Before CLARK, PRETTYMAN and WASHINGTON, Circuit Judges.
UNITED STATES COURT OF APPEALS DISTRICT OF COLUMBIA CIRCUIT.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE PRETTYMAN
PRETTYMAN, Circuit Judge.
Petitioner is an electric public utility. Among other facilities it owns and operates a transmission line between two of its plants in Oregon. One of the plants is a water power project licensed by the Federal Power Commission. The precise length of the transmission line is not stated, but upon the map which is an exhibit it appears to be some 50 or 60 miles. For 9.8 miles the line crosses lands of the United States. *fn1 The Company applied to the Commission for an amendment to its plant license so as to include the construction, etc., of the line across the Government land. The Commission declined to issue the amendment, on the ground that it had no jurisdiction to do so. The Company petitioned for review of that ruling.
By stipulation the attorneys for the parties have agreed upon a statement of the question presented to us for decision. As thus stipulated the question is: By virtue of the Federal Power Act, does the Federal Power Commission have exclusive jurisdiction to authorize construction, maintenance, and operation of an electric transmission line, conveying energy from hydro-electric sources, which crosses lands of the United States (which are not allotted Indian lands or lands in national monuments and national parks), regardless of the basic nature, purpose and function to be served by such lines?
The pertinent statutory provisions are:
"Sec. 4. The commission is hereby authorized and empowered -
"(e) To issue licenses to citizens of the United States, or to any association of such citizens, or to any corporation organized under the laws of the United States or any State thereof, or to any State or municipality for the purpose of constructing, operating, and maintaining dams, water conduits, reservoirs, power houses, transmission lines, or other project works necessary or convenient for the development and improvement of navigation and for the development, transmission, and utilization of power across, along, from, or in any of the streams or other bodies of water over which Congress has jurisdiction under its authority to regulate commerce with foreign nations and among the several States, or upon any part of the public lands and reservations of the United States (including the Territories), or for the purpose of utilizing the surplus water or water power from any Government dam, except as herein provided: . . .." *fn2
"Sec. 3. The words defined in this section shall have the following meanings for purposes of this act, to wit:
"(12) 'project works' means the physical structures of a project;". *fn3
"(11) 'project' means complete unit of improvement or development, consisting of a power house, all water conduits, all dams and appurtenant works and structures (including navigation structures) which are a part of said unit, and all storage, diverting, or forebay reservoirs directly connected therewith, the primary line or lines transmitting power therefrom to the point of junction with the distribution system or with the interconnected primary transmission system, all miscellaneous structures used and useful in connection with said unit or any part thereof, and all water-rights, rights-of-way, ditches, dams reservoirs, lands, or interest in lands the use and occupancy of which are necessary or appropriate in the maintenance and operation of such unit;". *fn4
Under the stipulated question we are to ignore the basic nature, purpose and function to be served by the transmission line involved. In effect we may assume that the line is not part of a "project" and is not a "primary line", the Company by its stipulation having foregone any contest of the findings of the Commission upon those two features of the case.
The determinative provision of the statute, deleting unnecessary words, is: "The Commission is authorized to issue licenses to any corporation organized under the laws of the United States for the purpose of constructing, operating, and maintaining dams, water conduits, reservoirs, power houses, transmission lines, or other project works necessary or convenient for the development, transmission, and utilization of power upon any part of the public lands of the United States." The critical words are "other project works".
Originally the authority to issue licenses for public utility facilities on lands of the United States was vested in the Secretaries of War, Interior, and Agriculture. *fn5 The Federal Water Power Act *fn6 was first passed in June, 1920. "It was the out-growth of a widely supported effort of the conservationists to secure enactment of a complete scheme of national regulation which would promote the comprehensive development of the water resources of the Nation, in so far as it was within the reach of the federal power to do so, . . .." *fn7 A Federal Power Commission was created by ...