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meet these terms and conditions. Nor is there a problem of retroactivity here. “No vested right in a [transmission line right-of-way] grant is acquired by the filing of an application.” (See California Electric Power Company, 58 I.D. 607 at 611 (1944), and cases cited therein.) The record does not show that the capacity in question lawfully was in-place or under construction on March 23, 1963. In short, the filing of the application did not operate to prevent the Secretary from granting appellant a permit subject to conditions prescribed by regulations issued, pursuant to statutory authority, shortly after the appellant applied for a permit.

The appellant next argues (II-A above) that the acts of 1901 and 1911, under which the regulations were promulgated, do not support them; that (II-B) therefore, they are unconstitutional administrative legislation; and that these two conclusions are corroborated by the fact that similar departmental wheeling regulations were withdrawn in 1954 because they were considered illegal by the then departmental Solicitor, and by the fact that bills to enact those regulations into law after they were withdrawn were introduced but not considered by the Congress. Under II-A, the appellant asserts that the act of February 15, 1901 (31 Stat. 790; 43 U.S.C. 959) (cited with the 1911 act by the amended regulations as supporting authority therefor) “has no bearing in this case” because the appellant applied for a permit under the 1911 act. The 1911 law, authorizing the issuance of 50-year permits, was enacted because the 1901 Act, which authorized the issuance of revocable permits only, did not provide sufficient investment security. We believe the act of 1901 has bearing insofar as the appellant argues that the act of 1911 does not authorize the subject regulation.

The appellant misconstrues the 1911 act. A law of May 14, 1896 (29 Stat. 120) dealt with rights-of-way on the public domain for electric power purposes. The act of 1901 "superseded and took the place of the law of May 14, 1896. The act of 1901] * * * carefully defines the extent of such rights-of-way and embodies provisions not found in any of the earlier enactments." 4 "It would seem difficult to conceive of a statute couched in terms which would retain a larger measure of public control” than the 1901 statute." The 1911 act made no change in the 1901 act other than authorizing the granting of easements for up

? Subsequent to the Land Manager's decision of October 11, 1963, the appellant, on October 17, 1963, supplemented its January 8, 1963, application by filing the power line diagrams required by Sec. 244.43(d) as amended, March 23, 1963 (presently 43 CFR 2234.4-1 (b) (4) (IV)).

? Evidently the appellant really believes so, too, for, elsewhere in its brief, it cites court comment on the scope of regulations that may be issued under the 1901 act, as determina. tive of the scope of regulations that may be issued under the 1911 act U.S. v. Colorado Power Co., 240 F, 217, 221 (1916).

* Utah Power and Light Co. v. U.8., 243 U.S. 389, 407 (1917). 5 32 Ops. Att'y Gen. 525, 526 (1921).

November 3, 1964

to 50 years. As explained by Representative Scott, the House floor manager of the bill that became the 1911 act,

* it changes existing law only to this extent, that it provides that a permit may be issued for rights-of-way for the purposes specified for a fixed term of 50 years, whereas the present law requires all such permits to be revocable at the will of the authority granting them. * * * (U]nder this a right-of-way may be granted for a period of 50 years, under such regulations as the head of the department may make.

The act of 1911, thus deals “specifically and solely *** with rights-of-way for transmission lines.”? That act and two others 8 "occupies a special field carved out of the comprehensive uses and occupancies embraced by the act of 1897. In the fields to which they relate, their provisions are comprehensive and complete * * *. These acts, therefore, bear to the act of 1897 the relation of special and particular to general legislation." 9

The act of 1911, therefore, by background, emphasis and intent is uniquely an electric power transmission line act as well as a right of way statute. It was carefully constructed and enacted for the purpose of controlling the conditions under which transmission lines in particular should be placed on the public domain. Its intent is that such lines not be placed thereon by right and at random. Its intent on its face is that transmission lines be placed on Government lands under the terms and conditions the Government department responsible for the overall welfare of those lands believes transmission lines should be placed thereon.

Where the permit is to endure for fifty years and is not to be revocable at the will of the Government, the act requires such regulations as will protect Government interests associated with Government lands for the next 50 years. Had the Sixty-first Congress intended permits to be issued summarily—had it intended them to be issued if the applicants met the one, two, or three standards, the Sixty-first Congress in March 1911 thought should govern the placement of transmission lines on Government lands—the Sixty-first Congress would have said so. It legislated differently. Having stated its specific purpose and intent, Congress directed the departments responsible for Government lands to treat by such regulations as they in their expertise deemed appropriate, such developments and exigencies that should materialize during the life of the law that affected the placement of transmission lines on Government lands.

