Chapman v. Public Utility Dist. No. 1 of Douglas Co., Wash.
| Decision Date | 07 October 1966 |
| Docket Number | 20060.,No. 20059,20059 |
| Parties | Melvin G. CHAPMAN and Dorothy A. Chapman, Appellants, v. PUBLIC UTILITY DISTRICT NO. 1 OF DOUGLAS COUNTY, WASHINGTON, a corporation, Appellee. Jack F. NICKELL, Zella Nickell, David L. Nickell and Elaine Violet Nickell, Appellants, v. PUBLIC UTILITY DISTRICT NO. 1 OF DOUGLAS COUNTY, WASHINGTON, a corporation, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
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Benjamin H. Kizer, Robert E. Stoeve, Joseph P. Gagliardi, Turner, Stoeve & Layman, Spokane, Wash., for appellants.
Harold A. Pebbles, Pebbles, Swanson & Lindskog, Olympia, Wash.; Hughes & Jeffers, Wenatchee, Wash., for appellee.
Before BARNES, KOELSCH and BROWNING, Circuit Judges.
Appellee holds a license from the Federal Power Commission to construct, operate and maintain the Wells Hydroelectric Project on the Columbia River in the Counties of Douglas, Chelan and Okanogan, in the State of Washington.
Appellee brought this action under 16 U.S.C. § 814 to condemn the fee title to two parcels of land, alleging that the taking was necessary for the purposes stated in its license.
The landowners maintain that appellee can condemn only a flowage easement, and not the fee, for two reasons: (1) because a flowage easement would fully satisfy the purposes of the license, and the fee is therefore unnecessary; and (2) because appellee is estopped from taking the fee.
The district court rejected both contentions, and certified the need for immediate appeal under 28 U.S.C. § 1292 (b). We permitted appeal, and now affirm the district court's order.
The land involved lies along the boundary of the Wells Hyrdoelectric Project. The project boundary was fixed by the Federal Power Commission. The Commission determined where the shoreline would be when the project pool was at its estimated maximum depth, then added a margin of four vertical feet. This margin provides a "freeboard" area along the shore of the pool which, because of the slope of the land, varies in width, on the two tracts involved here, between a few feet and two hundred feet.
The largest part of the acreage in the two tracts (18.9 of the 23.5 acres in one tract, and 2.8 of the 4.4 acres in the other) lies below the maximum pool elevation. The remaining 4.6 acres of one tract and 1.6 acres of the other lie in the freeboard area along the shore.
We consider first the right of the appellee to condemn the fee.
Appellee's board of commissioners decided that it was necessary to take the fee to these lands after consulting "with our land acquisition people, with our legal counsel, with the engineer, and everyone that was concerned with the operation and maintenance of the dam."
The following factors were considered. The acreage below the estimated maximum pool elevation would be inundated most of the time. Some allowance above the estimated maximum pool elevation was required for possible inaccuracies in the computation. The land in the freebroad area up to the boundary of the reservoir would be affected by seepage, erosion, slipping, and sloughing. This damage would be accentuated by frequent and rapid changes in the pool level. Fluctuations of as much as eight feet would be required to meet varying power demands. Inundated acreage and acreage above the maximum pool elevation to a distance of two and one-half vertical feet would have to be cleared of all structures, timber, brush, and refuse, in accordance with the terms of the license. After filling the pool, appellee would be required to police and control the rim of the reservoir to remove drifted timber and other debris, and to prevent building of structures, excavating, filling or other shoreline activity which might stimulate erosion, cause pollution, or involve risk of damage to the generators.1
Appellee's engineers stated that it was impossible to anticipate all of the contingencies which might develop affecting the discharge of these responsibilities. It was their opinion that full and unimpeded control of the pool edge and freeboard area was required.
Obligations were placed upon appellee in addition to those connected with the operation and maintenance of the project as an efficient producer of power. The Federal Power Commission, as required by Section 10(a) of the Federal Power Act, 16 U.S.C. § 803(a), based its approval of the Wells Hydroelectric Project in part upon a finding that appellee's proposal was the one best adapted "for other beneficial public uses, including recreational purposes."
Appellee's license required appellee to "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 waters for navigation and recreational purposes, including fishing and hunting." Appellee was required to conduct the operation of the project in accordance with such reasonable rules and regulations as the Federal Power Commission "may prescribe for the protection of life, health and property, and in the interest of the fullest practicable conservation and utilization of such waters for power purposes and for other beneficial uses, including recreational purposes." Finally, appellee's license required it to cooperate with the Secretary of Interior in the preparation of a "public use plan" for the project area, and to contribute up to ten thousand dollars to the cost of preparing such a plan.
When this action was filed, the "public use plan" for the project had not yet been completed, and rules and regulations applicable to the operation had not yet been issued. However, appellee had commenced negotiations with the Game Department of the State of Washington with respect to the provisions which the latter would recommend to the Federal Power Commission for inclusion in the "public use plan." Appellee had been advised that the state agency would "strongly insist" that the shore lands be taken in fee, as the only practical means of assuring public use in perpetuity of the impounded waters and the lands surrounding them.
Appellee was also aware that the Department of Interior and Corps of Army Engineers had issued a joint policy statement regarding land acquisition for federal reservior projects, (F.R.Doc. 62-1907, filed Feb. 21, 1962, 27 Fed.Reg. 1734) which provided for acquisition of "adequate interest in lands necessary for the realization of optimum values for all purposes including additional land areas to assure full realization of optimum present and future outdoor recreational and fish and wildlife potentials of each reservoir." The policy statement provided that fee title should be acquired for "lands below a selected freeboard where necessary to safeguard against the effects of saturation, wave action, and bank erosion;" for "lands needed to provide for public access to the maximum flowage line;" for "such lands as are needed to meet present and future requirements for fish and wildlife as determined pursuant to the Fish and Wildlife Coordination Act;" and for "such lands as are needed to meet present and future public requirements for outdoor recreation, as may be authorized by Congress." The statement further provided that "easement in lieu of fee title may be taken only for lands which are above the storage pool," and which are "determined to be of no substantial value for protection or enhancement of fish and wildlife resources, or for public outdoor recreation."
On December 28, 1965, after the trial in this case had concluded, the Federal Power Commission issued its Order 313, F.R.Doc. 65-13870, 30 Fed.Reg. 16198, 18 C.F.R. § 2.7, which provides that the Commission will evaluate the recreational resources of all projects under federal license and will seek the ultimate development of these resources consistent with the needs of the area, and not inconsistent with the primary purpose of the project. Order 313 states that the Commission expects its licensee to assume certain responsibilities, including the following:
By Section 21 of the Federal Power Act, 16 U.S.C. § 814, Congress delegated "the federal eminent domain power" to appellee, as its licensee. FPC v. Tuscarora Indian Nation, 362 U.S. 99, 123, 124, 80 S.Ct. 543, 4 L.Ed.2d 584 (1960). Section 21 requires that "the practice and procedure" in an action to enforce the federal power must "conform as nearly as may be with the practice and procedure" in similar state actions. The substance of the delegated federal power, however, may not be diminished by state law , although the state may, if it sees fit, delegate to the federal...
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