State of Wash. Dept. of Game v. FEDERAL POWER COM'N, 13289.

• Citation: 207 F.2d 391
• Decision Date: 05 October 1953
• Docket Number: No. 13289.,13289.
• Parties: STATE OF WASHINGTON DEPARTMENT OF GAME et al. v. FEDERAL POWER COMMISSION.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

207 F.2d 391 (1953)

STATE OF WASHINGTON DEPARTMENT OF GAME et al. v. FEDERAL POWER COMMISSION.

No. 13289.

United States Court of Appeals, Ninth Circuit.

October 5, 1953.

Don Eastvold, Atty. Gen., William E. Hicks, Harold A. Pebbles and Lee Olwell, Sp. Assts. Atty. Gen., Olympia, Wash., for petitioners, State of Washington.

Stephen J. Morrissey, Seattle, Wash., for petitioner, Washington State Sportsmen's Council, Inc. Clarence M. Boyle, Corp. Counsel, Dean Barline, Asst. Corp. Counsel, E. K. Murray, Sp. Counsel, City of Tacoma, Washington, for intervener, City of Tacoma, Wash.

Bradford Ross, Gen. Counsel, Willard W. Gatchell and Howard E. Wahrenbrock, Assts. Gen. Counsel, John C. Mason, Atty., Federal Power Commission, Washington, D. C., for respondent.

Before STEPHENS, HEALY and ORR, Circuit Judges.

STEPHENS, Circuit Judge.

Since 1893, the City of Tacoma, a municipal corporation in the State of Washington, has produced, transmitted, distributed and sold for use electric energy generated in its own steam electric and hydroelectric plants. On December 28, 1948, the City filed with the Federal Power Commission an application for a license¹ to construct, operate, and maintain two dams (one designated as the Mossyrock, the other as the Mayfield) with appurtenant power facilities on a State of Washington river known as the Cowlitz. The Cowlitz River flows southerly into the Columbia River seaward of Portland, Oregon.

The Mossyrock Development is proposed to be located sixty-five miles upstream from the Cowlitz mouth and is to comprise a dam rising five hundred feet above bedrock which will intercept the river runoff and store the accumulated water in a natural reservoir twenty-one miles in length. The flow will be equated through the dam and through a hydroelectric power plant having an initial power potential of 225,000 kilowatts and an ultimate potential of 75,000 more kilowatts.

The proposed Mayfield Development is to be located thirteen and one-half miles downstream from Mossyrock and is to consist of a dam rising two hundred forty feet above bedrock, a power plant with an initial potential of 120,000 kilowatts with an ultimate potential of an additional 40,000 kilowatts.

The Federal Power Commission took jurisdiction of the application and, in an order issued March 8, 1949, found that the construction and operation of the project would affect lands of the United States, that the Cowlitz River was navigable below the site of the proposed dams and that their construction would affect the interests of interstate and foreign commerce. Accordingly, it concluded that Tacoma could not legally build the dams without a Federal Power Commission license.²

Thereupon the Commission ordered a public hearing to determine whether the license should issue. The "State of Washington Departments of Game", of "Fisheries", and the "Washington State Sportsmen's Council, Inc.," (a private corporation), all hereinafter to be called "Petitioners", were permitted to intervene in opposition to the City's application. The Attorney General for the State appointed a special assistant attorney general to represent all persons not otherwise represented whose views were in conflict with the State Departments of Game and Fisheries. Thus, the State of Washington by its Attorney General, and the people of Washington holding views not in harmony with the State's official position, and the applicant City of Tacoma were represented at the hearing which was had before an Examiner.

Having heard the evidence offered by the interested parties, the Presiding Examiner issued his "Recommended Decision" in which he made findings of fact with his conclusion that the application for license should be denied because the proposed construction would conflict with the comprehensive plan³ for developing the Columbia River Basin and for that reason would not be best adapted "for other beneficial public uses, including recreational purposes",⁴ because "it has not been shown that the development of the Cowlitz River for power at this time is such an economic necessity as to warrant the undertaking proposed, so long as that construction may be deemed probably injurious to the protection and maintenance of the valuable runs of anadromous fish fish which return to their spawning grounds for spawning now utilizing the river."⁵

The City of Tacoma, the Special Assistant to the State Attorney General (opposing the position of the State Attorney General), and the Commission Staff Counsel filed exceptions to the Recommended Decision. The Commission ordered oral argument⁶ and subsequently filed an opinion and order granting the license. We summarize the pertinent findings and conclusions of the Commission as follows:

1. The Commission reasserts its jurisdiction and describes the physical characteristics of the project.

2. The project will increase the navigability of the Cowlitz River by increasing the average minimum flow below the dams.

