Before WILBUR K. MILLER, BAZELON and FAHY, Circuit Judges.
UNITED STATES COURT OF APPEALS DISTRICT OF COLUMBIA CIRCUIT.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BAZELON
Petitioner seeks review of an order of the Federal Power Commission, issued pursuant to § 4(g) of the Federal Power Act, *fn1 requiring that it apply for licenses for its nine hydroelectric developments, all located in Montana. The Commission asserts authority for its action under 23(b) of the Act. *fn2 That section provides that no hydroelectric development may be constructed, operated, or maintained on ". . . navigable waters of the United States, or upon any part of the public lands or reservations of the United States . . . except under and in accordance with the terms of a permit or valid existing right-of-way granted prior to June 10, 1920, or a license granted pursuant to this chapter."
The Commission found that, of petitioner's nine developments, four (Morony, Ryan, Rainbow and Black Eagle) are maintained on "navigable waters of the United States" without authority; two (Hauser and Canyon Ferry) are also located on "navigable waters" and are maintained under an invalid authorization to occupy public lands; one (Holter) is maintained under a valid authority to occupy public lands but such authority does not extend to occupancy of the "navigable waters" on which it is located; the remaining two (Madison and Hebgen) are on concededly non-navigable waters but occupy public lands without authority. *fn3 I
Since all but the Madison and Hebgen developments are located on the Missouri River upstream from Fort Benton, the first question to be answered is whether or not the section of the river from Fort Benton to the headwaters at Three Forks is a "navigable water of the United States." This part of the river is about 263 miles in length, all within Montana, the rest of the river flowing through several states. About 32 miles above Fort Benton are the Great Falls of the Missouri, a series of rapids and falls which descend about 520 feet in 17 miles, and which have always presented a natural barrier to through navigation.
There is no dispute that the river from its mouth at St. Louis, Missouri, to Fort Benton, Montana, has been used by steamboats in the past. *fn4 And, though the Great Falls themselves have never been navigated, the Commission had before it substantial evidence of actual use of the river upstream from Fort Benton to the foot of the falls, and from above the falls to Three Forks. Thus, the record reveals that in 1866-67, several steamboats sailed as far as thirty miles above Fort Benton, almost up to the falls. And the river above the falls was used for the transportation of logs and rafts of lumber as well as for local carriage of freight and passengers. The only reported use of the entire length of the upper river for through traffic from above the falls to Fort Benton below occurred from 1864 to 1870. During that period, gold miners in considerable number traveled downstream with the aid of a portage or "land carriage" around the falls. *fn5 Such actual use of the river in the past brings it within the "navigable" category, even if subsequently discontinued. "When once found to be navigable, a waterway remains so." *fn6
Actual use of the upper portion of the river would warrant its being termed a "navigable water" unless such status is denied it because a part thereof is a non-navigable stretch of falls.We agree with the Commission that the falls do not have such an effect. Section 3(8) of the Federal Power Act *fn7 states the applicable criteria, as follows: "'navigable waters' means those parts of 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, and which either in their natural or improved condition notwithstanding interruptions between the navigable parts of such streams or waters by falls, shallows, or rapids compelling land carriage, are used or suitable for use for the transportation of persons or property in interstate or foreign commerce, including therein all such interrupting falls, shallows, or rapids, together with such other parts of streams as shall have been authorized by Congress for improvement by the United States or shall have been recommended to Congress for such improvement after investigation under its authority".
