November 3, 1964

The appellant next argues that insofar as the regulation requires the permittees to allow the Government the use of the entire segment, from substation or interconnection point to substation or interconnection point of a transmission line that crosses public lands, the regulation operates constitutionally to deprive a permittee of its property without due process of law in the portions of that segment not on public lands, but which extend from the borders thereof to the nearest line substation or interconnection point.

We do not agree with the appellant. This aspect of the regulation is reasonable because the portions of the segment in question are inseparably related to the portions of the segment on Government land; the use of the surplus capacity in the segment portions in question in no way interferes with the owner's use of those portions or damages their efficiency; and the alternatives to this aspect of the regulations— constructing a parallel Government line, or tapping into a permittee's line at the points where it would enter and leave Government landswould not be economic either to the Government or to the permittees. This aspect of the regulation is fair because allowing the Government to use the permittee's surplus capacity in such segments is balanced by allowing the permittee to place segments on the Government's lands. This aspect of the regulation is the result of the due processes of the law because, as previously shown, the condition is one of those inherent characteristics of transmission lines that the law expressly authorizes and empowers the Secretary to control by regulation. We find that this aspect of the regulation would not operate "to take property of Appellant without *** the payment of just compensation in violation of the Fifth Amendment," because subparagraph (viii) of the stipulation in question expressly says the Government will pay the owner "an equitable share" of the cost of the line segment for any use the Government may make thereof.22 And we do not anticipate that the application of that subparagraph, or any of the other subparagraphs of the stipulation, will violate the intent and rate provisions of the Federal Power Act, as amended (16 U.S.C. 792 et seq.). Contrary to the appellant's claims (II-D above), the Secretary's statu

United States v. Colorado Power Co., supra, footnote 3, is not apposite. The Power Company there claimed its rights to occupy government lands did not flow from the act of February 14, 1901; and that such act did not authorize the imposition of annual occupancy charges. The Court held that the 1901 act applied, and that it authorized the imposition of annual charges. Then, at page 221, it added that for the Secretary to promulgate a regulation subjecting Power Company's business "to examination as to the amount of electrical energy produced and disposed of, for the purpose of laying tribute thereon as a basis of a charge to be fixed by the Secretary, is to carry the power granted to him [to fix regulations] to a doubtful length and further than, I think, is given by the [1901] Act." No question of the reasonableness of the annual occupancy charges to be paid on appellant's enlarged line is present here.

tory authority and responsibility to set the terms and conditions at issue hereunder which transmission lines 23 shall be placed on public lands, plainly is not displaced by or in any way repugnant to Federal and State public utility laws regulating the sale or transmission of electricity.

Finally (III above), the appellant argues that the regulations are ambiguous, uncertain, and impractical because (a) it is difficult to determine what is "surplus" transmission line capacity, and to forecast when it should be recovered; and (b) the regulations do not make clear (i) the nature and extent of a permittee's obligation to maintain its facilities on public lands in good condition after the Government makes interconnection therewith; (ii) the Government's obligation to maintain on its own facilities equipment that will protect the permittee's normal and efficient operations; and (iii) whether a permittee, if it has not given 36 months' notice, could use the surplus capacity on its line whenever it "has need to do so."

As to the appellant's general observations regarding the "understanding" evidenced by the regulations, we are constrained to observe that this Department is faced with the responsibility for the marketing of very large quantities of Federally generated power in the manner directed by Congress; the protection and wise utilization of a very substantial Federal investment in hydroelectric power generating facilities; and the preservation and conservation of the Nation's interests in its public lands.24

More responsively, we find the appellant's arguments on this ground premature. The regulations serve to articulate certain fundamental legal relations subsisting between the Government and the permittees who place transmission lines on Government lands. The regulations do not purport to be a substitute for the complex, contractual relations that must exist before Government attempts to make use of a permittee's transmission facilities. This is made expressly clear by the reference to "supplemenal agreements" at subparagraph (xii) of the stipulation. The permittees may assume that if or when Government contracts to use any surplus capacity of a permittee's transmission lines, the Government will not interfere with and will respect all legal rights and interests of the permittees. "There can be no purpose in the Act [or the regulations issued thereunder] of dealing unfairly with the permittee and his investment." 25

23 Other than primary transmission lines as defined at section 3(11) of the Federal Power Act, 16 U.S.C. 796.

24 "If any of the regulations go beyond what Congress can authorize or beyond what it has authorized, those regulations are vold and may be disregarded; but not so much as are thought merely to be illiberal, inequitable or not conducive to the best results." Utah Power & Light Co. v. U.S. 243 U.S. 410 (1917). 25 U.S. v. Colorado Power, supra, 221 (1916).

November 5, 1964

In view of the foregoing, the decision of the Land Office was proper and it is affirmed.

The Southern California Edison Company is allowed the right of appeal to the Secretary of the Interior in accordance with the regulations in 43 CFR Part 1840, 1964 Special Supp. (formerly 43 CFR Part 221). If an appeal is taken it must be filed with the Director, Bureau of Land Management, Washington, D.C., 20240. The filing fee is $5. In taking an appeal there must be strict compliance with the regulations. If an appeal is filed the appellant will have the burden of proving, by presenting substantial evidence, wherein the decision appealed from is in error.

RICHARD J. MCCORMICK, Chief, Branch of Land Appeals.

