25. When any such applicant is without authority to maintain and operate its project, license to be issued under the conditions that valuation shall be made at the earliest practicable date, that it shall be determined as of the date of issuance of license, and that the licensee shall agree to accept and to enter upon its books as the value of its property on such date the amount determined under the provisions of section 23.

VI. POWER SITE RESTORATIONS.

(A) ACTION BY THE DEPARTMENTS.

(a) FIELD OFFICES.

26. To receive applications if tendered and to submit same to Executive Secretary with report thereon through the appropriate Washington office. So far as practicable all such applications to be filed with the local land offices and transmitted therefrom through the General Land Office to the Executive Secretary.

(b) WASHINGTON OFFICE.

27. To transmit applications with all available data thereon to the Executive Secretary.

28. When determination has been made the General Land Office will record the fact and notify the local land office. All further action will be within the exclusive jurisdic tion of the Department of the Interior.

(B) ACTION BY EXECUTIVE SECRETARY.

29. On the receipt of applications directly, or by reference from departments, to secure available information from the General Land Office, Geological Survey, or Forest Service, and if adequate information is not thus available, to call for such further information from the appropriate Government agencies as may be necessary. When sufficient information is received, to submit matter to the Commission for the determination required by section 24 of the Act, to certify such determination to the Commissioner of the General Land Office and to record the action taken in the minutes of the Commission.

VII. LEGAL OPINIONS AND DECISIONS.

30. Opinions of the Chief Counsel rendered in connection with the work of the Commission to be transmitted to the members of the Commission for information and individual approval, and to be later submitted by the Executive Secretary to the Commission for formal action. If approved by the Commission, such opinions to become decisions of the Commission, and abstracts thereof to be entered upon the minutes of the meeting at which approved. If approved, the Executive Secretary to transmit copies of such decisions to each of the three Departments for their information and record. In case of disagreement the question to be either referred back to the Chief Counsel for further consideration or decided by vote of the Commission, or referred to the Attorney General, as the Commission may determine.

31. In matters involving appropriations of the Commission the question to be formulated by the Executive Secretary and letter to the Comptroller of the Treasury to be prepared for the signature of the Chairman of the Commission.

VIII. ACCOUNTS AND REPORTS.

32. In conformity with the Rules and Regulations and with the system of accounting adopted, and subject to appeal to the Commission, the Executive Secretary

(a) To determine the forms of annual and special reports to be submitted by licensees under the requirements of section 4, subsections (a) and (f) of the Act. (b) To make investigations, hold hearings, and determine whether the proposals of licensees for the allocation of earnings between project and nonproject property are equitable; whether classification of property for the purpose of depreciation, as proposed by licensees, is reasonable; whether the rates and amounts of depreciation and the reserves established thereby, as required by section 10, subsection (c) of the Act are adequate; and whether the licensee is earning or has earned excessive profits within the meaning of section 10, subsection (b) of the Act.

33. The Executive Secretary to determine benefits which have equitably accrued to any licensee on account of the construction of storage reservoirs or other headwater improvements by another licensee, by a permittee, or by the United States, and to determine the annual charges which should be paid on account thereof, as required by Section 10, subsection (f) of the Act.

IX. HEARINGS AND APPEALS.

34. In cases of request for hearing before the Commission such hearing, unless in any case the Commission decide otherwise, to be held in the first instance by the Executive Secretary and preliminary decision to be made by him on the matter at issue.

35. If those requesting hearing are dissatisfied with the preliminary decision, appeal may be taken to the Commission, in which event an agreed statement of facts, if such can be reached, to be presented to the Commission by the Executive Secretary, together with a digest of the arguments for and against the matter at issue and any briefs or other papers pertinent to the case, for consideration by the Commission at its next regular meeting, at which time opportunity for oral argument to be given if appellant desires and Commission concurs.

36. If no appeal taken, the preliminary decision to be presented by the Executive Secretary to the Commission at its next regular meeting for approval or for such modification as the Commission may direct.

37. Appeals from decisions of Executive Secretary made in accordance with paragraph 20, to be handled in the manner provided in paragraph 35.

ORDERS, No. 11.

By authority of paragraph (h) of section 4 of the Federal Water Power Act approved June 10, 1920 (41 Stat., 1063), and in pursuance of the action of the Federal Power Commission at its meeting of May 28, 1921, it is hereby ordered that Regulations 1, 2, 3, 4, 5, 6, 12, 14, 16, 17, 18, 19, and 20 of the Rules and Regulations of the Commission promulgated by Orders No. 9 of February 28, 1921, be amended as hereinafter set forth; that said regulations so amended shall be effective on and after the date of execution hereof, and shall govern in the matters covered thereby in the administration of said Act; and that any permit or license heretofore issued may, upon written application by the permittee or licensee, be subject to the rules and regulations as herein amended, in lieu of the rules and regulations promulgated by said Orders, No. 9.

