

form of a stipulation binding the proposed transferee

to the performance of such new and additional condi-

tions expressed therein as the Secretary may deem

necessary ; and thereupon the Secretary may, in his

discretion, approve in writing the proposed transfer,

and after such approval the transferee shall succeed

to all the rights and obligations of the Permittee,

subject, however, to such new and additional condi-

tions as shall have been embodied in such stipulation

and so approved. [R. 1101-1102.]

Bracesenrse ew SRI ARE RE ie RNR te cae Sep RIO PLES LOLITE PRC L ELM SIGHT Sra tt i ae Bis ee

‘“‘navigable water’’ as defined in Section 3(8) of

the Act fully satisfies, we submit, the criteria for

determining navigability which are there set out

and which have been judicially applied prior to, as

well as in, United States v. Appalachian Power

Co., 311 U.S. 377. Clearly, even the upper Mis-

souri River is more navigable than portions of

the New River involved in the Appalachian case.

Section 3(8) of the Federal Power Act defines

‘navigable waters’’ as follows:

(8) ‘‘navigable waters’’ means those

parts of streams or other bodies of water

over which Congress has jurisdiction under

its authority to regulate commerce with

foreign nations and among the several

States, and which either in their natural or

improved condition notwithstanding inter-

ruptions between the navigable parts of

; such streams or waters by falls, shallows, or

rapids compelling land carriage, are used

I or suitable for use for the transportation

of persons or property in interstate or for-

eign commerce, including therein all such

interrupting falls, shallows, or rapids, to-

gether with such other parts of streams as

shall have been authorized by Congress for

; improvement by the United States or shall

have been recommended to Congress for

such improvement after investigation under

its authority;

As was stated in the Appalachian case, ‘‘use of

a stream long abandoned by water commerce is

ears eRe AoE EE PE OT prey YOSROLENS SEC tag am Binge ntconih Dt wy

difficult to prove by abundant evidence.’’ United

States v. Appalachian Power Co., 311 U.S. 377,

416. The Commission however did find—and these

findings are supported by substantial evidence and

hence conclusive here (Section 313(b) of the Act)

—that the River was used for through transporta-

tion by Lewis and Clark in 1805 (supra, p. 7),

by Roberts, the Northern Pacific engineer, in 1872

(supra, p. 7), and by a commercial company

carrying gold miners back to the States from

Helena in the late 1860’s (supra, pp. 7-8).** The

16 The Company attacks the Commission’s finding as to the

use of the River for transportation of miners because based

principally on a historical treatise and contemporaneous disin-

terested newspaper advertisements, which, the Company

asserts, is inadmissible hearsay (Pet. 8-9; 29). But in recog-

nition of the great difficulty of proving ancient facts (cf.

United States v. Appalachian Power Co., 311 U.S. 377), this

Court has permitted the relaxation of common law rules of

evidence to permit the introduction of such trustworthy his-

torical materials. The Montello, 20 Wall. 430, 440-442 (his-

torical treatise and newspaper advertisements relied on to

establish ancient use of the River) ; Economy Light Co. v.

United States, 256 U.S. 118, 117; Arizona v. California, 283

U.S. 423, 453, fn. 3; 5 Wigmore, Evidence (3rd Ed.) Sees.

1422, 1597, 1598. Moreover, even if these materials were inad-

missible under the technical rules of evidence, the Commission

was not precluded from admitting such evidence (see Section

308(b) of the Act, 16 U.S.C. 825g(b) ; ef. Consolidated Edison

Co. v. National Labor Relations Board, 305 U.S. 197, 229-230)

and from placing some reliance upon such evidence in arriving

at its conclusions when, as here, the Commission finds it to

be of substantial and probative value. Cf. Opp Cotton Mills v.

