Chemehuevi Tribe of Indians v. Federal Power Commission – Oral Argument – January 13, 1975

Media for Chemehuevi Tribe of Indians v. Federal Power Commission

Audio Transcription for Opinion Announcement – March 03, 1975 in Chemehuevi Tribe of Indians v. Federal Power Commission

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Warren E. Burger:

We’ll hear arguments first this morning in 73-1380 and 1666, 1667, Chemehuevi Tribe of Indians against the Federal Power Commission and related cases.

Mr. Wallace you may proceed when you’re ready.

Lawrence G. Wallace:

Mr. Chief Justice and may it please the Court.

In this case, the complainants who are two Indian tribes, two environmental organizations and several individuals brought a proceeding in the Federal Power Commission seeking to require the intervening companies to apply for licenses for six existing and planned thermal-electric facilities in the so-called Four Corners area of the Southwest, all of which draw their cooling waters from various places in the Colorado River System but none of which draw their cooling waters from any project licensed by the Federal Power Commission.

The claim was made that the Commission has jurisdiction, licensing jurisdiction over these plants both under the so-called project works clause and because the plants use surplus water from government dams or at least arguably some of them do.

The Commission dismissed the complaint on the basis of its longstanding interpretation that part one of the Act gives a jurisdiction to license only hydroelectric facilities and not thermal-electric facilities whether they’re fossil-fueled burning facilities or atomic facilities.

That the jurisdiction under both clauses of the Act is limited to the licensing of project works or the use of surplus water by hydroelectric facilities which use water power for the generation of electricity, the power of falling water.

On review, the Court of Appeals agreed with the Commission in rejecting the principal contention that was being made in the case under the project works clause but how did the Commission does have licensing authority with respect to the use of surplus water by thermal-electric plants and ordered the case remanded to the Commission to determine whether surplus water within the meaning of the statute was being used by these facilities and the relationship between the Commission’s jurisdiction and the jurisdiction of other federal agencies who have the authority over the disposition of the water at the various projects involved in the Colorado system.

This Court granted cross-petitions for certiorari and by agreement of the parties, the opening briefs on all issues were filed by the Power Commission and the intervenor companies and I will be speaking for 20 minutes for the Power Commission and Mr. Ely will be speaking for 10 minutes for the intervenor companies.

At the outset, now the issue has not been contested in this Court before is not a new issue in this Court.

In 1965, in a case titled Federal Power Commission against Union Electric Company, in volume 381 U.S., all nine justices addressed the issue in the context of determining whether there was jurisdiction in the Commission to license a pumped-storage plant and the case was decided on the premise that the Commission has no licensing jurisdiction with respect to thermal-electric facilities, a premise that was accepted by all parties in that case.

And previously, as the Court of Appeals pointed out, an opinion of this Court in 1953, United States against Public Utilities Commission, and this is explained in the appendix on page 89 (a) and footnote 123 that opinion of this Court by Mr. Justice Reed was written on the assumption that the Commission has no licensing jurisdiction with respect to thermal-electric facilities.

Nonetheless, at the outset of the complainants argue in this Court that the plain meaning of the statute precludes the interpretation of the Act to which all nine justices subscribed in the Union Electric case and which was also reflected in the opinion in the Public Utilities Commission case by Mr. Justice Reed.

This obviously is a difficult argument to make but it’s being made in the context of a statute in which the legislative history is quite devastating to the position that they are espousing.

In our brief, and more elaborately in the intervenor’s brief, we’ve addressed the problems with the language of the Act and why the language can be construed and perhaps more reasonably should be construed on its face in favor of our interpretation of the Act and the interpretation previously reflected in the Court’s opinions.

I don’t propose to rehearse that during the argument because it seems to us too late in the day after 54 years of interpretation by the Commission after pronouncements and opinions of this Court, after a major reenactment by Congress in 1935 in light of the Commission’s interpretations for us to think that this issue can be decided on the bare words of the statute without looking beyond them.

And I might say after widespread reliance during those 54 years by not only the industry but by our consumers of electric power.

And so, I think the Court of Appeals was quite right in examining the legislative history in detail as it did with respect to the contention under the project works clause and basically we’re in agreement with that aspect of the Court of Appeals’ opinion and analysis which showed that the original part one of the Federal Power Act which was called the Federal Water Power Act was in its antecedents and in its enactment, concerned exclusively with giving Federal Licensing Authority over the development of hydroelectric power.

The dominant concern in the enactment of the legislation was to foster the maximum development and utilization of hydroelectric power so as to minimize the extent to which fossil fuels would have to be consumed in the production of power and pollution would occur from the burning of fossil fuels.

It was assumed by everyone that the need was to give the regulatory jurisdiction with respect to the hydroelectric facilities to assure that the potential of the waters wouldn’t be wasted by short-sided development or by development at one point that wouldn’t enable maximum utilization at other points in the river system.

And there were also concerns that excessive profits might be made by the utilization of the hydroelectric sites because it was cheaper to produce the electric power by this method and there was also the possibility of making excessive profits at the time the license is expired and the facilities were converted and so safeguards replaced in the law with respect to that aspect of it as well.

And if you just side the highlights from subsequent developments starting in 1921 in its first annual report to Congress and repeatedly to the series of annual reports, the Commission, the Federal Power Commission indicated that its jurisdiction, under the act, not merely under the project works clause, I should say, but under the act was limited to hydroelectric facilities.

And there was indication that Congress was well aware of this when they reenacted Federal Water Power Act as the part one of the Federal power Act in 1935 and that Congress deliberately decided not to expand Commission licensing jurisdiction at that time.

This is recounted in some detail, this portion of the legislative history on page 8 of the reply brief filed by the intervenor companies.

Potter Stewart:

Didn’t the Commission in 1962 try to get from Congress the jurisdiction that they recurred?

Lawrence G. Wallace:

They did in 1935 as well, Your Honor which is recounted there and again in 1962, they sought jurisdiction which is slightly different from what’s at issue here but is basically jurisdiction over the licensing of plant sites for thermal power plants and —

Potter Stewart:

Along the river?

Lawrence G. Wallace:

Along the river and Congress has not yet seen fit to enact this legislation.

Potter Stewart:

Is that still the Commission’s policy or desire?

Lawrence G. Wallace:

Well, the Commission hasn’t as a body taken the position out of that in the last few years although they are still very considerable opinion on the Commission that either the Federal Power Commission or somebody should have this kind of authority to decide on the siting for thermal-electric plants.

