author: BARNES, Circuit Judge:

text:
    UTAH POWER AND LIGHT COMPANY, Appellant, v. Rogers C. B. MORTON et al. Appellees.
    No. 73-1150.
    United States Court of Appeals, Ninth Circuit.
    Sept. 20, 1974.
    Marvin J. Bertoch (argued) of Ray, Quinney & Nebeker, Salt Lake City, Utah, for appellant.

      Neil T. Proto, Asst. Atty. Gen., (argued), Appellate Section, Land and Natural Resources Div., U. S. Dept, of Justice, Washington, D. C., for appellee.
    Before BARNES and WALLACE, Circuit Judges, and FERGUSON, District Judge.

       Honorable Warren J. Ferguson, District Judge, Central District of California, sitting by designation.

   OPINION

BARNES, Circuit Judge:

This is an appeal by the Utah Power and Light Company from an order of the District Court for the District of Idaho, granting the Secretary of the Interior’s motion for judgment on the pleadings and sustaining the authority of the Secretary of the Interior to promulgate regulations requiring any private utility company seeking a right-of-way across public lands for the construction and operation of electric transmission lines, to transmit or “wheel” electric energy from a federal hydroelectric generating facility over the excess capacity of the proposed transmission wires in the manner provided for in 43 C.F.R. 2851.1-l(a) (5) (1971), enacted pursuant to 43 U.S.C. § 961.

On January 5, 1969, appellant Utah Power and Light Company (hereinafter “Utah Power”) filed an application for a right-of-way across 2.01 miles of United States vacant land to construct a 69 kilovolt transmission line between Utah Power’s Camas and Dubois substations in Idaho. Appellant requested that the wheeling requirement imposed by 43 C. F.R. 2851.1-l(a) (5), which requires that the grantee of a right-of-way across public lands agrees to wheel government power over surplus capacity in its own private power lines, be waived.

The Idaho Land Office of the Bureau of Land Management granted the permit, but informed appellant it would not consent to a waiver of the clause. The ¡Secretary of the Interior, through the Interior Board of Land Appeals, affirmed the decision of the Idaho Office on November 5, 1971 (R. 16), and Utah Power filed its complaint in the district court seeking to have the regulation declared invalid and in excess of the Secretary’s authority. The district court issued its order on November 3, 1972, sustaining the Secretary’s authority to promulgate the wheeling regulation.

“The Court, after considering the arguments and briefs of counsel, and being fully advised in the matter, ruled that the ‘wheeling’ requirements and attendant provisions contained in 43 C.F.R. 2851.l-(a) (5) [2851.1-1(a)(5)] constitute a reasonable and lawful exercise of the Secretary of Interior’s administrative discretion and that said regulation is within the scope of authority delegated to the Secretary under Title 43, United States Code, Section 961.” (R. 63)

A timely notice of appeal was filed November 30, 1972. This Court’s jurisdiction rests on 28 U.S.C. § 1291.

The sole issue presented on appeal is whether the Secretary of Interior has the authority to issue a right-of-way permit under 43 U.S.C. § 961, to a private utility company to construct electric transmission wires over public lands and condition the use of the right-of-way on the adherence to the wheeling privileges contained in 43 C.F.R. 2851.1-1 (a) (5). Appellant argues that the trial court was in error in ruling that: (1) the wheeling provision of the regulations is within the scope of authority delegated to the Secretary; (2) the wheeling provision constitutes a reasonable exercise of authority granted to the Secretary; (3) the wheeling provision was not in violation of appellant’s Fifth Amendment protection against deprivation of property without due process of law. We affirm.

I. Analysis of Legislative History

The Act of February 15, 1901, 31 Stat. 790, 43 U.S.C. § 959, for the first time provided for the issuance of revocable permits for rights-of-way through public lands under general regulations fixed by the Secretary of the Interior. In 1911 Congress amended the earlier enactment to allow the Secretary to grant permits for a period not exceeding fifty years from the date of issuance. The statute, as amended, now reads in pertinent part:

“The head of the department having jurisdiction over the lands be and he is, authorized and empowered, under general .regulations to be fixed by him, to grant an easement for rights-of-way, for a period not exceeding fifty years from the date of the issuance of such grant, over, across, and upon the public lands and reservations of the United States for electrical poles and lines for the transmission and distribution of electrical power . . .”43 U.S.C. § 961 (Emphasis added.)

Pursuant to the statutory authority to promulgate general regulations, the Secretary of the Interior, on March 23, 1963 issued the wheeling regulation here in controversy, 43 C.F.R. 2234.4-1(a)(5), redesignated in 1971 as 43 C. F.R. 2851.1-l(a), (l)(a)(5) and (1) (b), which reads as follows:

§ 2851.1 Nature of interest.

§ 2851.1-1 Terms and conditions.

(a) By accepting a right-of-way for a power transmission line, the applicant thereby agrees and consents to comply with and be bound by the following terms and conditions, excepting those which the Secretary may waive in a particular case, in addition to those specified in § 2801.1-5.

(5) An applicant for a right-of-way for a transmission facility having a voltage of 33 kilovolts or more must, in addition to the requirements of § 2802, execute and file with its application a stipulation agreeing to accept the right-of-way grant subject to the following conditions :

(i) In the event the United States, pursuant to law, acquires the applicant’s transmission or other facilities constructed on or across such right-of-way, the price to be paid by the United States shall not include or be affected by any value of the right-of-way granted to the applicant under authority of the regulations of this part.

(ii) The Department of the Interior shall be allowed to utilize for the transmission of electric power and energy any surplus capacity of the transmission facility in excess of the capacity needed by the holder of the grant (subsequently referred to in this paragraph as “holder”) for the transmission of electxüc power and energy in connection with the holder’s operations, or to increase the capacity of the transmission facility at the Department’s expense and to utilize the increased capacity for the transmission of electric power and energy. Utilization by the Department of surplus or increased capacity shall be subject to the following terms and conditions:

(ex) When the Department desires to utilize surplus capacity thought to exist in the transmission facility, notification will be given to the holder and the holder shall furnish to the Department within 30 days a certificate stating whether the transmission facility has any surplus capacity not needed by the holder for the transmission of electric power and energy in connection with the holder’s operations and, if so, the amount of such surplus capacity.

(6) Where the certificate indicates that there is no surplus capacity or that the sux’plus capacity is less than that required by the Department the authorized officer may call upon the holder to furnish additional information upon which its certification is based. Upon receipt of such additional information the authorized officer shall determine, as a matter of fact, if surplus capacity is available and, if so, the amount of such sux’plus capacity.

(c) In order to utilize any surplus capacity determined to be available, or any increased capacity provided by the Department at its own expense, the Department may interconnect its transmission facilities with the holder’s transmission facility in a manner conforming to approved standards of practice for the interconnection of transmission circuits.

(d) The expense of interconnection will be borne by the Department, and the Department will at all times provide and maintain adequate protective equipment to insure the normal and efficient operation of the holder’s transmission facilities.

(e) After any interconnection is completed, the holder shall operate and maintain its transmission facilities in good condition, and, except in emergencies, shall maintain in a closed position all connections under the holder’s control necessary to the transmission of the Department’s power and energy over the holder’s transmission facilities. The parties may by mutual consent open any switch where necessary or desirable for maintenance, repair or construction.

(/) The transmission of electric power and energy by the Department over the holder’s transmission facilities will be effected in such manner, as will not interfére unreasonably with the holder’s use of the transmission facilities in accordance with the holder’s normal operating standards, except that the Department shall have the exclusive right to utilize any increased capacity of the transmission facility which has been provided at the Department’s expense.

(g) The holder will not be obligated to allow the transmission of eleetx’ic power and energy by the Department to any person receiving service from the holder on the date of the filing of the application for a grant, other than statutory preference customers including agencies of the Federal Government.

(h) The Department will pay to the holder an equitable share of the total monthly cost of that part of the holder’s transmission facilities utilized by the Department for the transmission of electric power and energy, the payment to be an amount in dollars representing the same proportion of the total monthly cost of such part of the transmission facilities as the maximum amount in kilowatts of the power transmitted on a scheduled basis by the Department over the holder’s transmission facilities bears to the total capacity in kilowatts of that portion of the transmission facilities. The total monthly cost will be determined in accordance with the system of accounts prescribed by the Federal Power Commission, exclusive of any investment by the Department in the part of the transmission facilities utilized by the Department.

(i) If, at any time subsequent to a certification by the holder or determination by the authorized officer that surplus capacity is available for utilization by the Department, the holder needs for the transmission of electric power and energy in connection with its operations the whole or any part of the capacity of the transmission facility theretofore certified or determined as being surplus to its needs, the holder may request the authorized officer to modify or revoke the previous certification or determination by making application to the authorized officer not later than 36 months in advance of the holder’s needs. Any modification or revocation of the certification or determination shall not affect the right of the Department to utilize facilities provided at its expense or available under a contract entered into by reason of the equitable contract arrangements provided for in this section.

(j) If the Department and the holder disagree as to the existence or amount of surplus capacity in carrying out the terms and conditions of this paragraph, the disagreement shall be decided by a board of three persons composed- as follows: The holder and the authorized officer shall each appoint a member of the board and the two members shall appoint a third member. If the members appointed by the holder and the authorized officer are unable to agree on the designation of the third member, he shall be designated by the Chief Judge of the United States Court of Appeals of the circuit in which the major share of the facilities involved is located. The board shall determine the issue and its determination, by majority vote, shall be binding on the Department and the holder.

(fc) As used in this section, the term “transmission facility” includes (a) all types of facilities for the transmission of electric power and energy and facilities for the interconnection of such facilities, and (5) the entire transmission line and associated facilities, from substation or interconnection point to substation or interconnection point, of which the segment crossing the lands of the United States forms a part.

(Z) The terms and conditions prescribed in this paragraph may be modified at any time by means of a supplemental agreement negotiated between the holder and the Secretary of the Interior or his designee.

(b) Unless otherwise specified in a right-of-way granted under the act of March 4, 1911, and unless sooner canceled, the right-of-way shall expire 50 years from the date thereof. If, however, within the period of 1 year prior to the expiration date, the grantee shall file, in accordance with § 2802.1, a written application to renew the right-of-way, and shall agree to comply with all the laws and regulations existing at such expiration date governing the occupancy and use of the lands of the United States for the purpose desired, the right-of-way may be renewed for a period of not to exceed 50 years. If such application is filed, the existing right-of-way will be extended subject to then existing and future rules and regulations, pending consideration of the application.

