Utah Power & Light Co. v. Morton, 73-1150
| Decision Date | 20 September 1974 |
| Docket Number | No. 73-1150,73-1150 |
| Citation | 504 F.2d 728 |
| Parties | UTAH POWER AND LIGHT COMPANY, Appellant, v. Rogers C. B. MORTON et al., Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Marvin J. Bertoch (argued) of Ray, Quinney & Nebeker, Salt Lake City, Utah, for appellant.
Neil T. Proto, Asst. Atty. Gen., (argued), Appellate Section, Land and Natural Resources Div., U.S. Dept. of Justice, Washington, D.C., for appellee.
Before BARNES and WALLACE, Circuit Judges, and FERGUSON, * District judge.
This is an appeal by the Utah Power and Light Company from an order of the District Court for the District of Idaho, granting the Secretary of the Interior's motion for judgment on the pleadings and sustaining the authority of the Secretary of the Interior to promulgate regulations requiring any private utility company seeking a right-of-way across public lands for the construction and operation of electric transmission lines, to transmit or 'wheel' 1 electric energy from a federal hydroelectric generating facility over the excess capacity of the proposed transmission wires in the manner provided for in 43 C.F.R. 2851.1-1(a)(5) (1971), enacted pursuant to 43 U.S.C. 961.
On January 5, 1969, appellant Utah Power and Light Company (hereinafter 'Utah Power') filed an application for a right-of-way across 2.01 miles of United States vacant land to construct a 69 kilovolt transmission line between Utah Power's Camas and Dubois substantions in Idaho. Appellant requested that the wheeling requirement imposed by 43 C.F.R. 2851.1-1(a)(5), which requires that the grantee of a right-of-way across public lands agrees to wheel government power over surplus capacity in its own private power lines, be waived.
The Idaho Land Office of the Bureau of Land Management granted the permit, but informed appellant it would not consent to a waiver of the clause. The Secretary of the Interior, through the Interior Board of Land Appeals, affirmed the decision of the Idaho Office on November 5, 1971 (R. 16), and Utah Power filed its complaint in the district court seeking to have the regulation declared invalid and in excess of the Secretary's authority. The district court issued its order on November 3, 1972, sustaining the Secretary's authority to promulgate the wheeling regulation.
'The Court, after considering the arguments and briefs of counsel, and being fully advised in the matter, ruled that the 'wheeling' requirements and attendant provisions contained in 43 C.F.R. 2851.1-(a)(5) (2851.1-1(a)(5)) constitute a reasonable and lawful exercise of the Secretary of Interior's administrative discretion and that said regulation is within the scope of authority delegated to the Secretary under Title 43, United States Code, Section 961.' (R. 63)
A timely notice of appeal was filed November 30, 1972. This Court's jurisdiction rests on 28 U.S.C. 1291.
The sole issue presented on appeal is whether the Secretary of Interior has the authority to issue a right-of-way permit under 43 U.S.C. 961, to a private utility company to construct electric transmission wires over public lands and condition the use of the right-of-way on the adherence to the wheeling privileges contained in 43 C.F.R. 2851.1-1(a)(5). Appellant argues that the trial court was in error in ruling that: (1) the wheeling provision of the regulations is within the scope of authority delegated to the Secretary; (2) the wheeling provision constitutes a reasonable exercise of authority granted to the Secretary; (3) the wheeling provision was not in violation of appellant's Fifth Amendment protection against deprivation of property without due process of law. We affirm.
The Act of February 15, 1901, 31 Stat. 790, 43 U.S.C. 959, for the first time provided for the issuance of revocable permits for rights-of-way through public lands under general regulations fixed by the Secretary of the Interior. In 1911 Congress amended the earlier enactment to allow the Secretary to grant permits for a period not exceeding fifty years from the date of issuance. The statute, as amended, now reads in pertinent part:
'The head of the department having jurisdiction over the lands be and he is, authorized and empowered, under general regulations to be fixed by him, to grant an easement for rights-of-way, for a period not exceeding fifty years from the date of the issuance of such grant, over, across, and upon the public lands and reservations of the United States for electrical poles and lines for the transmission and distribution of electrical power . . .' 43 U.S.C. 961.
