Washington Public Power Supply Sys. v. FEDERAL POWER COM'N, 18728
| Decision Date | 24 March 1966 |
| Docket Number | No. 18728,18729,18731.,18728 |
| Parties | WASHINGTON PUBLIC POWER SUPPLY SYSTEM, Petitioner, v. FEDERAL POWER COMMISSION, Respondent, Pacific Northwest Power Company, Idaho Wildlife Federation, Idaho Public Utilities Commission, Idaho Fish and Game Commission, Washington State Sportsmen's Council, Inc., et al., State of Oregon, et al., Intervenors. DEPARTMENT OF CONSERVATION, STATE OF WASHINGTON, Petitioner, v. FEDERAL POWER COMMISSION, Respondent, Pacific Northwest Power Company, Idaho Wildlife Federation, Idaho Public Utilities Commission, Idaho Fish and Game Commission, Washington State Sportsmen's Council, Inc., et al., State of Oregon, et al., Intervenors. UNITED STATES of America on the relation of Stewart L. UDALL, Secretary of the Interior, Petitioner, v. FEDERAL POWER COMMISSION, Respondent, Pacific Northwest Power Company, Idaho Wildlife Federation, Idaho Public Utilities Commission, Idaho Fish and Game Commission, Washington State Sportsmen's Council, Inc., et al., State of Oregon, et al., Intervenors. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
COPYRIGHT MATERIAL OMITTED
Mr. Northcutt Ely, Washington, D. C., with whom Messrs. C. Emerson Duncan, II, Jerome C. Muys, David B. Beers and Joseph H. Sharlitt, Washington, D. C., were on the brief, for petitioner in No. 18,728.
Mr. S. Billingsley Hill, Atty., Dept. of Justice, with whom Asst. Atty. Gen. Ramsey Clark and Mr. Roger P. Marquis, Atty., Dept. of Justice, were on the brief, for petitioner in No. 18,731.
Mr. Peter H. Schiff, Atty., F. P. C., with whom Messrs. Richard A. Solomon, Gen. Counsel, Howard E. Wahrenbrock, Sol. and Joel Yohalem, Atty., F. P. C., were on the brief, for respondent.
Mr. Hugh Smith, Portland, Or., with whom Mr. Richard M. Merriman, Washington, D. C., was on the brief, for intervenor Pacific Northwest Power Co.
Mr. Thomas J. Jones, III, Boise, Idaho, with whom Mr. Peyton G. Bowman, III, Washington, D. C., was on the brief, for intervenors Idaho Public Utilities Commission and Idaho Fish and Game Commission.
Mr. Charles B. Roe, Jr., Asst. Atty. Gen., State of Washington, Olympia, Wash., submitted on the brief for petitioner in No. 18,729.
Mr. John O. Graybeal, Seattle, Wash., with whom Mr. C. Frank Reifsnyder, Washington, D. C., was on the brief, for intervenor Washington State Sportsmen's Council, Inc., and certain other intervenors.
Messrs. Robert Y. Thornton and Lloyd G. Hammel, Salem, Or., were on the brief for intervenor State of Oregon.
Before WILBUR K. MILLER, Senior Circuit Judge, and DANAHER and BURGER, Circuit Judges.
On June 26, 1964, Washington Public Power Supply System1 and the Department of Conservation of the State of Washington filed with us separate petitions for review of an order of the Federal Power Commission dated February 5, 1964, and an amendatory order dated April 30, 1964. For reasons set forth in the Commission's opinions, these orders, taken together, granted to Pacific Northwest Power Company, a privately owned corporation, and denied to the Power Supply System, a license to construct a hydroelectric project at the High Mountain Sheep dam site on the Snake River between Oregon and Idaho.
Both petitioners contended before the Commission, and contend here, that the Power Supply System, a municipality which on April 24, 1961, had applied for a license for a High Mountain Sheep project at the same site as that previously proposed by Pacific Northwest, was entitled to preference over Pacific Northwest under Section 7(a) of the Act, 16 U.S.C. § 800(a), which is in pertinent part as follows:
"In issuing * * * licenses where no preliminary permit has been issued * * * the Commission shall give preference to applications therefor by States and municipalities, provided the plans for the same are deemed by the Commission equally well adapted, or shall within a reasonable time to be fixed by the Commission be made equally well adapted, to conserve and utilize in the public interest the water resources of the region * * *."
