dissenting:
Despite the majority’s extensive and complex opinion, the questions in this case are quite straightforward. Section 23 of the Federal Power Act, 16 U.S.C. §§ 816-817 (1982) (FPA or Power Act), states that no person may operate a dam on navigable waters of the United States without being licensed under the FPA. There is an exception to this requirement: a person need not be licensed if he obtained a right-of-way to build the dam before the FPA became effective in 1920.
Petitioner Washington Water Power Company (Washington Power or the Company) operates a dam at the Little Falls section of the Spokane River in Washington state. The Company claims that it is not required to obtain a license under the FPA for two reasons. First, it contends that the Spokane River was not navigable at the time the dam was built (1908-11), and so the FPA by its terms does not apply. Second, Washington Power argues that even if the FPA is applicable, the dam was built pursuant to a valid right-of-way given by a special statute in 1905 (the 1905 Act). (The Company bought the right-of-way from David Wilson, the original grantee under the 1905 Act). This, the Company claims, brings it within the exception outlined in § 23 of the FPA.
The Federal Energy Regulatory Commission (FERC or the Commission) rejected these arguments and ordered the Company to apply for a license. Washington Water Power Co., 15 F.E.R.C. (CCH) ¶ 61,039 (1981). The Commission also rejected Washington Power’s claim that FERC was barred from imposing the license requirement by collateral estoppel.
In deciding whether to uphold the Commission’s decision that the Little Falls dam should be licensed, this court must answer three relatively simple questions. First, is Washington Power beyond the jurisdiction of the Commission and the Federal Power Act if the Spokane River was not navigable at the time the dam was built? Second, did the right-of-way given to the Company by the 1905 Act include the right to build a dam? Third, is FERC now barred by collateral estoppel from requiring Washington Power to apply for a license?
Because I believe that all these questions should be answered negatively, I would uphold the FERC decision.
A. Scope of the Federal Power Act
The first question is whether the FPA applies to the dam on the Spokane River at all. There is no question that the river is now a navigable waterway. The majority, however, feels that because it was not navigable when the dam was built (I will assume, arguendo, that this is true), or in 1920 when the FPA was passed, that the Little Falls project is not covered by the terms of the Power Act. This approach has two flaws: it is an overly restrictive interpretation of the statute’s scope, and it ignores the other sections of the FPA that give the Commission jurisdiction.
The majority undertakes an exhaustive examination of the evidence as to whether the river was navigable either when the dam was built or when the Power Act was passed. I think this discussion misses the point; the case law in this circuit makes it plain that FERC’s jurisdiction is not as constrained as the majority assumes. In Pennsylvania Water & Power Co. v. Federal Power Commission, 123 F.2d 155, 162 (D.C.Cir.1941), cert. denied, 315 U.S. 806, 62 S.Ct. 640, 86 L.Ed. 1205 (1942), a dam owner on the Susquehanna River refused to apply for a statutory permit to continue his operations. He argued, inter alia, that he had built the dam in reliance on the Secretary of War’s determination that the river was not navigable. After finding that the river was currently navigable, the court said that the Commission’s control over the nation’s waterways was “continuing in nature,” adding “[i]t cannot be considered, we think, that Congress [in § 23 of the FPA] meant to allow existing obstruc*338tions to continue unregulated in the navigable streams of the United States.” Id. at 162, 163. Because it is conceded by all parties in this case that the Spokane River is navigable today, see maj. op. at 332, an earlier finding of non-navigability will not defeat the Commission’s jurisdiction under the Power Act.
The majority’s attempt to distinguish Pennsylvania Water by saying that PERC’s jurisdiction will only reach new projects on the Spokane River is unpersuasive. It ignores the language of § 23 which says that a person may not build or maintain a dam on a navigable river without a license. Because the Spokane is now navigable, the dam at Little Falls must be maintained in compliance with the statute, despite any earlier findings of non-navigability. The majority’s effort to restrict jurisdiction to a previous state of nature is as antediluvian as it sounds. Such a concept would make it impossible for Congress to protect and regulate our inland waterways, because many portions of such waterways at one time or another were non-navigable. This parsimonious measure, given the grand design of a national system of waterways, treats our rivers as if they were backyard wading pools.