3. The reservoirs are easily accessible by state highway for recreational opportunities.

4. An annual increase of 40,000 kilowatts in peak load electric energy requirements in the Tacoma-Seattle area is anticipated. This estimate does not include defense activities.

5. There is a power shortage in the Northwest, especially in the Puget Sound area.

6. A ten-year power shortage is anticipated. Thus, new power sources must be developed to supply new loads.

7. There is no evidence that any other hydroelectric project in lieu of the Cowlitz Project could be constructed as quickly or as economically.

8. The cost is estimated at $135 million exclusive of fish handling facilities.

9. The cost of fish handling facilities is estimated at $7,100,000.

10. The annual value of Cowlitz power will exceed the cost of production by at least $1,700,000, based on a 2% interest rate.

11. There will be substantial flood control and navigation benefits.

12. The debt incurred in building the project can be retired in a reasonable time.

13. The Lower Columbia River Fishery Plan⁷ conceived around 1945 by the Fish and Wildlife Service of the Department of the Interior and approved by the United States Bureau of Reclamation and by the Army Engineers, contemplates individual state action with the aid of Congressional appropriations.

14. The ladder system of passing fish upstream should not be rejected although engineering and biological studies must still be made.

15. Hauling and trapping should be a satisfactory alternate for getting fish upstream.

16. Testing and experimentation should make it possible to develop means of successfully passing fish downstream.

17. The value of the fish spawning above the dams equals the value of the fish spawning below the dams.

18. The fish below the dams will not be injured by the dams.

19. The project is economically and financially feasible.

20. Tacoma is a municipality within the meaning of Section 3(7)⁸ of the Act and has submitted satisfactory evidence of compliance with the requirements of all applicable state laws "insofar as necessary to effect the purposes of a license for the project."⁹ Finding No. 53, Transcript of Record on Appeal, page 551.

21. Tacoma has submitted satisfactory evidence of financial ability to complete the project.

22. There is no conflicting application.

23. Due notice has been given to all interested parties.

24. "Under present circumstances and conditions and upon the terms and conditions hereinafter included in the license, the project is best adapted to a comprehensive plan for improving or developing the waterway involved for the use or benefit of interstate or foreign commerce, for the improvement and utilization of water-power development, for the conservation and preservation of fish and wildlife resources, and for other beneficial public uses including recreational purposes."¹⁰ Finding No. 59, Transcript of Record on Appeal, page 552.

Petitioners sought a rehearing, but it was denied. Thereupon, they sought review in this court.¹¹

It is provided in the Federal Power Act that:

"§ 9. Each applicant for a license under this chapter shall submit to the Commission —

* * * * * *

"(b) Satisfactory evidence that the applicant has complied with the requirements of the laws of the State * * * within which the proposed project is to be located with respect to bed and banks and to the appropriation, diversion, and use of water for power purposes and with respect to the right to engage in the business of developing, transmitting, and distributing power, and in any other business necessary to effect the purposes of a license under this chapter. * * *"

Those opposing the application challenge the authority of the Commission to issue a license upon the ground that the quoted section has not been complied with, in that:

1. Tacoma has not obtained from the State Supervisor of Hydraulics a permit for the diversion of water as required by Ch. 112, § 46, State of Washington Laws of 1949.

2. Tacoma has not obtained the written approval of the State Directors of Fisheries and of Game as to plans and specifications for the proper protection of fish life in connection with the construction of the dams as required by Ch. 112, § 49, State of Washington Laws of 1949.

3. Both of the proposed dams exceed the 25-foot height limit which the Washington legislature put upon the construction of dams on the Cowlitz River or on any stream of the State tributary to the Columbia River downstream from the McNary Dam and within the migratory range of anadromous fish. The Columbia River Sanctuary Act, Ch. 9, § 1, State of Washington Laws of 1949.

The rationale of the objectors' contentions has already been considered and rejected by the Supreme Court in First Iowa Hydro-Elec Co-op. v. Power Commission, 1946, 328 U.S. 152, 66 S.Ct. 906, 90 L.Ed. 1143. In that case the United States Supreme Court analyzed § 9(b) in the light of an Iowa statute which prohibited the building or maintaining...