Administrator, 312 U.S. 126, 155; Pennsylvania Water &

Power Co. v. Federal Power Commission, 123 F.2d 155

(C.A. D.C.), certiorari denied, 315 U.S. 806 ; Wisconsin Public

Commission also found that above the Great Falls

there had been substantial use of the River both

for commercial and pleasure boats as well as for

floating logs and lumber, and that below the Falls,

several steamboats had sailed almost up to the

Falls. These findings fully support the Commis-

sion’s finding of navigability based on actual use

(R. 67-68) for it is settled that the actual use of a

stream by any kind of vessel (The Montello, 20

Wall. 430, 442) or even for the floating of logs may

serve to establish its status as a navigable water

of the United States. United States v. Appalach-

tan Power Co., supra, at 405; Wisconsin Public

Service Corp. v. Federal Power Commission, 147

F, 2d 743, 747 (C.A. 7), certiorari denied, 325 U. S.

880. The fact that the River’s use for such trans-

portation was for but a short period of time and

has long since ceased is immaterial (Economy

Light & Power Co. v. United States, 256 U. 8. 113,

118, 123-4; Arizona v. California, 283 U. S. 423,

453-4; United States v. Appalachian Power Co.,

supra, at 408), particularly where, as here, the use

of the River ceased because of the advent of the

railroads. United States v. Appalachian Power

Co., supra, at 413.

Also supporting the Commission’s conclusion

that the River was navigable is the finding that the

Service Corp. v. Federal Power Commission, 147 F.2d 743

(C.A. 7), certiorari denied, 325 U.S. 880; Georgia Power

Company v. Federal Power Commission, 152 F.2d 908

(C.A. 5).

River was suitable for use in interstate commerce

both in its natural and improved condition—the

second criterion of navigability set out in Section

3(8), supra, p. 17. This test is much broader than

“the actual use’’ test and embraces susceptibility

or capability of use for transportation and com-

merce whether or not there has been any actual

use. United States v. Utah, 283 U. &. 64, 82-3;

Economy Light & Power Co. v. United States,

supra, at 122, 123; The Montello, supra, at 441-3.

Here, the Commission considered the physical

characteristics of the River, set forth in the state-

ment (pp. 5-6, 9-11, supra), and pointed to a War

Department plan, finally revised in 1898, for pro-

viding a channel of not less than 2.5 feet deep at a

cost of $213,646.50, together with an inexpensive

narrow-gauge rail link around the falls (supra, p.

11). These findings, together with the finding

as to actual use of the River both above and below

the Falls, even assuming arguendo that use to have

been purely intrastate and non-commercial,”

clearly support the Commission’s conclusion

that with a land carriage around the Falls, the

River was suitable for use for purposes of com-

merce in a natural state or with reasonable low cost

17 “Nor is lack of commercial traffic a bar to a conclusion

of navigability where personal or private use by boats dem-

onstrates the availability of the stream for the simpler types

of commercial navigation.’’ United States v. Appalachian

Power Co., supra, at 416.

improvements (R. 72).’* Cf. The Montello, supra;

United States v. Appalachian Power Co., supra,

at 417-419.”

(b) The Company claims that since the Great

Falls preclude literal through use of the River and

thus prevent it from forming an unbroken high-

way, the portion of the River here involved could

not be a ‘‘navigable water’’ of the United States

(Pet. 3, 22). But while no stream can by itself con-

18 The Company suggests that the only useful improvement

would cost $1,300,000,000 and that at present such an under-

taking would be unjustified (Pet. 21-22). This project would

involve the improvement of the River from Sioux City, Iowa

(mile 768) to Three Forks to a commercial depth of nine feet

(see R. 73) which the Company’s experts characterized as

‘‘fantastie’’ (R. 661), ‘‘ridiculous’’ (R. 828), and ‘‘prepos-

terous’’ (R. 857). But, as pointed out in the text no such

elaborate improvement is necessary to make the portion of the

River here involved more easily usable by light-draft boats.

Moreover, the determination whether a navigation improve-

ment is justified is not restricted to an evaluation of

eurrent or prospective economic considerations and commer-

cial conditions, it being requircd only that there be a balance

between cost and need ‘‘at a time when the improvement would

be useful.’’ United States v. Appalachian Power Co., supra, at

407-408.