(31 Stat. 790, 36 Stat. 1253; 43 U.S.C. §§ 959, 961)

Utah Power’s argument that the Secretary 'of the Interior exceeded his statutory authority by issuing the wheeling regulation, which attaches a condition to grants of rights-of-way over public lands, places considerable emphasis on the regulatory authority delegated to the Federal Power Commission to control the activities of utility companies. It appears to be Utah Power’s position that the Federal Power Act of June 10, 1920, 41 Stat. 1063, as amended by sections 201-213 inclusive, of the act of August 26, 1935, 49 Stat. 838, 16 U.S.C. §§ 791-825r, pre-empts any authority given to the Secretary by the 1911 right-of-way statute, 43 U.S.C. § 961, to regulate the transmission and sale of electricity by placing the plenary jurisdiction for the regulation thereof in the Federal Power Commission (herein sometimes “F.P.C.”), rather than the Department of the Interior. (Appellant’s Brief p. 21; see also pp. 11-12, 20-23, 32, 35-41 and Reply Brief p. 2, n. 1). With this we do not agree.'

Included amont the regulations governing the conditions under which grants of rights-of-way are to be issued, is an explanation of. the relationship between the 1911 statute and the Federal Power Act. The latter superseded the earlier Acts, but twice specifically excepted distribution lines, i. e., non-primary transmission lines.

“(c) The applicability of the acts of February 15, 1901, and March 4, 1911, to rights-of-way for power purposes over public lands, was superseded by the Federal Power Act of June 10, 1920 (41 Stat. 1063), as amended by sections 201 to 213, inclusive of the act of August 26, 1935 (49 Stat. 838; 16 U.S.C. 791-825r), as to power projects for the generation and transmission of hydroelectric power, defined in section 3(11) of the act, excepting distribution lines. Applications for hydroelectric power plant sites or rights-of-way for main or primary hydroelectric power transmission lines must be made to the Federal Power Commission, Washington, D. C. under the act of June 10, 1920, as amended. Rights-of-way for transmission lines which are not primary lines must be secured under the act of February 15, 1901, or the act of March J, 1911. See 18 C.F.R. 2.2.” 43 C.F.R. 2850.-0-3(c) (Emphasis added.)

Both parties agree that here we are concerned with a rigRt-of-way for non-primary transmission lines. (Appellee’s Brief p. 22, n. 20, p. 44, n. 37; Appellant’s Reply Brief p. 2, n. 1) Part I of the Federal Power Act, 16 U.S.C. §§ 791a-823h, limits the licensing jurisdiction of the Federal Power Commission to power plants for the generation of hydroelectric power, and to main or primary hydroelectric transmission lines, while permits for steam plants and easements for steam power transmission lines and easements for hydroelectric power lines that are not primary or main lines are still governed by the 1901 and 1911 right-of-way acts. 18 C.F.R. 2.2. “Thus, an easement for the latter would not be granted by the Federal Power Commission but would be granted by the Secretary of the Interior or the departmental head having jurisdiction over the lands involved.” (Appellant’s Reply Brief, pp: 2-3, n. 1).

Utah Power argues that it is engaged in interstate commerce and under Parts II and III of the Federal Power Act, 16 U.S.C. §§ 824-824h, 825-825t, the F.P.C. has plenary authority to regulate various aspects of the transmission of energy in interstate commerce.

Utah Power’s argument relying upon Part II of the Federal Power Act was explicitly met by the Supreme Court in the case of Federal Power Commission v. Idaho Power Co., 344 U.S. 17, 73 S.Ct. 85, 97 L.Ed. 15 (1952). In Idaho Power the Court considered a challenge to the authority of. the F.P.C. to impose a wheeling requirement upon a private utility seeking to construct primary transmission lines across public lands. The Court in concluding that the Commission had the authority under Part I of the Act, when granting a license for a primary line, to require wheeling when the proposed lines would cross public lands, observed that an express limitation upon the Commission’s authority to require wheeling under Part II existed. Id. at 21, 73 S.Ct. 85. The reference was to § 201(f) of the Act, 16 U.S.C. § 824(f) which states: “No provision in [section 824-824h] [Part II] of this title shall apply to, or be deemed to include, the United States.” This provision in Part II of the Act would appear to rebut appellant’s argument that the F.P.C. through interstate commerce has the authority to regulate Utah Power by means of a wheeling requirement under Part II, and not the Secretary of the Interior.

Congress’ intent to give the Secretary of the Interior broad authority under the 1911 right-of-way statute is not clearly demonstrated by reviewing the congressional debate surrounding its enactment. 46 Cong.Rec., 4014-4020 (daily ed., March 4, 1911). There is discussion to the effect that the Secretary should enact regulations to protect the public lands from interference or abuse, Id. at 4020. But, we agree with appellant this does not support the Secretary’s authority to promulgate a wheeling requirement.

However, we agree with the statement by the Department of the Interior made in an administrative decision involving the same issue as that which confronts us here, i. e., whether the act of 1911 supports the Secretary’s promulgation of a wheeling regulation. This was in Southern California Edison Company, 71 I.D. 405, 409-411 (1964) which reads:

“Its [The Act of 1911] intent is that such lines not be placed thereon by right and at random. Its intent on its face is that transmission lines be placed on Government lands under the terms and conditions the Government department responsible for the overall welfare of those lands believes transmission lines should be placed thereon.
Where the permit is to endure for fifty years and is not to be revocable at the will of the Government, the act requires such regulations as will protect Government interests associated with Government lands for the next 50 years. Had the Sixty-first Congress intended permits to be issued summarily — had it intended them to be issued if the applicants met the one, two, or three standards, the Sixty-first Congress in March 1911 thought should govern the placement of transmission lines on Government lands — the Sixty-first Congress would have said so. It legislated differently. Having stated its specific purpose and intent, Congress directed the departments responsible for Government lands to treat by such regulations as they in their expertise deemed appropriate, such developments and exigencies that should materialize during the life of the law that affected the placement of transmission lines on Government lands.
We think a regulation requiring a permittee to let the Government use surplus capacity in a transmission line permittee would build on Government’s lands, is uniquely within the purview and intent of the 1911 transmission line act. The use of the transmission lines of one electric system to wheel, convey, or market the power and energy of and for another system is a widespread, long-established operating practice in the power industry. So is the interconnection and the joint use of transmission facilities by two or more different systems; and so is the purposeful overbuilding of transmission line capacity in anticipation of future load growth.
The Federal Government is the largest wholesale producer of electric power and energy in the Nation. Its installed generating capacity of about 26 million kilovolts comprises 17 percent of all electric utility generating capacity in the country. Its installed hydroelectric capacity accounts for about 45 percent of the Nation’s developed hydroelectric capacity. We are advised by the Assistant Secretary, Water and Power Development, that another 8.8 million kilovolts of Federal generating capacity is under construction; and still another 10.2 million kilovolts has been approved or authorized for future construction. The statutes under which this Federal power and energy is produced require that preference in the sale thereof be given to governmental agencies and to nonprofit organizations. This requirement originated contemporaneously with the transmission line right-of-way laws in question. It began with section 5 of the act of April 16, 1906 (34 Stat. 116, 117), requiring the Secretary of the Interior to give preference to municipal purposes when disposing of power produced at Federal reclamation projects in the western United States under the act of June 17, 1902 (32 Stat. 388). It was restated by the act of February 24, 1911 (36 Stat. 930) ; and it has been affirmed by a long series of statutes enacted and re-enacted down to the present. To avoid constructing the transmission lines needed to market this power and energy, the Government utilizes the transmission facilities of other systems to the maximum extent practicable. This wheeling service that utility systems perform for the Federal Government is based on ‘the principle of coordination and cooperation * * * the very purpose of which is to make use of company transmission line facilities to avoid duplication and waste of Government funds’ for transmission lines.”

As appellee contends and the above quotation supports, the Secretary of the Interior had already initiated federal hydroelectric projects before the 1911 statute was enacted. The Federal Power Marketing Policy, which substantially began with the Boulder Canyon Project Act of 1928, 45 Stat. 1057, 43 U.S.C. §§ 617-617u; and includes the Bonneville Project Act of 1937, 50 Stat. 731, 16 U. S.C. § 832 et seq.; The Flood Control Act of 1936, 49 Stat. 1570, 33 U.S.C. § 701b et seq.; the Fort Peek Act of 1938, 52 Stat. 403, 16 U.S.C. § 833 et seq.; the Reclamation Project Act of 1939, 53 Stat. 1187, 43 U.S.C. §§ 375, 387-389, 485-485k and the Flood Control Act of 1944, 58 Stat. 890, 16 U.S.C. § 825s although admittedly not directly related to the 1911 statute, does indicate a Congressional policy of giving the Secretary a broad scope of responsibility in implementing Federal Power Projects.

Similarly, the express language in the 1911 act had authorized the Secretary, by means of general regulations, to condition grants of rights-of-way in a manner best serving the public interest. Since the permit to use the public land may be for 50 years, when we consider the fact that there was no specific Congressional intent expressed as to the manner in which the public interest shall be protected for those 50 years, the wheeling requirement represents a logical and presumably effective means of protecting the public interest in the public lands over which rights-of-way are granted. Unless we find such a regulation unreasonable in its content, we see no reason from the legislative background to hold that the wheeling requirement is beyond the scope of the Secretary’s authority under 43 U.S.C. § 961. We do not find that the appellant has met his burden of proof to show the challenged regulation is an unreasonable exercise of a delegated power, “i. e., inconsistent with the statute.” United States v. Boyd, 491 F.2d 1163 (9th Cir. 1973); Boske v. Comingore, 177 U.S. 459, 470, 20 S.Ct. 701, 44 L.Ed. 846 (1899).

II. The Idaho Power Cases and The Chapman Case.

Since we find no case which directly concerns the Secretary’s authority challenged here, we turn to an analysis of eases argued by both sides as being analogous and relevant to our decision on appeal.

