Escondido Mutual Water Company, Project No. 176; Secretary of the Interior Acting in His Capacity as Trustee for the Rincon, La Jolla, and San Pasqual Bands of Mission Indians v. Escondido Mutual Water Company and City of Escondido, California, Docket No. E-7562; Vista Irrigation District, Docket No. E-7655; San Diego Gas & Electric Company, Project No. 599 Initial Decision of the Presiding Administrative Law Judge on Contested Applications for Re-Licensing of a Canal Project (Issued June 1, 1977) [Note: Opinion No. 36 issuing new licenses, determining annual charges for past periods, prohibiting certain activities, conditionally providing interim operating procedures and terminating complaint and investigatory proceedings was issued February 26, 1979, and appears at 6 FERC ¶ 61,189.] H. Gregory Austin, Reid Peyton Chambers, Harold A. Ranquist, Charles E. O'Connell and Earle D. Goss on behalf of the Secretary of the Interior Arthur J. Gajarsa on behalf of the San Pasqual Band of Mission Indians Robert S. Pelcyger, L. Graeme Bell, III, Barbara Fix, Bruce R. Green, Don B. Miller, Barbara E. Karshmer and Terry L. Singleton on behalf of the Rincon, Pala, Pauma, La Jolla Bands of Mission Indians; also Donald L. Scoville for the Pala Band Paul D. Engstrand, Jr., Donald R. Lincoln and C. Emerson Duncan, II on behalf of the City of Escondido, California, and Escondido Mutual Water Company Leroy A. Wright on behalf of Vista Irrigation District Denis Smaage on behalf of the California Department of Fish and Game Vincent P. Master, Jr. on behalf of the San Diego Gas & Electric Co. James A. Burke on behalf of Ulhlein Hansen Robert L. Woods on behalf on the Staff of the Federal Energy Regulatory Commission ELLIS, Presiding Administrative Law Judge: I THE QUESTION FOR DECISION The Commission's 50-year license for a California water canal operation, as issued in 1924 (Project No. 176), has now expired, but it continues ad interim, on a year-to-year basis only. Shall it now be re-issued for another 50 years to the original licensee, the Escondido Mutual Water Company (and/or its coparcener, the City of Escondido), or shall it be issued as a nonpower license to the three Indian bands whose land it traverses, or, instead, shall the project be recommended to Congress for takeover by the United States? The three proposals are mutually exclusive, so they were examined, heard, cross-examined and briefed together in a consolidated proceeding. the FPC jurisdiction derives from the Indian reservations utilized; there is no thought of navigable waters, or of interstate commerce, or of the effect on either. II THE SITUS In San Diego County, in the shadow of the Palomar Mountain of the Coastal Range, at the mouth of the Black Canyon and the Bear Canyon, near Deadman Hole, there rises a river called the San Luis Rey, which cuts its way through steep canyons, narrow passes, and then across broad valleys for 65 miles to the Pacific Ocean. Its natural flow is highly variable, and measurably heavier in winter and spring but quite dry in summer and fall.' There is no navigation; it is not navigable at all. Just above its point of leaving the mountain gorges, the seasonal flow is interrupted by Mutual's small diversion dam, which captures all or nearly all the flow for diversion into an artificial canal, all built by Mutual's predecessors in the 1890's. The canal, an open cement structure' evidently six feet or so wide, miraculously, by gravity alone, carries the water across a mountain range for 13 miles to an artificial lake of 224 acres which is in the next valley, quite out of the San Luis Rey watershed. This is Lake Wohlford, an important recreational resource for the nearby City of Escondido and for San Diego County. At the end of the lake, which is contained by Mutual's Bear Valley Dam, a 4,230-foot pipe and penstock lead down to a small power house 490 feet below, which is interconnected with the main lines of the San Diego Gas and Electric Co. About half of the 13-mile canal is through lands which were set aside, mostly in the 1890's, in trust as Indian reservations for three bands of the Mission Indians. This is what b.ing, the case here, under the Federal Power Act, which governs power projects on reservation lands. III THE FOUR DOCKETS AND THEIR CROWDED AGENDA This cause, the Commission's first contested re-licensing case, must be the most thoroughly litigated, or over-litigated proceeding in all history, but also the best briefed on all sides. There are four consolidated dockets reaching back over the past seven years, viz.: E-7562: In 1970, the Secretary of the Interior (acting as trustee for three Indian bands whose reservations are crossed by the canal) filed a formal complaint, alleging numerous violations of Mutual's 1924 license, asking that the transgressions be enjoined and damages be awarded, that the license be revoked, and that the annual charges of $25 be redetermined and assessed, retroactively. The Commission's order of April 14, 1971, called for an investigation of the charges, and permitted the Bands to intervene by their separate counsel. 