Potter Stewart:

Of course it’s a view of some of the parties here, as I understand it at least that there are some of the amicus — amici that with respect to this particular river, the secretary has a great deal of authority.

Do you agree with that?

Lawrence G. Wallace:

Well, the Commission’s counsel did point out in a petition for rehearing that it thought that with respect to the use of surplus water in this case, there was no need for the Court of Appeals to reach that because any authorization that might be relevant had already been given in this case.

Potter Stewart:

To the Interior Department?

Lawrence G. Wallace:

But the Commission itself has not reached that issue.

That was something that was supposed, under the Court of Appeals order, (Voice Overlap) —

Potter Stewart:

To be (Voice Overlap) —

Lawrence G. Wallace:

— be decided on remand, that is correct.

So I’m in an ambivalent position as the Commission’s counsel after taking the position on that.

Potter Stewart:

(Voice Overlap) that’s the whole — that’s the whole process of one of the briefs there, as I remember it.

Lawrence G. Wallace:

Well, it is but it’s not anything we’ve presented in our petition for certiorari because the jurisdictional question of clashed union is what we thought was worthy of this Court’s review rather than the particular situation on this one river.

There the jurisdictional question affects a large number of existing and planned power facilities throughout the country and that’s what the Commission thought needed resolution in this Court.

William H. Rehnquist:

Well, the authority over of a citing of thermal-electric plants, that the Commission itself would be quite independent of the existence of surplus water, wouldn’t it?

I mean it would be a much more generalized authority.

Lawrence G. Wallace:

It’s quite independent of the jurisdiction they have sought and it’s quite different it its thrust from the jurisdiction that the Court of Appeals held that the Commission has, under the surplus water clause.

Potter Stewart:

Supposedly, project works?

Lawrence G. Wallace:

It’s much closer to the project work’s jurisdiction and the basic motivation for it, as power consumption and power needs are expanding so rapidly is a concern on the part of the Commission for adequacy and reliability of power service.

At present, there is no agency which has centralized authority to consider alternative sites for new thermal plants and to authorize a particular site to the exclusion of any other regulatory jurisdiction.

As a result, you got seriatim litigation about the siting of thermal projects which can result in considerable delay in the construction of needed facilities with the risk of brownouts and blackouts.

Under the Court of Appeals’ holding, the Commission would not have authority in authorizing the use of surplus water to preempt other regulatory agency, state or federal from the siting question, it would merely be an additional obstacle that would have to be overcome to the resolution of where particular plant that’s needed can be built.

So we wouldn’t be having a resolution of what the Commission sees as needed under the surplus water clause.

I should turn, since I think the legislative history is quite clear with respect to the first part of the Court of Appeals opinion.

I should turn to their holding on the surplus water clause.

The first thing to be said about it is that most of the legislative history applies equally to the surplus water clause which was in the Act from the outset and which was included in the Commission’s generic reports that it lacks a jurisdiction over thermal-electric facilities.

Sometimes the reports would specify under part one of the Federal Power Act which was obviously included the surplus water clause.

Indeed, if and the Court of Appeals of course did not have the benefit of the very compendious history of that particular clause which the intervenors have compiled in their supplemental brief which is very helpful in showing the antecedence of the clause which indicate that it was tied in very specifically with hydroelectric development.

The other thing in our view may have mislead the Court of Appeals on this question is the fact that the litigation focused so much on Section 4 (e).

In the appendix in our brief on page 63, we have set forth Section 23 (b) of the Act which probably is the Section of the complaint should have been brought under because that is the Section that says who is required to get a license.

Section 4 (e) simply says what authority the Commission has to issue a license.

Obviously, the two have to be read together.

Lawrence G. Wallace:

But Section 23 (b) on page 63 indicates quite clearly on the face of the Act that there is very little warrant for reading the two clauses differently since it says it shall be unlawful for any person, state or municipality for the purpose of developing electric power to construct project works or to use surplus water.

And it’s rather hard to see why the words for the purpose of developing electric power would not be read the same with respect to both clauses.

It’s the operational words that, in light of the legislative background indicate a limitation of the Commission’s jurisdiction to hydroelectric facilities.

Now, the argument is made that under this reading of Section 23 (b) and of the similar authority in Section 4 (e), the surplus water clause becomes redundant and superfluous and loses any function.

In reflecting on this matter in preparing the argument, the things to ask that the most apparent function of the surplus water clause on the face of the Act, again is reflected in Section 23 (b) on which the litigation did not focus.

And I’m sorry this point was not made in the briefs but its there on the face of the Act.

And that is the fact that Section 23 (b) has a grandfathering provision for any facilities that were built under a grant prior to June 10, 1920.

That would by enlarge statutory grants, special statutory grants for existing facilities.

And the Commission — on the Commission’s long standing position endorsed by the Court of Appeals for the District of Columbia Circuit in a case called Northwest Paper Company against the Power Commission, 344 F.2d 47 is that the grandfathering clause is an authorization for facilities existing at that date to continue operation without a license from the Commission so long as none of the projects works a replace without a license under the project works clause.

But then in the event and the Commission has not had occasion to actually apply this in the event the dam would be built subsequently upstream from which surplus water would flow to this project, there would be Commission jurisdiction only under the surplus water clause so that the entire river system would be brought under regulation to maximize the hydroelectric potential of the entire system because obviously the flow has to be regulated from one project to another to maximize the utilization of all of them.

And similarly, the surplus water or water power seems to us just to refer to either the use of the surplus water or water power seems to us just to refer to either the use of the surplus water downstream or the surplus water power at the site where it is falling, the dam itself.

Potter Stewart:

Its use is for cooling purposes and is the water consumed or is it all returned at a higher temperature to the (Voice Overlap)?

Lawrence G. Wallace:

It’s the — its consumed, some water is consumed by thermal plants and this is the basic difference between the use of the water by thermal plants and by hydroelectric plants with hydroelectric uses basically a non-consumptive use.

Potter Stewart:

No, but —

Lawrence G. Wallace:

The Commission has not been in the business of being the arbitrary between competing demands for consumption of water in the river system.

Potter Stewart:

But this is cooling water, isn’t it?

Lawrence G. Wallace:

It’s cooling water.

Potter Stewart:

I mean —

Lawrence G. Wallace:

But it is consumed in the cooling process.

