Federal Power Commission v. Idaho Power Co

Decision Date10 November 1952
Docket NumberNo. 12,12
Citation344 U.S. 17,97 L.Ed. 15,73 S.Ct. 85
CourtU.S. Supreme Court

See 344 U.S. 910, 73 S.Ct. 326.

[Syllabus from pages 17-18 intentionally omitted] Mr. Philip Elman, Washington, D.C., for petitioner.

Messrs. Harry A. Poth, Jr., Washington, D.C., and A. C. Inman, Boise, Idaho, for respondent.

Mr. Justice DOUGLAS delivered the opinion of the Court.

Respondent applied to petitioner under § 4(e) of the Federal Power Act, 41 Stat. 1065, 49 Stat. 840, 16 U.S.C. § 797(e), 16 U.S.C.A. § 797(e) for a license to construct, operate, and maintain a hydroelectric project (known as the Bliss development) on the Snake River in southern Idaho. This project included a dam and power plant occupying some 500 acres of lands of the United States and two transmission lines. These lines for most of their length crossed lands of the United States and joined the company's interconnected primary transmission system.

The United States has power projects in this area; and the Bureau of Reclamation and the Bonneville Power Administration were contemplating the construction of a transmission line which would connect the same areas as respondent's proposed lines. Therefore the Federal Power Commission on the suggestion of the Secretary of the Interior authorized the project on conditions specified in paragraph (F) of the order. These conditions, in summary, were that the licensee permit the interconnection of transmission facilities of the United States with the two transmission lines, and the transfer over those lines of energy generated in power plants owned by the United States 'in such amounts as will not unreasonably interfere' with the licensee's use of the lines, the United States to pay the licensee for government power so transmitted.

Respondent petitioned for review of the Commission's order. The Court of Appeals held that the Commission had no authority to attach the condition. It entered a judgment that the Commission's order 'be modified' and that the cause be remanded to the Commission 'for the entry of an order in accordance with the opinion of this Court.' That was on May 10, 1951. 89 U.S.App.D.C. 1, 189 F.2d 665. The Commission moved for a clarification of the judgment. On September 21, 1951, the Court of Appeals entered a new judgment, stating that the order of the Commission 'be, and it is hereby, modified by the striking therefrom paragraph (F) thereof and that the order of the Federal Power Commission herein as thus modified be, and it is hereby affirmed.' The petition for certiorari was filed within 90 days of the amended order but more than 90 days after the first order. The question which therefore lies at the threshold of the case is whether the petition is timely. See 28 U.S.C. § 2101(c), 28 U.S.C.A. § 2101(c).

First. If the court did no more by the second judgment than to restate what it had decided by the first one, Department of Banking v. Pink, 317 U.S. 264, 63 S.Ct. 233, 87 L.Ed. 254, would apply and the 90 days would start to run from the first judgment. But the court by the second judgment undertook to modify the license. By the first judgment it did no more than keep the Commission within the bounds set by its opinion. On remand the Commission might have reissued the order without the contested conditions or it might have withheld its consent to any license. It is the Commission's judgment on which Congress has placed its reliance for control of licenses. See §§ 6, 10(a), 10(g). When the court decided that the license should issue without the conditions, it usurped an administrative function. There doubtless may be situations where the provision excised from the administrative order is separable from the remaining parts or so minor as to make remand inappropriate. But the guiding principle, violated here, is that the function of the reviewing court ends when an error of law is laid bare. At that point the matter once more goes to the Commission for reconsideration. See Federal Communications Commission v. Pottsville Broadcasting Co., 309 U.S. 134, 60 S.Ct. 437, 84 L.Ed. 656; Federal Trade Commission v. Morton Salt Co., 334 U.S. 37, 68 S.Ct. 822, 92 L.Ed. 1196.

The Court, it is true, has power 'to affirm, modify, or set aside' the order of the Commission 'in whole or in part.' § 313(b). But that authority is not power to exercise an essentially administrative function. See Ford Motor Co. v. National Labor Relations Board, 305 U.S. 364, 373—374, 59 S.Ct. 301, 306, 307, 83 L.Ed. 221; Jacob Siegel Co. v. Federal Trade Commission, 327 U.S. 608, 66 S.Ct. 758, 90 L.Ed. 888. The nature of the determination is emphasized by § 10(a) which specifies that the project adopted 'shall be such as in the judgment of the Commission will be best adapted to a comprehensive plan * * * for the improvement and utilization of water-power development, and for other beneficial public uses'. Whether that objective may be achieved if the contested conditions are stricken from the order is an administrative, not a judicial, decision.1

Second. The power of Congress over public lands, conferred by Art. IV, § 3 of the Constitution, is 'without limitations,' as we stated in United States v. City and County of San Francisco, 310 U.S. 16, 29, 60 S.Ct. 749, 756, 84 L.Ed. 1050. The Court of Appeals, while recognizing that principle, held that Congress had not granted the Commission authority to condition the use of public lands by requiring a public utility to carry government power. It relied on § 201(f) of the Act which says that 'No provision in this Part shall apply to * * * the United States * * *.' The Part referred to is Part II of the Act which set up a system of control over the transmission of electric energy in interstate commerce. It granted the Commission authority, among other things, to direct a public utility to establish physical connection of its transmission facilities with the facilities of other persons en- gaged in the transmission or sale of electric energy. § 202(b). Since that power was not extended to the United States, the court concluded that a license under Part I of the Act could not be conditioned on an interconnection with federal power.

Part I and Part II provide different regulatory schemes. Part II is an exercise of the commerce power over public utilities engaged in the interstate transmission and sale of electric energy. See S. Rep. No. 621, 74th Cong., 1st Sess., p. 17. Part II does not undertake to regulate public lands or the use of navigable streams. That function is covered by Part I, which dates back to the Federal Water Power Act of 1920, 41 Stat. 1063. Section 4(e) of Part I gives the Commission power to issue licenses to private or public bodies for the purpose of 'constructing, operating, and maintaining dams, water conduits, reservoirs, power houses, transmission lines, or other project works necessary or convenient for the development and improvement of navigation and for the development, transmission, and utilization of power across, along, from, or in any of the streams or other bodies of water over which Congress has jurisdiction under...

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