Public Utility District No. 1 of Pend Oreille County v. City of Seattle, City of Seattle v. Public Utility District No. 1 of Pend Oreille County

382 F.2d 666 71 P.U.R.3d 126 PUBLIC UTILITY DISTRICT NO. 1 OF PEND OREILLE COUNTY, Appellant, v. CITY OF SEATTLE, Appellee. CITY OF SEATTLE, Appellant, v. PUBLIC UTILITY DISTRICT NO. 1 OF PEND OREILLE COUNTY, Appellee. No. 20196. United States Court of Appeals Ninth Circuit. Aug. 28, 1967, Rehearing Denied Oct. 25, 1967. Clarence C. Dill, Ennis & Klobucher, William Ennis, Spokane, Wash., for appellant-appellee, Public Utility District. Alfred L. Newbould, A.C. Van Soelen, Corp. Counsel, G. Grant Wilcox, Asst. Corp. Counsel, Richard S. White, William A. Helsell, Sp. Counsel, Seattle, Wash., for appellee-appellant, City of Seattle. Before HAMLEY and MERRILL, Circuit Judges, and BYRNE, District Judge. MERRILL, Circuit Judge. 1 Seattle brought this action to condemn properties owned by appellant Public Utility District (PUD) pursuant to the Federal Power Act, 16 U.S.C. 814 (1964). 2 The question presented is whether the holder of a Federal Power Commission license to construct a hydroelectric project upon a navigable stream must compensate the owner of shorelands and, for power site values, the owner of adjoining uplands, needed for the project. 3 Appellant PUD is a municipal…

Seattle brought this action to condemn properties owned by appellant Public Utility District (PUD) pursuant to the Federal Power Act, 16 U.S.C. § 814 (1964).

The question presented is whether the holder of a Federal Power Commission license to construct a hydroelectric project upon a navigable stream must compensate the owner of shorelands and, for power site values, the owner of adjoining uplands, needed for the project.

Appellant PUD is a municipal corporation organized and existing under the laws of the State of Washington, its boundaries coextensive with the boundaries of Pend Oreille County. It operates electric utility properties for the generation and transmission of electric power for sale. PUD’s lifeline is the Pend Oreille River, a navigable stream, flowing in a generally northerly direction from the State of Washington into British Columbia. Beginning in 1952, pursuant to a license issued by the Federal Power Commission, PUD constructed its Box Canyon Dam project, located on the Pend Oreille River 19 miles south of and upstream from the Canadian border.

Some years prior to this, hydroelectric studies of the river had been conducted by engineer Hugh L. Cooper, which…

(concurring in part, dissenting in part):

I concur with the Court in the portion of the opinion dealing with the appeal of PUD. I am unable, however, to concur in the majority's views as to Seattle's cross-appeal.

It is apparently the view of the majority that reversal on Seattle’s cross-appeal would, in effect, overrule United States v. Central Stockholders Corp., 9 Cir., 52 F.2d 322 , but as I view the two cases, they are clearly distinguishable.

The Central Stockholders ease involved a condemnation proceeding in the state court where lower riparians received condemnation grants based on California water law, just as Grand River Dam Authority v. Grand-Hydro, 335 U.S. 359 , 69 S.Ct. 114 , 93 L.Ed. 64 , involved a condemnation proceeding in the state courts of Oklahoma. In both cases it was held that an FPC license holder, proceeding in a state eminent domain action, could not claim the benefit of the dominant navigation servitude of the United States. In Grand Hydro, the Grand River Dam Authority, a public agency of the State of Oklahoma, sought to condemn lands owned by Grand Hydro, a private utility. The Authority, while it held a license from the Federal Power *675…