Washington Public Power Supply System, Application of
| Decision Date | 26 September 1963 |
| Docket Number | No. 36708,36708 |
| Citation | 62 Wn.2d 941,385 P.2d 299 |
| Court | Washington Supreme Court |
| Parties | Application of WASHINGTON PUBLIC POWER SUPPLY SYSTEM for an Order Relating to Additional Projects. |
Smith, Gray & Rodgers, Portland, Or., Blair, Thomas, Hicks, O'Hern & Hokanson, Tacoma, for appellant.
John J. O'Connell, Atty. Gen., Charles B. Roe, Jr., Timothy R. Malone, Asst. Attys. Gen., Olympia, for Earl Coe.
Houghton, Cluck, Coughlin & Schubat, John W. Riley, Seattle, for Washington Public Power Supply System.
This is an appeal from a judgment of the Superior Court of Thurston County affirming an order of the Director of Conservation, State of Washington (hereinafter referred to as the Director), acting under RCW 43.52.360. 1 The Washington Public Power Supply System (hereinafter referred to as WPPSS) is a combination of twelve public utility districts in this state, forming a joint operating agency (hereinafter referred to as JOA) for the purpose of 'acquiring, constructing, operating and owning' facilities for the generation and transmission of 'electric energy and power.' RCW 43.52.360. 2
WPPSS desires to construct and operate an hydroelectric project on the Snake River at a location entirely outside the state of Washington and where the river constitutes the boundary between Oregon and Idaho.
Whether it has, as a municipal corporation of the state of Washington, the power and authority to construct and operate such a project is not before the court and is not here passed upon. This also represents the position of the Director and WPPSS both in their briefs and in the declarations of their counsel at the time of argument. We make this statement at this point in the opinion so that it will be clear throughout what we are not deciding and so there may be no misapprehension as to what we are deciding when we hereafter refer to the 'competency' of WPPSS within the purview of RCW 43.52.360. 3
What is being decided here requires a brief preliminary explanation. An application for the formation of a JOA, such as the WPPSS, must be made to the Director; however, his approval is not necessary, for if he does not act upon the application within a specified time 'the application shall be deemed to have been approved and the operating agency established.' RCW 43.52.360. 4
The application for the formation of a JOA must contain a general description of the project it is organized to undertake and the
'* * * principal project works, including dams, reservoirs, power houses and transmission lines; (3) the general location of the project and, if a hydroelectric project, the name of the stream on which such proposed project is to be located; * * *.' RCW 43.52.360. 5
The only requirement relative to the undertaking of projects, in addition to those for which a JOA is formed, seems to be the approval of the 'legislative bodies of a majority of the members thereof.' RCW 43.52.360. 6
However, the Director again enters the picture if the JOA desires to undertake an hydroelectric project, in addition to those for which it was formed, at a site or sites
'* * * upon which any publicly or privately owned public utility has a license or permit or has a prior application for a license or permit pending with any commission or agency, state or federal, having jurisdiction thereof, * * *.' RCW 43.52.360. 7
In such a situation, the application to construct such an additional project shall be made to the Director in the manner provided for in the original organization of the JOA, and there must be an order authorizing such construction. RCW 43.52.360. 8
It is such a situation with which we are here concerned. The WPPSS is desirous of undertaking an hydroelectric project at alternate sites on the Snake River: one known as the Nez Perce site, which is just below the confluence of the Salmon River with the Snake River, and the other known as the High Mountain Sheep site, just above the confluence of the two rivers. (At both sites, the Snake River is the boundary between Idaho and Oregon.) It is clear from the statute, and quite significant from the standpoint of the Director's capacity to determine any issue relative to the power and authority of a JOA to operate outside the state, that no application had to be made to the Director had the Nez Perce site been the only one in which WPPSS was interested, because no prior application for a license or permit was pending with any agency as to that site.