Potter Stewart:

(Voice Overlap)is returned in the river, isn’t it?

Lawrence G. Wallace:

Some of it is returned.

Potter Stewart:

At a higher temperature?

Lawrence G. Wallace:

Yes and some of it is consumed.

Potter Stewart:

Well, how is it consumed?

Lawrence G. Wallace:

Through evaporation, the heating of it.

Potter Stewart:

Maybe Mr. Ely can tell us.

Lawrence G. Wallace:

Yes.

My time has expired.

Potter Stewart:

Right.

Warren E. Burger:

Mr. Ely.

Northcutt Ely:

Mr. Chief Justice, and may it please the Court.

Mr. Ely, before you commence, would you inform us as to the status of these plants.

The time the suit was brought.

My understanding is that two of them were operational.

Northcutt Ely:

They are all operational except for the Kaiparowits plant which is still in the planning stage, Your Honor.

An injunction is sought.

What would be the consequences of an injunction?

Northcutt Ely:

The injunction which was sought, the order asked for in the Federal Power Commission was to halt their operation or construction until a license should be obtained and pending the determination of this case.

How long does it normally take to obtain a license?

Northcutt Ely:

The licensing procedure may — it was contested as it would be here, it may take at least two years before the Commission, another two years in litigation afterwards, at least.

Potter Stewart:

Oh, the alternative sources of power available if these plants were shutdown?

Northcutt Ely:

No, Your Honor, they’re not.

These plants will develop 7,400 megawatts, some 23% of the total power for 19 million people in the southwestern states.

The alternative use of the — have I answered your question, sir?

The alternative use of the 250,000 acre feet which will be consumed by these plants and the cooling process evaporation, if used in agriculture which the states of the Colorado River basin have a right to do in perpetuity if it is not used in an industry here.

That 250,000 acre feet would support under the limit land limitation laws something under 200 farm families.

The judgment decision rest with the Secretary of Interior and with the states as to whether the water resources shall be used for agriculture or industry, whether some 19 million people shall be protected against blackouts and brownouts by the utilization of this coal of Indian reservations to generate power and to use the waters of the Colorado River in the cooling process.

That decision is entrusted to the Secretary of Interior and the water is apportioned to the states by compacts which he is subject.

The Federal Power Commission has no jurisdiction to overrule its valued judgment.

If it were to grant a surplus water license, it would be a nullity because these plants have as the statutes require for statutes, contracts with the Secretary of Interior for the use of the water from a Government dams involved here.

Potter Stewart:

Mr. Ely, I’m not — I think you said — maybe I missed it, but it seemed to me you said two some of the inconsistent thing, a — that the decision was up to the states as how the water was to be used, it was allocated to them and then I think you said, it was up — the decision was up to the Secretary of the Interior?

Northcutt Ely:

Well, this is understandable that there would be confusion, Your Honor.

The Colorado River compact as you may recall, apportions in perpetuity, the water for consumptive use to the upper basin and the lower basin.

The statutes under which the dams are build, Hoover dam, Glen Canyon, Navajo, the three involved here prescribed that no person shall have the right to the use of the stored water except by contract with the Secretary of Interior and he of course is subject to the compact that I have mentioned on the other law of the river.

Potter Stewart:

As to the — let us assume that the certain amount of water is allocated to a state, then is it up to the state?

Is the state free to decide how that water is going to be used?

Northcutt Ely:

Yes, the states prepare plans which are submitted to the Secretary and as a practical matter these are worked out in concert.

The statutes as designated to the Secretary is superseding any authority the Commission may have once had for comprehensive planning, the job preparing comprehensive plans for utilization to these water resources, but in concert with the states.

Potter Stewart:

So your point is that whatever jurisdiction the Commission may or may not have in this area on other rivers at least with respect to water from the Colorado River, it has none because it’s been superseded?

Northcutt Ely:

Precisely, Your Honor.

Northcutt Ely:

Superseded both with respect to the function of the surface water license that is held now by the water contract with the Secretary.

Superseded as to the planning function of the Commission.

Byron R. White:

But it’s possible I suppose to say that whatever the powers the Secretary might be, they don’t reach licensing a steam plant.

Northcutt Ely:

I think yes.

Byron R. White:

And that however, much the Secretary of the states might want to have steam plant built, perhaps the current Commission can say we don’t want steam plants.

Northcutt Ely:

Yes, the — in our — I think you’re correct.

The project, the decision on the project works clause in our view ends this case.

If you decide that the steam plant does indeed constitute project works, then it would require a license.

It would get us water by contract with the Secretary of Interior for cooling but not for via surplus water license.

If, however, you decide that a steam plant is not in the category of project works, this case ends because the surplus water clause is not an alternative ground for licensing in this Colorado River case whatever it maybe elsewhere.

Byron R. White:

(Inaudible).

Northcutt Ely:

It — correct, exactly so.

William H. Rehnquist:

Well it isn’t just the powers of the Secretary, it’s also a matter of state law and it may depend on a law of the state I take it as to whether particular plant can be approved?

Northcutt Ely:

This is correct in a sense Mr. Justice Rehnquist if there’s a competing claim for water for industry steam plants, water for breaking up slug and a copper smelter whatever as against agriculture.

The states in the first instance would approve or disapprove this appropriation or this request for water.

But neither a competitor could get the water out of a Government dam without a contract with the Secretary and the —

Potter Stewart:

Because of the compact with –?

Northcutt Ely:

The compact reserves to the states apportionment to the decision how to use a water, but if they want water out of a Government dam, then as this Court held in Arizona versus California as you’ll recall, the Secretary has a final part to say which user within each states will get water from that dam by contract.

Potter Stewart:

Yes.

Byron R. White:

And the power to allocate (Inaudible).

Northcutt Ely:

And the power — well, the Congress may overrule that.

Yes.

William H. Rehnquist:

Well, it doesn’t —

It hasn’t been.

Northcutt Ely:

Well, we think it has.

Well it — do you have (Inaudible)?

Northcutt Ely:

Yes.

William H. Rehnquist:

Well, it certainly doesn’t mean that the Secretary owns the water behind it?

Northcutt Ely:

No.

This is correct.

Northcutt Ely:

The stored water — this Court said in an earlier Arizona versus California case has in effect Congress has in effect appropriated the unappropriated surplus water, impounded it and directed that no person may use it to save by contract.

This is with respect to water in excess so that which has been appropriated as read.

