Under § 4(e) of the Federal Power Act, the Federal Power
Commission issued to a power company a license to construct,
operate and maintain a hydroelectric project including a dam, power
plant and transmission lines on public lands, subject to the
condition that the company permit the interconnection of
transmission facilities of the United States with the company's
transmission lines and the transfer over those lines of energy
generated in power plants owned by the United States. The Court of
Appeals held that the Commission had no authority to attach these
conditions, and entered a judgment that the Commission's order "be
modified" and that the cause be remanded to the Commission "for the
entry of an order in accordance with the opinion of this Court." On
motion of the Commission for clarification, the court entered a new
judgment, stating that the order of the Commission "be, and it is
hereby, modified by striking therefrom paragraph (F) thereof
[containing the conditions], and that the order of the Federal
Power Commission herein as thus modified be, and it is hereby,
affirmed."
Held:
1. When the Court of Appeals, by its second judgment, decided
that the license should issue without the conditions, it usurped an
administrative function. Pp.
344 U. S.
19-20.
(a) The power of the Court of Appeals under § 313(b) "to affirm,
modify, or set aside" an order of the Commission "in whole or in
part" does not authorize it to exercise an essentially
administrative function. P.
344 U. S.
21.
(b) Whether the objective of § 10(a) of the Act may be achieved
if the contested conditions are stricken from the Commission's
order is an administrative, not a judicial, decision. P.
344 U. S.
21.
2. When read in the context of §§ 4 and 10 of the Act, § 6,
making each license subject to conditions prescribed by the
Commission, authorizes the Commission to attach the conditions
imposed
Page 344 U. S. 18
here, and that authority is not impaired by § 201(f) of Part II
of the Act, providing that no provision of Part II shall apply to
the United States. Pp.
344 U. S.
21-24.
(a) Protection of the public domain, conservation of water power
resources, development of comprehensive plans for waterways -- each
might on the facts of a case be sufficient to authorize the grant
of permission to a public utility company to use the public domain
provided it agreed to use its excess capacity to transmit
government power. P.
344 U. S.
23.
(b) The powers conferred by Part II of the Act to regulate
public utilities engaged in the interstate transmission and sale of
electric energy cannot be construed as a repeal by implication of
the powers conferred by Part I to regulate public lands or the use
of navigable streams. Pp.
344 U. S.
23-24.
3. A petition to this Court for certiorari, filed within 90 days
after the Court of Appeals' second judgment, though more than 90
days after the first, was timely. Pp.
344 U. S.
19-20.
4. There is no merit in the contention that the Commission's
motion for clarification was untimely under the rules of the Court
of Appeals governing petitions for rehearing, since, assuming that
the motion was a petition for rehearing within the meaning of the
rules, it was entertained and considered on the merits. P. 21,
n 1.
89 U.S.App.D.C. 1, 189 F.2d 665, reversed.
The Federal Power Commission issued to respondent power company,
under § 4(e) of the Federal Power Act, a conditional license to
construct, operate and maintain a hydroelectric project. The Court
of Appeals modified the Commission's order by striking out the
conditions, and affirmed the order as thus modified. 89
U.S.App.D.C. 1, 189 F.2d 665. This Court granted certiorari. 342
U.S. 941.
Reversed, p.
344 U. S.
24.
Page 344 U. S. 19
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
Respondent applied to petitioner under § 4(e) of the Federal
Power Act, 41 Stat. 1065, 49 Stat. 840, 16 U.S.C. § 797(e), for a
license to construct, operate, and maintain a hydroelectric project
(known as the Bliss development) on the Snake River in southern
Idaho. This project included a dam and power plant occupying some
500 acres of lands of the United States, and two transmission
lines. These lines, for most of their length, crossed lands of the
United States and joined the company's interconnected primary
transmission system.