1 Also supporting the Commission’s conclusion is the evi-

dence of navigability in the authorizations by Congress for

improvements (supra, p. 12); Section 3(8) includes as

navigable waters:

* * * such other parts of streams as shall have been

authorized by Congress for improvement by the United

States or shall have been recommended to Congress

for such improvement after investigation under its

authority

The Commission’s reference to these authorizations to support

its conclusion is not, as the Company claims (Pet. 26), con-

stitute an unbroken highway if at any point a land

carriage or portage is necessary, such a condition

is not a prerequisite to a finding of navigability.

This is clear from the Act’s definition of ‘‘naviga-

ble waters’’ which expressly includes ‘‘all falls,

shallows, or rapids compelling land carriage’”’

where the stream is used or suitable for use de-

spite such interruptions between the navigable

parts. And this definition is in accord with estab-

lished principles. In The Montello, 20 Wall. 430,

this Court rejected the lower court holding that the

Fox River was not navigable by reason of ‘‘several

rapids and falls’’ and concluded that it had always

been navigable in fact, saying (20 Wall. at 442-

443):

the rule laid down by the district judge

as a test of navigability cannot be adopted,

for it would exclude many of the great

rivers of the country which were so inter-

rupted by rapids as to require artificial

means to enable them to be navigated with-

out break. Indeed, there are but few of our

fresh-water rivers which did not originally

present serious obstructions to an uninter-

rupted navigation.

In the Economy Light Co. case, the Court stated

that (256 U.S. at 122):

navigability, in the sense of the law, is

trary to Oklahoma v. Texas, 258 U.S. 574. Here, unlike

Oklahoma v. Texas, the inference of navigability from the im-

provements is not ‘‘overcome by the actual conditions disclosed

in the course of the work’’ (258 U.S. at 590) or, indeed, by

the other findings of the Commission.

esecrcriees Spe ae CARS NNER poe wail

not destroyed because the watercourse is in-

terrupted by occasional natural obstructions

or portages * * *.

And the Appalachian case declares that (311 U.S.

at 408-9) ‘‘There never has been doubt that the

navigability referred to in the cases was naviga-

bility despite the obstruction of falls, rapids, sand

bars, carries, or shifting currents.’’

In the instant case, the interrupting Falls cover

a 17-mile section, never navigated in fact, and

require a portage of about 18 miles (R. 69). But,

as shown supra, pp. 7-8, many trips along the River

were made via portage around the Falls. Such

an interruption does not sever the upper 214 miles

of the Missouri from the lower 2,244, but rather

is merely an obstruction notwithstanding which

the River was used as a continued highway in

interstate commerce at least as far upstream as

Stubbs Ferry. Cf. The Daniel Ball, 10 Wall. 557,

563; Pennsylvania Water & Power Co. v. Federal

Power Commission, 123 F.2d 155, 161 (C.A.D.C.),

certiorari denied, 315 U.S. 806. It follows that the

presence of the Falls does not destroy the River’s

status as a navigable water of the United States.”

20 Even if the Act’s definition of navigable waters does not

fully correspond with established judicial criteria, Congress

clearly has the power, and the legislative history plainly indi-

cates that it intended to exercise it (H. Rep. No. 910, 66th

Cong., 2d Sess., p. 7), to regulate waters in such an interrupt-

ing reach of a navigable stream. Otherwise, its admitted power

to regulate lower navigable portions of the stream could be

destroyed through the location of obstructions in the inter-

rupting reach.

(¢) The Company finally claims that Congress

abandoned navigability of the upper Missouri

River when it passed the River and Harbor Act of

1935 (49 Stat. 1028) authorizing the construction

of the Fort Peck Dam located at mile 1869, about

375 miles below the Company’s lowermost develop-

ment, ‘‘in accordance with the plans recommended

in” H. Doe. No. 238, 73d Cong., 2d Sess. and

“subject to the conditions set forth in such docu-

ments’’ (49 Stat. 1028, 1034). The document re-

ferred to contained the District Engineer’s report,

which expressed opinions, upon which petitioner

relies, to the effect that the reservoir at Fort Peck

would render the section of the river from the Fort

Peck Reservoir site to Fort Benton, Montana, non-

navigable. House Doc. No. 238, 73rd Cong., 2d

Sess., pp. 268, 269 (Pet. pp. 5, 27).?"