In any event, no matter what — may I say that before I — I’d like to reserve a few minutes if I may for rebuttal.

We are in total accord with what the Solicitor General has said about the project works clause and about the surplus water clause in the merits.

My point is you don’t reach the surplus water issue if you decide the project court below was right on project works in the Colorado.

Thank you.

Warren E. Burger:

Very well, Mr. Ely.

Mr. Brecher.

Joseph J. Brecher:

Mr. Chief Justice, may it please the Court.

My name is Joe Brecher representing the Chemehuevi Tribe of Indians, the Sierra Club, several individual in Navajo and the Committee to Save Black Mesa.

This case involves perhaps the quintessential environmental nightmare that this country has experienced in the Four Corners power plants and the Black Mesa strip-mining operation and that involves also a context of one of the most blatant calls for judicial legislation I have ever witnessed on the part of the power companies and the Government.

The language of the statute involved here could be no more clear that the facilities involved in this case are covered by Section 4 (e) of the Federal Power Act.

There could be no doubt that they are utilizing surplus water from a government dam for the purpose of producing electric power.

And I would like to emphasize this point at the outset that this is not merely cooling water in the same sense that water and then automobile radiator cools the engine.

The water that’s used in the thermal-electric power plant is an essential part of the power production process itself.

Without the cooling water, power production at these plants would go down 20 or more percent, the plants would be inefficient and they could not be built.

So the water used in the thermal plants involved in this case is an inherent part of the production process and therefore in a very real sense, this water is being used to produce electric power rather than to cool machines, which are producing power by other means.

Potter Stewart:

To summarize that again — how to use other than cooling?

Joseph J. Brecher:

Yes, it — although it is used for cooling, the cooling process itself actually results in more megawatts being produced because it makes the turbines spin faster and in turn more megawatts come out.

And you could you not have a thermal plant in this day and age without cooling water.

Potter Stewart:

How much the water — of the cooling water is consumed?

Joseph J. Brecher:

All of it, Your Honor and that’s an important point.

Potter Stewart:

None is returned to the river?

Joseph J. Brecher:

Yes, except for the Four Corners plant, all of these plants will evaporate all the water that is withdrawn from the river and that is why the Court of Appeals found below that thermal plants will have more of an effect on navigable capacity and the hydro potential of a stream than with a hydro plant.

Potter Stewart:

Well, hydro doesn’t ultimately use any water.

Joseph J. Brecher:

That’s correct.

So in terms of the power potential in a stream, the operations of thermal plants actually would have much more of an effect and would actually deplete the amount of water available for downstream hydro production.

This would not be true for a hydro plant.

So if any —

Potter Stewart:

(Voice Overlap) but it doesn’t consume it?

Joseph J. Brecher:

Yes, that’s correct.

Potter Stewart:

The — you’re directing yourself now to the surplus water clause?

Joseph J. Brecher:

Yes, as well as the project.

Potter Stewart:

one afterward project?

Joseph J. Brecher:

Yes, I think that they are — I am addressing myself to both.

Potter Stewart:

At this point, your argument is the surplus water?

Joseph J. Brecher:

Yes.

Yes, Your Honor.

Potter Stewart:

As I understood you.

Joseph J. Brecher:

Yes.

Warren E. Burger:

Now we have seen not in this Court but in other courts, there has been litigation about the use of the water for cooling purposes.

And one of the major complaints was that it raise the temperature, I think one case of the river 20% because the water would turn to the river in which it was taken for the cooling process, was it a higher — much higher temperature now.

Are you sure that you’re correct when you say that none of the water is returned after the cooling process?

Joseph J. Brecher:

Yes, Your Honor.

In western rivers, especially the Colorado which has a high salinity problem, the water when it’s used for cooling, the salts that are already in the water become more concentrated.

And if that water were to be released to the stream in addition to the thermal problem, which what you have recognized, it would also be a problem of increased salinity in the river.

And since salinity levels in the Colorado river are already at a very high level, none of these plants are permitted by the Secretary of the Interior under its water service contracts to return this water to the river.

Thus, the Colorado River, which is the most over allocated river in the world, is further depleted by the activities in these plants.

William H. Rehnquist:

What do they do with the water if they don’t — with the excess if they do not return it to the river?

Joseph J. Brecher:

They evaporate it in large cooling ponds which are located adjacent to the plants and it is evaporated by sunlight.

And that’s a major portion of the plants sites are devoted to the cooling ponds.

William H. Rehnquist:

(Inaudible)?

Joseph J. Brecher:

Yes.

Warren E. Burger:

And that — is that only to deal with the salinity problem?

Joseph J. Brecher:

Yes, Your Honor.

That’s the main purpose of that because —

Warren E. Burger:

So within the rivers, in dealing with rivers where there is no such salinity problem, there is no barrier chemically or otherwise to putting the water back in and that is done, is it not generally?

Joseph J. Brecher:

Yes, it is.

That is general.

However, I think that this type of situation will see accelerated because many of the large new thermal power plants in the new phenomenon, the energy complex with which we are dealing here exists only in the west and salinity in rivers is a western water problem, which is becoming more and more apparent.

Joseph J. Brecher:

And this is true not only on the Colorado but on the Yellow Stone River in Montana which is another major energy complex source which will soon have problems very similar to the Colorado River.

And although the Northern Great Plains coal development situation has not reached the upper proportions of the Colorado River situation.

It will, soon if plants that are now at foot go into effect.

So, that we will be seeing this type of operation, thermal plants which had deplete water resources.

This will become much more common as western coal and energy has developed further.

This problem is in its infancy and we are seeing the first flash of it now.

Now I mentioned the fact the power companies and the Government are arguing flagrantly judicial legislation, and this is what they argue.

Although the literal language of the statute quite obviously covers the facilities involved here, there should be run in to the statute a proviso that says none of these language shall apply to steam or thermal-electric power plants.

What is the basis for this additional language which they claim should be involved here.

No canon of statutory construction that I know of allows it and in fact several important canons to which this court has long adhered would militate against the addition of this language.

First, there is the plain meaning rule.

Now the plain meaning rule is based on very sound traditions of a judicial construction.

First, the language of a statute should be understandable to, and accessible by the common man and the common lawyer I may add.

The material which is relied on here to vary that meaning as Mr. Justice Jackson pointed out eloquently throughout his career in this Court is available only to a few legal specialists located in the larger cities.