6 Conference Report on H.R. 31596 in the 61st Congress, 3d Sess. and explanation to the House thereof, 46 Cong. Rec. 4014-15 (Mar. 2, 1911).

7 30 Ops. Att'y Gen. 581, 583 (1916).

8 February 15, 1901, 31 Stat. 790, authorizing the Secretary to regulate the construction of electrical plants, poles and lines on public lands, forests, and certain reservations; and (February 1, 1905, 33 Stat. 628), authorizing the Secretary to regulate the construction of dams and reservoirs on forest reserves.

9 30 Ops. Att'y Gen. 583 (1916). (The act of 1897 referred to, 30 Stat. 11, 35, authorized the Secretary to regulate the occupancy and use of public forests.)

We think a regulation requiring a permittee to let the Government use surplus capacity in a transmission line permittee would build on Government's lands, is uniquely within the purview and intent of the 1911 transmission line act. The use of the transmission lines of one electric system to wheel, convey, or market the power and energy of and for another system is a widespread, long-established operating practice in the power industry. So is the interconnection and the joint use of transmission facilities by two or more different systems; and so is the purposeful overbuilding of transmission line capacity in anticipation of future load growth.10

The Federal Government is the largest wholesale producer of electric power and energy in the Nation. Its installed generating capacity of about 26 million kilovolts comprises 17 percent of all electric utility generating capacity in the country. Its installed hydroelectric capacity accounts for about 45 percent of the Nation's developed hydroelectric capacity. We are advised by the Assistant Secretary, Water and Power Development, that another 8.8 million kilovolts of Federal generating capacity is under construction; and still another 10.2 million kilovolts has been approved or authorized for future construction. The statutes under which this Federal power and energy is produced require that preference in the sale thereof be given to governmental agencies and to nonprofit organizations. This requirement originated contemporaneously with the transmission line right-of-way laws in question. It began with section 5 of the act of April 16, 1906 (34 Stat. 116, 117), requiring the Secretary of the Interior to give preference to municipal purposes when disposing of power produced at Federal reclamation projects in the western United States under the act of June 17, 1902 (32 Stat. 388).11 It was restated by the act of February 24, 1911 (36 Stat. 930); and it has been affirmed by a long series of statutes enacted and re-enacted down to the present. To avoid constructing the transmission lines needed to market this power and energy, 12 the Government utilizes the transmission facilities of other systems to the maximum extent practicable.18 This wheeling service November 3, 1964 that utility systems perform for the Federal Government is based on "the principle of coordination and cooperation *** the very purpose of which is to make use of company transmission line facilities to avoid duplication and waste of Government funds” for transmission lines. 14

10 See, for example, Report on the status of Interconnections and Pooling of Electric Utility Systems in the United States, prepared by Edison Electric Institute, July 1962; revised May 1963.

See also 8 F.P.C. 1177, 1181-1183 (1949); as modified at 9 F.P.C. 399; and as affirmed in Federal Power Commission v. Idaho Power Co., 344 U.S. 17 (1952).

u See 30 Ops. Att'y Gen. 197 (1913).

13 * * * “The alternative method is to sell the * energy at the dam, and the market there appears to be limited to one purchaser, the * Power Company.” Ashwander v. TVA, 297 C.S. 288, 339 (1936).

13 See, for example, sec. 5 of the Flood Control Act of 1944, 58 Stat. 887, 890 ; 16 U.S.C. 825s : "The Secretary of the Interior is authorized • * • to construct or acquire only such transmission lines and related facilities as may be necessary in order to make the power and energy generated at said projects available in wholesale quantities for sale

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In substance, the contested regulation 15 (43 CFR 244.44(e) (2); now 43 CFR 2234.4-1(c)(5)) provides that the Government may have the use of any surplus capacity in that segment (from substation or interconnection point to substation or interconnection point) of a permittee's transmission line crossing public lands; and that the Government may increase the capacity of that segment. Any disagreement on surplus capacity is to be adjudicated by a three-man board (subparagraph (x)); and when for his own operations the owner needs to recover his surplus capacity, he must give the Government three years notice (subparagraph (ix)). In using the segment, the Government may not unreasonably interfere with the owner's operations (subparagraph (vi)); it may not, without the owner's consent, use his surplus capacity to supply customers the owner was serving when he applied for the permit, unless they are preference customers (subparagraph (vii)); and the Government must pay an equitable share of the segment's costs for any use it may make thereof (subparagraph (viii)). All these provisions may be modified by supplemental agreements (subparagraph (xii)).