Appellee asserts that the Secretary’s wheeling requirement has been judicially sustained in a similar context by the Supreme Court in Idaho Power (1952) and by this Court in Idaho Power Co. v. Federal Power Commission, 346 F.2d 956 (9th Cir. 1965), cert. denied, 382 U.S. 957, 86 S.Ct. 435, 15 L.Ed.2d 361 (1965); and that these decisions are dispositive of the present controversy. (Appellee’s Brief p. 11).

Appelllant, on the other hand, argues that the District of Columbia Circuit case of Chapman v. El Paso Natural Gas Co., 92 U.S.App.D.C. 154, 204 F.2d 46 (1953) requires us to find that the “right of way statute did not confer upon the Secretary so vast and detailed a power as the promulgation of specific regulations and conditions governing the ‘operations’ of an applicant.” (Appellant’s Reply Brief p. 7).

In the Supreme Court’s Idaho Power case, discussed above, the Court was concerned with the authority of the F.P.C. to impose a wheeling requirement. In presenting the facts the Court took particular note of the Federal Power Marketing Policy and the responsibility of the Secretary thereunder:

“The United States has power projects in this area; and the Bureau of Reclamation and the Bonneville Power Administration were contemplating the construction of a transmission line which would connect the same areas as respondent’s proposed lines. Therefore the Federal Power Commission, on the suggestion of the Secretary of the Interior authorized the project on conditions specified in paragraph (F) of the order. These conditions, in summary, were that the licensee permit the interconnection of transmission facilities of the United States with the two transmission lines, and the transfer over those lines of energy generated in power plants owned by the United States ‘in such amounts as will not unreasonably interfere’ with the licensee’s use of the lines, the United States to pay the licensee for government power so transmitted.” 344 U.S. at 19, 73 S.Ct. at 86.

In discussing the authority of the Commission, the Court stated:

“Under these sections the Commission is plainly made the guardian of the public domain. The requirement that existing lines be fully utilized before additional lines are authorized would seem to be relevant to a decision under § 10(a) that the project submitted was consonant with the ‘comprehensive plan’ for the waterway. And the Commission might well determine under § 4(g) that if public lands are to be used for the transmission of power, conservation of the ‘water-power resources of the region’ require that public power as well as private power be transmitted over them.
Sections 4 and 10 speak specifically of the public domain — waterways and public lands. Section 6 makes each license subject to all the terms and conditions of the Act and to ‘such further conditions, if any, as the Commission shall prescribe in conformity with this Act. . . .’ Section 6, read in the context of §§ 4 and 10, would seem to give ample authority to the Commission to attach the conditions imposed here. Protection of the public domain, conservation of water-power resources, development of comprehensive plans for the waterways— each of these might on the facts of a case be sufficient to authorize the grant of permission to a public utility company to use the public domain provided it agreed to use its excess capacity to transmit government power.” 344 U.S. at 23, 73 S.Ct. at 88. (Emphasis added.)

Appellee contends that in analogous fashion, the Secretary has similar authority under the right-of-way statute. In this Court’s Idaho Power Co., supra (1965), a similar issue was addressed. There the power company sought authority to. construct two additional transmission lines in connection with its already licensed hydroelectric project on the Snake River, Idaho. Authority was granted to amend the license provided the petitioner make surplus capacity of the project’s transmission facilities available to the Government for the wheeling of Government power at Government expense. Idaho Power Company challenged the authority of the Commission to impose such a condition.

We affirmed the condition suggested by the Secretaries of the Interior and Agriculture, relying on the reasoning by the Supreme Court in the earlier Idaho Power case. 346 F.2d at 959-960.

Appellant relies on the Chapman case. In Chapman, El Paso Natural Gas Company had entered into negotiations with the Secretary of Interior concerning grants of rights-of-way for a proposed gas pipeline. Under section 28 of the Mineral Leasing Act of 1920, 41 Stat. 449 (1920) as amended 49 Stat. 678 (1938), 30 U.S.C. § 185 (1953) (amended 1973), such rights-of-way “may be granted by the Secretary of Interior > . . under such regulations and conditions ... as may be prescribed by the Secretary . . . ” The Secretary originally acted to require El Paso to sign a stipulation that it would operate . . as a common carrier in accordance with the provisions of the Mineral Leasing Act . . 204 F. 2d at 48, n. 1. But as the construction progressed additional rights-of-way were granted. Then the Secretary took the position that the remaining rights-of-way would not be granted unless El Paso signed a detailed stipulation concerning common carrier obligations and including a provision for increased capacity of the pipeline. El Paso took the position that the stipulation was beyond the Secretary’s authority under the statute. The court held that the Secretary’s authority under the statute, which expressly provided authority for regulations and conditions as to survey, location, application and use, was limited to physical aspects of the rights-of-way and did not extend to the actual operations of the pipeline. 204 F.2d at 51. Thus, appellant asserts that here the Secretary is regulating the operations of a power company by conditioning the grant of a right-of-way for purposes unrelated to the right-of-way statute and Chapman is authority preventing the Secretary from acting in this manner.

However, as we stated previously, we do not find that the Secretary is regulating the operations of Utah Power by means of the wheeling requirement, but is acting within the authority provided by the right-of-way statute to protect the public interest.

The Mineral Leasing Act, 30 U.S.C. § 185, prior to its amendment in 1973, and at issue in Chapman, expressly provided a built-in protection of the public interest. The court there stated:

“Ample protection of the public interest exists, and adequate enforcement of the condition is possible, under the provision for forfeiture of the grant by the United States District Court, in an appropriate proceeding, for failure to comply with the provisions of the section or with appropriate regulations and conditions established by the Secretary.” 204 F.2d at 51.

The right-of-way statute at issue here, 43 U.S.C. § 961, does not expressly provide any such protection. The only forfeiture provision is for “nonuse for a period of two years or for abandonment.” Instead the Congress directed the Secretary to use his expertise to determine what might be deemed appropriate to protect the public interest under the right-of-way statute. Although we acknowledge certain problems may well be caused by the wheeling requirements on appellant’s ability to transmit power (Appellant’s Brief pp. 28-33), on balance we find that protection of the public interest in public lands in this situation must prevail.

A final distinction between the Idaho Power cases and Chapman exists. In Chapman the court recognized a distinction between the facts there and those in the Supreme Court Idaho Power case.

“Similarly, F.P.C. v. Idaho Power Co., 1952, 344 U.S. 17, 73 S.Ct. 85, 97 L.Ed. 15, decided by the Supreme Court since we heard the present case, is not in point, in spite of some apparent similarities. There, the Court held that the Judiciary was without power to modify conditions attached to a license, the function of a reviewing court being at an end when it laid bare an error of law. But we are not dealing here with an order which seeks to compel the granting of a license in futuro or the modification and alteration of conditions embodied in the license prior to its issuance, but with an order which would simply require the Secretary to execute the purely ministerial act of issuing rights-of-way pursuant to what we regard as a license granted previously without condition.” 204 F.2d at 53 (Emphasis added.)

Thus, Chapman was concerned with a license previously issued without condition, the expenditure of millions of dollars by the licensee in reliance thereon, and a later attempt to alter the license. The earlier Idaho Power case involved a license not yet granted and modification and alteration of conditions prior to issuance, which is what Utah Power is attempting to do here. Our later opinion in Idaho Power (1965) concerned a proposed amendment of the original license which had originally left some of the final terms open pending later agreement.

The distinction between attaching a condition to a license prior to issuance, and that of altering a license already existing by attaching a new condition is readily .explained by reference to contract law. The distinction is between negotiating the terms of a contract prior to entering into a contract (which Utah Power was attempting to do by having the Secretary waive the wheeling requirement), and altering a contract previously entered into. The latter requires agreement by both parties (which explains the Chapman holding). See 4 Williston, Contracts § 591 (3d ed. 1961). Thus, we agree with appellee that the Supreme Court’s reasoning in Idaho Power (1952) and our decision in Idaho Power (1965) support the Secretary’s authority to promulgate the wheeling requirement.

Furthermore, our attention was drawn to the unpublished Memorandum Opinion in Idaho Power Company v. Chapman, No. 4540-50 (D.D.C.1952) and supplemental memorandum of October 31, 1952 (Appellee’s Brief pp. 62-72) in which the issue of the Secretary of the Interior’s wheeling regulation was fully explored and upheld.

III. Reasonableness of the Wheeling Provision

We repeat, the substance of the contested regulation (43 C.F.R. 2851.1-1(a)(5)) provides that the Department of Interior have the use of any surplus capacity in the holder’s transmission line crossing public lands (in excess of the capacity needed by the holder) and that the Department may increase the capacity. The expense of interconnection to use surplus capacity or to increase capacity is borne by the Department in a manner insuring the normal and efficient operation of the holder’s transmission facilities (subpara, (c) and (d)). Any disagreement in surplus capacity is to be adjudicated by a three-man board (subpara. (j)). When for his own-operations the owner needs to recover his surplus capacity he must give the Department 36 months notice (subpara, (i)). In transmitting electric power and energy over the holder’s transmission facilities, the Department shall not unreasonably interfere with the owner’s operation (subpara, (f)); it may not, without the owner’s consent use his surplus capacity to supply customers the owner was serving when he applied for the permit unless they are preference customers (subpara. (g)). The Department must pay an equitable share of the total cost of that part of the holder’s transmission facilities utilized by the Department (subpara. (h)).

On its face, we believe that such a wheeling regulation is reasonable. It does not in substance differ greatly from that wheeling provision approved by this Court in the Idaho Power case, supra, 346 F.2d at 958. Appellant’s complaint in the district court only stated that the wheeling provision was itself unreasonable. (R. 13), but made no factual allegations to support its conclusory statement. The 36 months notice requirement to recover surplus capacity is reasonable in that construction activities are planned at least that far in advance in the electrical industry. For example, see Idaho Power Co. v. Chapman, supra at 7. Thus, a judgment on the pleadings was appropriate and an evi-dentiary hearing was not required.

IV. Fifth Amendment Deprivation of Property Without Due Process of Law.

The appellant next argues that the wheeling provision constitutes a taking of its property without due process in violation of the Fifth Amendment. We cannot agree with appellant on this point. Utah Power fails to consider the fact that the right-of-way statute allows the holder of the grant to place transmission lines on public lands. The right to grant such rights-of-way is within the discretion of the Secretary under 43 U.S.C. § 961, and allowing a private utility to use the public lands balances against allowing the Government to use the holder’s surplus capacity.