The statute specifically contemplates that the "navigable parts" of streams may be interrupted by falls, rapids, and shallows "compelling land carriage" to circumvent them. Such interruptions do not render an otherwise navigable stream non-navigable. This was recognized by the Supreme Court in Economy Light & Power Co. v. United States, 1921, 256 U.S. 113, 122, 41 S. Ct. 409, 412, 65 L. Ed. 847, where it was said that "Navigability, in the sense of the law, is not destroyed because the watercourse is interrupted by occasional natural obstructions or portages". And more recently, in United States v. Appalachian Electric Power Co., 1940, 311 U.S. 377, 408-409, 61 S. Ct. 291, 300, 85 L. Ed. 243, the Court reaffirmed its view that "the navigability referrde to in the cases was navigability despite the obstruction of falls, rapids, sand bars, carries or shifting currents." *fn8
Although we think the historical uses to which the upper portion of the river was put suffice to make it "navigable" within § 3(8), it should be noted that the Act's definition is not confined to streams which are or can be used in their natural condition. It includes as well those streams which are "suitable for use" in interstate commerce. "A waterway, otherwise suitable for navigation, is not barred from that classification merely because artificial aids must make the highway suitable for use before commercial navigation may be undertaken . . .. Nor is it necessary that the improvements should be actually completed or even authorized. The power of Congress over commerce is not to be hampered because of the necessity for reasonable improvements to make an interstate waterway available for traffic." *fn9 Of course, improvements which might be reasonable in an urban industrial area might be out of the question in a sparsely settled region. But we do not think that factors of economic geography, such as density of population and concentration of industry, may remove an otherwise navigable stream from the reach of federal power. If the stream's flow, depth, gradient, width and capacity make it "suitable for use" in interstate commerce, it is subject to the licensing authority of the Federal Power Commission. Even if such a stream is never actually used for transportation, there is no doubt that it may be necessary to use it for flood control, watershed development, regulation of the navigable capacity of the portions of the river actually used for transportation, etc. *fn10 We have been shown nothing which convinces us that the Commission's determination on this point was improper.
An additional criterion of navigability is established by § 3(8). *fn11 If Congress has authorized improvements to facilitate navigation, after investigation of its authority to do so, or if such improvements have been recommended to it, then the sections of the streams thus dealt with are "navigable waters." There is uncontroverted evidence in the record that, at various times from 1868 to 1892, the upper river was investigated by the Army Engineers with a view to its improvement. In 1880, about $15,000 was spent for rock removal and construction, and from 1895 to 1899 about $66,000.
Under all three tests laid down by § 3(8), the 263 mile stretch of the Missouri River from Fort Benton to Three Forks is a "navigable water of the United States," and hence subject to the licensing requirements of the Federal Power Act. We do not think that the construction of the Fort Peck dam below Fort Benton, which has virtually eliminated actual use of the upper portion of the river for transportation, can alter such status. Until 1887, the river above Fort Peck was part of an interstate highway used extensively by steamboats traveling between Fort Benton and St. Louis. Although railway competition ultimately eliminated it as a substantial artery of commerce, such decrease in use does not transform a navigable river into a non-navigable one. "Commercial disuse resulting from changed geographical conditions, and a Congressional failure to deal with them, does not amount to an abandonment of a navigable river or prohibit future exertion of federal control." *fn12 Nor do we think that the view of a subordinate official of the Army Engineers, expressed in a report to Congress, that the erection of the Fort Peck dam below Fort Benton would make the river non-navigable beyond the dam, can give rise to Congressional abandonment of the waters in question. Abandonment of sovereign authority should not be lightly inferred from the actions of subordinate officers in the Executive Department, *fn13 especially when it appears that other officers have subsequently made statements to the contrary. *fn14 Absent clear indication of abandonment, there appears to be ample authority for the proposition that a stream remains navigable even after construction of a barrier or impassable dam below. *fn15 II
We agree with the Commission that the river upstream from Fort Benton is a "navigable water," and therefore affirm its order requiring that petitioner apply for licenses for the Morony, Ryan, rainbow and Black Eagle dams. Petitioner contends, however, that its three other dams (Holter, hauser and Canyon Ferry), which are located on this same navigable stream, need not be licensed because they occupy public lands ". . . under and in accordance with the terms of a permit or valid existing right-of-way granted prior to June 10, 1920 . . .." *fn16
Similarly, the Hebgen development, which is concededly not on a "navigable water," is said to be maintained under a valid ...