Even if the river’s current navigability did not give the Commission jurisdiction, there are independent grounds for finding that the Power Act applies. Section 23(b) of the FPA gives FERC jurisdiction over a dam or electric facility if it is on “any part of the .... reservations of the United States.” 16 U.S.C. § 817 (1982). See Federal Power Commission v. Oregon, 349 U.S. 435, 75 S.Ct. 832, 99 L.Ed. 1215 (1955) (acts relating to water appropriation do not limit Commission’s right to license water power project on government reservation). A “reservation” is defined by § 3(2) of the FPA to mean any interest in land owned by the United States. 16 U.S.C. § 796(2) (1982).
In this case there is no dispute that the United States has a reversionary interest in the land along the north bank of the Spokane; Washington Power has title to the land for so long as it is used for generating electricity. See 15 F.E.R.C. (CCH) 11 61,039 at 61,070-71. Should the Power Company stop using the land for this purpose, title would revert to the government. This is not, as the majority suggests, a determination that Washington Power no longer has good title to the land. It only means that the government has a reversionary interest in the event of non-use, and that this interest gives FERC jurisdiction.
A final reason that the FPA applies to petitioner’s dam is that it operates along with other, licensed projects to form an “integrated unit of development.” It is well settled that the Commission may license projects, even those on non-navigable rivers, if they affect interstate commerce. Federal Power Commission v. Union Electric Co., 381 U.S. 90, 85 S.Ct. 1253, 14 L.Ed.2d 239 (1965). There was testimony before the Administrative Law Judge below that strongly supports the notion that the Little Falls dam is part of a larger network of generating plants that sells power both intra- and interstate. One witness testified, for example, that the Company controlled water releases from the entire Spokane River development to enhance the generation at Little Falls. See generally Washington Water Project, 48 F.P.C. 339, 340 (1972). Congress’s powers over interstate commerce are broad enough that FERC may license all projects that affect it, whether the river is navigable or not. See Niagara Mohawk Power Corp., 4 F.E.R.C. (CCH) ¶ 61,009 (1978) (eight projects licensed as one unit).
The majority’s response to these bases for jurisdiction is to dismiss them with the wave of its hand. In a footnote it says that because a finding that the Power Act applied in this case would “affect” the Company’s rights (which is prohibited by FPA § 23(a)), that the statute must not apply. Maj. op. at 63 n. 30. But this argument is logically flawed: it assumes that the Commission may not require the Company to obtain a license; since Washington Power does not have to obtain a license, any change requiring it to do so would “affect” *339its right-of-way; therefore (the reasoning goes) the Company must not be required to obtain a license, and so the FPA must not apply. But if, as I suggest below, the Company was not granted a right to build a dam by the 1905 Act, then FERC jurisdiction cannot be defeated on the ground that requiring a license would affect the Company’s rights. In fact, not to require a license would enlarge the rights now enjoyed by Washington Power; this is also prohibited by § 23(a).
Whether the 1905 Act did or did not grant the right to build a dam is a separate question from whether the Federal Power Act applies in the first instance. Whether FERC has jurisdiction under the Power Act cannot be determined by begging the question of petitioner’s rights, and then rejecting all claims that would somehow affect those rights.
Because FERC has continuing jurisdiction over the nation’s rivers, because part of the Little Falls project is on a United States reservation, and because the dam is part of a network that affects interstate commerce, I believe that the Federal Power Act applies to this case. So the crucial question becomes whether the Little Falls project fits within the exception to the licensing requirement: specifically, did the 1905 Act include the right to build a dam?
B. The 1905 Act
If the 1905 Act gave the right to dam the river, then petitioner is not required to obtain a license under § 23(b) of the Power Act. This subsection provides that no license is required if a person operates a dam in accordance with a valid right-of-way granted before 1920, the year the FPA went into effect.
