WASHINGTON PUB. POW. SUP. SYS. v. PACIFIC NORTHWEST POW. CO.

• Decision Date: 15 May 1963
• Docket Number: Civ. No. 62-110.
• Parties: WASHINGTON PUBLIC POWER SUPPLY SYSTEM, a municipal corporation, Plaintiff, v. PACIFIC NORTHWEST POWER COMPANY, a corporation, Defendant.
• Court: U.S. District Court — District of Oregon

217 F. Supp. 481

WASHINGTON PUBLIC POWER SUPPLY SYSTEM, a municipal corporation, Plaintiff, v. PACIFIC NORTHWEST POWER COMPANY, a corporation, Defendant.

Civ. No. 62-110.

United States District Court D. Oregon.

March 18, 1963.

Petition for Reconsideration Denied May 15, 1963.

Norman A. Stoll, of Reinhardt, Coblens & Stoll, Portland, Or., and Jack R. Cluck, of Houghton, Cluck, Coughlin & Schubat, Seattle, Wash., for plaintiff.

Hugh Smith and Allan A. Smith, of Smith, Gray & Rodgers, Portland, Or., for defendant.

KILKENNY, District Judge.

This is an action for a Declaratory Judgment, in which each party asks for a Summary Judgment. The plaintiff asks that the court adjudicate and declare:

1. That subject to the requirements of the Federal Power Act (Title 16 U.S. C.A. Ch. 12) the plaintiff is authorized under the laws of the State of Washington, particularly RCW Ch. 43.52, to construct either the Nez Perce or High Mountain Sheep Project, each of which is more particularly described in Exhibit A attached to plaintiff's complaint.

2. That the Federal Power Act authorizes the Federal Power Commission (FPC) to issue a license to the plaintiff herein for the construction of either project and to grant the plaintiff herein authorization for such construction independently of any state statutes.

3. That any statute of Washington, Oregon or Idaho relating to such matters as the diversion and use of water, the issuance of any certificate of public convenience and necessity or the acquisition of any property necessary for the construction of either of the projects mentioned is superseded by the Federal Power Act to the extent that any such state statute is inconsistent with the full exercise, by plaintiff herein, of any license which is issued to it by the FPC on either of such projects.

Defendant filed a Motion for Summary Judgment which raises essentially the same questions. The Motions are based on the records and files and certain Affidavits. All of the facts required for a determination of the Motions are admitted, and, in large measure, those facts are set forth in my previous Opinion, on the sufficiency of defendant's contentions, D.C., 213 F.Supp. 404. Nevertheless, I feel that another statement might clarify the issues raised by the present Motions.

The Washington Public Power Supply System (Plaintiff) was created pursuant to order of January 31, 1957 by the Department of Conservation and Development of the State of Washington and, under the laws of the State of Washington (RCW 42.53.360), is a corporation, described as a municipal corporation, and, also described as a joint operating agency, for the purpose of acquiring, constructing and operating electric generating and transmission facilities.

The Pacific Northwest Power Company (Defendant) is a corporation organized under the laws of the State of Oregon and qualified to do business in the states of Oregon, Idaho, Washington and Montana. On March 31, 1958 the defendant filed with the Federal Power Commission an application for a license to build a hydroelectric project entitled the Middle Snake River Project. The license application described the High Mountain Sheep Development, the Lower Canyon Development, and the Nez Perce Development as alternative developments that might constitute the Middle Snake River Project, and the license application requested a license for the High Mountain Sheep Development. The defendant proposes to sell the entire output of the project, for which it is licensed by the Federal Power Commission, to four sponsoring utilities. The application of the defendant was duly noticed by the Federal Power Commission, and a hearing was scheduled to commence before the Commission on March 21, 1960.

On March 15, 1960 the plaintiff filed an application for a license with the Federal Power Commission for the Nez Perce Project, to be located on the Snake River in the states of Oregon and Idaho, about three miles below the proposed site of the High Mountain Sheep site, and a project which is mutually exclusive of the High Mountain Sheep Project. At the time of filing the application for the Nez Perce Project, the plaintiff had not filed with the Director of Conservation and Development of the State of Washington application to add additional projects to its list of authorized projects. The plaintiff had not, at that time, nor has it since, filed an application with the State of Idaho for any permit to appropriate water of the State of Idaho. The plaintiff stated in its application that it intended to file an application for license with the Hydroelectric Commission of Oregon under the Oregon Hydroelectric Act, but in a subsequent amendment to the application the plaintiff took the position that no such application was required, and did not and has not since that date filed an application under the Oregon Hydroelectric Act. The plaintiff has not qualified to do business in the States of Oregon or Idaho, nor has it made application for such qualification.