FEATHER RIVER RAILWAY COMPANY

Sacramento 013803

November 5, 1964

Public Lands: Jurisdiction Over

By general statutory provisions the execution of the laws regulating the acquisition of rights in the public lands and the general care of these lands is confided to the land department as a special tribunal; and the Secretary of the Interior, as the head of the department, is charged with seeing that this authority is rightly exercised to the end that valid claims may be recognized, invalid ones eliminated, and the rights of the public preserved. Public Lands: Leases and Permits

A tramroad right-of-way permit granted under the Act of January 21, 1895, as amended, 43 U.S.C. 956 (1958 ed.), is revocable at the discretion of the Secretary.

Rights-of-Way: Nature of Interest Granted-Rights-of-Way: Act of January 21, 1895

A tramroad right-of-way granted under the Act of January 21, 1895, as amended, 43 U.S.C. 956 (1958 ed.) creates no interest in the land. It is a mere permit to use the land, revocable at the discretion of the Secretary. Trespass: Generally

Occupancy of public lands, without authority after expiration or termination of a right-of-way permit constitutes a trespass.

CEASE AND DESIST

AND

ORDER TO SHOW CAUSE

By order dated March 18, 1964, the Feather River Railway Company was advised that it was considered in trespass on certain described public lands and was told to cease and desist within 6 months from the date of receipt of the order and to remove its improvements.

On June 11, 1964, the Railway was ordered to show cause within 90 days why the cease and desist order should not remain in effect. The running of time under the latter order was suspended during the period necessary for final determination on the show cause order. By letter dated August 7, 1964, the Railway was notified that, in order to avoid further delay in arriving at a final administrative decision the Secretary of the Interior would assume jurisdiction over this matter upon the filing by the Railway of its reply to the June 11, 1964, order to show cause. The Railway filed its reply on September 10, 1964. A copy was served upon the State of California, Department of Water Resources. On October 12, 1964, the State filed a brief in opposition to the response of the Railway. I have assumed jurisdiction. The Railway has requested an oral hearing. I believe that no useful purpose will be served thereby. Accordingly, the request is denied.

The facts are these. The Feather River Railway Company operates a rail line approximately 18 miles long between land and Feather Falls, California. This line traverses approximately 3.17 lineal miles of public lands in sections 32, 33, and 34, T. 20 N., R. 5 E., and sections 15 and 30 in T. 20 N., R. 6 E., M.D.M. The portions of the right-ofway in sections 32, 33, and 34 are on lands which were withdrawn in 1911 for a waterpower site designated as Power Site Reserve No. 202.2 The portion of the right-of-way in section 15 is in the Plumas National Forest. That part of section 30 traversed by the line is vacant public domain.

The railroad in question was constructed as a tramroad around 1921 and 1922 by the Hutchinson Lumber Company. In the course of things it was discovered that the line was being built without authority across powersite reserve and public lands. Accordingly, the Lumber Company made application for a tramroad right-of-way under the provisions of the act of January 21, 1895, as amended, 43 U.S.C. § 956 (1958 ed.). The Company apparently represented that its lumbering operations would be completed in about 25 years after which time the tramroad would have little or no value. It also represented that to relocate the line so as not to interfere with ultimate power development of the land in question would cause abandonment of four miles of the present line, increase the length of the road seven miles, and add about $800,000 to the cost of construction. In the meantime, the matter was referred to the Federal Power Commission which, by letter dated June 30, 1922, advised this Department that the construction of the tramroad would not impair the power values of the reserved lands, "provided the authorization conferred is limited

1 The right-of-way is 100 feet wide.

2 Executive Order dated August 30, 1911.

November 5, 1964

to a term of not more than twenty-five years and is subject to sec. 24 of the Federal Water Power Act.3

Therefore, on August 23, 1922, permission was granted the Hutchinson Lumber Company to use the right-of-way for a period not to exceed 25 years and subject to the conditions and reservations of section 24 of the Federal Water Power Act. Section 24 of that Act (41 Stat. 1075) provided, among other things:

Whenever the commission shall determine that the value of any lands of the United States *** heretofore * * * reserved or classified as power sites, will not be injured or destroyed for the purposes of power development by location, entry, or selection under the public-land laws, the Secretary of the Interior, upon notice of such determination, shall declare such lands open to location, entry, or selection, subject to and with a reservation of the United States or its permittees or licensees to enter upon, occupy, and use any part or all of said lands necessary, in the judgment of the commission, for the purposes of this act *

Construction of the tramroad was completed and proof accepted for filing on November 4, 1922, and the railroad operated until around 1928. It was virtually unused between 1928 and 1939, at approximately which time two Corporations, Feather River Pine Mills, Inc., and Feather River Railway Company, were formed, the latter being wholly owned by the former. The lumber company also owned the railroad equipment in question.

In 1940 the Feather River Railway Company received a certificate of convenience and necessity from the Interstate Commerce Commission to operate its line as a common carrier. Feather River Railway Company Operation, Finance Docket 12756, 240 I.C.C. 203. It appears that the Lumber Company was represented as owning the rolling stock and right-of-way of the line which it would lease to the Railway Company for a term of 99 years, effective on the date operation of the tramroad was commenced. It does not appear from the Commission's decision that the Railway Company disclosed the limited nature of its right-of-way across the public lands in question or of the terms and conditions of its permit.

In 1939 regulations were approved by this Department requiring the payment of a fee for use of rights-of-way. Circular No. 1459, August 7, 1939. The Railway was billed for $30 on December 2, 1939. The fee or rent was eventually paid in 1941 and continued to be paid each year thereafter until 1960.

By order of the Federal Power Commission in December 1956, Major Project No. 2100 was originally licensed to the State of California Water Project Authority. Project No. 2100, known as the Feather River Project, involves, among other things, impoundment

Act of June 10, 1920, 41 Stat. 1063, 1075.