We begin with the language of the Act. The 1905 Act gave the grantee the right to “use” the waters of the Spokane. Depsite the majority’s assurances, I am not convinced that the plain meaning of “use” includes the right to build a dam. “Use” could mean “consume and occupy” the river waters, in which case a dam would certainly be included; on the other hand it could just mean “consume.” The majority repeatedly points out that the purpose of the statute was to encourage electric power production, but this does not mean a fortio-ri that a dam was intended. As FERC noted in its opinion below, not all hydroelectric projects involve obstructing the river. 15 F.E.R.C. (CCH) 1161,039 at 61,078 n. 18. Creation of obstructions was normally discouraged in river legislation, and it is not as clear to me as it is to my colleagues that the Act on its face gives a grantee the right to construct a dam.
Because the language of the statute is ambiguous, we turn to the legislative history. Allen v. State Board of Elections, 393 U.S. 544, 570, 89 S.Ct. 817, 834, 22 L.Ed.2d 1 (1969). Although determining congressional intent is always an imperfect science, the fruits of the search are very specific in this instance. The precise question we face was asked and emphatically answered during the debate in Congress. As the majority notes, the following exchange took place:
Mr. Dalzell: How is the water power to be used, by dams in the river?
Mr. Jones: They will probably dam the river. This is a matter they are willing to take care of at some future time____
Mr. Dalzell: From what committee is this bill reported?
Mr. Jones: From the Committee on Indian Affairs. It simply affects Indian lands and provides means by which persons can acquire the permanent rights.
Mr. Lovering: Does it carry the right to dam the river?
Mr. Jones: Oh no, not at all. That matter, if it came up, would have to go to the Committee on Interstate and Foreign Commerce. They have to take their chances on that.
39 Cong.Rec. 2413 (1905) (emphasis added).
I do not know how the legislative intent could be clearer. The drafter of the bill, Mr. Jones, gave an unqualified answer to a very specific question — the 1905 Act does not give the right to construct a dam.
*340The majority strives mightily and unsuccessfully to twist the above language into something else. It speculates that when Mr. Lovering asked “Does it [the Act] carry the right to dam the river?”, he actually meant to say “Should this bill be considered by the Committee on Interstate and Foreign Commerce?” Maj. op. at 316-17. Its reasoning is that Mr. Lovering inquired about the proper committee because the Commerce Committee had jurisdiction over navigable waterways. Why this question should be asked (and why in this form) when only moments before Mr. Jones had said that the water was not navigable (and therefore did not have to be considered by the Commerce Committee), should cause the majority some problems.
The court also finds an irreconcilable conflict between the plain meaning of the statement that the bill gives no right to construct a dam, and Mr. Jones’ earlier statement that “[t]hey [the grantees] will probably dam the river ... at some future time.” To my mind the two statements are perfectly consistent. All the parties involved expected that whoever received the right to use the water would probably dam the river eventually. But the right to do so was not included in the bill; therefore, it is a matter the grantee would have to take care of “at some future time.” If the grantee or his assignee did wish to build a dam later, he would have to get specific permission from Congress; because the 1905 Act did not give this right, “[t]hey would have to take their chances on that.”
This interpretation gives the simple, obvious meaning to everything the Congressmen said. It is also consistent with the general rule that grants should be construed strictly in favor of the public and against the grantee. 3 C. Sands, Statutes and Statutory Construction § 60.02 at 81, § 64.05 at 120 (4th ed. 1974).
Once the proper meaning is given to the legislative history, the rest of the majority’s rationale loses much of its force. The court makes much ado, for example, about the effect of state law on the 1905 Act. The majority takes pains to point out that water needed to be appropriated under Washington law, and that Wilson, the original grantee, carefully took all the necessary steps. These points are not in dispute. There is no question that Wilson validly obtained all of the rights given by the 1905 Act. The question remains, though, as to the extent of the rights granted. Because only Congress could give permission to dam the waters on a federal reservation, the grantee’s compliance with state law only means that he received everything that the state could give him.