I myself had a very difficult time working in Denver of getting my hands on the material which is cited in the supplement.

And what — if the plain meaning rule is buried in this way, it means not only a few specialists are going to be able to interpret the statute which originally was designed to aid the public to be understandable by the public.

And we don’t claim that the plain meaning rule should govern overall sense.

Obviously, if the literal language of the statute is completely in variance with what the framers of the statute had in mind or if it would lead to absurd or impractical consequences, then we must explicate the statute.

We must go behind to see what Congress had in mind.

And indeed, this Court has recognized that.

But that is a very narrow exception to a very well-established rule and we maintain that in this present case.

There is no reason for applying that exception.

Obviously, we do not have an absurd or impractical consequence by giving the Federal Power Commission jurisdiction either under the surplus water clause or under the project works clause over steam power plants.

In fact, the Commission itself was asked for this jurisdiction repeatedly.

So it certainly would not be absurd and it is certainly would not be impractical.

And indeed, the Commission has stated that based on what it conceives as its present statutory mandate, this additional activity would fit in well, would complement itself well with the statutory mandated as it now exist.

Now, do we have — if steam plant licensing were allowed, do we have a situation where the purposes of the Act would violated or a violence would be done to them.

Again no, because one of the — perhaps the primary purpose of the Act as mentioned by the power companies and the Government was to promote hydroelectric development and we do not quarrel with that.

We do believe that hydroelectric development was upper most in the minds of Congress when they enacted the Federal Power Act.

But there are other social phenomena that they attempted to take care of in the very same legislation.

Joseph J. Brecher:

Several threads of thought that conservation is in the early 1900’s had been working on came together in the Federal Power Act.

And two other purposes should be borne in mind.

First, was a general purpose to achieve comprehensive development of the nation’s waterways.

Indeed, one of the immediate statutory antecedence of the Federal Power Act was an Act creating a Waterways Commission to unify the development of our rivers for purposes having nothing to do with power, having to do with irrigation and other uses.

And although we do not contend that the Federal Power Act deals with the use water for other than power production purposes, they are definitely it was the sense of Congress that unified development of the nation’s waterways was an important purpose of the Federal Power Act.

The second important purpose was to make sure that private power companies were not allowed to appropriate for themselves without the Government’s supervision and inappropriate cases without appropriate charges, the power potential and navigable streams.

In the present case in order to effectuate those two purposes behind the Federal Power Act, that is comprehensive development of waterways and making sure that the public’s property was protected, regulation of thermal power plants is absolutely essential.

There is going to be a no more hydroelectric development in this country of any consequence.

And the waterways of this country used in connection with power will be used only in connection with thermal plants.

If the construction argued for by the power companies and the Government is allowed to continue, the power companies will have achieve by the backdoor, what the Congress had setout to stop them from doing in 1920.

That is appropriating for themselves without any Government supervision or control, the hydro potential in navigable streams.

They will do that by sucking all the water out of the river and not making it available for downstream dams.

Now, where a Government dam isn’t involved, where there isn’t a surplus water issue, you would think that the — you would say that the Secretary of Interior has no jurisdiction either?

Joseph J. Brecher:

No sir, we recognize fully the secretary’s jurisdiction but we do not think it precludes the FPC —

I understand.

I understand that but what if there isn’t a dam involved?

Joseph J. Brecher:

Then we believe that the court below was wrong.

We believe that the project works clause would still govern and the literal language of that clause would require a —

Yes, but how about your statement that there is no other — no Government regulation interpose between the power company and the use of the water in the navigable stream?

Joseph J. Brecher:

That is generally true, except for the limit of the exception for the Colorado River and a few other rivers where there is special legislation given, whether there is no legislation and indeed that was recognized by the court below.

So that’s — my question was then, except in those specials — in those circumstances, does a Secretary of Interior have any power?

Joseph J. Brecher:

No, Your Honor.

He has that power only —

And that was my question.

Joseph J. Brecher:

I’m sorry.

He has that power only because of the law of the Colorado River as it is developed, but that is not the usual case.

William H. Rehnquist:

Well, suppose you have water stored behind the dam and in the western states, it is not in the Colorado System.

Don’t you have to at least have contact with the Bureau of Reclamation or approval of the Bureau to take water of behind that dam?

Joseph J. Brecher:

Yes, you do in most cases, either from the Bureau of Reclamation or the Corps of Engineers or whatever the governing agency is.

William H. Rehnquist:

So there’s federal regulation of some sort of removal from water behind the dam, quite apart whether it is the Colorado River or not?

Joseph J. Brecher:

Yes, Your Honor, but we believe that that type of reg — there are two types of regulations which have been recognized by the courts.

And I would call the type of regulation you are speaking of political regulation as supposed to agency regulation.

The consequences are quite different.

There is no public participation for example in a decision by the Secretary to allocate water.

The public cannot present witnesses, it cannot cross-examine, it cannot participate in proceedings, there is no judicial review and it is virtually unfettered discretion on the part of the federal agency.

In contrast before the Federal Power Commission, the public has very well-defined rights to participate in the proceedings.

And in fact, if those rights had been exercised in this case, we would not have the terrible Four Corner situation we have, where the citing of these plants was done on a helter-skelter basis without considerations of national policy, which the Federal Power Commission under the dictates of this Court in the High Mountain Sheep case has said it so important.

So that — although it is regulation and there is some Government participation, there is no public participation.

And one of the main thrust of the Federal Power Act was to make sure that the public, not just the Government was able to participate in the decision-making as to how our water would be used.

Well, what about now, what about on the Colorado or some other place in the west if the Secretary is going to make a decision, does he have to comply with the Environmental Protection Act?

Joseph J. Brecher:

Yes, he does.

He has to comply with the National Environmental Policy Act, but the protections available to the public under that Act are far different from those under the Federal Power Commission.

And there are subs —

Well they’re different but it does not mean that the public has no participation.

Joseph J. Brecher:

Well, they have after the fact participation only.

They may comment on an environmental impact statement but they can have no substantive change.

There is no substantive input from that.

All that’s required is that an impact statement be filed under NEPA.

But once the statement details the environmental disaster, the Secretary is free to go ahead regardless of the consequences under NEPA and that is an important distinction.

How can this finding with respect to the brining of this suit in relation to the building of the plants?

Joseph J. Brecher:

When the suit was filled, one plant was in full operation, most — four of the other plants were just beginning construction and that is why we ask for an injunction originally.