Done at the city of Washington, District of Columbia, this 6th day of June, 1921. JOHN W. WEEKS, Chairman.

Attest:

O. C. MERRILL,

Executive Secretary.

NOTE. The text of Orders, No. 11, as adopted by the commission, contains the several paragraphs, sections, etc., of regulations as amended. The amended regulations are printed in full in a separate pamphlet compilation, copies of which are available on request.

ORDERS, NO. 12.

By authority of section 2 of the Federal Water Power Act, approved June 10, 1920 (41 Stat., 1063), the Federal Power Commission at its meeting of August 15, 1921, amended Orders, No. 2, dated August 23, 1920, and Orders, No. 5, dated September 3, 1920, by adding to each order the following paragraph:

"In the absence of the executive secretary, his duties and authority as hereinbefore conferred shall devolve upon the chief engineer, whose signature as Chief Engineer, in the absence of the Executive Secretary,' shall be sufficient to show that his action was taken under the circumstances which entitled him to exercise this authority.”

Done at the city of Washington, District of Columbia, this 6th day of October, 1921. JOHN W. WEEKS, Chairman.

Attest:

O. C. MERRILL,

Executive Secretary.

APPENDIX D.

DECISIONS OF THE COMMISSION UNDER THE FEDERAL WATER POWER ACT.

ALLOTTED INDIAN LANDS.

The authority of the Federal Power Commission to issue licenses on the public lands and reservations of the United States does not extend to allotted Indian lands, such lands not being reservation lands within the definition in the Federal Water Power Act.

Chief Counsel to the Executive Secretary, August 28, 1920.

1. You have referred to me for opinion the application of the Washington Water Power Company, of Spokane, Washington, for right of way for a power transmission line across the allotments of Jim Flett and Susie Ford, within the Spokane Indian Reservation, Washington, across lots 9 and 10,' sec. 22, T. 29 N., R. 40 E., W. M. The Commissioner of Indian Affairs, in transmitting the papers to the Federal Power Commission, through the Commissioner of the General Land Office, raises the question whether the Federal Water Power Act of June 10, 1920 (Public 280, 66th Congress), supersedes the act of February 15, 1901 (31 Stat., 790), with respect to power projects involving allotted Indian lands, and invites an expression of the views of the Commission on this question. 2. The authority of the Commission to issue a license for the purpose requested depends on whether or not Indian allotments are "reservations of the United States" within the meaning of section 4 (d) of the Federal Water Power Act. The word "reservations" is defined in section 3 of the act as follows: "Reservations' means national monuments, national parks, national forests, tribal lands embraced within Indian reservations, military reservations, and other lands and interests in lands owned by the United States, and withdrawn, reserved, or withheld from private appropriation and disposal under the publicland laws; also lands and interests in lands acquired and held for any public purpose."

Indian allotments are not included under the words "tribal lands embraced within Indian reservations," and the legal inference from the omission, under the maxim expressio unius est exclusio alterius, is that they were not intended to be included. In view of this maxim and the fact that the general words following the specific enumeration in the definition do not aptly describe them, it seems clear that they do not fall within the definition.

3. These allotments, as stated in the case of United States v. Rickert (188 U. S., 432, 436), are held in trust by the United States for the Indians for the prescribed period, and the paper, referred to in the statute authorizing these allotments as a patent, is issued to the allottee "designed to show," as stated by the court, "that for a period of twenty-five years the United States would hold the land allotted, in trust for the sole use and benefit of the allottee, or, in case of his death, of his heirs, and subsequently, at the expiration of that

64

66

period-unless the time was extended by the President--convey the fee, discharged of the trust and free of all charge or incumbrance." 'In other words," as stated by the court, the United States retained the legal title, giving the Indian allottee a paper or writing, improperly called a patent, showing that at a particular time in the future, unless it was extended by the President, he would be entitled to a regular patent conveying the fee."

4. Having in view the nature of Indian allotments, as stated in the preceding paragraph, and the fact that the word "reservations," as used in the Federal Water Power Act, is defined in language which can not be construed to cover Indian allotments, it is my opinion that the Federal Water Power Act does not supersede the act of February 15, 1901, supra, with respect to power projects involving allotted Indian lands.

5. It may be added, in this connection, that this construction does not leave the applicant for a power permit without adequate means of obtaining the right to use allotted Indian lands where the use is necessary to effect the purposes of a license under the Federal Water Power Act. He may obtain the right to use such allotted Indian lands pursuant to the act of February 15, 1901, supra, or may acquire the right to use them by condemnation proceedings under the act of March 3, 1901 (31 Stat., 1084), section 3 of which provides:

66

'Lands allotted in severalty to Indians may be condemned for any public purpose under the laws of the State or Territory where located in the same manner as land owned in fee may be condemned, and the money awarded as damages shall be paid to the allottee."

