Summary
stating that language in § 31.02 “promot[ing] safety ... and ... protect[ing] property” “involve subjects covered by the police power of the state”
Summary of this case from Rock-Koshkonong Lake Dist., Rock River-Koshkonong Ass'n, Inc. v. StateOpinion
September 12, 1958 —
October 7, 1958.
APPEAL from a judgment of the circuit court for Dane county: RICHARD W. BARDWELL, Circuit Judge. Affirmed.
For the appellant there was a brief by Schubring, Ryan, Petersen Sutherland of Madison, and oral argument by R. J. Sutherland.
For the respondent Public Service Commission there was a brief by the Attorney General and William E. Torkelson, chief counsel, and oral argument by Mr. Torkelson.
Petition to review an order of the Public Service Commission of Wisconsin directing that the petitioner operate its Prairie du Sac dam in such a manner as to maintain a minimum level of the Wisconsin river below the dam fixed by the commission.
The matter was brought before the commission on the petition of approximately 400 persons who denominated themselves as citizens and taxpayers. The petition alleged that the fluctuation in the water level and flow below the dam was causing extensive damage to riparian owners and was detrimental to fish and wild life in the waters of the river. The commission was requested to hold a public hearing and to fix the water level below the dam. After an extended hearing the commission entered its findings of fact, conclusions of law, and its order as follows:
"Findings of Fact.
"The commission finds:
"1. The Prairie du Sac hydroelectric plant of the Wisconsin Power Light Company is located in the Wisconsin river just above the village of Prairie du Sac.
"2. The dam was authorized by ch. 189, Laws of Wisconsin for 1907, and also by permit from the secretary of war under authority of the Rivers and Harbors Act of March 3, 1899.
"3. The dam was constructed in the years 1911 to 1914. The pond was raised four feet in about 1923 and now covers an area of some 10,000 acres. The head maintained by the present dam is 37-plus feet. There are installed eight hydroelectric units with a total capacity of about 26,000 kilowatts. The dam is the last downstream of a number of power dams in the Wisconsin river.
"4. The plant is and has been used for the past fifteen to twenty years for peaking purposes. When there is insufficient water for continuous maximum operation, the plant is operated as far as possible at near its maximum capacity at periods of load peaks on the system. The operation causes substantial fluctuations of water levels during each day in the river below Prairie du Sac.
"5. The peaking operation causes daily fluctuations in water levels amounting to a maximum of six feet immediately below the plant, four feet at Honey Creek with diminishing fluctuation at Spring Green but still amounting to about one foot at Muscoda.
"6. Variation of water levels in the river, which in recent years has resulted from the operation of the dam, causes erosion of the riverbanks and widening of the channel with resulting effect to riparian property. Such fluctuation resulting from such operation in recent years interferes with navigation on the river.
"7. The Prairie du Sac plant benefits from the operation of the Wisconsin Valley Improvement Company's storage reservoirs in the headwaters of the Wisconsin river which impound floodwaters and release them in times of low flow in the river. This results in a reduction of flood flow and in an increase in the low flow of the river.
"8. The Wisconsin river is in a sandy valley. In its natural state, without reservoirs and dams, the navigational use of the river was difficult, partially because of the sand bars which obstructed the channel and which were continually moving downstream and partially because of the low water stages which were encountered frequently.
"9. The operation of the Prairie du Sac plant in recent years has not resulted in material injury to public interest in said navigable water in so far as the same relates to game-fish habitat.
"10. The period of minimum operation for the plant generally occurs approximately between midnight and 6 a. m. of each day. In the past several years this type of plant operation has at times resulted in a low tail-water elevation of 731.0 feet below the weir at the plant.
"11. Tail-water levels and related discharge with the plant operated under several load conditions are as tabulated below:
"Load Tail-water Gage Discharge
"2,000 kilowatts ........ 732.0 feet ........ 1,680 cfs. "4,000 " ........ 732.6 " ........ 2,310 " "6,000 " ........ 733.1 " ........ 3,100 " "8,000 " ........ 733.4 " ........ 3,710 " "12. In late years the operation of the Prairie du Sac plant is to provide capacity at times of system peaks occurring at morning, afternoon, and early night. The maximum fluctuations in tail-water levels results from the long late-night minimum operation and the morning use of capacity and occurs at midmorning. The long-night minimum operation causes substantial lowering of the river levels. The test operations indicate that if a minimum of 2,300 cubic feet a second were passed a minimum river level of 732.6 feet would be held and that the river level would not be excessively lowered. However, such a requirement would use nearly all of normal low flow and at such times the company could not use the plant to provide customary capacity."13. It is deemed necessary to establish regulation of tail-water fluctuations to hold it within reasonable levels:
"(a) This can be done by establishing a maximum tail-water elevation at, say, 735.5 feet when flow is less than 8,000 cubic feet a second. This would limit the maximum tail-water fluctuation to four feet, but it would not permit the use of the top 8,000 kilowatts of capacity for any substantial period.
