United States, TVA v. THREE TRACTS OF LAND, ETC., ALA.

• Decision Date: 13 February 1974
• Docket Number: Civ. A. No. 72-462-NE.
• Citation: United States, TVA v. THREE TRACTS OF LAND, ETC., ALA., 377 F. Supp. 631 (N.D. Ala. 1974)
• Parties: UNITED STATES of America upon the relation and for the Use of the TENNESSEE VALLEY AUTHORITY, Plaintiff, v. THREE TRACTS OF LAND CONTAINING A TOTAL OF 1,174 ACRES MORE OR LESS, IN JACKSON COUNTY, ALABAMA, et al., Defendants.
• Court: U.S. District Court — Northern District of Alabama

377 F. Supp. 631

UNITED STATES of America upon the relation and for the Use of the TENNESSEE VALLEY AUTHORITY, Plaintiff, v. THREE TRACTS OF LAND CONTAINING A TOTAL OF 1,174 ACRES MORE OR LESS, IN JACKSON COUNTY, ALABAMA, et al., Defendants.

Civ. A. No. 72-462-NE.

United States District Court, N. D. Alabama, Northeastern Division.

February 13, 1974.

Beauchamp E. Brogan, Assoc. Gen. Counsel, Knoxville, Tenn., argued, Robert H. Marquis, Gen. Counsel TVA, and Justin M. Schwamm, Knoxville, Tenn., on the brief, for plaintiff.

Julian D. Butler, Butler & Potter, Huntsville, Ala., Wm. E. Garner, pro se, for defendants.

MEMORANDUM OPINION

McFADDEN, Chief Judge.

This is a condemnation proceeding by the Tennessee Valley Authority (hereafter "TVA") to condemn the respondents' land as a part of an inventory of sites for electric generating plants. TVA has filed its declaration of taking to which the landowners have interposed multiple objections. The objections in essence are:

(1) The taking is not for a public use in that TVA does not have the statutory or constitutional authority to condemn the property to be used exclusively for the production of electric power to be sold by TVA;

(2) That the plaintiff has not complied with the National Environmental Policy Act of 1969.

The matter is before the Court on the motion of the Tennessee Valley Authority to strike the defenses and for summary judgment.

Defendants contend that the use to which the plaintiff seeks to put the property is not a public use as authorized by the Tennessee Valley Authority Act. Specifically they contend that the TVA Act and the United States Constitution does not authorize the condemnation of land for building of an electric generating plant to be used exclusively for the production of electric power to be sold by TVA.

The land was condemned as a part of an inventory of sites for the future construction of electric generating plants and it is most likely that it was under consideration at the time of condemnation for the building of a nuclear plant since all of TVA's advance planning is geared toward that concept. TVA contends that the acquisition of the site as a part of an inventory is necessary to insure its ability to carry out its functions.

What constitutes a public use should be determined in the first instance by the legislature, but the legislative determination is always reviewable by the courts who bear the ultimate responsibility for the decision. See 29A C.J.S. Eminent Domain § 30 (1965). However, there is a strong presumption in favor of the correctness of the legislative determination. These principles are acknowledged in the leading case of U. S. ex rel. TVA v. Welch, 327 U.S. 546, 66 S.Ct. 715, 90 L.Ed. 843 (1946). Justice Black's majority opinion in that case emphasized Congress' function to determine what is a public use and went on to say:

. . . whatever may be the scope of the judicial power to determine what is a "public use" in Fourteenth Amendment controversies, this Court has said that when Congress has spoken on this subject "Its decision is entitled to deference until it is shown to involve an impossibility." Cite omitted. Any departure from this judicial restraint would result in courts deciding on what is and what is not a governmental function and in their invalidating legislation on the basis of their view on that question at the moment of decision, a practice which has proved impracticable in other fields.

327 U.S., at 552.

It appears therefore that this Court does have authority to and should review the question of public use, but the scope of its review should be constrained by a deference to the statutory intent of the TVA Act.

Section 4(i) of the TVA Act, 16 U.S. C. § 831c(i) provides that TVA:

Shall have power to acquire real estate for the construction of dams, reservoirs, transmission lines, power houses, and other structures . . . and to condemn all property that it deems necessary for carrying out the purposes of this Act . . .