The regulation would not operate co take property of appellant without just compensation in violation of the Fifth Amendment, because 43 C.F.R. 2851.1-1(a)(5)(h) requires the Department to pay the owner “an equitable share” of the cost of transmission facilities used by the Department. As far as provision for a hearing, the regulations provide under subparagraph (j) for a board of three persons to determine the existence or amount of surplus capacity if the Department and the holder are unable to agree. (This would seem to satisfy due process requirements given the special relationship between the Department and the private utility in the grant of the right-of-way to public lands. A full evidentiary hearing is not required in every instance.)

V. Vagueness and Ambiguity

Finally, in response to appellant’s various contentions that the wheeling regulation is vague and ambiguous and should be declared unreasonable, we are in agreement with the statement of the Department in Southern California Edison Company, supra, in responding to the same claim of unreasonableness :

“. . . we find appellant’s arguments on this ground premature. The regulations serve to articulate certain fundamental legal relations subsisting between the Government and the per-mittees who place transmission lines on Government lands. The regulations do not purport to be a substitute for the complex, contractual relations that must exist before Government attempts to make use of a permittee’s transmission facilities. This is made expressly clear by the reference to ‘supplemental agreements’ at subpara-graph (xii) [(1)] of the stipulation. The permittees may assume that if or when Government contracts to use any surplus capacity of a permittee’s transmission lines, the Government will not interfere with and will respect all legal rights and interests of the permittees.” 711.D. at 414.

Because of what has been said herein, we affirm the order of the district court holding that the wheeling requirement and attendant provisions contained in 43 C.F.R. 2851.1-l(a) (5) constitute a reasonable and lawful exercise of the Secretary of the Interior’s administrative discretion and that said regulations are within the scope of authority delegated to the Secretary under Title 43, United States Code, Section 961.

Affirmed.

      . “Wheeling” is the transmission of one company’s power over another company’s systern. Idaho Power Co. v. Federal Power Commission, 346 F.2d 956, 957, n. 1 (9th Cir. 1965).

      . At the time of issuing the regulation the Secretary states:
      “The regulations are first a matter of conservation. We felt that it was important to set forth now the basic principle that where one transmission line crossing Government lands can do the job all reasonable efforts should be made to avoid additional lines. This principle is important when one considers the rapidly growing needs of the future for more and more transmission line facilities. The regulations were also issued so that the Department could carry out better its responsibilities for the marketing of power.” Public Land Law Review Commission, Use and Occupancy, Yol. I Report, Chapters 1-9, p. VII-41.

      . In 1948 the Secretary of the Interior promulgated a wheeling regulation similar to the one here, but it was rescinded in 1954. Public Land Law Review Commission, supra at VII-39. See 43 C.F.R. 225.91 (v) (1954), redesignated 244.44(e) (rescinded August, 1954).
      In hearings looking into the reasons for eliminating the wheeling requirement, it was apparent that the reasoning for such action was not premised on any lack of authority of the Secretary to promulgate a wheeling requirement or interfere with the use of a private utility’s transmission line. The Committee’s conclusions indicated affirmative support for the wheeling regulation. Certain Activities Regarding Power, Dept, of Interior, Hearings Before a Subcomm. of the House Comm, on Government Operations, 84tli Cong., 1st Sess., at 3 (1956). (Hereinafter “Certain Activities Regarding Power Hearings.”)

      . “§ .2 Transmission lines
      In a public statement dated March 7, 1941, the Commission announced its determination that transmission lines which are not primary lines transmitting power from the power house or appurtenant works of a project to the point of junction with the distribution systems as set forth in section 3(11) of the act are not within the licensing authority of the Commission, and directed that future applications filed with it for such licenses be referred for appropriate action to the Federal department having supervision over the lands or waterways involved.”

      . Another source of rejection for appellant’s argument is that Part II does not regulate public lands. Idem. 344 U.S. at 22, 73 S.Ct. 85. That function is covered by Part I. Here, the application is for a right-of-way over public land and although the issue concerns the Secretary of the Interior’s authority to condition such a grant by means of a wheeling requirement, the ultimate grant concerns a regulation oí public lands; and thus the 1911 statute prevails here over either Part I (because of non-primary transmission lines) or Part II of the Federal Power Act.

      . On November 16, 1973, Congress enacted the “Trans-Alaska Pipeline Authorization Act,” Pub.Ij.No.93-153, 87 Stat. 576 (1973). Although in its final form that act does not affect the facts here, its provisions and legislative history are instructive. 2 U.S.Code Cong. & Admin.News, pp. 2417-2534 (1973).
      In its initial form, S-1081 93d Cong., 1st Sess. (1973), 119 Rec.S. 13699 (daily ed. July 17, 1973), the Act would have been applicable to the facts here, except that it was passed subsequent to the events here. Section 101(a)(5) stated that the Secretary is authorized to grant rights-of-way for:
      “(5) Systems for generation, transmission, and distribution of electric energy, except insofar as the Federal Power Commission has jurisdiction under the Act of June 10, 1920, as amended (16 U.S.C. 796, 797) ; ”
      Section 112 authorized the Secretary to promulgate regulations:

        “Provided, however, That notwithstanding any other provision of this Act, neither the Secretary nor any agency head by regulation, by stipulation or conditions for right-of-way grants or renewals, or by any other means shall use the position of the Federal Government as landowner to accomplish, indirectly, public policy objectives unrelated to protection or use of the public lands except as expressly authorized by statute.”
      This particular provision was added to the Senate Bill as an amendment to prevent any abuse of the broad discretion provided by this legislation to the Secretary of the Interior to implement policy not specifically authorized by Congress. S.Rep.93-207, Senate Comm, on Interior and Insular Affairs, 93rd Cong., 1st Sess., pp. 114-116 (Views of Senators Buckley, McClure and Bartlett), 2 U.S.Code, Cong. & Admin.News at pp. 2520-2522 (1973). The amendment was designed to:
      “restrict authority delegated to the Secretary or agency head in order to prevent either from imposing by indirection any type of condition on federal rights-of-way not expressly authorized by statute.” Id. at p. 2521.
      However, the House Conference Report, No. 93-617, 93rd Cong., 1st Sess. (1973), 119 Cong.Rec. H9502 (daily ed. Oct. 31, 1973), amended the Senate Bill and limited the grants of rights-of-way only to oil and gas pipelines with the understanding of considering broader right-of-way legislation in connection with other bills. 119 Cong.Rec., supra at H9507.

      . We note that the F.P.C. sought the advice of the Secretary of the Interior.
      “The Secretary of the Interior recommended that any authorization for construction of the lines should be conditioned upon the Commission’s reserving the right to require petitioner to wheel Government power over the company’s entire main transmission system. He explained that this might enable the Government to defer construction by the Bonneville Power Administration of a high-capacity line connecting the main Federal Columbia River Power System to the Upper Snake River System; that Bureau of Reclamation plants in Southern Idaho would shortly be unable to meet their power requirements and would need a part of Bonneville’s surplus.” 346 F.2d at 958.

      . “Unlike Chapman ‘we are . . . dealing here with an order which seeks to compel the granting of a license in futuro or the modification and alteration of conditions embodied in the license prior to its issuance.’ (ibid at 53). The stipulation here does not undertake ‘to exercise so vast and so detailed a powernor ‘such intimate regulation of corporate affairs as the financing, construction and employment of facilities’ (at 51) [204 F.2d at 51]” 71 I.D. at 412, n. 17.

      . The District Court stated at pages 6-7 of said unpublished opinion:
      “17. The joint use of power transmission lines by different private companies or by private companies and governmental agencies is a well established practice in the industry. The use of a transmission line through the medium of a wheeling arrangement is not injurious to the line nor does it interfere with the use thereof by the owning company. Ordinarily, wheeling arrangements constitute a source of revenue to the owning company in that under sucli arrangements rentals are received for equipment that would otherwise be unused. Wheeling arrangements also obviate the necessity of constructing duplicate transmission facilities. The wheeling arrangements called for in the defendant’s regulations provide for a reasonable rental and, as far as physical and financial effects are concerned, do not differ substantially from ordinary contract wheeling arrangements.”
      Finding 17 of the unpublished Chapman opinion was a topic of discussion in the previously mentioned Certain Activities Regarding Power Hearings at 142, supra n. 3 of this opinion.
      We recognize this language has no prece-dential value to this Court, but is apparently the law of the case in the District of Columbia Circuit, (Rule 8(b) D.C.Cir. Rules.)

      . The wheeling requirement in Idaho Power required:
      “that petitioner make available to the Government on a reasonable cost basis, all surplus transmission capacity within the primary lines of the project, and, upon appropriate request and at least one year’s notice, increase the transmission capacity of the project transmission lines at Government’s expense. Under the license conditions, the Government’s wheeling is limited to ‘such amounts as will not unreasonably interfere with the Licensee’s use of said lines,’ and to transmission ‘only to consuming facilities of the United States and to public bodies and co-opera-fives entitled to statutory preference in connection with the distribution and sale of electric energy, by the United States.’ ” 346 F.2d at 958.

      . The appellant only challenges the wheeling regulation on its face: ' it does not contend that the secretary abused his discretion by requiring wheeling under the particular facts and circumstances disclosed in this action. Consequently, this court need not decide the issue of whether the requirement of wheeling over an entire transmission line, when only a small segment will cross over government land, might amount to an abuse of discretion.


source: Caselaw Access Project

author: PELL, Circuit Judge.

license: Public Domain

text:
    FREEMAN COAL MINING COMPANY, a Division of Material Service Corporation, Petitioner, v. INTERIOR BOARD OF MINE OPERATIONS APPEALS et al., Respondents.
    No. 73-1909.
    United States Court of Appeals, Seventh Circuit.
    Argued May 31, 1974.
    Decided Oct. 22, 1974.

      Harry M. Coven, Chicago, 111., for petitioner.
    J. Philip Smith, Asst. Sol., U. S. Dept, of the- Interior, Washington, D. C., Morton Hollander and Michael Kimmel, (argued) Dept, of Justice, App. Section (Civ.Div.), Washington, D. C., for respondents.
    Before PELL, STEVENS and SPRECHER, Circuit Judges.
   PELL, Circuit Judge.