This statutory provision undoubtedly gave the Public Power System preference over Pacific Northwest (provided its application met all requirements) if no preliminary permit had been issued.
Pacific Northwest insists that a preliminary permit had been issued to it, and was extant when it applied for the High Mountain Sheep license. On the other hand, the petitioners argue that Pacific Northwest's preliminary permit was limited to the Mountain Sheep and Pleasant Valley dam sites described in it and did not cover the High Mountain Sheep site. They further assert that Pacific Northwest's preliminary permit was terminated when the Commission declined to issue a license covering the sites therein described. Thus, the controlling question before us is whether, in fact and in law, a preliminary permit covering the High Mountain Sheep site had been issued and was still valid when the Power Supply System applied for a license covering the same site. In other words, does the priority afforded by a preliminary permit apply only to a project for waterway development on the exact site described in the permit, or does it include a project on a different site for developing essentially the same portion of the waterway, which is determined to be best adapted to comprehensive development of that waterway?
The proceedings began on November 9, 1954, when Pacific Northwest filed with the Commission an application for a preliminary permit for a Mountain Sheep-Pleasant Valley project on the Snake River, which it described as two low dams on sites above the point where the Imnaha River empties into the Snake. The sites were 21 miles apart, the lower being only 3.7 miles above the High Mountain Sheep site now in controversy. The Commission issued a preliminary permit to Pacific Northwest April 8, 1955, to expire March 31, 1958. It designated the project as No. 2173 and described it as it had been described in the application.
On September 7, 1955, Pacific Northwest applied to the Commission for a license on the Mountain Sheep-Pleasant Valley project No. 2173, describing it in the terms used in the permit application and the preliminary permit. After a hearing, the Commission denied the application on January 28, 1958, on the ground that the plan proposed was not that best adapted to the development of the middle Snake River. It said:
"It is readily apparent from the studies presented in House Document 531, in Senate Document No. 51, and from those prepared by the Staff for the Middle Snake Basin that any combination of projects which includes Nez Perce is consistently superior to any combination of projects which does not include Nez Perce."
On March 31, 1958, the last day of its preliminary permit, Pacific Northwest filed an application for a license for the High Mountain Sheep project, which was docketed as No. 2243. The project was described as a single high dam at the High Mountain Sheep site instead of the two low dams originally contemplated at the Mountain Sheep and Pleasant Valley sites. Nearly two years later, on March 15, 1960, the Power Supply System applied to the Commission for a Nez Perce project, designated as No. 2273. That site is below the mouth of the Salmon River and about three miles downstream from the High Mountain Sheep site.
We here reproduce a sketch of the reach of the Snake River involved in these cases, showing its tributaries and the various dam sites mentioned in this opinion.
The Commission consolidated the application of Pacific Northwest for the High Mountain Sheep site with that of the Power Supply System for the Nez Perce location and a hearing on the two applications was conducted by an examiner.2 Before a determination had been made by him, the Power Supply System on April 24, 1961, moved to amend its Nez Perce license application and proposed as an alternative that, if the Commission no longer regarded the Nez Perce site as best adapted to comprehensive development of the Snake River, it should be licensed to construct a High Mountain Sheep project on the site proposed by Pacific Northwest more than three years before.
On February 5, 1964, the Commission departed from its earlier dictum about the Nez Perce site and found that the High Mountain Sheep site was best adapted to a comprehensive plan for developing the Snake and Salmon Rivers because its location above the mouth of the Salmon eliminated the adverse effect on runs of anadromous fish in the Salmon River which probably would be caused by a Nez Perce dam below the Salmon's mouth. As to the conflicting applications, the Commission sustained its examiner's holding that the Power Supply System's application for a license for the High Mountain Sheep site was not entitled to preference, under Section 7(a) of the Act, over the earlier application of Pacific Northwest because the preference applies only where no preliminary permit has been issued.3
The legal question whether Pacific Northwest's preliminary permit was limited to the particular sites proposed in its application therefor, or was broad enough to cover the project on another site which was found by the Commission to be best adapted to a comprehensive development of that reach of the Snake River, was answered by the Commission in its opinion. It refused to adopt the narrow conception of a preliminary permit contended for by our petitioners, and, as we have said, held that Pacific Northwest's permit gave it priority with respect to the High Mountain Sheep site.
In doing so, the Commission said, in part:
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