Montana Power Co. v. Federal Power Commission, No. 10200.

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtWILBUR K. MILLER, BAZELON and FAHY, Circuit
Citation185 F.2d 491
Docket NumberNo. 10200.
Decision Date04 October 1950
PartiesMONTANA POWER CO. v. FEDERAL POWER COMMISSION.

185 F.2d 491 (1950)

MONTANA POWER CO.
v.
FEDERAL POWER COMMISSION.

No. 10200.

United States Court of Appeals District of Columbia Circuit.

Argued March 20, 1950.

Decided October 4, 1950.


185 F.2d 492
COPYRIGHT MATERIAL OMITTED
185 F.2d 493
Messrs. S. B. Chase, Jr., Great Falls, Mont., John C. Hauck and R. H. Glover, Butte, Mont., all of the Bar of the Supreme Court of Montana, pro hac vice, by special leave of Court with whom Messrs. Herbert M. Bingham and H. Donald Kistler, Washington, D. C., were on the brief, for petitioner

Messrs. Bradford Ross, General Counsel, Federal Power Commission, and Willard W. Gatchell, Assistant General Counsel, Federal Power Commission, Washington, D. C., with whom Messrs. Louis W. McKernan and William J. Costello, Attorneys, Federal Power Commission, Washington, D.C., were on the brief, for respondent.

Before WILBUR K. MILLER, BAZELON and FAHY, Circuit Judges.

BAZELON, Circuit Judge.

Petitioner seeks review of an order of the Federal Power Commission, issued pursuant to § 4(g) of the Federal Power Act,1 requiring that it apply for licenses for its nine hydroelectric developments, all located in Montana. The Commission asserts authority for its action under § 23(b) of the Act.2 That section provides that no hydroelectric development may be constructed, operated, or maintained on "* * navigable waters of the United States, or upon any part of the public lands or reservations of the United States * * * 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 chapter."

The Commission found that, of petitioner's nine developments, four (Morony, Ryan, Rainbow and Black Eagle) are maintained on "navigable waters of the United States" without authority; two (Hauser and Canyon Ferry) are also located on "navigable waters" and are maintained under an invalid authorization to occupy public lands; one (Holter) is maintained under a valid authority to occupy public lands but such authority does not extend to occupancy of the "navigable waters" on which it is located; the remaining two (Madison and Hebgen) are on concededly non-navigable waters but occupy public lands without authority.3

I

Since all but the Madison and Hebgen developments are located on the Missouri River upstream from Fort Benton, the first question to be answered is whether or not the section of the river from Fort Benton to the headwaters at Three Forks is a "navigable water of the United States." This part of the river is about 263 miles in length, all within Montana, the rest of the river flowing through several states. About 32 miles above Fort Benton are the Great Falls of the Missouri, a series of rapids and falls which descend about 520 feet in 17 miles, and which have always presented a natural barrier to through navigation.

There is no dispute that the river from its mouth at St. Louis, Missouri, to Fort Benton, Montana, has been used by steamboats in the past.4 And, though the Great Falls themselves have never been navigated, the Commission had before it substantial evidence of actual use of the river upstream from Fort Benton to the foot of

185 F.2d 494
the falls, and from above the falls to Three Forks. Thus, the record reveals that in 1866-67, several steamboats sailed as far as thirty miles above Fort Benton, almost up to the falls. And the river above the falls was used for the transportation of logs and rafts of lumber as well as for local carriage of freight and passengers. The only reported use of the entire length of the upper river for through traffic from above the falls to Fort Benton below occurred from 1864 to 1870. During that period, gold miners in considerable number traveled downstream with the aid of a portage or "land carriage" around the falls.5 Such actual use of the river in the past brings it within the "navigable" category, even if subsequently discontinued. "When once found to be navigable, a waterway remains so."6

Actual use of the upper portion of the river would warrant its being termed a "navigable water" unless such status is denied it because a part thereof is a non-navigable stretch of falls. We agree with the Commission that the falls do not have such an effect. Section 3(8) of the Federal Power Act7 states the applicable criteria, 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 between 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 Congress for improvement by the United States or shall have been recommended to Congress for such improvement after investigation under its authority".

The statute specifically contemplates that the "navigable parts" of streams may be interrupted by falls, rapids, and shallows "compelling land carriage" to circumvent them. Such interruptions do not render an otherwise navigable stream non-navigable. This was recognized by the Supreme Court in Economy Light & Power Co. v. United States, 1921, 256 U.S. 113, 122, 41 S.Ct. 409, 412, 65 L.Ed. 847, where it was said that "Navigability, in the sense of the law, is not destroyed because the watercourse is interrupted by occasional natural obstructions or portages". And more recently, in United States v. Appalachian Electric Power Co., 1940, 311 U.S. 377, 408-409, 61 S.Ct. 291, 300, 85 L.Ed. 243, the Court reaffirmed its view that "the navigability referrde to in the cases was navigability despite the obstruction of falls, rapids, sand bars, carries or shifting currents."8

Although we think the historical uses to which the upper portion of the river was put suffice to make it "navigable" within § 3(8), it should be noted that the Act's definition is not confined to streams which are or can be used in their natural condition. It includes as well those streams which are "suitable for use" in interstate commerce. "A waterway, otherwise suitable for navigation, is not barred from that classification merely because artificial aids must make the highway suitable for use before commercial navigation may be undertaken * * *. Nor is it necessary that the improvements should be actually completed

