ELR Citation: ELR 20959
No(s). 78-3211 (9th Cir. May 4, 1981)

The Ninth Circuit Court of Appeals affirms the Federal Energy Regulatory Commission's (FERC's) finding that petitioner's White River hydroelectric generating project is located on "navigable waters" as defined by §3(8) of the Federal Power Act and rules that the agency's finding of navigability is supported by substantial evidence. The proper test for determining navigability is whether there is evidence establishing that in the past the White River was either used or was susceptible to being used in its natural and ordinary condition as a highway for useful commerce. The court rules that FERC's affirmative determination is supported by substantial evidence since the White River was, historically, used as a transportation mechanism for commerce, supporting navigation by light craft and log flotation for more than 20 years. The fact that the commercial use of the river was neither long, extensive, nor continuous does not preclude a finding of navigability. The paucity of evidence of navigability is understandable given the change in the river's course in 1906 and the commencement of the power project in 1911 that effectively ended commercial activity on the relevant stretch of the river.

Counsel for Petitioner
Steven C. Marshall
Perkins, Coie, Stone, Olsen & Williams
1900 Washington Bldg., 1325 4th Ave., Seattle WA 98101
(206) 682-8770

John C. Mason
Morgan, Lewis & Bockius
1800 M St. NW, Washington DC 20036
(202) 872-5000

Counsel for Respondent
Kristina C. Nygaard
Federal Energy Regulatory Comm'n, 825 N. Capitol St. NE, Room 4008 C, Washington DC 20426
(202) 357-8448

Counsel for Intervenor State of Washington
Slade Gorton, Attorney General
Temple of Justice, Olympia WA 98504
(206) 735-2550

Counsel for Intervenor Muckleshoot Indian Tribe
Allen H. Sanders
38811 172d Ave. SE, Auburn WA 98002

Before VAN DUSEN,^* ANDERSON, and BOOCHEVER, Circuit Judges.