45 FPC 569. Project 176: Early in 1971, Mutual filed its full and formal application for a re-license for the 50 years ensuing after the 1974 expiration. Being well under the new 2,000 horsepower limit, this time it is for a "minor project license." The Commission's hearing order for P-176 and E-7562 issued on July 30, 1971, 46 FPC 253. With the matter still in limine, annual licenses have issued each year since 1974, per Section 14 of the Federal Power Act. By and large, the application is simply to reinstate and renew the former license (as amended about 13 times over the years). However, two significant amendments came in 1975 and 1976, one to remove all but a fraction of a mile of the San Pasqual portion of the canal to a new location on private lands adjoining, and the other from the City of Escondido to become a joint licensee. E-7655: The Vista investigation. Based on Interior's complaint that another party is involved, and unlawfully so, an investigation was instituted by the July 30, 1971 order, with the Vista Irrigation District as respondent. Vista is a city a little smaller than Escondido, and ten miles to the west, toward the Pacific. It is Vista that owns Henshaw Dam on the San Luis Rey (9 miles above Mutual's diversion point), and about half of the water in the canal is Vista's, under contract of 1922 with Mutual. Vista has a Forest Service license for the dam, but none from the FPC (7T1493). The point of inquiry was Vista's joint usage and control of the canal, but without license. Neither does Vista now seek a license, but they might consider it if on acceptable terms. The Band's license application: In 1972, speaking through two motions and six supplemental letters, the five Indian bands filed their joint competing application for a “nonpower license” under Section 15(b) of the Federal Power Act. Interior joined in, announcing it would be responsible for supervision if the license be granted. Federal takeover recommended: Also in 1972, the Secretary of the Interior formally recommended the necessary steps for recapture of the project and its takeover by the United States, looking toward a Commission recommendation to that effect to the Congress. Interior's plan is a possible alternative to the non-power license, and contemplates similar tribal operation. It is a part of this case, see 48 FPC 1192. Project 559: The only non-controversial portion of this over-all case is a 1974 application by the San Diego Gas and Electric Company for a license for its two-mile power line connecting the small power house on the Rincon reservation with San Diego's primary lines nearby (already licensed elsewhere). A related matter, an authorization to abandon an older and now unused line into Rincon, is the subject of a separate Initial Decision now in processu. Interventions: Two other parties have intervened the State of California Department of Fish and Game, and Ms. P. U. Hansen, a ranch-owner on the river, below the Pala Reservation. Hearings: After a pretrial in 1971, the hearings convened in 1973 in California, half the sessions in Escondido and half in the tribal meeting hall at Pala. The hearing reconvened in Washington in November 1973 and again in 1974. At this point it developed that full treatment should be accorded under the Environmental Protection Act (minor license projects generally being exempt). So the Commission's order of November 19, 1973, 50 FPC 1602, called for an environmental impact statement, which was finally completed 21 months later. Hearings on this phase followed in 1975 in California and in 1976 in Washington. Through 1976 successive briefs were received, all of them of most unusual excellence and thoroughness, but (except for one) none of them suffers abbreviation to thwart the demands of definitive truth. The record: The 11,149-page transcript of the cross-examination of 78 witnesses is only a moiety of the record because all prepared testimony was treated, for economy, as exhibits; there are nearly 600 all told, some of them many pages long. The record and hearings would have perhaps doubled in extent had not all parties collaborated to provide an eight-volume stipulation of background facts and historical documents, going back to the 1880's, all of which were admitted as Ex. A-1 and its 308 attachments. The viewing: Nearly as useful as the written record were the several inspections of the entire complex, from Lake Henshaw down to Bear Valley powerhouse. The trips occupied three days, includ ing a walking tour of the 13-mile canal. Participants included this forum, all of the parties' counsel, Mutual's helpful staff, some witnesses and a number of Band members, including the "Captains" of three of the Bands. Against the ever conceivability that today's Initial Decision might possibly in due course, become the subject of Commission or court review, the suggestion is here recorded that any reviewing authority at any level, would be well served by undertaking at least some on-site inspection of the canal, the dams and the reservations. Failing this, there might be for perusal the many fine pictures which are in the official record (see exhibits M-3, M-38, M-48, M-75, M-207 and S-60). A few of them are here reproduced and inserted. |