The Winter Electric Light Power Company (hereinafter referred to as the "company") under date of March 21, 1950, filed an application with the Public Service Commission (hereinafter referred to as the "commission") for a permit to construct, operate, and maintain a hydroelectric dam on the east fork of the Chippewa river in Sawyer county. Approximately one half of the proposed dam will be located outside the extreme boundary of the Chequamegon National Forest, while the remainder of the dam will be erected on federal lands in said national forest.
A public hearing was held on the application on May 9 and June 15, 1950. The Conservation Commission appeared in the proceedings and objected to the construction of the dam on the ground that it was violative of public rights, and in particular that the commission had no authority to authorize the diversion of a river for hydroelectric purposes or to relocate a river bed. The Conservation Commission was represented by the attorney general acting at the express direction of the governor.
The particular application under scrutiny herein involves a proposal to construct a diversion dam in the river channel, which during large portions of the year will divert all of the flow of the river into an open canal some four tenths of a mile long which will conduct the waters to applicant's powerhouse; the waters from the tailrace will be returned to the river channel at a point about one-half mile down stream from the diversion dam.
Under date of September 29, 1950, the commission overruled the objections to its jurisdiction, issued its findings, conclusions, and permit. An order also was issued under the same date imposing certain conditions that were to be observed by the company in carrying on the project.
The Conservation Commission and the petitioners, Luening and the Milwaukee County Conservation Alliance (hereinafter referred to as the "alliance"), filed application for rehearings under sec. 196.405, Stats., which were denied by the commission. On December 11, 1950, Luening and the alliance filed a joint petition in the circuit court for Dane county for review of the commission's determination under ch. 227, Stats. The attorney general took the position that he had no authority to proceed further in the matter without a new direction from the governor and it was not until May 7, 1951, that the governor directed the attorney general to appear in the proceedings in the name of the state. On that same date the state filed a petition with the circuit court for Dane county to intervene in the proceedings.
The company moved to dismiss both the original petition for review and the petition for intervention on the behalf of the state on the two principal grounds that:
(2) The petitioners Luening and the alliance are not parties "aggrieved" and "directly affected" within the meaning of sec. 227.16, Stats.
The trial court granted both motions to dismiss and a formal order and judgment so providing was entered October 19, 1951. The petitioners Luening and the alliance and the state of Wisconsin have appealed from such judgment.
There was argued at the same time as the appeal proper a motion to dismiss by the company on the ground that the issues raised in the appeal were now moot by reason of the fact that the Federal Power Commission by order dated November 15, 1951, had issued a license under the Federal Power Act to the company which authorized the construction of the same hydroelectric power plant on the east fork of the Chippewa river that was authorized under the permit issued pursuant to the findings of the Public Service Commission.
CURRIE, J.
As conceded by all parties this appeal does not concern the merits of the controversy, but only procedure. The questions raised as to procedure are the same as those in Muench v. Public Service Comm., ante, p. 492, 53 N.W.2d 514, and are ruled by our decision in that case.
With respect to the motion to dismiss, the Federal Power Act, 16 USCA, p. 586, sec. 797 (e), provides as follows:
"(e) To issue licenses to citizens of the United States, or to any association of such citizens, or to any corporation organized under the laws of the United States or any state thereof, or to any state or municipality for the purpose of constructing, operating, and maintaining dams, water conduits, reservoirs, powerhouses, 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 (including the territories), or for the purpose utilizing the surplus water or water power from any government dam, except as herein provided: . . ." (Emphasis supplied.)
It will be noted that the foregoing federal statute contains three distinct grants of power to the Federal Power Commission to authorize construction and maintenance of dams and other structures, these being as follows:
(1) In streams or waters over which congress has power under the commerce clause.
(2) Upon public lands of the United States.
(3) For use of surplus water from any government dam.
The Federal Power Commission license issued to the company contains the following statement:
". . . provided, that nothing in this license shall be construed as determining whether the east fork of the Chippewa is a navigable water of the United States at the site of the proposed project. . . ."
In passing it should be noted that the federal test of navigability is different from the Wisconsin test embodied in sec. 30.01, Stats. A stream might be navigable under the Wisconsin law, and not under the test employed by the federal courts in interpreting federal statutes such as the Federal Power Act. A statement of the federal test is to be found in Brewer-Elliott Oil Gas Co. v. United States (1922), 260 U.S. 77, 86, 43 Sup. Ct. 60, 67 L.Ed. 140, as follows:
"A navigable river in this country is one which is used, or is susceptible of being used in its ordinary condition, as a highway for commerce over which trade and travel are or may be conducted in the customary modes of trade and travel on water. It does not depend upon the mode by which commerce is conducted upon it, whether by steamers, sailing vessels, or flatboats, nor upon the difficulties attending navigation, but upon the fact whether the river in its natural state is such that it affords a channel for useful commerce."
It would seem clear from the cases of United States v. Appalachian E.P. Co. (1940), 311 U.S. 377, 61 Sup. Ct. 291, 85 L.Ed. 243, and Wisconsin Public Service Corp. v. Federal Power Comm. (8th Cir. 1945), 147 F.2d 743, (cert. den. 325 U.S. 880, 65 Sup. Ct. 1574, 89 L.Ed. 1996), that the words "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" of the above-quoted federal statute has reference to navigable waters. We, therefore, must conclude that the Federal Power Commission issued its license to the company not on the ground that the waters of the east fork of the Chippewa are navigable, but on the ground that the structures to be erected were upon public lands of the United States.
As approximately one half of the proposed dam will be located outside the boundaries of a national forest, a state permit will be necessary as well as a federal license to erect the dam.
It is true that congress has successfully asserted jurisdiction over nonnavigable waters when necessary for the protection of commerce on navigable waters against excessive floods, Oklahoma ex rel. Phillips v. Atkinson Co. (1941), 313 U.S. 508, 529, 61 Sup. Ct. 1050, 85 L.Ed. 1487. However, in that case the United States supreme court had before it a special statute, the act of June 28, 1938 (52 U.S. Stats. at L. 1215), enacted by congress for the construction of a particular reservoir on the Red river in Texas and Oklahoma "for the benefit of navigation and the control of destructive flood waters." The court in its opinion in that case said:
"We are not concerned here with the question as to the authority of the federal government to establish on a nonnavigable stream a power project which has no relation to, or is not a part of, a flood-control project. While this reservoir is a multiple-purpose project, it is basically one for flood control."
The company cites in support of its position the case of First Iowa Hydro-Electric Co-op. v. Federal Power Comm. (1946), 328 U.S. 152, 66 Sup. Ct. 906, 90 L. Ea. 1143, which held that the obtaining of a state permit from the state of Iowa to construct a power dam on a navigable stream was not a condition precedent to the issuance of a federal license under the Federal Power Act. This case would not seem to be in point on the issue now before us inasmuch as the Federal Power Commission in this instance did not base its issuance of a permit on the fact that the east fork of the Chippewa was navigable, but apparently granted such permit on the theory that the structures were to be erected on government land.
For the foregoing reasons the motion to dismiss the appeal is denied.
In this case, unlike that of Muench v. Public Service Comm., supra, the constitutionality of the "county board law" is not before us on this appeal. Therefore, it is unnecessary that the instant case be remanded to the commission for further findings on the issue of the violation of public rights to hunting, fishing, and scenic beauty.
By the Court. — Judgment reversed and cause remanded to the circuit court for further proceedings according to this opinion.