Georgia Power Co. v. Baker, 86-8709

• Decision Date: 19 October 1987
• Docket Number: No. 86-8709,86-8709
• Citation: 830 F.2d 163
• Parties: GEORGIA POWER COMPANY, Plaintiff-Appellant, v. Charles F. BAKER, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 163

830 F.2d 163

GEORGIA POWER COMPANY, Plaintiff-Appellant, v. Charles F. BAKER, Defendant-Appellee.

No. 86-8709.

United States Court of Appeals Eleventh Circuit.

Oct. 19, 1987.

H. Jerome Strickland, Robert C. Norman, Jr., Bob Berlin, Macon, Ga., for plaintiff-appellant.

S. Lee Storesund, Atlanta, Ga., for defendant-appellee.

Appeal from the United States District Court for the Middle District of Georgia.

Before FAY and KRAVITCH, Circuit Judges, and ALLGOOD ^*, Senior District Judge.

KRAVITCH, Circuit Judge:

Georgia Power Company, in May of 1984, sought to enjoin appellee Charles Baker from operating his seaplane on Lake Sinclair, a hydroelectric project owned and managed by Georgia Power in accordance with a license issued by the Federal Energy Regulatory Commission ("FERC"), formerly the Federal Power Commission. Three years earlier, Georgia Power had formalized a policy prohibiting the use of amphibious aircraft on company reservoirs, including Lake Sinclair. The district court denied both preliminary and permanent injunctive relief. Because the district court applied an erroneous interpretation of the applicable law, we reverse.

I. BACKGROUND

Georgia Power's Lake Sinclair project began in 1929. The lake was formed by the construction of a dam across the Oconee River above Milledgeville, Georgia. Although the Oconee was unnavigable above Milledgeville, Georgia Power ("the company") was required to obtain a license for the project from FERC because the construction of the dam would affect the navigable portion of the river below Milledgeville. ¹ Georgia Power acquired this license in 1947 and the project was completed in 1953.

Article 13 of Georgia Power's license, as amended, provides:

So far as is consistent with proper operation of the project, the Licensee shall allow the public free access, to a reasonable extent, to project waters and adjacent project lands owned by the Licensee for the purpose of full public utilization of such lands and water for navigation and for outdoor recreational purposes, including fishing and hunting; Provided, that the Licensee may reserve from public access, such portions of the project waters, adjacent lands, and project facilities as may be necessary for the protection of life, health, and property.

In 1981, Georgia Power promulgated a four-page statement barring the use of amphibious aircraft on its reservoirs, including Lake Sinclair. In devising this policy, the company obtained information from the Corps of Engineers, the Federal Aviation Administration ("FAA"), and representatives of parties interested in using Georgia Power's reservoirs for their seaplanes. Additionally, representatives of FERC participated in the formation of the policy, and the policy was provided to FERC upon its completion. Georgia Power's primary concern in prohibiting seaplanes was the safety of the boating public.

In August, 1964, appellee Charles Baker purchased a lot fronting on Lake Sinclair. Although appellee knew of Georgia Power's prohibition of seaplanes on its reservoirs, he began operating a seaplane in March 1984, both in the cove in front of his property and in the area of the lake in front of the dam. The property surrounding the cove area of the lake is densely populated, and both the cove and the dam areas receive heavy powerboat and sailboat traffic. Baker's primary use of his seaplane was for training other pilots to operate a seaplane, for which he generally received compensation. His records reveal that he used his seaplane 154 times between March, 1984 and early May, 1985, including 127 training flights involving 28 different individuals.

Georgia Power filed suit in federal district court in May 1984, seeking to enjoin Baker from using his seaplane on Lake Sinclair. The district court denied both preliminary and permanent injunctive relief. The court determined that FERC could not give Georgia Power the authority to prohibit seaplane operation on Lake Sinclair, and that even if FERC could have, no such authority had issued. In denying preliminary relief, the court interpreted Article 13 of Georgia Power's license, supra, which allows it to reserve portions of the facility from public use. The court construed this provision as permitting the company to reserve part of the lake from all public access, but not to reserve all of the lake from any one part of the public, here seaplane operators. Additionally, the court found no evidence that the operation of seaplanes on the lake interferes with the operation of the power project. Finally, the court determined that the Article 13 clause which requires Georgia Power to allow free public access to the lake "to a reasonable extent" does not authorize Georgia Power to prohibit seaplane operations altogether. Subsequently, in denying permanent relief, the district court held that Georgia Power does not have property rights under state law which entitle it to ban seaplane operation.