The United States has power projects in this area, and the
Bureau of Reclamation and the Bonneville Power Administration were
contemplating the construction of a transmission line which would
connect the same areas as respondent's proposed lines. Therefore,
the Federal Power Commission, on the suggestion of the Secretary of
the Interior, authorized the project on conditions specified in
paragraph (F) of the order. These conditions, in summary, were that
the licensee permit the interconnection of transmission facilities
of the United States with the two transmission lines, and the
transfer over those lines of energy generated in power plants owned
by the United States "in such amounts as will not unreasonably
interfere" with the licensee's use of the lines, the United States
to pay the licensee for government power so transmitted.
Respondent petitioned for review of the Commission's order. The
Court of Appeals held that the Commission had no authority to
attach the condition. It entered a judgment that the Commission's
order "be modified," and that the cause be remanded to the
Commission "for the entry of an order in accordance with the
opinion of this Court." That was on May 10, 1951. 89 U.S.App.D.C.
1, 189 F.2d 665. The Commission moved for a
Page 344 U. S. 20
clarification of the judgment. On September 21, 1951, the Court
of Appeals entered a new judgment, stating that the order of the
Commission
"be, and it is hereby, modified by the striking therefrom
paragraph (F) thereof and that the order of the Federal Power
Commission herein as thus modified be, and it is hereby
affirmed."
The petition for certiorari was filed within 90 days of the
amended order but more than 90 days after the first order. The
question which therefore lies at the threshold of the case is
whether the petition is timely.
See 28 U.S.C. §
2101(c).
First. If the court did no more by the second judgment
than to restate what it had decided by the first one,
Department of Banking v. Pink, 317 U.
S. 264, would apply, and the 90 days would start to run
from the first judgment. But the court by the second judgment,
undertook to modify the license. By the first judgment, it did no
more than keep the Commission within the bounds set by its opinion.
On remand, the Commission might have reissued the order without the
contested conditions, or it might have withheld its consent to any
license. It is the Commission's judgment on which Congress has
placed its reliance for control of licenses.
See §§ 6,
10(a), 10(g). When the court decided that the license should issue
without the conditions, it usurped an administrative function.
There doubtless may be situations where the provision excised from
the administrative order is separable from the remaining parts or
so minor as to make remand inappropriate. But the guiding
principle, violated here, is that the function of the reviewing
court ends when an error of law is laid bare. At that point, the
matter once more goes to the Commission for reconsideration.
See Federal Communications Commission v. Pottsville
Broadcasting Co., 309 U. S. 134;
Federal Trade Commission v. Morton Salt Co., 334 U. S.
37.
Page 344 U. S. 21
The Court, it is true, has power "to affirm, modify, or set
aside" the order of the Commission "in whole or in part." § 313(b).
But that authority is not power to exercise an essentially
administrative function.
See Ford Motor Co. v. Labor
Board, 305 U. S. 364,
305 U. S.
373-374;
Jacob Siegel Co. v. Federal Trade
Commission, 327 U. S. 608. The
nature of the determination is emphasized by § 10(a), which
specifies that the project adopted
"shall be such as in the judgment of the Commission will be best
adapted to a comprehensive plan . . . for the improvement and
utilization of water power development, and for other beneficial
public uses."
Whether that objective may be achieved if the contested
conditions are stricken from the order is an administrative, not a
judicial, decision. [
Footnote
1]
Second. The power of Congress over public lands,
conferred by Art. IV, § 3 of the Constitution, is "without
limitations," as we stated in
United States v. San
Francisco, 310 U. S. 16,
310 U. S. 29.
The Court of Appeals, while recognizing that principle, held that
Congress had not granted the Commission authority to condition the
use of public lands by requiring a public utility to carry
government power. It relied on § 201(f) of the Act, which says that
"No provision in this Part shall apply to . . . the United States.