The petitioner Freeman Coal Mining Company (Freeman) brought this action seeking review of a decision of the Secretary of the Interior, acting by the Interior Board of Mine Operations Appeals (the Board). In its decision, the Board upheld the validity of an order requiring the withdrawal of all persons from one of the petitioner’s coal mines until an allegedly unsafe condition was abated. The withdrawal order was based upon a finding by a federal mine inspector that an accumulation of float coal dust in the mine constituted an “imminent danger” within the meaning of the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 801 et seq. After a hearing, an administrative law judge vacated the imminent danger withdrawal order and converted the order into a notice of violation pursuant to 30 U.S.C. § 814(a). The Board reversed the administrative law judge and Freeman now petitions for review of the Board’s decision.

Essentially two issues have been raised by Freeman: (1) whether the Board correctly interpreted the term “imminent danger” as used in 30 U.S.C. § 814(a); and (2) whether, given the proper interpretation of “imminent danger,” there was substantial evidence to support the Secretary’s finding that an imminent danger existed in the petitioner’s mine.

Mootness

We turn first, however, to the preliminary question of whether this case is moot. The possibility of mootness is suggested by the fact that the withdrawal order was effective for only 26 hours and terminated in March 1972.

We note, however, that the withdrawal order may have an effect on other proceedings. Under the Act, the Secretary can assess civil penalties against the operator of a coal mine in which a violation of a mandatory health or safety standard occurred. 30 U.S.C. § 819. In determining the amount of the penalty, the Secretary considers, inter alia, the “gravity of the violation.” 30 U.S.C. § 819(a). And, as the Fourth Circuit has noted, “[t]he issuance of a withdrawal order is a factor bearing upon the gravity of a violation, and its validity or the correctness of the factual basis on which it rests may not be relitigated in a [civil penalty] proceeding.” Eastern Assoc. Coal Corp. v. Interior Bd. of Mine Operations Appeals, 491 F.2d 277, 278 (4th Cir. 1974). Under these eir-cumstances, the present ease is not moot. Id.

Imminent Danger

The Act provides that where a federal mine inspector finds that an imminent danger exists in a coal mine, he will order the withdrawal of all persons from a part or all of that mine until the imminent danger is no longer present. 30 U.S.C. § 814(a). The term “imminent danger” is defined in the Act as:

“the existence of any condition or practice in a coal mine which could reasonably be expected to cause death or serious physical harm before such condition or practice can be abated . . . .”30 U.S.C. § 802(j).

The Board, in its decision, stated that “imminent danger,” as used in the Act, relates to “the proximity of the peril to life and limb.” 2 I.B.M.A. at 212. Specifically, the Board phrased the test for an imminent danger as:

“[W]ould a reasonable man, given a qualified inspector’s education and experience, conclude that the facts indicate an impending accident or disaster, threatening to kill or to cause serious physical harm, likely to occur at any moment, but not necessarily immediately? The uncertainty must be of a nature that would induce a reasonable man to estimate that, if normal operations designed to extract coal in the disputed area proceeded, it is at least just as probable as not that the feared accident or disaster would occur before elimination of the danger.” Id. (Emphasis added.)

Freeman contends that the Board misinterpreted the term “imminent danger.” According to Freeman, “imminent danger” applies only to “extreme and unusual situations where the conditions are such that a danger exists which has an immediate threat to cause injury or death,” where “a catastrophe [is] near or present.” (Emphasis added.)

A review of the purpose, the legislative history, and the wording of the Act convinces us. that the Board correctly interpreted the term “imminent danger.” In enacting the Federal Coal Mine and Safety Act of 1969, the primary concern of Congress was with the health and safety of the miners, the “most precious resource” of the coal mining industry. 30 U.S.C. § 801. Thus, the House Report states:

“It is the purpose of the bill . . to protect the health and safety of coal miners, and to combat the steady toll of life, limb, and lung, which terrorizes so many unfortunate families.” H.R.No.91-563, 91st Cong., 1st Sess., 2 U.S.Code Cong. & Admin. News, p. 2503 (1969).

More specifically, the provision of the Act dealing with withdrawal for imminent danger was clearly intended to assure the miners would not carry on routine mining operations in the face of imminent dangers. With respect to what constitutes an “imminent danger,” it was stated:

“The definition of an ‘imminent danger’ is broadened from that in the 1952 act in recognition of the need to be concerned with any condition or practice, naturally or otherwise caused, which may lead to sudden death or injury before the danger can be abated. It is not limited to just disastrous type accidents, as in the past, but all accidents which could be fatal or nonfatal to one or more persons before abatement of the condition or practice can be achieved.” 115 Cong. Rec. 39985 (1969). (Emphasis added.)

Since the Act in question is a remedial and safety statute, with its primary concern being the preservation of human life, it is the type of enactment as to which a “narrow or limited construction is to be eschewed.” St. Marys Sewer Pipe Co. v. Director of United States Bureau of Mines, 262 F.2d 378, 381 (3d Cir. 1959). Rather, this court must interpret the Act liberally in light of its primary purpose. St. Marys, supra, Reliable Coal Corp. v. Morton, 478 F.2d 257, 262 (4th Cir. 1973). To limit, as Freeman would have us, “imminent danger” to immediate danger would result, in many cases, in gambling with human lives. Such a result is clearly inconsistent with the humane purposes of the Act.

The language of the Act also supports the Board’s interpretation. The Act calls for the “immediate” withdrawal of all persons when an “imminent” danger is found to exist. Only the withdrawal action is phrased in terms of “immediate.” This is entirely reasonable since if withdrawal could not be ordered unless the danger was also “immediate,” the expected accident would, likely as not, occur during the withdrawal, thereby injuring miners. Moreover, under § 814(d), persons necessary to eliminate the danger are permitted to remain in the area for that purpose. It is questionable whether anyone would remain in a mine for any purpose if there was an “immediate” or “catastrophic” danger. A reading of the entire section, in light of the Act’s humane purpose, makes clear that the Board has correctly construed “imminent danger” as being a situation in which a reasonable man would estimate that, if normal operations designed to extract coal in the disputed area should proceed, it is at least just as probable as not that the feared accident or disaster would occur before elimination of the danger.

We note, moreover, that the Fourth Circuit has recently accepted the Board’s interpretation of “imminent danger.” Eastern Assoc. Coal Corp. v. Interior Bd. of Mine Operations Appeals, supra, 491 F.2d at 278.

This court has recently had occasion in an entirely different context, one in which there was no statutory definition of “imminent,” to observe that the word has been the subject of considerable judicial attention. Definitions have been of the tenor of something threatening to happen at once or on the point of happening. Continental Illinois National Bank and Trust Company v. United States, 504 F.2d 586, at 591 (7th Cir. 1974).

In the present context, it often will only be the fact of the hindsight of a devastating explosion which will prove conclusively that the danger was on the point of happening.

Finally, it is not at all clear that the opposing parties here are not in reality talking about the same thing but with different semantical approaches. An imminent threat is one which does not necessarily come to fruition but the reasonable likelihood that it may, particularly when the result could well be disastrous, is sufficient to make the impending threat virtually an immediate one.

Sufficiency of the Evidence

The remaining issue is whether the Board correctly determined that the conditions in the petitioner’s mine, at the time the withdrawal order was issued, constituted an imminent danger to the safety of the miners. This court must, of course, affirm the Secretary’s decision if it is supported by substantial evidence. 30 U.S.C. § 816(b). In making our determination, we must appraise the evidence in light of the entire record, taking into account the contrary report of the administrative law judge. Universal Camera Corp. v. NLRB, 340 U.S. 474, 493-497, 71 S.Ct. 456, 95 L.Ed. 456 (1951).

The record establishes the following facts concerning float coal dust. Float coal dust consists, generally, of small particles of coal dust which can be suspended in air When float coal dust is suspended in air, it is highly explosive upon ignition. Moreover, once float coal dust has been ignited, the ignition itself will kick more dust into the air and further ignite it. The ignition process will proceed along the area containing the float coal dust and ignite all of it. A common cause of such explosions, according to the mine inspector, is the ignition of methane, an explosive gas.

The evidence indicated that, in the petitioner’s mine, float coal dust was present along certain beltways. The area so affected, moreover, was extensive, being approximately 7200 feet in length. At the time the withdrawal order was issued, the mine was in operation with coal passing along the belts. Finally, there was evidence to indicate that the mine had a history of releasing methane gas.

The petitioner contends that these facts are insufficient to support the Board’s finding of imminent danger. In particular, Freeman notes that there was neither suspension of the float coal dust in air, nor ignition, nor a concentration of methane gas in the mine at the time the withdrawal order was issued. The petitioner urges that absent such suspension and ignition, a coal dust explosion was not imminent. We find this argument unpersuasive.

The lack of suspension and ignition indicates only that an explosion might not have occurred immediately. The facts in the record fully support the Board’s finding that the danger of an explosion was, nonetheless, “imminent.” With the mine in operation extracting coal, it was more probable that the float coal dust would be kicked into the air. The mine being in operation also meant that if an explosion did occur, the miners would be exposed to danger. The widespread accumulation of float coal dust was also significant, as the Board noted, since “it substantially multiplies the chances for disturbing the dust and increases the number of miners exposed to the threat of death or injury by a propagated explosion.” 2 I.B.M.A. at 213. The extensive nature of the ad-cumulation, in addition, would increase the time necessary for abatement.

Moreover, the lack of methane gas in the mine during the time of the inspection is not determinative. The evidence indicated only that the ignition of methane gas is the most common cause of float coal dust explosions, not that it is the only source of an ignition. With the mine in operation, the chance of some ignition was clearly increased. Furthermore, as the Board noted, “the insignificance of the amount of methane which was probably in the air at the time that the withdrawal order was issued . . . is a fact which must be weighed against the history of the mine and its inherently gassy quality.” 2 I.B.M.A. at 213.

After reviewing the record as a whole, we conclude that there is substantial evidence to support the Secretary’s finding of imminent danger.

Affirmed.

      . The Board’s decision is reported at 2 I.B. M.A. 197. (1973). The Board’s decision became the final action of the Secretary. 43 C.F.R. §§ 4.1(4) and 4.500(a)(1) (1973).

      . Review by this court is pursuant to 30 U.S. C. § 816(a).

