Citizens Utilities Company v. Federal Power Commission

• Decision Date: 24 May 1960
• Docket Number: No. 259,Docket 25705.,259
• Citation: 279 F.2d 1
• Parties: CITIZENS UTILITIES COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

279 F.2d 1 (1960)

CITIZENS UTILITIES COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent.

No. 259, Docket 25705.

United States Court of Appeals Second Circuit.

Argued April 8, 1960.

Decided May 24, 1960.

Milton S. Gould, Gallop, Climenko & Gould, New York City, Reuben Goldberg, Washington, D. C., Clifton G. Parker, Morrisville, Vt., for petitioner.

John C. Mason, Deputy Gen. Counsel, Federal Power Commission, Washington, D. C., for respondent (Willard W. Gatchell, Gen. Counsel, Howard E. Wahrenbrock, Solicitor, Leonard D. Eesley, Assistant General Counsel, Daniel Goldstein and Joseph B. Hobbs, Attys., Federal Power Commission, Washington, D. C., on the brief).

Before LUMBARD, Chief Judge, and HAND and HINCKS, Circuit Judges.

HAND, Circuit Judge.

In this case the petitioner, a Delaware corporation, has built hydroelectric dams at several places on the Clyde River, Vermont, which rises in the northeast corner of the state and empties into Lake Memphremagog at Newport, Vermont. Lake Memphremagog itself extends from Newport across the border of Canada and into Canada.

After leaving a small pond, called Spectacle Pond, the Clyde passes through Island Pond, another small sheet of water, whence it meanders for six or seven miles until it is joined by a brook that carries the overflow of two other ponds, Seymour Lake and Echo Pond, at East Charleston. The Clyde continues for about five miles further, passing through Pensioner Pond and thence through Salem Pond until after three miles or so it passes through Clyde Pond and after about two miles more reaches Lake Memphremagog. The petitioner had already built dams at the outlets of Seymour Lake and Echo Pond and also across the river at West Charleston and at Clyde Pond. Another dam above the West Charleston dam had been built at Barton Village which the petitioner does not control. The occasion of this suit is the petitioner's construction of a new project including a "diversion dam," a canal, and a power plant, called Unit No. 11, across the river below the dam at the outlet of Clyde Pond.

In June 1957, the Commission began to investigate this partially completed power project in order to determine whether it was in the public interest to control it in order to preserve the navigation and water supply of the Clyde. In preliminary negotiations the parties stipulated that the petitioner should be free to oppose the jurisdiction of the Commission in spite of a "declaration of intention" made by the petitioner. The Commission held extensive hearings before a presiding examiner who wrote a decision declaring that the Clyde was not "navigable water of the United States" except for the first 4800 feet from its mouth, but that the petitioner's proposed Unit No. 11 and its Newport project affected the interests of interstate or foreign commerce in that part of the stream, and that the Commission therefore had jurisdiction under § 817 of Title 16, U.S.C.A., to grant or refuse a license to maintain both projects. The Commission reversed the examiner and found the whole river navigable, apparently from Spectacle Pond to its mouth, and also that not only Unit No. 11 and the Newport project affected the navigability of the river, but that the petitioner's other projects did so. The petition is to review all parts of the Commission's order.

There can be no doubt that the Clyde Pond dam and Unit No. 11 both have an effect upon the navigability of the river in its last 4800 feet. Indeed, the petitioner does not dispute that the volume of water that reaches the river below the Unit No. 11 changes when the "diversion dam" and the Clyde Pond dam are opened, as they are when hydroelectric generators at Unit 11 and at the Newport project are operated. It was proved that...