State of North Carolina v. FEDERAL POWER COM'N
Decision Date | 07 May 1975 |
Docket Number | No. C-74-391-W.,C-74-391-W. |
Court | U.S. District Court — Middle District of North Carolina |
Parties | STATE OF NORTH CAROLINA et al., Plaintiffs, v. FEDERAL POWER COMMISSION et al., Defendants. |
Rufus L. Edmisten, Atty. Gen., and Millard R. Rich, Jr., Asst. Atty. Gen., Raleigh, N. C., Norman B. Smith, Greensboro, N. C., and Prof. Thomas J. Schoenbaum, Chapel Hill, N. C., for plaintiffs.
Drexel D. Journey, George W. McHenry, Jr., and Steven A. Taube, Washington, D. C., for Federal Power Commission and members of the Commission.
James E. Ryan, Jr., Asst. Atty. Gen., Richmond, Va., for the Commonwealth of Virginia.
This is an action to enjoin construction and other development activities on the New River in Northwestern North Carolina, until such time as the Secretary of the Interior has completed a study pursuant to Section 2(a)(ii) of the Wild and Scenic Rivers Act, 16 U.S.C. § 1273(a)(ii), to determine whether a segment of this river, which would be eliminated as a free-flowing stream by a proposed hydroelectric dam, is suitable for designation as a scenic river under Section 2(b) of the Act, 16 U.S.C. § 1273(b). The action is brought jointly by the State of North Carolina and several individuals owning land which will be taken by the defendant, Appalachian Power Company, for the Modified Blue Ridge Project pursuant to a license issued June 14, 1974, by the defendant Federal Power Commission (F.P.C.).
On June 14, 1974, the F.P.C. issued Opinion No. 698 granting a license to Appalachian Power Company (Appalachian) to construct a combined conventional and pumped storage hydroelectric project on the New River near Galax and Independence, Virginia, and Sparta, North Carolina. The licensing of the Modified Blue Ridge Project ended twelve years of administrative consideration of the project by the F.P.C. Upon application for rehearing and motions for reconsideration, the Commission, on August 12, 1974, issued its Opinion No. 698-A reaffirming, with minor modifications, its Opinion No. 698 of June 14, 1974. Thereafter, on October 7, 1974, North Carolina filed a petition for review pursuant to Section 313(b) of the Federal Power Act, 16 U.S.C. § 825l(b), in the United States Court of Appeals for the District of Columbia Circuit requesting that the Court set aside Opinion Nos. 698 and 698-A and their respective accompanying orders granting a license to Appalachian to construct and operate the Modified Blue Ridge Project.1 The Commission filed the certificate of record in lieu of record with the Court of Appeals on November 25, 1974.
In 1968, during the first decade of the F.P.C.'s consideration of Appalachian's application for a license, Congress enacted the Wild and Scenic Rivers Act,2 which provides for a National Wild and Scenic Rivers System.3 Section 3 of the Act, as amended, 16 U.S.C. § 1274, authorizes for inclusion in the national system ten rivers or segments thereof. Section 5 of the Act, 16 U.S.C. § 1276, sets out twenty-seven additional rivers designated as potential additions to the system and requires the Secretary (Interior or Agriculture) to study and report on the suitability or non-suitability of each river for inclusion in the system. In addition to sections 3 and 5, the Act provides in section 2(a), 16 U.S.C. § 1273(a), two ways in which other rivers may be added to the system in the future.
Section 7 of the Act, 16 U.S.C. § 1278, prohibits the F.P.C. from licensing any projects on the ten rivers listed in section 3, and on the 27 "study rivers" listed in section 5 during their study period plus an additional period thereafter for congressional consideration of any Secretarial proposal, or Secretarial consideration of any State proposal pursuant to § 1273(a)(ii). Insofar as relevant to the present controversy, section 7 provides as follows:
The New River in North Carolina is not among the rivers listed in either section 3 or section 5 of the Act, and whether it is a "river recommended to the Secretary of the Interior for inclusion in the national wild and scenic rivers system under section 1273(a)(ii)" is a contested issue.
In February of 1974, the House and Senate agreed to delete from the conference version of the Rivers and Harbors Authorization Act, HR 10203, 93rd Congress, a provision that had been included in the House version to study the New River to determine its suitability for inclusion in the Wild and Scenic Rivers System. This provision would have prevented the F.P.C. from licensing the Modified Blue Ridge Project. 16 U.S.C. § 1278(b)(i), supra.
On May 28, 1974, the Senate passed S. 2439, to amend section 5 of the Wild and Scenic Rivers Act, 16 U.S.C. § 1276, to provide for a study of the New River where the Blue Ridge project would be located, thereby preventing the F.P.C. from licensing the project. 120 Cong. Rec. at S. 9077, daily ed.4 After considerable parliamentary jousting, the House, on December 18, 1974, refused to suspend its rules to permit passage of S. 2439, thereby causing it to expire at the end of the 93rd Congress. 120 Cong. Rec. at H. 12261-H. 12268, H. 12290-H. 12291, daily ed.
On March 21, 1974, the General Assembly of North Carolina enacted a statute providing that a 4.5 mile "segment of the New River which extends . . . to the Virginia line . . . shall be included in the North Carolina Natural and Scenic Rivers System." N.C.G.S. § 113A-35.1. This enactment was in conformity with the requirements of 16 U. S.C. § 1273(a)(ii). On December 12, 1974, the Governor of North Carolina, armed with the newly enacted G.S. § 113A-35.1, submitted to the Secretary of the Interior a Management Plan for the South Fork and Main Stem of the New River, pursuant to section 2(a)(ii) of the Act, and requested that the Secretary designate the New River in Northwestern North Carolina a scenic river area under the Wild and Scenic Rivers Act. Thereafter, on December 16, 1974, North Carolina by motion requested the F.P.C. to stay the effective date of the license until the Court of Appeals for the District of Columbia or the Supreme Court, as the case may be, renders a decision on the appeal of the Commission's Opinions and Orders in Nos. 698 and 698-A.5 Thereafter, on December 18, 1974, the plaintiffs filed their complaint in this action, thereby bringing to at least three the number of forums in which North Carolina is seeking to block the Modified Blue Ridge Project.6 Indeed, in view of the past history and future prospects for continued controversy the...
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