Pursuant to the statutory authority to promulgate general regulations, the Secretary of the Interior, on March 23, 1963 issued the wheeling regulation here in controversy, 2 43 C.F.R. 2234.4-1(a)(5), redesignated in 1971 as 43 C.F.R. 2851.1-1(a), (1)(a)(5) and (1)(b), 3 which reads as follows:
2851.1 Nature of interest.
2851.1-1 Terms and conditions.
(a) By accepting a right-of-way for a power transmission line, the applicant thereby agrees and consents to comply with and be bound by the following terms and conditions, excepting those which the Secretary may waive in a particular case, in addition to those specified in 2801.1-5.
(5) An applicant for a right-of-way for a transmission facility having a voltage of 33 kilovolts or more must, in addition to the requirements of 2802, execute and file with its application a stipulation agreeing to accept the right-of-way grant subject to the following conditions:
(i) In the event the United States, pursuant to law, acquires the applicant's transmission or other facilities constructed on or across such right-of-way, the price to be paid by the United States shall not include or be affected by any value of the right-of-way granted to the applicant under authority of the regulations of this part.
(ii) The Department of the Interior shall be allowed to utilize for the transmission of electric power and energy any surplus capacity of the transmission facility in excess of the capacity needed by the holder of the grant (subsequently referred to in this paragraph as 'holder') for the transmission of electric power and energy in connection with the holder's operations, or to increase the capacity of the transmission facility at the Department's expense and to utilize the increased capacity for the transmission of electric power and energy. Utilization by the Department of surplus or increased capacity shall be subject to the following terms and conditions:
(a) When the Department desires to utilize surplus capacity thought to exist in the transmission facility, notification will be given to the holder and the holder shall furnish to the Department within 30 days a certificate stating whether the transmission facility has any surplus capacity not needed by the holder for the transmission of electric power and energy in connection with the holder's operations and, if so, the amount of such surplus capacity.
(b) Where the certificate indicates that there is no surplus capacity or that the surplus capacity is less than that required by the Department the authorized officer may call upon the holder to furnish additional information upon which its certification is based. Upon receipt of such additional information the authorized officer shall determine, as a matter of fact, if surplus capacity is available and, if so, the amount of such surplus capacity.
(c) In order to utilize any surplus capacity determined to be available, or any increased capacity provided by the Department at its own expense, the Department may interconnect its transmission facilities with the holder's transmission facility in a manner conforming to approved standards of practice for the interconnection of transmission circuits.
(d) The expense of interconnection will be borne by the Department, and the Department will at all times provide and maintain adequate protective equipment to insure the normal and efficient operation of the holder's transmission facilities.
(e) After any interconnection is completed, the holder shall operate and maintain its transmission facilities in good condition, and, except in emergencies, shall maintain in a closed position all connections under the holder's control necessary to the transmission of the Department's power and energy over the holder's transmission facilities. The parties may by mutual consent open any switch where necessary or desirable for maintenance, repair or construction.
(f) The transmission of electric power and energy by the Department over the holder's transmission facilities will be effected in such manner, as will not interfere unreasonably with the holder's use of the transmission facilities in accordance with the holder's normal operating standards, except that the Department shall have the exclusive right to utilize any increased capacity of the transmission facility which has been provided at the Department's expense.
(g) The holder will not be obligated to allow the transmission of electric power and energy by the Department to any person receiving service from the holder on the date of the filing of the application for a grant, other than statutory preference customers including agencies of the Federal Government.
(h) The Department will pay to the holder an equitable share of the total monthly cost of that part of the holder's transmission facilities utilized by the Department for the transmission of electric power and energy, the payment to be an amount in dollars representing the same proportion of the total monthly cost of such part of the transmission facilities as the maximum amount in kilowatts of the power transmitted on a scheduled basis by the Department over the holder's transmission facilities bears to the total capacity in kilowatts of that portion of the transmission facilities. The total montly cost will be determined in accordance with the system of accounts prescribed ...
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