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UDALL v. FEDERAL POWER COMMISSION ET AL.

decided*fn*: June 5, 1967.

UDALL, SECRETARY OF THE INTERIOR
v.
FEDERAL POWER COMMISSION ET AL.



CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT.

Warren, Black, Douglas, Clark, Harlan, Brennan, Stewart, White, Fortas

Author: Douglas

[ 387 U.S. Page 430]

 MR. JUSTICE DOUGLAS delivered the opinion of the Court.

The Federal Power Commission has awarded Pacific Northwest Power Company (a joint venture of four private power companies) a license to construct a hydroelectric power project at High Mountain Sheep, a site on the Snake River, a mile upstream from its confluence with the Salmon. 31 F. P. C. 247, 1051. The Court of Appeals approved the action, 123 U. S. App. D.C. 209, 358 F.2d 840; and we granted the petitions for certiorari. 385 U.S. 926, 927.

[ 387 U.S. Page 431]

     The primary question in the cases involves an interpretation of § 7 (b) of the Federal Water Power Act of 1920, as amended by the Federal Power Act, 49 Stat. 842, 16 U. S. C. § 800 (b), which provides:

"Whenever, in the judgment of the Commission, the development of any water resources for public purposes should be undertaken by the United States itself, the Commission shall not approve any application for any project affecting such development, but shall cause to be made such examinations, surveys, reports, plans, and estimates of the cost of the proposed development as it may find necessary, and shall submit its findings to Congress with such recommendations as it may find appropriate concerning such development."

The question turns on whether § 7 (b) requires a showing that licensing of a private, state, or municipal agency*fn1

[ 387 U.S. Page 432]

     is a satisfactory alternative to federal development. We put the question that way because the present record is largely silent on the relative merits of federal and nonfederal development. What transpired is as follows:

Both Pacific Northwest and Washington Public Power Supply System, allegedly a "municipality" under § 4 (e) and under § 7 (a) of the Act,*fn2 filed applications for licenses on mutually exclusive sites; and they were consolidated for hearing. Before the hearing the Commission solicited the views of the Secretary of the Interior. The Secretary urged postponement of the licensing of either project while means of protecting the salmon and other fisheries were studied. That was on March 15, 1961. But the hearings went forward and on June 28, 1962, after the record before the Examiner was closed, but before he rendered his decision, the Secretary wrote the Commission urging it to recommend to Congress the consideration of federal construction of High Mountain Sheep. The Commission reopened the record to allow the Secretary's letter to be incorporated and invited the parties to file supplemental briefs in response to it. On October 8, 1962, the Examiner rendered his decision, recommending that Pacific Northwest receive the license. He disposed of the

[ 387 U.S. Page 433]

     issue of federal development on the ground that there "is no evidence in this record that Federal development will provide greater flood control, power benefits, fish passage, navigation or recreation; and there is substantial evidence to the contrary."

The Secretary asked for leave to intervene and to file exceptions to the Examiner's decision.*fn3 The Commission allowed intervention "limited to filing of exceptions to the Presiding Examiner's decision and participation in such oral argument as might subsequently be ordered."

The Secretary filed exceptions and participated in oral argument. The Commission on February 5, 1964, affirmed the Examiner saying that it agreed with him "that the record supports no reason why federal development should be superior," observing that "[while] we have extensive material before us on the position of the Secretary of the Interior, there is no evidence in the record presented by him to support his position." 31 F. P. C., at 275.

[ 387 U.S. Page 434]

     It went on to say that it found "nothing in this record to indicate" that the public purposes of the dam (flood control, etc.) would not be served as adequately by Pacific Northwest as they would under federal development. And it added, "We agree that the Secretary (or any single operator) normally would have a superior ability to co-ordinate the operations of HMS with the other affected projects on the river. But there is no evidence upon which we can determine the scope or the seriousness of this matter in the context of a river system which already has a number of different project operators and an existing co-ordination system, i. e., the Northwest Power Pool." Id., at 276-277.

The Secretary petitioned for a rehearing, asking that the record be opened to permit him to supply the evidentiary deficiencies. A rehearing, but not a reopening of the record, was granted; and the Commission shortly reaffirmed its original decision with modifications not material here.