      . 30 U.S.C. § 814 (a) provides : “If, upon any inspection of a coal mine, an authorized representative of the Secretary finds that an imminent danger exists, such representative shall determine the area throughout which such danger exists, and thereupon shall issue forthwith an order requiring the operator of the mine or his agent to cause immediately all persons, except those referred to in subsection (d) of this section, to be withdrawn from, and to be prohibited from entering, such area until an authorized representative of the Secretary determines that such imminent danger no longer exists.”

      . “[Section 814(a)] provides that if an inspector finds the existence of an imminent danger in any mine ... he must immediately issue a withdrawal order to the operator requiring him to withdraw the men from the mine or area thereof affected and prevent entrance by anyone to that mine or area, except those miners necessary to abate the hazard. Withdrawal must be to a safe area. The order remains in effect until an inspector determines that there is no danger. The imminent danger may be due to a violation of a mandatory safety standard or some other cause not covered by a standard, including natural causes. It should be emphasized at this point that the operator has a duty under the Act to withdraw persons from a mine or area thereof affected by an imminent danger without waiting for an inspector to order it.” 115 Cong.Rec. 39986 (1969).

      . Under the 1952 Federal Coal Mine Safety Act, a federal mine inspector, was required to issue a withdrawal order if he found “danger that a mine explosion, mine fire, mine inundation, or man-trap or man-hoist accident will occur in such mine immediately or before the imminence of such danger can be eliminated.” 66 Stat. 692, 694.

      . “[T]he overall objective of the Act is to eliminate unsafe and unhealthful conditions and practices and to provide benefits for miners and dependents afflicted by occupationally caused respiratory disease and, in accomplishing this objective, it is the intention, of the conferees that it he constmed liberally.” 115 Cong.Rec. 39985 (1969). (Emphasis added.)

      . Freeman argues that the Board’s construction of “imminent danger” expands § 814(a) to cover situations covered by §§ 814(b) and (c). We find this contention unpersuasive. Sections 814(b) and (c) govern issuances of notices of violation and subsequent withdrawal orders in the event of a failure to abate where there has been a violation of a mandatory health or safety standard. Section 814(a), on the other hand, is not limited to situations where a violation of a safety standard has occurred but, rather, is designed to protect the miners from any condition or practice which is likely to cause death or serious physical harm before the condition or practice can be abated, regardless of whether a violation of a safety standard is involved. Moreover, the issuance of a notice under § 814(b) or § 814 (c) does not always require the withdrawal of miners. The issuance of a notice of. violation under one of these two sections, therefore, would not necessarily protect the miners in situations where, if normal procedures are continued, the accident might occur before the danger can be abated.

      . The Fourth Circuit stated :
      “The Secretary determined, and we think correctly, that ‘an imminent danger exists when the condition or practice observed could reasonably be expected to cause death or serious physical harm to a miner if normal mining operations were permitted to proceed in the area before the dangerous condition is eliminated.’ ” 491 F.2d at 278. (Court’s own emphasis.)

      . More specifically, “coal dust” is defined as “particles of coal that can pass a No. 20 sive” while “float coal dust” means “the coal dust consisting of particles of coal that can pass a No. 200 sieve.” 30 C.F.R. §§ 75.400-1 (a) and (b) (1973).

      . The federal mine inspector’s order of withdrawal stated:
      “The main belt from the dump on the bottom to the tailpiece at 1,004 ft. tag North and the main East belt from the No. 1 drive to the No. 7 North, a distance of 4,596 ft. tag, and the No. 7 North belt was very black with float coal dust.”
      The belts in question were used to convey coal. The coal dust accumulates on the belts and then works itself off and drops onto the floor.

      . When the withdrawal order was issued, mine operations ceased and the 80 men who were working at the time turned their efforts to rock dusting in order to abate the cited condition.

      . The petitioner claims that the Board “arbitrarily” rejected the findings of fact of the administrative law judge. The Board, however, has express authority to modify or set aside a decision of an administrative law judge. 43 C.F.R. § 4.605 (1973). Moreover, in the present case, the Board and the administrative law judge agreed on certain basic facts, namely, that there was float coal dust throughout the affected area and that the area consisted of 7,200 feet. Other findings of fact made by the administrative law judge (e. g., the absence of suspension of the dust and the lack of methane gas in the mine at the time of the withdrawal) were not disputed by the Board but were not considered to be determinative in light of the entire factual situation. Finally, the Board noted that the administrative law judge had failed to consider other facts established by the record, such as, the operation of the mine and the history of gas releases in the mine. The disagreement between the Board and the administrative law judge involved, essentially, not what the basic facts were but what inference was to be drawn from the facts, i. e., whether the conditions were sucli as to constitute an imminent danger.

      . Freeman argues that the Board’s finding that the mine was in operation while correct is insufficient since the Board, because of the imminent danger requirement, should have found that the mine was in operation “extracting coal.” Coal in fact was moving along the belts at the time of the inspection and this quibbling argument borders on the frivolous.

      . Congress eliminated the prior distinction between gassy and nongassy coal mines in enacting the 1969 Act. The Secretary could still consider, however, the known gassy nature of the petitioner’s mine in evaluating the danger of the float coal dust accumulation.


author: PER CURIAM:

text:
    IBERIAN TANKERS COMPANY, Plaintiff-Appellee, v. GATES CONSTRUCTION CORP., Defendant-Appellant.
    No. 106, Docket 74-1675.
    United States Court of Appeals, Second Circuit.
    Argued Oct. 10, 1974.
    Decided Oct. 11, 1974.
    Raymond P. Hayden, New York City (Hill, Rivkins, Carey, Loesberg & O’Brien, J. Edwin Carey, New York City, of counsel), for defendant-appellant.
    Donald M. Waesche, Jr., New York City (Bigham, Englar, Jones & Houston, New York City), for plaintiff-appellee.
    Before KAUFMAN, Chief Judge, andSMITH and TIMBERS, Circuit Judges.
   PER CURIAM:

This is an appeal from an order of the United States District Court for the Southern District of New York in admiralty, Whitman Knapp, Judge, allowing prejudgment interest. 369 F.Supp. 474 (S.D.N.Y.1974). The action arose out of the stranding of appellee’s vessel. The district court found that the stranding was caused by the negligence of both parties, appellant’s flotilla having fouled and displaced a buoy and appellee’s vessel having been navigated negligently and at excessive speed, and therefore made an equal division of damages, allowing appellee to recover $280,000. It also awarded appellee prejudgment interest, stating that it did so reluctantly in view of its finding that appellee’s negligence was substantial, whereas appellant’s negligence had been “just about” established. The court felt compelled to reach this conclusion in light of this court’s decision in The Wright, 109 F.2d 699 (2d Cir. 1940): It read The Wright as so limiting an admiralty court’s discretion that it is required to grant prejudgment interest in all cases except those situations — not present here — where there is either inordinate delay in filing the action or a mutual fault collision in which both parties are damaged. We hold that the court construed the scope of its discretion too narrowly, and we therefore reverse and remand for reconsideration.

The court’s interpretation of The Wright is perhaps plausible enough in light of the language of that decision alone, but in two subsequent cases we have given broader scope to the discretion of district courts in awarding prejudgment interest. Afran Transport v. The Bergechief, 285 F.2d 119 (2d Cir. 1960) (per curiam); Lady Nelson, Ltd. v. Creole Petroleum Corp., 286 F.2d 684 (2d Cir. 1961). In Afran Transport we noted that, although under The Wright prejudgment interest is not usually awarded in mutual fault collision cases, a district court might nonetheless award it in the exercise of its discretion if the party to whom it is awarded is only slightly at fault, in order to ameliorate the harshness of the equal division of damages rule. 285 F.2d at 120. By similar reasoning, in a case such as this, in which under The Wright an award of prejudgment interest would normally be made, the district court has discretion to deny such interest where the party to whom it would be awarded is substantially at fault.

Since the court excessively limited the scope of its discretion, we reverse and remand for that court, after hearing counsel, to reconsider the issue within the proper scope of its discretion.

Reversed and remanded.

      . The district judge’s emphasis on whether one or both parties are injured, however, is undercut by the citation in The Wright, 109 F.2d at 702, of The Itasca, 117 F. 885, 892 (S.D.Ga.1901), a mutual fault collision case in which only one party was damaged.


author: PER CURIAM.

text:
    Russell L. SWARTHOUT, Plaintiff-Appellant, v. MICHIGAN BELL TELEPHONE COMPANY, Defendant-Appellee.
    No. 74-1226.
    United States Court of Appeals, Sixth Circuit.
    Decided Oct. 22, 1974.

      Russell L. Swarthout, Edward V. Boggs, Detroit, Mich., for plaintiff-appellant.
    Addison D. Connor, Butzel, Long, Gust, Klein & Van Zile, Detroit, Mich., for defendant-appellee.
    Before WEICK, CELEBREZZE and PECK, Circuit Judges.
   PER CURIAM.

The district court granted appellee’s motion for summary judgment on the ground that the statute of limitations bars appellant’s claim that between January, 1963, and April, 1968, appellee intercepted, divulged or published certain of appellant’s telephonic communications in violation of 47 U.S.C. § 605 (1970). Even assuming, without deciding, that appellant properly pleaded the Michigan fraudulent concealment statute, Mich. Comp. Laws Ann. § 600.5855 (1968), and that appellant had no reason to discover his claim prior to December, 1968, we affirm.

The Federal Communications Act provides for a one-year statute of limitations on claims, other than those for overcharges, against carriers. 47 U.S.C. § 415(b) (1970). See Chaps v. Michigan Bell Tel. Co., No. 20,476 (6th Cir. filed Jan. 8, 1971); see also Ward v. Northern Ohio Tel. Co., 381 F.2d 16 (6th Cir. 1967), aff’g 251 F.Supp. 606 (N.D.Ohio 1966). Assuming that appellee fradulently concealed appellant’s claim until December, 1968, and assuming that such fraudulent concealment tolled the one-year statute of limitations (compare Louisville & Nashville R.R. v. Disspain, 275 F.2d 25 (6th Cir. 1960) with United States v. Borin, 209 F.2d 145 (5th Cir.), cert. denied, 348 U.S. 821, 75 S.Ct. 33, 99 L.Ed. 647 (1954)), the period of the statute still would have expired in December, 1969, more than three months prior to appellant’s filing of his claim.

