Rochester Gas and Electric Corp. v. Federal Power Com'n

• Decision Date: 06 April 1965
• Docket Number: No. 285,Docket 29181.,285
• Parties: ROCHESTER GAS AND ELECTRIC CORPORATION, Petitioner, v. FEDERAL POWER COMMISSION, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

344 F.2d 594 (1965)

ROCHESTER GAS AND ELECTRIC CORPORATION, Petitioner, v. FEDERAL POWER COMMISSION, Respondent.

No. 285, Docket 29181.

United States Court of Appeals Second Circuit.

Argued January 25, 1965.

Decided April 6, 1965.

Nixon, Hargrave, Devans & Doyle, Rochester, N. Y., Naylon, Aronson, Huber & Magill, New York City (Edward F. Huber, New York City, Daniel G. Kennedy, Rochester, N. Y., James M. Baisley, New York City, Albert L. Beswick, Rochester, N. Y., of counsel), for petitioner.

Richard A. Solomon, Gen. Counsel, Howard E. Wahrenbrock, Sol., Joseph Hobbs, George Bruder, Attys., F. P. C., for respondent.

Before WATERMAN, SMITH and ANDERSON, Circuit Judges.

WATERMAN, Circuit Judge:

The Genesee River rises in the Allegheny Mountains of Pennsylvania and flows northward for 158 miles through New York State to Lake Ontario. Petitioner operates three hydroelectric projects on a stretch of rapids and falls in Rochester, New York, six miles from the mouth of the river. It maintains a fourth power project in Mount Morris, New York, on another turbulent stretch of the river sixty-five miles from the mouth.

Petitioner requested the Federal Power Commission to issue an order declaring that these projects did not have to be licensed under Section 23(b) of the Federal Power Act, 16 U.S.C. § 817. The Commission rejected the request and directed petitioner to apply for licenses for the projects within ninety days. Petitioner asks us to review the Commission's order pursuant to Section 313(b) of the Act, 16 U.S.C. § 825l(b).

The parties agree that petitioner must comply with the Commission's order if, but only if, the four projects are located on "navigable waters" within the meaning of Section 3(8) of the Act, 16 U.S.C. § 796(8):

"`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 * * *."

The parties also agree that the Genesee River need not be navigable for its entire length to be "navigable waters" at Rochester and Mount Morris; that the river is navigable from its mouth to the rapids and falls in Rochester; and that these rapids and falls are "navigable waters" if the river is navigable above them. See United States v. Appalachian Elec. Power Co., 311 U.S. 377, 409, 410, 61 S.Ct. 291, 85 L.Ed. 243 (1940); Citizens Utils. Co. v. FPC, 279 F.2d 1 (2 Cir.), cert. denied, 364 U.S. 893, 81 S.Ct. 224, 5 L.Ed.2d 188 (1960); Montana Power Co. v. FPC, 87 U.S.App.D.C. 316, 185 F.2d 491, 494 (1950), cert. denied, 340 U.S. 947, 71 S.Ct. 532, 95 L.Ed. 683 (1951). In short, this appeal turns on whether the Genesee River is navigable from above the rapids and falls in Rochester to the power project at Mount Morris.

The parties disagree, however, on what constitutes navigability under Section 3 (8). Petitioner argues that the Genesee River is "navigable waters" only where (1) it is presently being used or is suitable for use in its natural or presently improved condition. The Commission contends that, in addition, the Genesee River is "navigable waters," where (2) in the past it was used or was suitable for use in its natural or improved condition, or where (3) it can be made suitable for use by reasonable future improvements.

The Commission relies heavily on United States v. Appalachian Elec. Power Co., supra, 311 U.S. at 407-410, 61 S.Ct. at 299-300. There the Supreme Court stated, with regard to use or suitability for use in the past: "When once found to be navigable, a waterway remains so. * * * Even absence of use over long periods of years, because of changed conditions, the coming of the railroad or improved highways does not affect the navigability of rivers in the constitutional sense." In the same passage the Supreme Court stated, with respect to suitability for use in the future: "In determining the navigable character of a river it is proper to consider the feasibility of interstate use after reasonable improvements which might be made. * * * Nor is it necessary that the improvements should be actually completed or even authorized."