Obviously, at this point, we’re not going to ask that these power plants that are so important in producing power for the west be shutdown —

What are you asking?

Joseph J. Brecher:

At this point, we would ask the Kaiparowits plant which is in the planning stage be held up until a license is granted and that operations of the other plants could go on while the licensing proceedings took place.

You see, under the Federal Power Act —

But you would oppose the granting of the license?

Joseph J. Brecher:

Yes, we would or at least we would advocate that a condition is to be attached to the license to clean up some of the environmental mess which has been associated with these plants and which the so-called regulation of the other federal agencies has not obtained at all.

Environmental protection agency has found that one time or another that every single one of these plants is violating clean air statutes.

There have been a mass of outcries by virtually every Government agency about one or another environmental defect.

Nonetheless, the plants go forward and this shows the difference in quality between the so-called regulation of the Secretary under his contract authority and the kind of regulation one would have if the Federal Power Commission were involved because there is substantive —

William H. Rehnquist:

Well, didn’t the plants violate clean air statutes?

Can’t they be prosecuted under those statutes?

Joseph J. Brecher:

Well, they have been, but delays go on, the plants continue violating the standards.

And so far, there has been remarkably little action.

The Mohave plant for example has been given four or five variances so far and the end of that process is nowhere in sight.

It is being contested but nothing is being done.

Well there is no question about what the construction of the Act has been in so far as the Federal Power Commission is concerned up to this state.

Joseph J. Brecher:

Yes, Your Honor.

That’s correct.

And if somebody applied to them for a license, they would not give them a license because that we have no power to give a license.

Joseph J. Brecher:

Yes, we —

And people go forward on that assumption.

And would you suggest the plant could then be required to get a license and then perhaps it would be denied and the plant close down.

Joseph J. Brecher:

I think that that is a theoretical possibility, Your Honor.

But very unlikely under the circumstances of these cases for the very —

Well, you didn’t ask but it was unlikely, I suppose that was your contention that it could be closed down without some kind of compensations.

Joseph J. Brecher:

Yes, Your Honor.

That’s correct.

What is correct?

Joseph J. Brecher:

The assumption that you stated that the plants could be closed down if the Commission found that a license should not be granted under the Federal Power Act.

However, we have many — this Court has come up with many situations where the law changed and the retroactive licensing was required and we believe that this would be just another case of the same kind.

A private individual is not allowed to rely on a misconstruction of the statute by an agency and if that misconstruction is corrected, then it must abide by the law regardless of whatever reliance had placed in the law if it was wrong.

Warren E. Burger:

Even to the point of dismantling a plant to get down to the hard realities or terminating its use?

Joseph J. Brecher:

I suppose so, Your Honor.

Although frankly, I don’t think any of parties in the particular case would argue for that result.

Obviously, we are realist here too but we are not up to this point.

Warren E. Burger:

Well, but you’re arguing some legal principles here.

We have to deal with it on that basis.

Don’t we not on the basis of what some people might do?

Joseph J. Brecher:

Yes, I think that’s correct.

Joseph J. Brecher:

That legal principle, although it sounds hard, it is the correct one to be argued here.

That even though they had placed reliance on this improper interpretation of the law, they would be liable in any event to have their plants dismantled if that were required.

Now when we turn to the legislative history, which is suppose to preclude the plain meaning of the statute, we find that that history consist of a negative rather than a positive.

Nowhere have they pointed to a single instance in which any member of Congress said that steam plants are not be licensed.

Instead, they point to the fact that steam plants were not mentioned, or if they were, they were mentioned in other context.

And they draw from the inference that therefore, steam plants are not to be licensed under the Act.

We believe that this violates a premise that Chief Justice Marshall stated way back in the 1830’s which is, that if you have a situation that appears to be covered by statutory language and that particular situation was not mentioned by Congress, it is not enough to say that it was not mentioned.

There must be an affirmative showing that Congress had it been confronted with the facts involved in the case would have said, “No, we do not want to regulate.”

Now I would like to ask this court to imagine the conservation this Congress of 1919 and 1920 being confronted with the Kaiparowits power plant using a 102,000 acre feet of scarce Colorado River water.

Water which would then not be available at four downstream hydro — federal hydroelectric projects, water which would be depleted forever from the river system, water which would be necessary for the intelligent planning of that system.

And as whether in view of the purpose of Congress to promote comprehensive development of waterways and to assure that private power interest do not appropriate that public resources whether the Congress would have said, whether we can say with assurance, Congress would have said, “No, we do not want to regulate this power plant.”

And I maintain that we cannot say on the strength of the legislative history that’s been offered to us.

Now, it’s argued that the Secretary’s power on the Colorado River supersedes any power that the Federal Power Commission could have.

We believe that this is the weakest argument that has been advanced by the power companies for number of reasons.

One, the two main statutes relied on by them, the Boulder Canyon Project Act and the Colorado River Storage Project Act, both take away FPC jurisdiction either for a limited time on the Colorado or for a limited space on the Colorado, but by implication would retain jurisdiction on the rest of the river.

The Boulder Canyon Project Act says that the Commission’s jurisdiction on the Colorado shall temporarily seize until the Act shall have been ratified.

That Act of course was ratified in 1921 and so by implication FPC jurisdiction continues.

In the Colorado River Storage Project Act, the Congress went to the trouble of excluding FPC jurisdiction on a short stretch of the river between the Grand Canyon and Lake Mead.

If there were no jurisdiction there originally, why would it be necessary to take the jurisdiction away in the statutory contract — context?

Furthermore, the Commission itself has held hearings, licensing hearings and those hearings have been participated in by the Secretary concerning this very portion the Colorado River involved here.

The proposed Marble Canyon dam in 1962 was on this very stretch of the river.

If the F —

William H. Rehnquist:

There was a hydroelectric?

Joseph J. Brecher:

Yes, but their contention, Your Honor is that there is no FPC jurisdiction period and obviously there is because of the parties involved have in fact participated in that kind of proceeding.

Furthermore, even if we are to accept this argument, two of the power plants involved in this case, the Four Corners and Huntington Canyon plants are not covered by the contracts of the Secretary.

They do not have water service contracts with the Secretary.

They have obtained their water by the usual method from the states involved so that the Secretary’s jurisdiction, even if it existed could not supersede FPC jurisdiction as to those two power plants.

