Before EVANS and KERNER, Circuit Judges, and LINDLEY, District Judge.
Petitioners, under § 313(b) of the Federal Power Act, 16 U.S.C.A. § 825l(b), seek to set aside an order of the Federal Power Commission, requiring Wisconsin Public Service Corporation*fn1 to apply for a license to maintain and operate a hydroelectric project on the Wisconsin River at Tomahawk in the State of Wisconsin.
The record discloses that the construction of a rock-filled timber crib dam to aid in log driving and booming as well as for the development of power for industrial use, was commenced on the Wisconsin River pursuant to a license granted on February 26, 1887, by the Legislature of the State of Wisconsin. Chap. 12, Laws of 1887. The dam, located on the upper reaches of the Wisconsin River, was constructed over a period of ten years, but it was in existence in 1889. The State made an investigation of the dam in 1933, found it in bad condition and dangerous, and ordered the dam repaired. Subsequently, Corporation procured authority from the State to reconstruct the dam and to construct a hydroelectric plant and substation in connection therewith.
The Wisconsin River has its source in Lac Vieux Desert, which lies partly in the State of Michigan and partly in the State of Wisconsin. It is 428 miles in length. It drops from an elevation of 1,652 feet at its source to 604 feet at its mouth, with an average fall of 2.45 feet per mile. It flows generally south to the city of Portage, Wisconsin, and then west for about 116 miles to its junction with the Mississippi River near Prairie du Chien.
On May 27, 1937, under § 23 of the Federal Power Act, as amended, 49 Stat. 846, 16 U.S.C.A. § 817, the Corporation filed with the Commission a declaration of intention in which it declared its intention to reconstruct the dam for the purpose of developing hydraulic power. Hearings were held and testimony was heard in October, 1937, and in February, 1938. On March 22, 1938, the State was granted permission to intervene, and thereafter additional hearings were held. On July 30, 1943, after a consideration and appraisal of the evidence, the Commission issued an order reciting that the Wisconsin River has been extensively used for the transportation of persons and property throughout its entire length; that such use has included log driving, rafting of lumber, canoe and boat navigation and steamboating; that the rafting and logging operations on the river continued for over half a century; that the Wisconsin River is a navigable water of the United States from its source in Lac Vieux Desert to its junction with the Mississippi River; that the Corporation owns a dam, power house, and other project works located across, in and along the Wisconsin River just below the city of Tomahawk, which it proposed to reconstruct; and that the interests of interstate commerce would be affected by the reconstruction proposed in the declaration of intention. The Corporation and the State filed applications for rehearing. The Commission denied the Corporation's application and dismissed the State's application.
Prior to the entry of the order, the Commission rendered an opinion in which it made detailed subsidiary findings and in which it found that because of the "regular use of the Wisconsin River over a long period of years for the transportation of large quantities of logs, lumber, rafts, and other forest products to mill and market to points within the State of Wisconsin and in other States * * * the Wisconsin River is navigable throughout its entire length."
The principal question is whether the Wisconsin River is a navigable river of the United States.
Petitioners seek to set aside the order on the ground that the Wisconsin River, at and for many miles below Tomahawk, is not a navigable water of the United States. They make the point that diverse elements enter into the application of the legal tests of navigability, which must be appraised in totality so as to determine the effect of all, and in support of the point they cite authorities*fn2 to the effect that the commerce on the claimed navigable river must be substantial and of a permanent character, and that where the use of the stream is temporary, precarious or unprofitable, such use will not render a stream navigable.
State asks that the order be set aside on the grounds that the Wisconsin River lies wholly within the State of Wisconsin; that it could not be made navigable for interstate commerce from Portage to its mouth except at a cost ridiculously in excess of the benefits or profits derivable therefrom, and could not be made navigable between Portage and its source, except by the expenditure of a sum so fabulous in amount as to make the attempt unthinkable; that it is not now used for any commerce; and that the fact that logs were floated down the river during one or two short seasons in each year, which was discontinued when this method of getting forest products to market was superseded by railroad transportation, is not sufficient to establish navigability.
Corporation argues that the important concepts of navigability are contained in the phrases "in their ordinary condition," "are used or suitable for use," and "customary modes of trade and travel on water," and that a "continued highway" for the carrying on of interstate commerce is necessary to constitute a navigable water of the United States. And it is claimed that in the instant case the use of the river was temporary and precarious; that its use was limited; and that the mere fact that logs and rafts may have been floated down the stream at high water did not render it a navigable stream.
It is true that the legal concept of navigability is not to be determined by a formula which fits every type of stream under all circumstances and at all times, but prior decisions in this field will be drawn upon and applied in determining whether the particular circumstances render the stream a navigable river of the United States. United States v. Appalachian Electric Power Co., 311 U.S. 377, 404, 61 S. Ct. 291, 85 L. Ed. 243.
From Lac Vieux Desert to Grandmother Falls the river has an average slope for 105 miles of 2.25 feet per mile. From Grandmother Falls to the foot of Grandfather Falls, a distance of 6.4 miles, the river falls 115 feet, or 18 feet per mile. From the foot of Grandfather Falls to Stevens Point, a distance of 81 miles, the average slope is 2.66 feet per mile. From Stevens Point to Nekoosa, 28 miles, the river falls 163 feet, or an average of 5.55 feet per mile. From Nekoosa to the mouth of the Wisconsin River, a distance of 207 miles, the slope of the river is 1.53 feet per mile.
Before the Commission it was claimed that above Nekoosa the river has a succession of rapids, surging over rocky bottoms filled with boulders; that the river has a current of ten to twenty miles per hour; and that the channel is broken and divided, offering almost insurmountable obstacles to anything like navigation. But there is evidence in the record that from 1835 to 1897 some three billion board feet of white pine was taken out of the State of Wisconsin down the Wisconsin River "to market" on the Mississippi River from Dubuque, Iowa, to St. Louis, Missouri. This use of the river continued at a diminishing rate until 1915. During the period between 1858 and 1907 a large part of this lumber was logged above Tomahawk and taken down the river past the Corporation's dam. As far down as Merrill, some 28 miles below Tomahawk, the lumber was transported in loose logs driven downstream. The logs were cut into lumber at the mills at Merrill and other ...