Petitioner contends that United States v. Appalachian Elec. Power Co. is inapplicable here, because that case arose out of Sections 9 and 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. §§ 401, 403, and therefore did not involve interpretation of Section 3(8) of the Federal Power Act. However plausible this contention may have been at one time, it is no longer arguable now. Every court which has considered the question, including our own, has treated the quoted portions of United States v. Appalachian Elec. Power Co. as fully applicable to the definition of "navigable waters" in Section 3(8).¹

Accordingly, we hold that the Genesee River is "navigable waters" from Rochester to Mount Morris, if (1) it presently is being used or is suitable for use, or (2) it has been used or was suitable for use in the past, or (3) it could be made suitable for use in the future by reasonable improvements.

The parties agree that these criteria of navigability raise issues of fact and that, pursuant to Section 313(b), the Commission's findings thereon are conclusive "if supported by substantial evidence." Wisconsin Pub. Serv. Corp. v. FPC, supra, 147 F.2d at 748; cf. United States v. Appalachian Elec. Power Co., supra, 311 U.S. at 405, 61 S.Ct. 291. The Commission notes that none of its previous findings of navigability have ever been set aside by the courts. We congratulate the Commission on its achievement, which is undoubtedly attributable to the full factual foundation on which its findings have heretofore been based. This successful performance, however, does not relieve the Commission of the continuing obligation to rely on evidence that is substantial when it determines that a river is navigable.

In this proceeding the Commission adduced no evidence of its own, and cited no factual sources from outside the record in its decision, but relied wholly on the data contained in petitioner's application for a declaratory order, even though petitioner may not have set forth as full a statement of the case as the Commission's rules require. Of course it was the Commission's prerogative to decide the case on this basis so long as the evidence before it was sufficient. But under the circumstances we are unsympathetic to the Commission's belated attempt to buttress its decision on appeal with factual matter from historical treatises which are cited for the first time in its brief.

The Commission made no finding that the Genesee River, except for the six miles at its mouth, presently is being used or is suitable for use as an avenue of interstate or foreign commerce.

The Commission found that the Genesee River has been used or was suitable for use in the past from above the rapids and falls in Rochester to the power project at Mount Morris. This finding was based on the following statements in petitioner's application for a declaratory order:

"Rochester, New York, was first settled in 1812. In the 28 years between that time and 1840, the early settlers made repeated attempts to employ the river channel for navigation by flat-bottomed barges and rafts. The early settlers sent rafts carrying potash, pearlash, and lumber by river to Rochester. Early farmers also rafted some of the wheat grown in the valley to the Rochester mills.

* * * * * *

"There is evidence that subsequent to the opening of the Erie Canal in 1825 goods were transported downriver to just above the rapids and falls in Rochester for shipment on the Erie Canal. * * * Available evidence does not establish that any commercial shipment of goods downriver was ever initiated as far south as the Mount Morris plant.

* * * * * *

"As early as 1825 plans were initiated for the construction of the Genesee Valley Canal, which would parallel the Genesee River from Rochester as far south as Mount Morris, to provide a waterway for the shipment of goods to Rochester and to the Erie Canal. Construction of this particular segment of the Genesee River Canal was completed and opened in 1840. The Genesee Valley Canal was itself abandoned by the State of New York on September 30, 1878. * * *"

We hold that petitioner's statements regarding use of the river channel from 1812 to 1840 constituted substantial evidence supporting the Commission's finding that the Genesee River is "navigable waters" above the rapids and falls in Rochester. Accordingly, we affirm the Commission's order insofar as it directs petitioner to apply for licenses for the three power projects in Rochester.

Petitioner contends that the use of the river between 1812 and 1840 was too limited and too brief to demonstrate navigability. We disagree, having in mind the rule that "small traffic compared to the available commerce of the region is sufficient," and that disuse attributable to "improved highways does not affect the navigability of rivers." United States v. Appalachian Elec. Power Co., supra, 311 U.S. at 409-410, 61 S.Ct. at 300. In this case the use occurred at an early stage in the economic development of the region, and the river was abandoned only when an improved waterway became available.

Petitioner also contends that there is no evidence that the goods shipped down the river entered into...