The fact that the Interior Secretary interpreted the statute to include the right to build a dam does not change the analysis. When the intent of Congress is as clear and unqualified as it is here, the actions of an enforcement officer cannot be allowed to override it. Morton v. Ruiz, 415 U.S. 199, 237, 94 S.Ct. 1055, 1075, 39 L.Ed.2d 270 (1974) (courts should not defer to agency interpretations that are inconsistent with congressional purpose); ITT World Communications, Inc. v. Federal Communications Commission, 725 F.2d 732, 741 (D.C.Cir.1984) (agency construction of statute should be accepted unless inconsistent with obvious congressional intent). It is ultimately for this court to decide what statutes mean, consistent with the legislative intent.
The common-sense interpretation of the 1905 Act does not, as the majority believes, make the statute void. Nothing in the Federal Power Act affects the right-of-way that was granted: the right to use the water and adjoining land. But because the legislative history makes it crystal clear that the Act did not give the right to construct a dam, FERC now has the authority to require that Washington Power obtain a license to operate the Little Falls project.
C. Collateral Estoppel
I also do not think that the Commission ‘is collaterally estopped in this case. Petitioner relies on United States v. Big Bend Transit Co., 42 F.Supp. 459 (E.D.Wash.1941), to support its claim that the govern*341ment is precluded from asserting that the 1905 Act only gave the right to use the water, not to dam it. In Big Bend the court assumed without actually deciding that the 1905 Act gave the respondent utility the right to build a dam. The Power Company argues that this case bars the government, through FERC, from relitigat-ing the question.
The policy behind the doctrines of res judicata and collateral estoppel is to prevent relitigation of issues that were, or should have been, previously tried. See 18 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 4403 (1981). One reason for this preclusion is to keep a party from being forced to go through the trouble and expense of relitigating a point it has already won. Id.; United States v. Mendoza, 464 U.S. 154, 104 S.Ct. 568, 78 L.Ed.2d 379 (1984). Although there is no longer a firm requirement of mutuality of parties between the two suits, Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980), a litigant seeking to invoke collateral estoppel must still show that
(1) the issue must have been actually litigated;
(2) the issue must have been “actually and necessarily determined by a court of competent jurisdiction” in the first trial; and
(3) preclusion in the second trial must not work an unfairness.
Jack Faucett Associates, Inc. v. American Telephone and Telegraph, 744 F.2d 118, 125 (D.C.Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 980, 83 L.Ed.2d 982 (1985), citing Otherson v. Department of Justice, INS, 711 F.2d 267, 273 (D.C.Cir.1983).
The points to be made in favor of collateral estoppel do not satisfy this three-part test. Although the Big Bend court obviously believed that permission to build a dam was included in the 1905 Act, 42 F.Supp. at 468, this determination was not necessary to the holding of the case. The court simply decided that in a condemnation proceeding, the value of the land along the Spokane included the value of the rights granted by the 1905 Act. Whether the right to construct a dam was included in the compensation owed to the land owner does not affect the question of whether the land should be valued for its potential as a power site, or for its current agricultural use. Because the question before us was not necessarily decided by the Big Bend court, collateral estoppel does not apply.
It also would be unfair to preclude a discussion of the main issue in this case. Although the United States was a litigant in the previous suit, and is present here through FERC, in fact the real party in interest is the Spokane Indian Tribe. It was the Indian Tribe that originally raised the argument that the Little Falls dam should be licensed in the proceedings below. Because the Indian Tribe did not have a chance to litigate the issue in Big Bend, it would be unfair now to bar the Tribe from fully pressing its claim.
Conclusion
I would affirm the Commission’s decision to require the Power Company to apply for a license for the Little Falls project. The words of the statute — the right to “use” the river — are ambiguous enough to justify an examination of the legislative history. This history makes it so clear that the right to dam the river was not granted by the 1905 Act, that the majority’s attempt to muddy the waters is a mystery. Our proper concern about excessive reliance on legislative history when the congressional intent is vague should not overwhelm us when the intent is clear. Because I think the majority has changed the intended meaning of the 1905 Act, I dissent.