In short, there is very — and finally, I may add, if this court looks at the Nantahala power case, which involved the TVA and the Federal Power Commission; we had a situation very similar.

As you are aware, the Tennessee Valley authority has very, very broad authority over the allocation and distribution of water in the Tennessee Valley.

Far more power than the Secretary of Interior exercises in the Colorado.

Joseph J. Brecher:

Nonetheless, it was held in the Nantahala power case that the Federal Power Commission still had a voice in deciding the allocation of that water, at least as far power plants are concerned.

Even more important, the type of regulation being done by the secretary, the scope and concerns the Secretary has is different from that of the Federal Power Commission.

For one thing the Commission is a National Commission and it can take into account and indeed is required to take into account more than the Secretary is in awarding his contracts.

William H. Rehnquist:

Well, isn’t the Secretary a National Secretary, too?

Joseph J. Brecher:

Yes, he is Your Honor.

But he hasn’t acted as one in the context of these cases because he is allowed — he hasn’t for example ever done what the Commission could do, mainly saying, “Yes, you may have the water but don’t locate the plants at this particular spot.

Move them in some place where the area is less scenic, where —

William H. Rehnquist:

But — that’s just a complain about the way the authority has been exercised.

I don’t see how that bares on the existence of the authority.

Joseph J. Brecher:

Well —

William H. Rehnquist:

You mean to say that one is national and the other isn’t.

You got a Secretary appointed by the President.

You got Federal Power Commissioners appointed by the President.

Joseph J. Brecher:

I — well, the difference is that the Secretary’s authority is confined to the Colorado River basin whereas the Federal Power Commission oversees the entire power industry throughout the nation and the Federal Power Commission may well serve.

For example, “Yes, we should mine western coal.

We should use it for producing electric power, but let us not put it in the Colorado River system.

Let’s use some other river system which is not so badly overburdened and —

William H. Rehnquist:

But what river system would you use other than the Colorado to supply the people in the southwestern states?

Joseph J. Brecher:

There are number of alternative sources, such as using sea water for example or using the Great Salt Lake, or as a matter of fact, there are several power plants now being planned Southeastern Utah which will use ground water and agricultural runoff rather than water from the mainstream of the Colorado River.

And these are alternatives that could have been applied back in the 1960’s when the Secretary was making his decision as to these power plants.

And if there had been an FPC proceeding, those alternatives could have been developed by public intervenors such as we are and perhaps a system that was —

(Voice Overlap) that return water is gone, if it weren’t used in the river, I mean in a plant?

Joseph J. Brecher:

The return water —

From irrigation.

Joseph J. Brecher:

A lot of it goes back into the river and contributes to the salinity problem.

And now it is under the plants that are now being formulated, it will be evaporated and so salinity will be decreased.

But the water is still used up?

Joseph J. Brecher:

Yes, that’s correct.

Warren E. Burger:

What authority is it that precludes the return on that cooling water to the Colorado River, is it State Federal, Secretary of Interior, Federal Power Commission, who stops them from returning it?

Joseph J. Brecher:

Well, on the — for these particular plants, it is a condition of the water service contracts that the Secretary entered into the power plants.

Joseph J. Brecher:

Presumably, the Environmental Protection Agency would have adopted similar regulations under its general water pollution control authority under the water pollution at all.

Warren E. Burger:

The return for this water, which you have said is a matter of peculiar to the Colorado River, the return of it would not impair its function for producing new power downstream, would it?

Joseph J. Brecher:

There — if the water were returned?

Warren E. Burger:

Yes.

Joseph J. Brecher:

That would depend on how and where it will return.

For example, if the water bypassed the Government dam which is as conceivable situation and that water were not allowed to flow over in an intermediate dam, yes it would.

Warren E. Burger:

With salinity problem, is it not entirely a pollution problem?

Joseph J. Brecher:

Yes.

William H. Rehnquist:

Well, if the salinity problem is basically pollution in the ordinary sense, but it’s the obligation of the United States to deliver a certain amount of water to Mexico by certain standard and because of all the salinity, the Mexicans complain that water isn’t up to standard?

Joseph J. Brecher:

Yes, but our clients are also —

Potter Stewart:

That’s not just static, water that’s too saline is no good for irrigation.

Joseph J. Brecher:

That’s right and in fact our clients are vitally affected by that.

The Cocopah Tribe is located just above the Mexican border and the water that they receive down the river by the time it gets to them is so saline that a lot of crops are already precluded from growth there.

So they have a vital interest in that too.

I think it is a particularly deadly kind of pollution in the southwest.

It is the most deadly kind because other types of pollution can be dealt with by treatment, but dealing with salinity is a very difficult and expensive problem, almost insurmountable.

William H. Rehnquist:

And yet it doesn’t affect the drinking quality though — our people drink saline water.

Joseph J. Brecher:

Well, if you ever tasted Los Angles water, you know that it’s not.

William H. Rehnquist:

Well, there are 20 million of them drinking it.

Potter Stewart:

People who’d taste it everyday.

Joseph J. Brecher:

That’s true — that’s true for the Colorado River water probably above the Parker Dam, but bellow the Parker Dam, you can’t drink it.

I don’t think anybody drinks it there in bottled water — in Yuma, bottled is a rule rather than the exception.

And I know my clients rarely drink that stuff.

William H. Rehnquist:

As the city water works that certainly takes water out of the river.

Joseph J. Brecher:

It’s what it is — I think — I believe it’s treated for salinity.

Warren E. Burger:

Mr. Ely, you have about three minutes left.

Northcutt Ely:

Your Honor, to disclose first of some of the questions last asked about salinity.

I will ask your attention to page 114 as of the supplement to our brief which quotes from the findings of fact in a case called Hickory —

Warren E. Burger:

Give us a little time to find it, Mr. Ely.

Northcutt Ely:

Yes sir.

114?

Northcutt Ely:

114 (s) of the supplement to the brief.

This quotes from the findings of fact of the District Court in a case in which all of the complainants here of parties, except for two Indian tribes.

And it points out that the effect on salinity of the Colorado River by the small quantities of water which will be consumed here is not measurable.

Warren E. Burger:

Under what letter of the paragraph?

Northcutt Ely:

Oh, it starts at the top of the page 114 (s).

All of the water consumed here will affect salinity at the Imperial Dam, the lower end of the river by 0.8 to 1.2%.

It will be nearly if not impossible to detect these increments of standard measurements of chemical water quality.

The quality of water there now is low.