"(b) or it can be done by establishing a minimum tail-water level which would be maintained by passing sufficient flow. Such minimum level at elevation 732.2 feet at times of minimum flow would permit use of all of the capacity but for a lesser time than it is now utilized. This minimum level would hold the Wisconsin river 1.2 feet higher than that now reached at some times. It would lessen the maximum fluctuations from 5.9 feet to 4.7 feet. The establishment of this level will not materially impair the value of the plant for its accustomed operation. It will create more-satisfactory water levels and conditions below the plant. Such regulation is necessary from May 1 to October 30 of each year when the river below Prairie du Sac is generally used for navigation, fishing, and hunting.
"14. The order in this matter should be conditioned to permit the company under emergency conditions, upon specific authorization, to operate otherwise than as provided herein.
"15. To protect public rights in the navigable water involved and to promote safety and to protect life, health, and property, it is necessary to establish the minimum level of the Wisconsin river immediately below the weir at the Prairie du Sac dam, and such minimum level at the above-described point is 732.2 feet, mean sea-level datum, which would constitute a reasonable operation in the public interest.
"Conclusion of Law.
"The commission concludes:
"That it has jurisdiction under section 31.02, statutes, to establish the minimum level of the Wisconsin river immediately below the Prairie du Sac dam at elevation 732.2 feet, mean sea-level datum.
"Order.
"The commission therefore orders:
"1. That the minimum level of the Wisconsin river immediately below the Prairie du Sac dam be and it is hereby fixed at elevation 732.2 feet, mean sea-level datum, and that the Prairie du Sac dam be maintained and operated in such manner as to comply with such requirement between May 1 and October 30 of each year, subject to the exception hereinafter stated.
"2. That jurisdiction is retained to temporarily stay the aforesaid paragraph of this order upon specific written authority from the commission under emergency conditions and also to restate the minimum level to accord with discharge if further erosion or further degradation occurs in the river."
The utility petitioned for a review of the order. By judgment dated October 21, 1957, the circuit court affirmed the order of the commission. The Wisconsin Power Light Company appealed from said judgment.
The utility made no challenge of the facts either in its brief or oral argument. The circuit court found that the findings of fact by the commission were supported by substantial evidence and we agree with that determination.
The utility advances many arguments to support its contention that the commission had no authority to make the order appealed from. It cites many cases that are alleged to support its arguments. The commission takes issue with each argument advanced and also cites many cases. Each side attempts to show that the cases cited by the other are not applicable.
The arguments of the utility are directed to three main points: (1) That the state itself could not limit the methods the utility employed in the operation of its dam; (2) that the commission had no authority to issue the order appealed from; and (3) that the petitioners who originally brought the matter to the attention of the commission were only private persons and had no standing or legal capacity to question the manner in which the dam was operated.
The utility's predecessors in interest were authorized by the legislature to construct an 18-foot dam by ch. 189, Laws of 1907, and also by permit from the secretary of war. The utility contends that when the dam was constructed as authorized that constituted a contract between the utility and the state; that its rights thereunder became vested and that the commission order which prevents the utility from making maximum use of the water stored in the dam deprives the utility of its property without due process and without just compensation and impairs the obligation of the contract with the state.
The commission acted under the provisions of sec. 31.02, Stats. That statute authorizes the commission to regulate and control the level and flow of water in all navigable waters of the state. The statute was originally passed in 1915. The utility contends, therefore, that it is not applicable to it as its rights vested by virtue of the legislative action in 1907 followed by construction of the dam by 1914.
Reference to ch. 189, Laws of 1907, shows that the legislature made certain reservations in granting authority to construct and maintain the dam in question. Sec. 5 and a portion of sec. 6 of the 1907 legislative act read as follows:
"Section 5. The power to alter, amend, or repeal this act is hereby reserved.
"Section 6. This act is passed in consideration of, and upon the following expressed conditions: . . .
"3. The water power acquired under and by virtue of this act shall not be operated or its operation suspended pursuant to any contract, agreement, or understanding, expressed or implied, in violation of any law of this state or of the United States."
The circuit court held that these provisions were valid reservations of authority that authorized the state to modify the original act by later legislation. We agree with that determination.
The utility relies mainly upon language in Water Power Cases, 148 Wis. 124, 134 N.W. 330. Those cases were brought to test the validity of ch. 652, Laws of 1911. There an attempt was made to repeal all charters for dams theretofore granted and to require the holders of charters to apply for new ones which were subject to certain conditions, and to induce holders of existing charters to come under the act their properties were declared a nuisance and penalties were imposed if their charters were not surrendered. The situations are entirely different and what was said in that case has no application to the matter before us.
The circuit court further held that the order appealed from did not amount to a taking of property, and cited United States v. Willow River Power Co. 324 U.S. 499, 65 Sup. Ct. 761, 89 L.Ed. 1101, and St. Anthony Falls Water Power Co. v. St. Paul Water Co. 168 U.S. 349, 18 Sup. Ct. 157, 43 L.Ed. 497. We agree with that determination.