185 F.2d 495
or even authorized. The power of Congress over commerce is not to be hampered because of the necessity for reasonable improvements to make an interstate waterway available for traffic."9 Of course, improvements which might be reasonable in an urban industrial area might be out of the question in a sparsely settled region. But we do not think that factors of economic geography, such as density of population and concentration of industry, may remove an otherwise navigable stream from the reach of federal power. If the stream's flow, depth, gradient, width and capacity make it "suitable for use" in interstate commerce, it is subject to the licensing authority of the Federal Power Commission. Even if such a stream is never actually used for transportation, there is no doubt that it may be necessary to use it for flood control, watershed development, regulation of the navigable capacity of the portions of the river actually used for transportation, etc.10 We have been shown nothing which convinces us that the Commission's determination on this point was improper

An additional criterion of navigability is established by § 3(8).11 If Congress has authorized improvements to facilitate navigation, after investigation of its authority to do so, or if such improvements have been recommended to it, then the sections of the streams thus dealt with are "navigable waters." There is uncontroverted evidence in the record that, at various times from 1868 to 1892, the upper river was investigated by the Army Engineers with a view to its improvement. In 1880, about $15,000 was spent for rock removal and...

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48 practice notes
  • Washington Water Power Co. v. F.E.R.C., No. 83-2051
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • October 18, 1985
    ...Interior authorized the project, and (2) the authorization conformed to a special Act of Congress. 27 Similarly Montana Power Co. v. FPC, 185 F.2d 491 (D.C.Cir.1950) is completely distinguishable because the Commission had before it in that case substantial evidence that the Missouri River ......
  • Briscoe v. Kusper, No. 18390.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • January 22, 1971
    ...of the hearing itself, we decline to hold that the notice was constitutionally deficient. Montana Power Co. v. FPC, 87 U.S.App.D.C. 316, 185 F.2d 491, 497 (1951), certiorari denied, 340 U.S. 947, 71 S.Ct. 532, 95 L.Ed. 435 F.2d 1057 Plaintiffs also challenge the sufficiency of the hearing h......
  • PPL Mont., LLC v. Montana, No. 10–218.
    • United States
    • U.S. Supreme Court
    • February 22, 2012
    ...the head of Black Eagle Falls, the river quickly descends about 520 feet in elevation, see Montana Power Co. v. Federal Power Comm'n, 185 F.2d 491 (C.A.D.C.1950) ; 2010 MT 64, ¶¶ 29–30, 108–109, 355 Mont. 402, 416, 442, 229 P.3d 421, 433, 449, dropping over 400 feet within 132 S.Ct. 122410 ......
  • PPL Mont., LLC v. Montana, No. 10–218.
    • United States
    • U.S. Supreme Court
    • February 22, 2012
    ...the head of Black Eagle Falls, the river quickly descends about 520 feet in elevation, see Montana Power Co. v. Federal Power Comm'n, 185 F.2d 491 (C.A.D.C.1950) ; 2010 MT 64, ¶¶ 29–30, 108–109, 355 Mont. 402, 416, 442, 229 P.3d 421, 433, 449, dropping over 400 feet within 132 S.Ct. 122410 ......
  • Request a trial to view additional results
48 cases
  • Washington Water Power Co. v. F.E.R.C., No. 83-2051
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • October 18, 1985
    ...Interior authorized the project, and (2) the authorization conformed to a special Act of Congress. 27 Similarly Montana Power Co. v. FPC, 185 F.2d 491 (D.C.Cir.1950) is completely distinguishable because the Commission had before it in that case substantial evidence that the Missouri River ......
  • Briscoe v. Kusper, No. 18390.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • January 22, 1971
    ...of the hearing itself, we decline to hold that the notice was constitutionally deficient. Montana Power Co. v. FPC, 87 U.S.App.D.C. 316, 185 F.2d 491, 497 (1951), certiorari denied, 340 U.S. 947, 71 S.Ct. 532, 95 L.Ed. 435 F.2d 1057 Plaintiffs also challenge the sufficiency of the hearing h......
  • PPL Mont., LLC v. Montana, No. 10–218.
    • United States
    • U.S. Supreme Court
    • February 22, 2012
    ...the head of Black Eagle Falls, the river quickly descends about 520 feet in elevation, see Montana Power Co. v. Federal Power Comm'n, 185 F.2d 491 (C.A.D.C.1950) ; 2010 MT 64, ¶¶ 29–30, 108–109, 355 Mont. 402, 416, 442, 229 P.3d 421, 433, 449, dropping over 400 feet within 132 S.Ct. 122410 ......
  • PPL Mont., LLC v. Montana, No. 10–218.
    • United States
    • U.S. Supreme Court
    • February 22, 2012
    ...the head of Black Eagle Falls, the river quickly descends about 520 feet in elevation, see Montana Power Co. v. Federal Power Comm'n, 185 F.2d 491 (C.A.D.C.1950) ; 2010 MT 64, ¶¶ 29–30, 108–109, 355 Mont. 402, 416, 442, 229 P.3d 421, 433, 449, dropping over 400 feet within 132 S.Ct. 122410 ......
  • Request a trial to view additional results

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