It has 869 points permitted —

Potter Stewart:

Well, this is because that the water is not going to be returned to the river, is it not?

Northcutt Ely:

Yes.

Let me clear that out Your Honor.

The quantities —

Potter Stewart:

I would think if water is taken out and not returned, I do not see how anybody could possibly conjecture that the salinity would be increased.

Northcutt Ely:

Exactly, the burning up of the water in the evaporating process and the cooling towers doesn’t add any salt to the river.

Potter Stewart:

But it does take water out of the river.

Northcutt Ely:

It takes it out of the river and leaves it in the evaporating ponds as salt cake.

It’s taken out of the river.

But the water is taken out too and so there is less fluid to dilute the salt that comes into the river downstream from irrigation projects.

Potter Stewart:

That’s self-evident, I think —

Northcutt Ely:

Yes, I mean there is nothing to argue about and besides, if we are really going to determine the right —

Byron R. White:

What would be the salinity — what would be the effect on salinity if the water was returned to the stream and not evaporated?

Northcutt Ely:

Virtually the same, Your Honor.

Byron R. White:

Well then what’s — what underlies the condition in the Secretary’s contract?

Northcutt Ely:

Because environmentalists were concerned about the heating effect of the water that would come back from the cooling tower.

Byron R. White:

So, you say it is not a chemical problem at all.

It’s just the heat problem.

Northcutt Ely:

Exactly so.

He just named as a contaminant in the Environmental Protection Act, they did not want the water heated up.

Northcutt Ely:

And at Navajo, we spent $5 million to avoid returning this water to the stream, which is the cheapest thing to do.

Our reply brief points out that the cooling water used in United States, a greater part of it still is once through flow, as it goes back to the stream.

So in 1971, the last year for which the Commission published data, over 99.2% of the water diverted for cooling was returned to the stream but heated up.

In some areas, they don’t want this hot water and the pressure is put on the power plants to build cooling towers, a great expense.

We have done that.

So this is, if I may say so, a rabbit trail.

If you were going to truly litigate quality of water here, the right of a user in the lower basin to complain of uses by these five power plants in the upper basin.

Even though the five plants were within the apportionments made by the Colorado River compact, you would have to have the states that are parties to that compact here to respond to the charge.

And even though you are within your quantities, you are affecting our quality.

You can’t have what was apportioned to you.

Potter Stewart:

All this is a very far field from the issues in this case.

Northcutt Ely:

Oh, it is —

Potter Stewart:

And I should mention that the —

Northcutt Ely:

It is indeed.

Potter Stewart:

— bench here has invited this with your involving —

Northcutt Ely:

Yes.

Yes, it is Your Honor.

The — let me come to another point on the literal wording matter.

We in our briefs, we have traced some 16 places in the statute where the language selected related to only to — obviously to hydroelectric projects, totally inappropriate for steam plants.

The definition of project works, you’d have to include references to ash handling plants, coal, pipelines and so on.

None of it is there.

Everything is for hydro.

There is in the legislative history at least one statement by Congressman Taylor, later Chairman of the Appropriations Committee, “that of course were not including steam plants in this bill, are we?”

And the answer was, “You’re right.”

This was discredited because the man uttering was a Utility Executive put one of it.

In 1920, when this Act was passed, virtually all of the — the greater part of the power production was by steam as it is now.

By the time the 1935, Congress rejected the Commission’s request for authority to license steam plants.

There are more than four times a capacity that was in 1920.

In 1972, when Congress last rejected Chairman Nassikas request for this very authority, capacity of steam plants are going by 35 times but it was in 1920.

Everybody knows how to use cooling water.

Northcutt Ely:

Now the cooling water that is used from the sea that was referred here obviously wouldn’t be put to plant within the jurisdiction of Federal Power Commission.

If it was used by from wells, you don’t get under the authority of a Federal Water Power Act and consequently the fact that cooling water is taken here from a navigable stream.

It’s a far-fetched detour to say that this tiny use of cooling water somehow four miles by plant, four miles from a stream somehow brings that by the intent of Congress into the scope of an Act intended to regulate water power.

As this both the majority and minority pointed in the Taum Sauk case.

You’re dealing with the Federal Power Act with the hydroelectric potential in falling water.

And the teaching of the Taum Sauk case is it makes no difference, whether water comes to the head of the penstocks by nature or by active man through a pump, it’s a falling water.

Potter Stewart:

The Taum Sauk case the same as the Union Electric?

Northcutt Ely:

Yes sir, yes, Union Electric.

Potter Stewart:

Union Electric case.

Northcutt Ely:

And we think Your Honor that that case controls this.

You cannot reach your contrary conclusion here on the licensing of steam plants without abandoning the rational of the majority opinion written by Mr. Justice White nor the minority opinion of Mr. Justice Goldberg in which Mr. Justice Stewart joined.

There is a logical difference between the two.

Congress legislated in one field but not the other.

And the arguments made here might very appropriately be made to Congress.

Opinion might well differ.

The many parties should be heard there who are not here in this Court.

One final point, complaint was made that in 1968, Congress had enact in the Colorado River Project Act placed an embargo upon the licensing of projects between Grand Canyon Dam and Hoover Dam.

So it did but these were hydroelectric projects.

The projects that Bridge Canyon or Marble Canyon that had been intended to provide power for the Central Arizona project and cash registers to help finance it and that the Sierra Club and other conservations opposed and said, “No, use thermal power for this pumping.”

Whereupon Congress put in to the 1968 Act authority for the Secretary to buy an interest in the plant attacked here, the Navajo plant on Lake Powell and the United States has appropriated some $200 million to buy a 24% interest in that plant to pump water into the Central Arizona Aqueduct.

That is one of the plants that our opponents now say that would have to be licensed, not withstanding this Act of Congress.

As the Four Corners plant, it is below the Navajo Dam on the San Juan.

An Act of Congress in 1962 said, “Not only that you must have a contract to take water from that dam, but if yours is a long-term contract, it must be validated by special Act of Congress.”

Consequently, one plant below the Navajo Dam does have such a contract, it was validated.

If the Four Corners plant is found indeed to be using water out of that stream instead of under state law appropriations, it must get a contract which must go to Congress for approval and the Federal Power Commission cannot grant it by a surplus water license.

Thank you, Mr. Chief Justice.

Warren E. Burger:

Thank You Mr. Ely.

Thank you gentlemen.

The case is submitted.