. . ." The Part referred to is Part II of the Act, which set up a
system of control over the transmission of electric energy in
interstate commerce. It granted the Commission authority, among
other things, to direct a public utility to establish physical
connection of its transmission facilities with the facilities of
other persons engaged
Page 344 U. S. 22
in the transmission or sale of electric energy. § 202(b). Since
that power was not extended to the United States, the court
concluded that a license under Part I of the Act could not be
conditioned on an interconnection with federal power.
Part I and Part II provide different regulatory schemes. Part II
is an exercise of the commerce power over public utilities engaged
in the interstate transmission and sale of electric energy.
See S.Rep. No. 621, 74th Cong., 1st Sess., p. 17. Part II
does not undertake to regulate public lands or the use of navigable
streams. That function is covered by Part I, which dates back to
the Federal Water Power Act of 1920, 41 Stat. 1063. Section 4(e) of
Part I gives the Commission power to issue licenses to private or
public bodies 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. . . ."
(Italics added.)
By § 4(g), the Commission is given authority to investigate the
actual or intended occupancy of "public lands" for the purpose of
developing electric power and to issue such order as it may find
"appropriate, expedient, and in the public interest to conserve and
utilize the . . . water power resources of the region." As already
noted, § 10(a) provides that no license shall be granted unless, in
the judgment of the Commission, the project
"will be best adapted to a comprehensive plan . . . for the
improvement and utilization of water-ower development, and for
other beneficial uses . . . , and, if necessary
Page 344 U. S. 23
in order to secure such plan, the Commission shall have
authority to require the modification of any project . . . before
approval. [
Footnote 2]"
Under these sections, the Commission is plainly made the
guardian of the public domain. The requirement that existing lines
be fully utilized before additional lines are authorized would seem
to be relevant to a decision under § 10(a) that the project
submitted was consonant with the "comprehensive plan" for the
waterway. And the Commission might well determine under § 4(g)
that, if public lands are to be used for the transmission of power,
conservation of the "water power resources of the region" requires
that public power as well as private power be transmitted over
them.
Sections 4 and 10 speak specifically of the public domain --
waterways and public lands. Section 6 makes each license subject to
all the terms and conditions of the Act, and to "such further
conditions, if any, as the Commission shall prescribe in conformity
with this Act. . . ." Section 6, read in the context of §§ 4 and
10, would seem to give ample authority to the Commission to attach
the conditions imposed here. Protection of the public domain,
conservation of water power resources, development of comprehensive
plans for the waterways -- each of these might on the facts of a
case be sufficient to authorize the grant of permission to a public
utility company to use the public domain provided it agreed to use
its excess capacity to transmit government power.
It is difficult for us to read § 201(f) as in any way affecting
that power. Sections 201(f) and 202 deal with interconnections of
facilities generally. They do not extend the new powers granted by
Part II to government
Page 344 U. S. 24
lines. On the other hand, they do not purport to change or alter
any power granted under Part I. They do not deal with the grant of
licenses. They do not purport to lay down conditions for the
issuance of licenses for use of the public domain. We therefore
cannot construe the limitation on the new powers conferred by Part
II as a repeal by implication of the powers over licensees that are
deeply engrained in Part I of the Act and put there by the Congress
for the purpose of protecting the public domain.
Reversed.
MR. JUSTICE BURTON and MR. JUSTICE CLARK took no part in the
consideration or decision of this case.
[
Footnote 1]
An argument is made that the Commission's motion for
clarification was untimely under the rules of the Court of Appeals
governing petitions for rehearing. Assuming,
arguendo,
that the motion was a petition for rehearing within the meaning of
those rules, it was entertained and considered on the merits,
cf. Bowman v. Loperena, 311 U. S. 262;
Pfister v. Northern Illinois Finance Corp., 317 U.
S. 144,
317 U. S. 149,
and the new judgment entered was erroneous.
[
Footnote 2]
Sections 4(e) and 10(a) appeared in the Federal Water Power Act
of 1920, 41 Stat. 1063 1065, 1068. Section 4(g) was added by the
Public Utility Holding Company Act of 1935, 49 Stat. 838, 841.