We reject appellant’s attempted use of the Michigan fraudulent concealment statute to avoid appellee’s statute of limitations defense. Using such a state statute would defeat the national uniformity Congress intended in enacting the one-year statute of limitations. See Burnett v. New York Central R.R., 380 U.S. 424, 85 S.Ct. 1050, 13 L.Ed.2d 941 (1965), rev’g 332 F.2d 529 (6th Cir. 1964); Prather v. Neva Paperbacks, Inc., 446 F.2d 338 (5th Cir. 1971); Hale v. Ralston Purina Co., 432 F.2d 156, 158 (8th Cir. 1970).

Affirmed.


author: ESTES, Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. The STATE OF CALIFORNIA et al., Defendants-Appellants. and James Coan and the California State Employees’ Association, Intervenors-Appellants.
    Nos. 9-13, 9-14.
    Temporary Emergency Court of Appeals.
    Sept. 19, 1974.
    Rehearing Denied Nov. 12, 1974.

      Talmadge R. Jones, Deputy Atty. Gen. of Cal., Sacramento, Cal. (Evelle J. Younger, Atty. Gen., and Willard A. Shank, Asst. Atty. Gen., with him on the brief), for defendants-appellants.
    Loren E. McMaster, California State Employees’ Assn., Sacramento, Cal., for intervenors-appellants.
    William C. White, Dept, of Justice, Washington, D. C. (Carla A. Hills, Asst. Atty. Gen., Department of Justice, New York City, with him on the brief), for plaintiff-appellee.
    Before CARTER, CHRISTENSEN and ESTES, Judges.
   ESTES, Judge.

This is an appeal under Section 211 of the Economic Stabilization Act of 1970, as amended (the Act), by defendants from an order of the United States District Court for the Eastern District of California granting plaintiff, the United States of America, a preliminary injunction forbidding defendant California to pay wage and salary increases which were disallowed by order of the Cost of Living Council (CLC) issued August 29, 1973 during the existence of the Economic Stabilization Program.

On June 30, 1973 the Governor of .the State of California signed into law the California State Budget Act of 1973, which was to become effective on- July 1, 1973. This legislation provided for pay increases varying from 6.8 to 11.3 percent for various state employees for the period of July 1973 through June 1974. The CLC challenged the amount of the increases and, after receiving submissions from the parties and holding a hearing, on August 29, 1973 issued its decision and order allowing the 6.8 percent increases but limiting the other in-: creases to seven percent. A formal request for review was filed by defendant State of California and denied by the CLC on February 1, 1974. Throughout these proceedings California and its officials have refrained from paying out the disallowed portions of the legislated increases.

On July 12, 1973 defendants-intervenors James Coan and the California State Employees’ Association (CSEA) sued California in the California Supreme Court, seeking a writ of mandate which would direct the state officials to pay the entire increases. On April 19, 1974 the California Supreme Court filed its decision directing the state officials to comply with the State Budget Act. Coan v. State of California, 11 Cal.3d 286, 113 Cal.Rptr. 187, 520 P.2d 1003 (1974). That decision became final and effective on May 19, 1974. The Economic Stabilization Program ended on April 30, 1974, except as saved by Section 218 of the Economic Stabilization Act or by the general saving statute, 1 U.S.C. § 109. See infra.

On May 8, 1974 the United States filed its complaint in federal court seeking injunctive relief to enjoin California from implementing the State Budget Act in disregard of the August 29, 1973 order of the CLC. After permitting James Coan and CSEA to intervene as parties defendant, the district court on May 17, 1974 issued its order granting the preliminary injunction sought. On June 17, 1974. the defendants filed with this Court separate notices of appeal, which were consolidated for appellate consideration.

Appellants first argue that the Economic Stabilization Act was not intended by Congress to be applied to states, and that even if such intention is found, the Act cannot be applied to the states under the Commerce Clause so as to regulate the exercise of powers reserved to the states under the Tenth Amendment, when such exercise has no rational connection with interstate commerce. Appellants would thus have this Court adopt the reasoning of Coan v. State of California, supra, and Fry v. Ferguson, 34 Ohio St.2d 252, 298 N.E.2d 129 (1973). This Court has, however, resolved these issues in favor of Congress’ intent and power to regulate wages paid and charges received by states. Murphy v. O’Brien, 485 F.2d 671 (Em.App.1973); United States v. State of Ohio, 487 F.2d 936 (Em.App.1973), cert. granted sub nom. Fry v. United States, 415 U.S. 912, 94 S.Ct. 1406, 39 L.Ed.2d 466 (1974).

Second, appellants state that the subject matter jurisdiction of the district court and this Court is the principal inquiry on this appeal. This action was filed on May 8, 1974, one week after the expiration of economic controls. Section 218 of the Economic Stabilization Act provides as follows:

The authority to issue and enforce orders and regulations under this title expires at midnight April 30, 1974, but such expiration shall not affect any action or pending proceedings, civil or criminal, not finally determined on such date, nor any action or proceeding based upon any act committed prior to May 1, 1974.

The August 29, 1973 decision and order of the CLC forbids the state to pay a wage and salary increase in excess of seven percent for the period in question. However, by the explicit terms of Section 218, the CLC and the courts have lost their authority to enforce the order on April 30, 1974, unless one of the two stated exceptions of Section 218 is applicable, or unless such authority is extended by the general saving statute, 1 U.S. C. § 109.

Before discussing in detail the specific arguments of the Government as to how these exceptions might be held to apply, it is helpful to consider the judicial interpretation of “saving clauses” other than Section 218. In Talbot v. Woods, 164 F.2d 493 (Em.App.1947), the Emergency Court of Appeals considered Section 1(b) of the Emergency Price Control Act of 1942, which read in pertinent part as follows:

The provisions of this Act, and all regulations, orders, price schedules, and requirements thereunder, shall terminate on June 30, 1947 * * *; except that as to offenses committed, or rights or liabilities incurred, prior to such termination date, the provisions of this Act and such regulations, orders, price schedules, and requirements shall be treated as still remaining in force for the purpose of sustaining any proper suit, action, or prosecution with respect to any such right, liability, or offense.

Judge Magruder, writing for a unanimous court, observed that Section 1(b), permitting “suit, action, or prosecution” to be maintained, “obviously refers to civil and criminal enforcement proceedings predicated upon past violations alleged to have been committed while the Act and regulations thereunder were still in effect . . . .” 164 F.2d at 496 (emphasis added). Since it was undisputed that there was no pending civil or criminal enforcement action based on a past violation of an order, a judgment was entered ordering the dismissal of the complaint for lack of jurisdiction. In accord, see Standard Kosher Poultry v. Clark, 163 F.2d 430 (Em.App.1947).

In Stanolind Oil & Gas Co. v. Freehill, 205 F.2d 305 (Em.App.1953), Stanolind and others sought review of an order of. the Director of Price Stabilization which fixed the ceiling price of natural gas produced from an oil field in which the plaintiffs held an interest. Subsequent to the filing of the complaint, the Director issued an order exempting sales of natural gas from price ceilings. The Emergency Court of Appeals, interpreting the Defense Production Act of 1950, held that the complaint would be dismissed because the plaintiffs made “no claim that they have violated any of the provisions of the regulations or orders at issue in suit, or that they are subject to enforcement action therefor; nor that there is any enforcement suit pending or contemplated for any such violation.” 205 F.2d at 306 (emphasis added).

In Allen v. Grand Central Aircraft Co., 347 U.S. 535, 74 S.Ct. 745, 98 L.Ed. 933 (1953), the United States Supreme Court considered the saving clauses of the Stabilization Act of 1942 and the Defense Production Act of 1950. The Court found the provisions to be without any material difference, and held that the language of the 1950 statute “should receive the same construction now that was placed on similar language in the [Stabilization] Act of 1942.” 347 U.S. at 551, 74 S.Ct. at 754. In addition, the Court applied the general saving statute, 1 U.S.C. § 109, which provided in pertinent part as follows:

The expiration of a temporary statute shall not have the. effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the temporary statute shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability.

The Court decided that the “precise object of the general savings statute is to prevent the expiration of a temporary statute from cutting off appropriate measures to enforce the expired statute in relation to violations of it, or of regulations issued under it, occurring before its expiration.” 347 U.S. at 554-555, 74 S.Ct. at 756 (emphasis added).

In response to this consistent line of authority, the Government is able to cite no cases which would permit it to bring this suit after the expiration date of the Act to enjoin California from now taking the action it properly refrained from taking during the existence of the Act. Nevertheless, the Government argues that this case can be brought within the exceptions to Section 218. This contention must be considered in light of two important rules of statutory construction: 1) jurisdictional statutes are to be strictly construed. “[I]n construing a definite procedural provision we do well to stick close to the text and not import argumentative qualifications from broad, unexpressed claims of policy.” Utah Junk Co. v. Porter, 328 U.S. 39, 44, 66 S.Ct. 889, 892, 90 L.Ed. 1071 (1946); 2) exceptions to the general provisions of a statute are also to be strictly construed. See United States v. First City National Bank, 386 U.S. 361, 87 S.Ct. 1088, 18 L.Ed.2d 151 (1967).

The first exception to the general expiration provision of Section 218 is expressed by the clause: “ . such expiration shall not affect any action or pending proceedings, civil or criminal, not finally determined on such date . . . .” The Government suggests two ways in which this exception might apply here. First, it is argued that there is a pending civil proceeding, in that California and CSEA had submitted themselves to the jurisdiction of the federal district court in Civil Action No. S74-17, which was filed before the expiration of controls. That action was brought by California against the CLC to obtain judicial review of the CLC’s August 29, 1973 order. If this Court were to hold that by doing so California submitted itself to a continuing jurisdiction that was not available for enforcement against those employers who did not seek such review, then our decision would be in effect a penalty visited upon California solely because it exercised its statutory right to judicial review of the CLC’s order. It seems beyond cavil that California’s filing of the judicial review proceedings is not the kind of “pending proceeding” that the Government can use as a justification for bringing this suit. In any event, we would ignére the clear and consistent prior interpretation of “pending proceeding” as meaning “pending enforcement proceeding” were we to justify jurisdiction here on the basis of California’s assertion of its right to judicial review. Secondly, the Government asserts that the administrative proceedings through which the CLC prevented the payment of the wage increases during the existence of the Act “can reasonably be considered to be a ‘proceeding’ not finally determined by May 1, 1974.” Appellee’s Brief at 15. This argument is clearly without merit. California exhausted its available administrative review procedures on February 1, 1974, and remained in strict compliance with the final CLC order. There are no longer any pending administrative proceedings.