We believe the regulation is neither unreasonable nor beyond the intent of the 1911 act. The regulation treats matters uniquely and peculiarly characteristic of transmission lines; the 1911 act expressly "authorizes and empowers” the Secretary to treat such matters by regulation. We also believe the 1911 act does not violate the rules

. regarding the nondelegability of legislative power. The Supreme Court has stated: “That Congress intends there shall be some administrative regulations on the subject is plainly shown in the (1901) act, and that its discretion in the matter is not narrowly confined is shown by our decisions in United States v. Grimaud, 220 U.S. 506, and Light

on fair and reasonable terms and conditions ... the Federal Government, public bodies, cooperative, and privately owned companies."

See also the act of August 31, 1951, 65 Stat. 248, 255: "No part of [the] appropriation [for the Bureau of Reclamation) shall be used to initiate the construction of transmission facilities within those areas covered by power wheeling service contracts which include provision for service to Federal establishments and preferred customers * * *."

14 Pacific Gas & Electric Company President's testimony on "Transmission Lines" during Senate Appropriations Committee Hearings on H.R. 3790, 82d Congress, p. 1878 (1951).

15 We find it unnecessary to consider the appellant's objections to the references in the regulation, 244.44(c), to the "power-marketing program of the United States." * By letter of January 2, 1964, the Assistant Land Office Manager informed applicant that this Department's Assistant Secretary, Water and Power Development, formally found "no conflict between (applicant's] proposed . * * facility and the power marketing program of the United States."

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v. United States, supra." 16 "It was not necessary for Congress to ascertain the facts of or to deal with each case. The act went as far as was reasonably practicable under the circumstances existing."

Contrary to appellant's assertions, the 1955 testimony of the then Under Secretary of the Department before a Subcommittee of the House Government Operations Committee, does not show that similar departmental wheeling regulations were withdrawn in 1954 because it was believed they were "unlawful." His testimony was that the issuance and rescission of those regulations is a subject of administrative discretion on which the Secretary is free to act according to his judgment;'

;"> 18 and that the 1954 withdrawal “involved [matters of] administrative discretion rather than of law.” 19 The “lawfulness" of the regulations previously had been fully explored, adjudicated and upheld in a Memorandum Opinion of June 2, 1952, by the United States District Court for the District of Columbia, in the unreported case of Idaho Power Co. v. Chapman (Civil Action No. 4540–50); and in a Supplemental Memorandum of that Court on October 31, 1952.20 We also disagree with the inference the appellant draws from the failure of Congress to consider bills to enact those regulations in statutory form after the withdrawal thereof in 1954. The only legal inference that

may be drawn therefrom is that the 84th Congress was content to have the matter treated under the 1911 Act as the Sixty-first Congress intended it be treated; namely, as a subject of administrative discretion. We do note, though, that when Congress amended the 1911 Act in 1952 to increase (from 40 feet) to 400 feet the width of transmission line rights-of-way that could be granted across public lands, no disapproval was expressed of the well-known transmission line wheeling regulations applicable to all such rights-of-way since 1948.21

16 Utah Power & Light, at 410, supra, responding to defendants' arguments that the regulations under the act of February 15, 1901, were “unconstitutional, unauthorized and unreasonable."

17 United States v. Chemical Foundation, 272 U.S. 1 (1926). Comparison of the statute and stipulation involved in Chapman v. El Paso Natural Gas Co., 204 F. 2d 46 (1953) with the subject statute and stipulation, shows that Chapman is inapposite here. The Chapman stipulation is printed in full at 204 F. 2d 49–50. Unlike Chapman, "re are * * * dealing here with an order which seeks to compel the granting of a license in futuro or the modification and alteration of conditions embodied in the license prior to its issuance.” (ibid at 53). The stipulation here does not undertake "to exercise so vast and so detailed a power;" por "such intimate regulation of corporate affairs as the financing, construction and employment of facilities" (at 51).

18 Hearings on "Certain Activities Regarding Power, Department of the Interior (Changes in Power Line Regulations)," 84th Congress, page 232.

19 Ibid, at 237. 20 The "Memorandum of Court” together with separate "Findings of Fact and Conclusions of Law," "Amended Findings of Fact and Conclusions of Law," plus the Supplemental Memorandum of Court" are printed in Hearings, supra, at pages 88 through 93.

21 S.1630 as introduced in the 82d Congress in May 1951; amended and reported by the Senate Committee on Agriculture and Forestry in March 1952 in Senate Rept. 1224 ; further amended and reported by the House Committee on Agriculture in May 1952, in House Report 1848; and approved as Public Law 367 of the 82d Congress on May 27, 1952, 66 Stat. 95.

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