But the congressional authorization adopted

only the plans and conditions specified in the

House Document, not the opinions of the District

Engineer, which apparently are not shared by his

superiors,” and which subsequent events have

21 The Company also points to the later authorization by

Congress of the ‘‘Pick-Sloan’’ plan, providing for additional

dams downstream; as these are constructed, the Company

argues, the head of navigation will be pushed farther down-

stream (Pet. 5).

2 The Chief of Engineers in concurring with the District

Engineer’s ‘‘general plan of improvement,’’ recommended

that ‘‘the reservoir at the site of Fort Peck be built to the

“=

shown to be incorrect.** The congressional au-

thorization to construct Fort Peck thus clearly

does not contain any explicit legislative declara-

tion which has traditionally been regarded as nec-

essary for surrendering sovereign authority in

regard to a matter of public concern. Brown v.

Duchesne, 19 How. 183, 195; Belmont Bridge v.

Wheeling Bridge, 138 U.S. 287, 292-293 ; Louisville

& Nashville R.R. v. Kentucky, 161 U.S. 677, 685-

686. When Congress has intended to declare a

stream not navigable in the past, it has done so

explicitly. Cf. Act of March 23, 1900, ¢. 88, 31

Stat. 50, and Act of February 27, 1915, c. 68, 38

Stat. 816, and other statutes collected in 33 U.S.C.

21-55.

Nor has the mere presence of a dam, although

without locks, prevented the courts from holding

maximum practicable capacity; and be operated primarily

for navigation.’’ House Doe. No. 238, supra, p. 12. In addition,

in the course of the Commission hearing, the Chief of Engi-

neers advised the Commission that, in the view of the Corps

of Engineers, the Missouri River is a navigable water of the

United States from Stubbs Ferry—if not Three Forks—to

its mouth, and that the construction of Fort Peck Dam had

not affected the jurisdiction of the War Department with

respect to the navigable status of the Missouri River above

that dam (R. 1648-1649).

23 The map contained in the petition (p. 10) shows that the

Fort Peck Dam has created a reservoir many miles in length

which may well have improved navigation above the dam. As

late as 1947, the Department of the Army reported that

“‘depths which will accommodate large boats are available

on the Fort Peck Reservoir and drafts of 22 inches are prac-

ticable from the reservoir to Fort Benton’’ (Ann. Rep. Chief

of Engineers (1947), p. 1541).

a stream to be navigable at and above the site of the

dam (Wisconsin Public Service Corp. v. Federal

Power Commission, 147 F.2d 743 (C.A. 7), certi-

orari denied, 325 U.S. 880; Pennsylvania Water

& Power Co. v. Federal Power Commission, 123

F.2d 155 (C.A.D.C.), certiorari denied, 315 U.S.

806), and the presence downstream of a barrier,

even if it be a licensed dam, has not barred the

conclusion that an upstream dam is located in a

navigable water (id. at 161). Interstate freight

may be carried on a dammed-up portion of a navi-

gable stream whether or not an uninterrupted

through passage on the river is possible. Cf. The

Daniel Ball, 10 Wall. 557. Moreover, Congress

has power to provide subsequently for passage

of boats or freight around the dam—or for that

matter to remove the dam—should future trans-

portation circumstances provide justification.

The dam thus does not deprive the stream of its

navigable status.

2. The Commission, we submit, properly held

that the Company’s occupancy of public lands at

its Hauser and Hebgen developments was not

“funder and in accordance with the terms of a per-

mit or valid right-of-way granted prior to June

10, 1920,’’ and hence not exempted, by the excep-

tion in Section 23(b), from the licensing require-

ments of the Act. Although permits sanctioning

the occupancy of these lands were issued by the

Secretaries of Agriculture and Interior prior to

— _

June 10, 1920,* these permits were issued not to

the Company but to the Company’s predecessors

in interest. Supra, pp. 14-16. Since these permits

were personal to the permittee [see Act of Feb-

ruary 15, 1901 (31 Stat. 790) (authorizing the

issuance of these permits); 36 L.D. 579, 580, 41

L.D. 150, 152; 532, 534 (Interior regulations) ; In

re Southern California Edison Company, 7 F.P.C.