The issue of federal development has never been explored in this record. The applicants introduced no evidence addressed to that question; and the Commission denied the Secretary an opportunity to do so though his application was timely. The issue was of course briefed and argued; yet no factual inquiry was undertaken. Section 7 (b) says "Whenever, in the judgment of the Commission, the development of any water resources for public purposes should be undertaken by the United States itself," the Commission shall not approve other applications. Yet the Commission by its rulings on the applications of the Secretary to intervene and to reopen precluded it from having the informed judgment that § 7 (b) commands.

We indicate no judgment on the merits. We do know that on the Snake-Columbia waterway between High

[ 387 U.S. Page 435]

     Mountain Sheep and the ocean, eight hydroelectric dams have been built and another authorized. These are federal projects; and if another dam is to be built, the question whether it should be under federal auspices looms large. Timed releases of stored water at High Mountain Sheep may affect navigability; they may affect hydroelectric production of the downstream dams when the river level is too low for the generators to be operated at maximum capacity; they may affect irrigation; and they may protect salmon runs when the water downstream is too hot or insufficiently oxygenated. Federal versus private or municipal control may conceivably make a vast difference in the functioning of the vast river complex.*fn4

[ 387 U.S. Page 436]

     Beyond that is the question whether any dam should be constructed.

As to this the Secretary in his letter to the Commission dated November 21, 1960, in pleading for a deferment of consideration of applications stated:

"In carrying out this Department's responsibility for the protection and conservation of the vital Northwest anadromous fishery resource and in light of the fact that the power to be available as a result of ratification of the proposed Columbia River treaty with Canada will provide needed time which can be devoted to further efforts to resolve the fishery problems presently posed by these applications, we believe that it is unnecessary at this time and for some years to come to undertake any project in this area.

"You may be assured that the Fish and Wildlife Service of this Department will continue, with renewed emphasis, the engineering and research studies that must be done before we can be assured that the passage of anadromous fish can be provided for at these proposed projects."

Since the cases must be remanded to the Commission, it is appropriate to refer to that aspect of the cases.

Section 10 (a) of the Act*fn5 provides that "the project

[ 387 U.S. Page 437]

     adopted" shall be such "as in the judgment of the Commission will be best adapted to a comprehensive plan for improving or developing a waterway . . . and for other beneficial public uses, including recreational purposes." (Emphasis added.)

The objective of protecting "recreational purposes" means more than that the reservoir created by the dam will be the best one possible or practical from a recreational viewpoint. There are already eight lower dams on this Columbia River system and a ninth one authorized; and if the Secretary is right in fearing that this additional dam would destroy the waterway as spawning grounds for anadromous fish (salmon and steelhead) or seriously impair that function, the project is put in an entirely different light. The importance of salmon and steelhead in our outdoor life as well as in commerce*fn6 is so great that there certainly comes a time when their destruction might necessitate a halt in so-called "improvement" or "development" of waterways. The destruction of anadromous

[ 387 U.S. Page 438]

     fish in our western waters is so notorious*fn7 that we cannot believe that Congress through the present Act authorized their ultimate demise.

We need not speculate as to what the 1920 purpose may have been. For the 1965 Anadromous Fish Act, 79 Stat. 1125, 16 U. S. C. §§ 757a-757f (1964 ed., Supp. II), is on this aspect of the present case in pari materia with the 1920 Act. We know from § 1 of the 1965 Act that Congress is greatly concerned with the depletion of these fish resources "from water resources developments and other causes." See also H. R. Rep. No. 1007, 89th Cong., 1st Sess., pp. 2-5; S. Rep. No. 860, 89th Cong., 1st Sess.; Anadromous Fish, Hearings before the Subcommittee on Fisheries and Wildlife Conservation of the House Committee on Merchant Marine and Fisheries, 89th Cong., 1st Sess., 133; Anadromous Fish, Hearings before the Subcommittee on Fisheries and Wildlife Conservation of the House Committee on Merchant Marine and Fisheries, 88th Cong., 2d Sess., 11. The rapid depletion of the Nation's anadromous fish resources led Congress to enact the Anadromous Fish Act which authorizes federal-state cooperation for the conservation, development, and enhancement of the Nation's anadromous fish resources and to prevent their depletion from various causes including water resources development. In passing the Act, Congress was well aware that the responsibility for ...


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