A clear inference that the term "power houses and other structures" was intended by Congress to include steam plants is found in the express statutory authorization to issue bonds for the construction of steam plants. 16 U.S.C. § 831n. A district court in Tennessee held that a mere reading of 16 U.S.C. § 831c(i) is convincing evidence of Congressional authorization for TVA to build a steam plant. Rainbow Realty Company v. TVA, 124 F.Supp. 436 (M.D.Tenn. 1954); accord U. S. ex rel. TVA v. Easement and Right of Way, Logan Co., Ky., 246 F.Supp. 263 (W.D.Ky.1965), aff'd 375 F.2d 120 (6th Cir. 1967).

The proposed nuclear electric generating plant will be a steam plant as opposed to an electric generating plant whose turbines are turned by water power. Nowhere does the Act infer contemplation of a particular type of steam plant whether oil-fired, coal-fired, or nuclear reactor-fired. Clearly, the nuclear plant will be a steam plant and clearly TVA is authorized to construct steam plants.

Defendants contend nevertheless that under 16 U.S.C. § 831h-1 which authorizes TVA to build electric generating plants at dams to use the power to support its own operations and to sell any surplus electric power to avoid waste and help liquidate the maintenance cost of the Authority clearly contemplates the building of electric generating plants only in conjunction with the hydro-electric plants. This section of the Act seems clearly to say that TVA should build dams for the primary purpose of controlling loads and navigation and not for the sole purpose of building hydroelectric plants to sell power; but this section places no restriction other than by indirect reference on the lawful purposes for which steam plants may be built. Rather, 16 U.S.C. § 831n and § 831n-4, indicate that steam plants are to be constructed by TVA when they become necessary to discharge TVA's broad responsibilities for the advancement of the national defense and the physical, social and economic development of the area and Congress further intends that TVA should provide an ample supply of electric power for such purposes. 16 U.S.C. § 831n-4(h). The cases cited above, Rainbow Realty Company v. TVA and U.S. ex rel. TVA v. Easement Right of Way, Logan Co., Ky., although deciding controversies over rights of way for transmission lines, addressed the issue of the legality of steam plants whose output would be fed through these lines and held that such steam plants were authorized where they were planned and operated as part of TVA's integral network of electric power distribution. It would appear that the plant to be built on this site if one is built there would be a part of TVA's overall electrical network and that clearly TVA is authorized to build it.

It further appears to the Court that TVA would be authorized to build the plant even if it was to be used solely for the production of electricity for sale to others. A review of the history of TVA and the development of the Act clearly shows an intention on the part of Congress for TVA to fill a utility role that is not merely the sale of surplus power as a by product to its main function. Congress, in 1939, amended the Act to authorize the issuance of bonds to finance the acquisition of generating and transmission facilities of private utilities.

. . . At the time this amendment was passed, Congress understood that TVA was assuming a utility responsibility for the area and that eventually it would be necessary to build steam plants to carry out that responsibility. United States ex rel. v. Easement Right of Way, Logan Co., Ky., supra (246 F. Supp. 263, 267). There is no showing that the proposed plant would be used exclusively for the production of electricity for sale to others, but under the broad powers given to the TVA this Court would conclude that TVA would have the authority to do so.

Defendants contend that the construction and operation by TVA of a large electric generating power plant to be used exclusively for the production of electricity for sale to others is unconstitutional even if authorized by the statute. It is their contention that Ashwander et al v. TVA et al, 297 U.S. 288, 56 S.Ct. 466, 80 L.Ed. 688 (1936), restricted its holding to approving the constitutionality of building Wilson Dam as a valid exercise by Congress of its power to control navigation and provide for the national defense and the sale of electric power from the dam as a valid secondary purpose to this constitutional primary purpose. It is defendants' contention that all subsequent cases regarding the constitutionality of TVA have limited their holdings to approving activities that could be tied directly to the operation of dams on the Tennessee River. Defendants rely on the inference that the proposed power plant would be unconstitutional because it would not be related directly to TVA's dam-building powers.

The Court has reviewed the cases cited by defendants and is unpersuaded that there is any lack of constitutional authority for the proposed action by TVA. Rather, the cases demonstrate several constitutional bases.

In Rainbow Realty Company v. TVA, supra, the plaintiff instituted an action for declaratory judgment and injunctive relief against the institution of condemnation proceedings by TVA to take property for electric transmission lines. The Court held:

. . . Boiled down, the main complaint of the plaintiff realty company is that the power system of T. V. A., which was in the beginning predominantly hydro-electric, is being converted through construction of many steam-generating plants to a predominantly "steam-power" system; and that T. V. A. lacks statutory or constitutional authority for the construction and operation of such a system, or for the construction of transmission lines for marketing the output of such system.

124 F.Supp., at 438. The Court went on to say:

There can now be no doubt that there is plainly both constitutional and statutory authority

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