It is apparent, then, that it was the fact that there was some sort of prior application with the Federal Power Commission in connection with the High Mountain Sheep site which necessitated WPPSS coming to the Director with an application to construct an additional project (that is, additional to the project for which it was originally created). It seems apparent that the purpose of this provision, relative to prior applications with the Federal Power Commission, was to put some sort of a check upon the unseemly and expensive controversies over priority in applications for the development of power sites, of which Public Utility District No. 2 of Grant County v. Washington State Power Commission (1955), 46 Wash.2d 233, 280 P.2d 264, is an example.
In any event, the WPPSS did ask the blessing of the Director upon its taking on an additional project, i. e., either the development of the Nez Perce or High Mountain Sheep sites on the Snake River.
Our statute contemplates that when such an application is made that objectors may intervene in the proceeding; and if aggrieved, by any order or finding of the Director, shall have the right of appeal to the superior court. RCW 43.52.360. 9 The Pacific Northwest Power Company, the Pacific Power & Light Company, and the Washington Water Power Company, all corporations, did object.
The Director, without a hearing, made findings and conclusions and entered an order which recited that the WPPSS,
'* * * is hereby authorized to construct either the Nez Perce project or the High Mountain Sheep project * * * for which it may be granted the required governmental permits, licenses or authority, and its competency to proceed according to law to procure such permits, licenses or authority is hereby established.'
The objectors exercised their right to appeal to the superior court. In an excellent opinion by that court, the Honorable John E. Murray disposed of the various contentions of the objectors and, after pointing out that the power and authority of the WPPSS to proceed with the development of an hydroelectric project outside of the state was not before the court, affirmed the order of the Director. The objectors appeal from the affirmance of the order of the Director to this court and again urge that the Director's order is an erroneous determination of the issue of whether the WPPSS has the power and authority, as a municipal corporation of this state, to proceed with such a project outside of the state. At the very beginning of the opinion we stated our views: That such a question was not before us because it was not before the Director. The Director and the WPPSS agree.
This leaves but one issue on this appeal. Should the Director have held a hearing on the objections?
We have pointed out that a JOA can come into existence and enter upon its original project or projects without any action of the Director (RCW 43.52.360 10); however, where a JOA desires to undertake an additional project at a site upon which a public utility has a prior application for a license pending with any agency, it cannot construct such additional project until the Director makes an order authorizing the same (RCW 43.52.360 11). Except for that difference the procedure, with reference to the original application for the creation of a JOA to construct its original projects, is subject to the same requirements (RCW 43.52.360 12). It is abundantly clear that the Director can proceed to make his findings with or without a hearing (RCW 43.52.360 13).
The Director was acting as an administrative officer in the determination of those things which the legislature specifically delegated for his consideration. This was done after a consideration of the application and the objections thereto, without a hearing, as expressly provided by law.
The order appealed from is affirmed.
I dissent from that portion of the majority opinion which states:
'Whether it [WPPSS] has, as a municipal corporation of the state of Washington, the power and authority to construct and operate such a project [Nez Perce or High Mountain Sheep dams between Oregon and Idaho] is not before the court and is not here passed upon.' (Italics mine.)
I believe the question is before this court. If we do not recognize and pass upon it, we will, in the almost predictable future, be confronted with the argument that the question is res judicata.
The fourth unnumbered paragraph of RCW 43.52.360 directs that the order entered by the Director of Conservation and Development
'* * * shall establish the competency of the operating agency to proceed according to law to procure such permits, licenses or authority.' (Italics mine.)
Pursuant to the statute, the director entered an order entitled, 'Order Authorizing the Undertaking of Additional Projects by Washington Public Power Supply System.' The order recites that the Supply System had applied
'* * * for an order authorizing the Supply System to construct either of the following described projects for which it may be granted the required governmental permits, licenses or authority.'
The decretal portion of the director's order provides:
'IT IS THEREFORE ORDERED that the Washington Public Power Supply System, a municipal corporation of the State of Washington, is hereby authorized to construct either the Nez Perce project or the High Mountain Sheep...
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