Ann. Rep. (1927) 142, 147], as is plainly shown

on their face, supra, pp. 14-16, they could be trans-

ferred, if at all,”* to the Company only upon due

24 The Company’s claim that the Commission was without

power to pass upon these permits in the absence of the Secre-

taries of Agriculture and Interior (Pet. 6, 8) misconstrues

the Commission’s action. The Commission’s order does not

invalidate the permits but rather merely holds that in the

circumstances of this case the Company’s possession of these

permits does not operate to exempt these projects now operated

by it, rather than by the original permittees, from the licensing

requirements of the Act. Cf. National Labor Relations Board

v. Pennsylvania Greyhound Lines, Inc., 303 U.S. 261, 271;

National Incorice Co. v. National Labor Relations Board, 309

U.S. 350. Moreover, although copies of the order fixing the

date of hearing as well as subsequent orders were sent to the

departmental Secretaries, no one from their Departments

sought to participate in the proceedings. Finally, as the court

below points out, ‘‘the Commission * * * adequately repre-

sented the United States therein. The Secretaries were at most

proper parties. Their failure to participate does not invalidate

the order.’’ (R. 1676.) Cf. Sunshine Coal Co. v. Adkins, 310

U.S. 381, 403.

25 Although the Hauser-Agriculture permit stated on its

face that it ‘‘shall not be transferable’’ (see supra, p. 14),

the regulations of the Department of Agriculture permitted

succession, subject to the approval of the Secretary of Agri-

RRM aS tars MEO an Ese at

compliance with the procedure prescribed by the

issuing Secretaries. See, e.g., Section 19 of the

Interior Regulations, 41 L.D. 150, 170; 2° Forest

Service Use Book 1907, p. 43; 1908, p. 55, and 1911,

pp. 32, 33.*7 In these circumstances the Company’s

admitted failure to comply with the terms of the

permits by refusing to seek the approval of the

departmental Secretaries for such transfers (R.

culture. See fn. 27, infra. The Hebgen “‘camp site’’ permit

was not transferable, supra, p. 16.

6 Regulation 19 (41 L.D. 150, 170) provided a complete

mechanism of the transfer from one party to another:

A final permit may be transferred to a new per-

mittee under the following conditions and not other-

wise: The proposed transferee shall file with the

Director of the Geological Survey, Washington, D. C.,

the decree, execution of judgment, will, proposed

contract of sale, or other written instrument upon

which the proposed transfer is based, or a properly

certified copy thereof, also an application by the

proposed transferee in the form of an agreement bind-

ing the proposed transferee to the performance of

such new and additioral conditions expressed therein

as the Secretary may deem necessary ; and thereupon

the Secretary may, in his discretion, approve in writ-

ing the proposed transfer, and after such approval

the transferee shall succeed to all the rights and

obligations of the permittee, subject, however, to such

new and additional conditions as shall have been

embodies in such agreement and so approved.

27 Regulation L-16 of the Use Book, Department of Agri-

culture (1911) pp. 32-33, provided that:

Upon the presentation to the Secretary of Agri-

culture of certified copies of sale, lease, assignment,

execution of judgment, or other form of transfer of

1491)”* fully supports the Commission’s ruling

that the Company’s possession of these permits

does not operate to exempt its occupancy of public

lands at these developments from the licensing re-

quirements of the Act.

In addition, there is no merit to the Company’s

contention that since it had been closely affiliated

the properties or other right of the permittee in and

to the works constructed under a water-power permit

and of the water or other rights necessary to the

enjoyment of the use of said works, the said Secretary

may, in his discretion, upon the formal surrender of

the original permit and the filing of a stipulation

satisfactory to the said Secretary by the purchasers,

transferees, executors, successors, lessees, or assigns of

the original permittee, issue a new permit for the

unexpired term of the original permit to such pur-

chasers, transferees, executors, successors, lessees, or

assigns, authorizing him, it, or them to occupy and

use the lands of the United States specified in the

original permit for the purposes named in the

original permit.