II. DISCUSSION

In reviewing district court decisions to grant or deny injunctive relief, we may not set aside findings of fact except where clearly erroneous. Fed.R.Civ.P. 52(a). But where questions of law are presented, we have plenary review over the district court's legal determinations. Cathbake Inv. Co. v. Fisk Electric Co., 700 F.2d 654, 656 (11th Cir.1983).

The district court framed the issue in this case as whether FERC had the authority to confer upon Georgia Power the power to prohibit seaplane operations on its lakes. The court concluded that FERC could not give Georgia Power that authority and that, under Georgia law, Georgia Power had no property rights which would allow it to regulate seaplane usage on its property. We find, to the contrary, that the issue is not whether FERC could confer upon Georgia Power the authority to ban seaplane operations on its reservoirs, but whether Georgia Power is precluded from exercising its water surface rights under state law by virtue of its obligation to operate its power project in compliance with federal regulatory and licensing requirements.

Part I of the Federal Power Act ("Act"), ² originally the Federal Water Power Act, ³ was enacted to provide a means of comprehensive federal control over uses of the nation's water resources which the federal government has a legitimate interest in overseeing. These interests include navigation, flood control, irrigation, and, significantly, hydroelectric power. Federal Power Comm'n v. Union Electric Co., 381 U.S. 90, 98, 85 S.Ct. 1253, 1258, 14 L.Ed.2d 239 (1965). Part I of the Act "was the outgrowth of a widely supported effort of the conservationists to secure enactment of a complete scheme of national regulation which would promote the comprehensive development of the water resources of the Nation, in so far as it was within the reach of the federal power to do so...." First Iowa Hydro-Electric Coop v. Federal Power Comm'n, 328 U.S. 152, 180, 66 S.Ct. 906, 919, 90 L.Ed. 1143 (1946). The principal concern of the Federal Water Power Act was the development and regulation "of hydroelectric power to meet the needs of an expanding economy." Union Electric, 381 U.S. at 99, 85 S.Ct. at 1258-59 (footnote omitted).

Although Part I of the Act provides a plan for comprehensive federal regulation of water resources, it does not entirely preempt state law concerning water resources. Section 27 makes this clear with respect to irrigation and municipal uses:

Nothing contained in this chapter shall be construed as affecting or intending to affect or in any way to interfere with the laws of the respective States relating to the control, appropriation, use, or distribution of water used in irrigation or for municipal or other uses, or any vested right acquired therein.

16 U.S.C. Sec. 821; see First Iowa, 328 U.S. at 175-76, 66 S.Ct. at 917. Although Part I of the Act contains no other explicit "saving" clauses, the Supreme Court has interpreted section 9(b) of the Act ⁴ as "[leaving] to the states their traditional jurisdiction subject to the admittedly superior right of the Federal Government, through Congress, to regulate interstate and foreign commerce...." Id., 328 U.S. at 171, 66 S.Ct. at 915. The Court explained the continued vitality of state laws:

The references made in Sec. 9(b) to beds and banks of streams [and] to proprietary rights to divert or use water ... neither add anything to nor detract anything from the force of the local laws, if any, on those subjects. In so far as those laws have not been superseded by the Federal Power Act, they remain as applicable and effective as they were before its passage.

Id., 328 U.S. at 178, 66 S.Ct. at 918.

The Supreme Court subsequently reiterated the fact that as long as the federal government has not exercised its power to abolish state law riparian rights, those rights survived the passage of the Act, even if they are within the scope of the government's dominant servitude. In Federal Power Comm'n v. Niagara Mohawk Power Corp., 347 U.S. 239, 74 S.Ct. 487, 98 L.Ed. 666 (1954), the Court held that the Federal Water Power Act had not extinguished existing state law private proprietary rights to use waters of a navigable stream for power purposes. The Court explained:

The references in the Act to preexisting water rights carry a natural implication that those rights are to survive, at least until taken over by purchase or otherwise. Riparian water rights, like other real property rights, are determined by state law. Title to them is acquired in conformity with that law. The Federal Water Power Act merely imposes upon their owners the additional obligation of using them in compliance with that Act.

347 U.S. at 252, 74 S.Ct. at 495 (footnote omitted).

Nothing in the record indicates that the federal government has appropriated appellant's state law water surface rights. Given our conclusion that the Act does not deprive Georgia Power of these rights except to the extent that it requires them to...