Approved by the Commission, September 29, 1920.

DAM IN TIDAL WATERS.

The Federal Power Commission is without jurisdiction with respect to the construction of a dam in Black's Creek, Quincy Bay, Massachusetts, for the purpose of creating a swimming and boating pool and not intended for purposes of power development. Chief Counsel to the Executive Secretary, September 21, 1920.

The Secretary of War has referred to the Federal Power Commission the papers in the matter of the application by the Metropolitan District Commission, Park Division, of the Commonwealth of Massachusetts, for permission to construct a dam in Black's Creek, Quincy Bay, Massachusetts, in accordance with a plan submitted with the application, for the purpose, it is stated, of holding tidewater in the basin at an elevation of a little over 6 feet above mean low water during ebb tide, to allow bathing and boating during all stages of the tide and to cover unsightly flats. The papers are accompanied by an opinion of the Judge Advocate General, dated September 3, 1920, which, after quoting from the Federal Water Power Act, approved June 10, 1920 (Public 280, 66th Congress), the provision authorizing the Federal Power Commission to issue licenses for power projects conludes as follows:

"It is the opinion of this office that as no water-power development is contemplated in connection with this project it is not one which requires to be licensed by the Federal Power Commission pursuant to the above-noted provisions of the Federal Water Power Act. In order, however, that the Federal Power Commission may have an opportunity to express its views on the matter it is suggested that before final disposition of this case, it be referred to the Commission for its consideration."

As the dam proposed to be constructed is not intended for power purposes I concur in the view of the Judge Advocate General that the project under consideration is not within the jurisdiction of the Federal Power Commission. Approved by the Commission, September 29, 1920.

TRANSMISSION LINES.

The Federal Water Power Act repeals so much of the act of March 4, 1911 (36 Stat., 1253) as covers the issuing of licenses for the transmission and development of electrical power forming part of water-power projects.

Chief Counsel to the Executive Secretary, September 21, 1920.

1. You have referred to me for opinion as to whether the act of March 4, 1911 (36 Stat., 1253), which authorizes the head of any department having jurisdiction over public lands or reservations of the United States to grant rights of way for telephone and telegraph lines, and for lines for the transmission and distribution of power, is repealed by the Federal Water Power Act of June 10, 1920 (41 Stat., 1063). The question is raised with reference to the following communication, namely:

(a) A memorandum from the Forest Service September 8, 1920 (EW, D−5), requesting the preparation of a draft of reply to the letter from the District Forester, Albuquerque, New Mexico, August 31, 1920, stating that he has just received an application from the Pacific Gas and Electric Company for an easement for a transmission line under the act of March 4, 1911, and requesting definite instructions as to the disposition of the application.

(b). A memorandum from the Forest Service September 7, 1920, transmitting an application, filed August 28, 1920, by the Mt. Shasta Power Corporation for a right of way under the act of March 4, 1911, supra, for a transmission line through certain forest lands in T. 36 N., R. 3 E., and T. 35 N., R. 2 E., M. D. B. M., California.

66

2. The Federal Water Power Act creates the Federal Power Commission, with authority to issue licenses for power projects, or minor parts thereof, "upon," inter alia, any part of the public lands and reservations of the United States," and expressly mentions "transmission lines" as project works within the authority so conferred. The act provides "that licenses shall be issued within any reservation only after a finding by the Commission that the license will not interfere or be inconsistent with the purpose for which such reservation was created or acquired, and shall be subject to and contain such conditions as the Secretary of the department under whose supervision such reservation falls shall deem necessary for the adequate protection or utilization for such reservation." It expressly provides that "all acts, or parts of acts, inconsistent with this act are hereby expressly repealed."

3. I think it is clear, from the statute, that Congress intended to vest in the Commission exclusive jurisdiction, except as provided therein, over the matters of issuing licenses for power projects, or for parts thereof, and that so much of the act of March 4, 1911, supra, as covers the issuing of licenses for lines for the transmission and development of electrical power-forming parts of waterpower projects is repealed by the Federal Water Power Act. As to matters other than lines for the transmission and development of electrical powerforming parts of water-power projects, the act of March 4, 1911, is, I think, not repealed.

Approved by the Commission, September 29, 1920.

TRANSFER OF SPECIAL USE PERMIT.

In accordance with the opinion of the Assistant Attorney General, dated September 14, 1920, held, that the Secretary of Agriculture is without authority to transfer a permit, which, by its terms, is not transferable without the approval of the authority which granted the permit; that the action desired is in the nature of a grant of a permit to the transferee; and that the authority to grant a permit or license for waterpower projects on the public lands, national forests, or navigable waters of the United States is within the exclusive jurisdiction of the Federal Power Commission.