The utility further contends that the state has no authority under its police power because no question of safety was involved and no showing was made that the manner of operating the dam involved any danger to persons or any hazard to navigation. The police powers of the state rest upon a broader foundation. The commission acted to protect public rights in the navigable waters involved, to promote safety, and to protect property, all of which involve subjects covered by the police power of the state. The circuit court further determined that even at common law the owner of a dam must operate the same in a reasonable manner, which is precisely what is sought by the order appealed from. Apfelbacher v. State, 167 Wis. 233, 167 N.W. 244.
Finally, with reference to the authority of the state to act, the utility contends that the dam was constructed and operated under a permit from the federal government and therefore the federal government has jurisdiction exclusive of any right of the state to the contrary to regulate the flow of water through the dam. This point was also argued before the circuit court. The record discloses that the federal permit was granted under the Rivers and Harbors Act of 1899 and not under the Federal Power Act, and that the utility apparently has never applied for a license under the latter act. The Wisconsin river is entirely within the state of Wisconsin and there has been no federal directive or regulation that would oust the state from jurisdiction. The circuit court relied upon Cummings v. Chicago, 188 U.S. 410, 23 Sup. Ct. 472, 47 L.Ed. 525, Milwaukee v. Gimbel Bros. 130 Wis. 31, 110 N.W. 7, and California Oregon Power Co. v. Superior Court, 45 Cal.2d 858, 291 P.2d 455. The commission also cites Montgomery v. Portland, 190 U.S. 89, 23 Sup.Ct. 735, 47 L.Ed. 965, and International Bridge Co. v. New York, 254 U.S. 126, 41 Sup.Ct. 56, 65 L.Ed. 176. From the record we are convinced that the state had authority to act.
As to its second contention that the Public Service Commission is without authority to act, the utility argues that it has a contract with the state, that it represents the state for improving navigation of the river, that the commission is only a fact-finding body and that it has no judicial powers to construe the contract.
Even though we assume that the utility had a binding contract with the state, which we do not, certainly the state could designate one of its agencies to protect its rights thereunder. The main question under this contention is as to the applicability of the provisions of sec. 31.02, Stats., to the utility. The argument that the utility received its authority to construct and operate the dam in 1907 while sec. 31.02 was enacted in 1915 is of no force because of the reservation of authority in ch. 189, Laws of 1907. Although no point thereon was made in the briefs or oral argument it appears from the record that the original permit to the utility's predecessors in title was to construct and maintain an 18-foot dam. The record discloses that a permit was granted prior to 1923 to raise the height of the dam an additional four feet. The commission found that the utility now maintains a head of 37-plus feet. Although we are not engineers we understand that to mean that the dam is maintained at a height of at least 37 feet above the bed of the river. Just what conditions were imposed by the later permits do not appear. The utility cites sec. 31.13 regulating permits for the raising or enlarging of existing dams. That statute was enacted in 1915 and provided that the commission might grant permission therefor but that such permit shall in no way enlarge, alter, abridge, or nullify property rights, privileges, or obligations as to such dam or the maintenance or operation thereof theretofore acquired or incurred. Those original rights were for the construction and maintenance of an 18-foot dam. The order in question could have no effect upon an 18 or 22-foot dam. However, because the point was not raised we do not make our determination upon that basis, but agree with the circuit court that the reservations in the original act authorized the enactment of sec. 31.02, and that the commission has authority to act thereunder. Sec. 31.02 applies to dams maintained before and after the enactment of the statute. The statute is presumptively binding and the burden was on the utility to establish that its provisions should not be applied in the present case. The utility has not met that burden of proof.
Sec. 31.34, Stats., was first enacted in 1933. That statute provides that every corporation maintaining a dam on any navigable stream shall pass at all times at least 25 per cent of the natural flow of water of such stream except as otherwise provided by law. The utility contends that by the enactment of this statute the legislature established a standard and that the commission has no authority to go further than the limits fixed by statute. It contends further that if the commission view is taken there is no purpose in continuing sec. 31.34 on the books and no reason for originally enacting it. The record shows that the utility is passing more than 25 per cent of the natural flow of the river through the dam at all times. This contention is refuted by the words of the statute itself. The standard set by the legislature is a minimum of 25 per cent. If the order of the commission had established a flow below the minimum set by the legislature the argument of the utility might have some force.
There is little merit to the final contention. Private persons have an interest in the navigable streams of the state. Muench v. Public Service Comm. 261 Wis. 492, 53 N.W.2d 514, 55 N.W.2d 40. It must also be noted that sec. 4, art. I of the Wisconsin constitution provides that the right to petition the government or any department thereof shall never be abridged. Thus the original petitioners were acting within their constitutional rights when they brought the matter to the attention of the commission. In addition thereto some of the original petitioners were riparian owners of lands located on the river below the dam or had other interests in property there located. The commission was fully justified in conducting the hearing based upon that complaint.
As stated above the facts as found by the commission were not challenged. The circuit court properly determined the conclusions of law submitted, and must be affirmed.
By the Court. — Judgment affirmed.
MARTIN, C.J., took no part.