After the Federal Power Commission had consolidated the proceedings on the applications of the plaintiff and defendant, and after several postponements at the request of the plaintiff, a hearing was opened before the Federal Power Commission Hearing Examiner on November 4, 1960. It was finally closed on September 12, 1961. On April 24, 1961 the plaintiff filed a motion with the Presiding Examiner for leave to amend its application so as to include the High Mountain Sheep Project as an alternative project to Nez Perce. This motion was denied by the Examiner, the ruling was affirmed by the Commission, the motion was renewed at the close of the hearing in September, 1961 and the motion has been denied by the Presiding Examiner in his Order granting license for High Mountain Sheep to Pacific Northwest Power Company. Subsequent to filing said Motion for leave to amend to include the High Mountain Sheep Project, the plaintiff, on May 10, 1961 applied to the Director of Conservation and Development of the State of Washington for an order authorizing the undertaking of the Nez Perce and High Mountain Sheep Projects, pursuant to the applicable provisions of the Laws of Washington. The defendant, together with two of its organizing companies, who are electric utilities operating in the State of Washington, namely, The Washington Water Power Company and Pacific Power & Light Company, intervened in the proceedings before the Director to oppose the application. The application was granted by Order of the Director dated July 7, 1961 and was appealed by the defendant and its two organizing companies. The Order was affirmed.

Defendant feels that the real issues in the case, as shown by the record, encompass a field somewhat greater than envisioned by plaintiff.¹ I do not feel there is a material variance between the issues claimed by plaintiff and those claimed by defendant, and will adopt those presented by plaintiff as decisive of the legal questions here involved.

AUTHORITY OF PLAINTIFF TO CONSTRUCT EITHER NEZ PERCE OR HIGH MOUNTAIN SHEEP PROJECT

Prior to 1957 the plaintiff's powers and authority were lodged in the Washington State Power Commission, a State Agency composed of persons appointed by the Governor of that state under Chapter 227, Laws of Washington, 1949. In 1957, this Commission was abolished (Chapter 295, Section 8, Laws 1957) and the powers and authority of the Commission were thereby conferred on plaintiff. The conferring statute provided, among other things:

"In addition to the power and authority granted in this Chapter to an operating agency it shall also have all power and authority heretofore granted, and shall be subject to all of the duties imposed upon the Washington State Power Commission. * * *"²

Among the powers being exercised by the Commission there were those specifically mentioned in the Declaration of Policy.³

The provisions of the Washington Statutes, in pertinent part, which must be construed in order to determine the powers granted by the Washington Legislature when the legislation was enacted in 1953 are as follows:

(Laws 1953, Chapter 281) (Revised Code of Washington citations in margin) "SEC. 5. The commission shall have authority RCW 43.52.300(1) "(a) To generate, produce, transmit, deliver, exchange purchase or sell electric energy and to enter into contracts for any or all of such purposes. RCW 43.52.300(2) "(b) To construct, condemn, purchase, lease, acquire add to, extend, maintain, improve, operate, develop and regulate plants, works and facilities for the generation and/or transmission of electric energy and to take, condemn, purchase, lease and acquire any real or personal, public or private property franchise and property rights, including but not limited to state, county and school lands and properties for any of the purposes herein set forth and for any facilities or works necessary or convenient for use in the construction, maintenance or operation of any such works, plants and facilities; provided that the commission shall not be authorized to acquire by condemnation any plants, works and facilities owned and operated by any city or district, or by a privately owned public utility. The commission shall be authorized to contract for and to acquire by lease or purchase from the United States or any of its agencies, any plants, works or facilities for the generation and transmission of electricity and any real or personal property necessary or convenient for use in connection therewith. RCW 43.52.300(3) "(c) To negotiate and enter into contracts or compacts with the United States or any of its agencies with any state or its agencies, with Canada or its agencies or with any district or city of this state, for the lease, purchase, construction, extension, betterment acquisition, operation and maintenance of all or any part of any electric generating and transmission plants, works and facilities or...