The second exception to the general expiration provision of Section 218 is that “such expiration shall not affect . . . any action or proceeding based upon any act committed prior to May 1, 1974.” This provision is clearly designed to allow the initiation of proceedings after the expiration date of the Act, so long as such proceedings are based upon an act committed before expiration. The Government points to four acts which it argues are sufficient to sustain the application of the second exception. None of those acts, however, constituted violations of the Act, regulations, or the CLC’s order such that they could be the basis for a civil or criminal enforcement proceeding. Indeed, the Government admitted in its complaint that “[a]t all times defendants herein have complied with said Decision and Order and have not paid out any salaries or wages in excess of said Decision and Order.” R. at 3. During the period in question, Phase III voluntary controls were in effect. Therefore, only payment of wages in violation of a CLC order could constitute an act in violation of the Act.

The first act mentioned by the Government, the passage of the State Budget Act, could obviously never be a violation of the Act or the subject of an enforcement proceeding. The act which, had it occurred, could have been the subject of such proceedings was the implementation of the State Budget Act by paying the wage and salary increases, after they had been successfully challenged, to the state employees. The CLC order prevented this implementation, and it cannot be said that the mere passage of a law by the state government is such an act as is contemplated by Section 218.

The second act advanced by the Government is the administrative proceedings through which the CLC prevented the implementation of the State Budget Act. These proceedings were initiated by the CLC, not California, and are not acts of California except to the extent that California filed a request for review, which was its statutory right. Even if they were considered to be acts of California, these proceedings are not acts upon which any action or proceeding for enforcement could be based.

The third act suggested by the Government is the threat made by California to pay out the wage and salary increases. However, there is no indication whatever in the record that any threat was made before the expiration date. In paragraph 2 of the Findings of Fact, filed June 25, 1974, almost two months after the expiration date, the district court stated that defendants “now threaten to pay out the disallowed wage and salary increases on May 20, 1974 or as soon thereafter as possible .” (emphasis added). The decision in Coan v. California, supra was to become final on May 19, 1974, and defendants faced the possibility of being in contempt of the' California Supreme Court after that date. The California Supreme Court’s decision was effectively restrained by the issuance of the preliminary injunction in this case on May 17, 1974. At any rate, it is the undisputed finding of the district court that the threat made was a threat to pay the amounts on May 20, 1974, and nothing in the record suggests that this threat was. made before the expiration date. Moreover, as discussed infra (see note 11), any prohibitions against agreements to pay were eliminated by Executive Order No. 11695.

The fourth act is the filing of the separate federal court civil action by California. That action was not brought by the Government as a civil or criminal enforcement proceeding. At any rate, as discussed above, the filing of such a judicial review action was California’s statutory right, and was not such an act as would now support the bringing of an enforcement proceeding by the Government.

In supplemental memoranda requested by the Court after oral argument, the parties have briefed the question of the applicability vel non of United States v. I.B.E.W. Local 11, 475 F.2d 1204 (Em. App.1973), which was not cited by any of the parties. Having duly considered the matter, we are of the opinion that the decision is not relevant here. In I. B.E.W. the defendant union entered into wage agreements which provided for increases in excess of those permitted by the Phase II mandatory wage regulations. The agreements were entered into without obtaining the prior affirmative approval of the agency, as required by the regulations. After the agency reviewed the proposed increases and disapproved a portion of them, the defendant union and employers entered into agreements to escrow the disapproved portions and pay them “at such times, as they may legally do so.” This Court affirmed the issuance of injunctions against such conduct.

Section 218 was not at issue in I.B.E. W. The only analogy that can be made between the cases is to argue that to permit California to pass the State Budget Act during controls, and then to delay its implementation until after the expiration of controls, is to allow California to pursue the same type of conduct which was forbidden by the agency and this Court in I.B.E.W. This superficial similarity between the cases disappears upon close examination. In I.B.E.W. the illegal escrow agreement was entered into after the negotiated wage increases had been disapproved; in this case the CLC did not challenge the proposed increases until after the State Budget Act had been enacted and was scheduled to be implemented. In I.B.E.W. it was illegal under the Phase II mandatory controls to pay or to agree to pay amounts higher than those specified in the regulations. In this case, the Phase III guidelines as to permissible wage increases were voluntary and adjustable for certain factors; the only way that the regulations could be violated was to pay an increase which had already been challenged and specifically disapproved by the agency. In I.B.E.W. there were official circulars and question-and-answer sheets published by the agency which clearly stated that escrow agreements of the type entered into by I. B.E.W. were illegal; in this case the increases legislated by California were permissible under the provisions of the Phase III regulations until they were later challenged and disapproved by the CLC. In summary, in I.B.E.W. the union violated mandatory controls and specific agency orders; in this case California, acting under voluntary controls, has admittedly violated no agency regulation or order.

Since neither of the exceptions to Section 218 is applicable to these circumstances, a judgment will be entered ordering the dismissal of the complaint for lack of jurisdiction.

So ordered.

      . During the times material to the matters in controversy, the largely voluntary wage controls of Phases III and IV. which had been initiated by Executive Order No. 11695 of January 11, 1978, were in effect. The mandatory Phase 11 general standards as to permissible wage or price increases served thereafter merely as flexible general guidelines. For legislative history describing these phases, see S.Rep. 93-63, in U.S. Code Congressional and Administrative News, 93d Cong., 1st Sess., at 1299-1326.

      . California Statutes 1973, ch. 129.

      . By special legislation, funds necessary to implement the act are currently held in trust by the Director of the Department of Finance. California Statutes 1973, ch. 1136.

      . An earlier federal action, in which California sought an injunction against enforcement of. the CBC’s order and a declaratory judgment that the Act and regulations could not be applied to California, is apparently still pending. California v. United States, C.A. No. S74-17 (E.D.Cal., filed Jan. 11, 1974). In its brief at 6-7, California states that in Civil Action No. S74-17, California is
      seeking to restrain enforcement of the Council’s Decision and Order by a writ of injunction and to obtain a judgment declaring the Act and regulations unconstitutional as applied to the State of California. See § 211, Economic Stabilization Act. Among other allegations, the State raised the issues of whether Congress intended the Economic Stabilization Act to apply to the States and, if so, whether Congress had the constitutional authority to impose economic controls over State wages and salaries in light of sovereignty guaranteed to the States under the Tenth Amendment to the United States Constitution.
      At oral argument, the Government argued that jurisdiction could be based on the “pending proceeding” in California v. United States, supra. Clearly, the “pending proceeding” upon which jurisdiction of this Court is to be founded must be the proceeding before it and not another case, even if based on similar facts. We do not, however, reach the issue raised by counsel as to whether jurisdiction is proper in that case.

      . The saving clause of the Defense Production Act of 1950, 50 U.S.C. (App.) § 2156(b), provided in pertinent part as follows :
      The termination of the authority granted in any title or section of this Act, or of any rule, regulation, or order issued thereunder, shall not operate to defeat any suit, action, or prosecution, whether theretofore or thereafter commenced, with respect to any right, liability, or offense incurred or committed prior to the termination date of such title or of such rule, regulation, or order.

      . A similar conclusion was reached by the First Circuit in Bryne v. United States, 218 F.2d 327 at 335 (1st Cir. 1955), in which Judge Magruder, writing for the court, stated :
      It is true that the saving clause in the Defense Production Act is expressed in somewhat different phraseology from the saving clause in the Emergency Price Control Act of 1942. Despite this change in phraseology, the Emergency Court of Appeals has assumed, we think correctly, that no difference in effect was intended. Haldeman Creamery, Inc. v. Kendall, Em.App.1953, 208 F.2d 360, 363, 364; Lambert’s Point Docks, Inc. v. Kendall, Em.App.1954, 215 F.2d 455.

      . The Court applied the general saving statute because it could “find no express, or even implied, provision in the [Defense Production] Act [of 1950] contrary to the policy of the general savings statute.” 347 U.S. at 554, 74 S.Ct. at 756.

      . See note 4, supra.

      . The district court found, in paragraph It of the Findings of Fact, that the following acts were committed by California:
      Within the context of the Economic Stabilization Act of 1970, as amended in 1971 and 1973, the acts committed include, but are not limited to: the enactment of the California Budget Act of 1973; the resulting challenges by the Cost of Living Council ; the Decision and Orders of the Cost of Living Council; defendants’ petitions for reconsideration; the filing of lawsuits by defendants in State and Federal Courts; defendants’ threats to pay out the disallowed wage and salary increases.

      . See note 1, supra.

      . Section 1(a) of Executive Order 11640 (issued on January 27, 1972 under the authority of Public Law 92-210, 8.5 Stat. 743, •December 22, 1971) provided that:
      * * * no person shall, directly or indirectly, pay or agree to pay, in any transaction, wages or salaries in any form, or to use any means to obtain payment of wages and salaries in any form, higher than those permitted hereunder, whether by retroactive increase or otherwise. (Emphasis added.)
      Also, 6 C.F.R. § 201.41 (37 F.R. 24960, November 23, 1972). of the Pay Board regulations provided in pertinent part:
      (a) In general. Except as provided in paragraph (b) of this section, it shall be a violation of the provisions of t'. is chapter, subject to the sanctions, fines, penalties, and other relief provided in the Act, for any person to—
      (1) Payment. Pay, directly or indirectly, immediately or on a deferred basis, any portion of a wage and salary increase not authorized by the provisions of this chapter or by decision or order of the Pay Board or its delegate ;
      (2) Receipt. Receive or accept, directly or indirectly, any portion of a wage and salary increase not authorized by the provisions of this chapter or by decision or order of the Pay Board or its delegate;
      (3) Accessorial acts or attempts. Induce, solicit, encourage, force, or require, or attempt to induce, solicit, encourage, force, or require, any other person to pay or to receive, directly or indirectly, any portion of a wage and salary increase not authorized by the provisions of this chapter or by decision or order of the Pay Board or its delegate . . . (Emphasis added.)
      By Executive Order No. U695, 38 F.R. 1473 (January 12, 1973), however, the President moved the Stabilization Program into what is commonly known as Phase III. Because economic controls were thereby made voluntary and self-administering, it was no longer a violation of the Act to agree to pay or induce and require to be paid wages in excess of CLC guidelines.