State of Wisconsin v. Federal Power Commission

• Decision Date: 02 July 1954
• Docket Number: No. 10948.,10948.
• Citation: 214 F.2d 334
• Parties: STATE OF WISCONSIN et al. v. FEDERAL POWER COMMISSION.
• Court: U.S. Court of Appeals — Seventh Circuit

214 F.2d 334 (1954)

STATE OF WISCONSIN et al. v. FEDERAL POWER COMMISSION.

No. 10948.

United States Court of Appeals Seventh Circuit.

July 2, 1954.

Harold H. Persons, Asst. Atty. Gen., of Wisconsin, William E. Torkelson, Chief Counsel, Public Service Commission of Wisconsin, Madison, Wis., of counsel, Vernon W. Thomson, Atty. Gen., Roy G. Tulane, Asst. Atty. Gen., for petitioners.

Willard W. Gatchell, Gen. Counsel, John C. Mason, Trial Atty., Louis C. Kaplan, Washington, D. C., for respondent.

Before DUFFY, LINDLEY and SCHNACKENBERG, Circuit Judges.

DUFFY, Circuit Judge.

This is a petition to review an order of the Federal Power Commission (hereinafter called Commission) issued April 21, 1953, amending a license for Project No. 2064 previously issued to Winter Electric Light and Power Company. The project is located at Snap Tail Rapids on the East Fork of the Chippewa River in Sawyer County, Wisconsin.

The jurisdictional basis for the original license for Project No. 2064 was that the project would occupy lands of the United States within the Chequamegon National Forest. In the license as issued there was a proviso that nothing therein should be construed as determining whether the East Fork of the Chippewa River is a navigable water of the United States at the project site or whether the interests of interstate commerce would be affected by the project if constructed.

In the application for an amendment, the licensee requested a finding by the Commission under § 4(e), 16 U.S.C.A. § 797, of the Federal Power Act, 16 U.S.C. A. § 791a et seq., respecting the navigability of the East Fork of the Chippewa River and the effect of the project on the interests of interstate or foreign commerce.

In the order here under review the Commission found that the East Fork of the Chippewa River from points at its headwaters upstream from the project site down to its mouth constitutes navigable water of the United States, and that the construction and operation of the project will affect the interests of interstate or foreign commerce. However, the State of Wisconsin and the Public Service Commission of Wisconsin contend that the East Fork of the Chippewa River is not navigable water of the United States, and they have petitioned for a review of the Commission's order.

The East Fork of the Chippewa River originates in the southeasterly part of Ashland County, Wisconsin, and flows in a southwesterly direction through Ashland and Sawyer Counties to its confluence with the West Fork of the Chippewa River, to form the Chippewa, which continues in a south-southwesterly direction until it empties at the south end of Lake Pepin, on the Wisconsin-Minnesota boundary, into the Mississippi River. The East Fork of the river has a number of rapids. At other places the river widens out and some of those wide areas are designated as lakes. Snap Tail Rapids is located between Blaisdell Lake and Hunter Lake and is the site of the dam constructed by the Winter Electric Light and Power Company under Project No. 2064. The river water flows rapidly in Snap Tail Rapids and a number of rocks protrude above the water level, making the passage of any kind of boat very difficult. Since the construction of the dam most of the water in the river is diverted into an open canal, which extends for about 4/10 of a mile to the powerhouse, and the water is then returned to the river about one-half mile down stream from the dam by means of a tail race. The Department of the Army has never exercised active jurisdiction of the Chippewa River above Eau Claire, Wisconsin, which is many miles south of Snap Tail Rapids.

The East Branch of the Chippewa River never was utilized for ordinary boat traffic. The claim that it is navigable water under the federal test is based upon its use in log drives from 1876 to 1924, during that period when Wisconsin was denuded of its great pine forests. In the early days of the period, when railroad transportation was not available or convenient, a number of rivers in northern Wisconsin were utilized to move pine logs from the forests to the saw mills. Even in the latter part of that period, and as long as the logs were available, some of the rivers were utilized for such purpose, apparently for economic reasons.

Log drives on the East Branch of the Chippewa occurred annually during the spring and early summer of each year from 1876 to 1924. The practice was for lumber camps to be established at various points in the forest. In some old-time camps, the crews comprised as many as 100 men who, during the winter season, would cut as much as 20,000 feet of logs per day. These logs would then be dragged or otherwise transported to or near the edge of the river, waiting for high water resulting from the spring runoff. Some of the log driving operations were extensive, the record showing that one operator in 1895 cut and drove down river over 40,000,000 feet of pine from four camps. The record also shows that a single unit of a log drive would take from a week to ten days to pass a given point on the East Fork of the Chippewa. Many of the logs were driven to points outside of Wisconsin, such as Winona, Minnesota, and Dubuque, Iowa.

Special boats were used in connection with the log drives and were known as batteaux and wanigans. The batteaux were personnel carriers. A small type was 16 ft. long, but those most commonly used were about 30 ft. long and 4½ to 5 ft. wide, with a 10" draft when loaded, and capable of carrying 18 men. The wanigans were large flat boats, 30 to 35 ft. long, formed of huge logs, sloped up at the ends, having one oar at the front end and one behind for guiding purposes. There were two types of wanigans, one known as a cook wanigan, to carry a shanty or tent, the cooks...