Federal Power Commission v. Oregon
Opinion of the Court
delivered the opinion of the Court.
As in First Iowa Coop. v. Federal Power Commission, 328 U. S. 152, this case illustrates the integration of the federal and state jurisdictions in licensing water power projects under the Federal Power Act.
In 1949, the Northwest Power Supply Company of Portland, Oregon, applied to the Federal Power Commission for a license to construct, operate and maintain a hydroelectric plant, constituting Pelton Project No. 2030,
The Pelton Project is designed to include a concrete dam 205 feet high and a powerhouse containing three 36,000-kilowatt generators. It is to be built across the Deschutes River on reserved lands of the United States located below the junction of its Metolius and Crooked River tributaries.
Following extended hearings, the Commission’s presiding examiner recommended the license. After exceptions to that recommendation the Commission issued its opinion and an order granting the license. 10 F. P. C. 445, 450, 92 P. U. R. (N. S.) 247. The Commission found that a public need exists for the early completion of the project to meet a severe power shortage in the Pacific Northwest. It found also that the project is in the public interest, will provide for comprehensive development of the affected stretch of the Deschutes River, and will be consistent with further comprehensive development of that stream and of the Columbia Basin. It held that the improvements will contribute valuable public benefits which will not be available if the river is maintained in its present natural condition.
A rehearing being denied, the State and its agencies sought a review by the Court of Appeals for the Ninth Circuit and the Portland General Electric Company intervened. That court, with one judge dissenting, set aside the Commission’s order. 211 F. 2d 347. It recognized the necessity of a license from the Federal Power Commission but held that Congress, by its public lands legislation, long ago had transferred to the State of Oregon such control over the use of nonnavigable waters that the sponsor of the Pelton Project must secure also the permission prescribed by the State. We granted certio-rari because of the public significance of the issues but denied leave to the Portland General Electric Company to intervene here. 348 U. S. 868. 28 U. S. C. § 1254 (1); 49 Stat. 860-861, 16 U. S. C. § 825l (b). Several States filed briefs as amici curiae, usually adopting as their own the brief filed by respondents.
We divide our consideration of the issues into three parts.
I. Applicability op the Federal Power Act.
On its face, the Federal Power Act applies to this license as specifically as it did to the license in the First Iowa case. There the jurisdiction of the Commission turned
In the instant case the project is to occupy lands which come within the term “reservations,” as distinguished from “public lands.” In the Federal Power Act, each has its established meaning. “Public lands” are lands subject to private appropriation and disposal under public
There thus remains no question as to the constitutional and statutory authority of the Federal Power Commission
II. Inapplicability of the Desert Land Act of 1877 and Related Acts.
The State of Oregon argues that the Acts of July 26, 1866,
The nature and effect of these Acts have been discussed previously by this Court. The purpose of the Acts of 1866 and 1870 was governmental recognition and sanction
It is not necessary for us, in the instant case, to pass upon the question whether this legislation constitutes the express delegation or conveyance of power that is claimed by the State, because these Acts are not applicable to the reserved lands and waters here involved. The Desert Land Act covers “sources of water supply upon the public lands . . . .” The lands before us in this case are not “public lands” but “reservations.” Even without that express restriction of the Desert Land Act to sources of water supply on public lands, these Acts would not apply to reserved lands. “It is a familiar principle of public land law that statutes providing generally for disposal of the public domain are inapplicable to lands which are not unqualifiedly subject to sale and disposition because they have been appropriated to some other purpose.” United States v. O’Donnell, 303 U. S. 501, 510. See also, United States v. Minnesota, 270 U. S. 181, 206. The instant lands certainly “are not unqualifiedly subject to sale and disposition . . . .” Accordingly, it is enough, for the instant case, to recognize that these Acts do not apply to this license, which relates only to the use of waters on reservations of the United States.
III. Application op the Federal Power Act to This Project.
Finally, respondents question the discretion used by the Commission in granting the license. They point to
The first consequence is the inevitable variation in, or the temporary interruption of, the flow of the stream. The Commission is satisfied that it has overcome this objection by its provision for a reregulating dam. It has approved the technical features involved and the site for that dam will be acquired in accordance with the property laws of Oregon.
There remains the effect of the project upon anadro-mous fish which use these waters as spawning grounds. All agree that the 205-foot dam will cut off access of some fish to their natural spawning grounds above the dam and that such interruption cannot be overcome by fish ladders.
The care given to the preparation of this conservation program and the large investment to be made in it are impressive. It also is of interest that the Fish Commission of Oregon already is operating somewhat comparable but smaller facilities of this kind on the Metolius River.
One argument against the project goes beyond the need to conserve the existing fish population. It is argued that the project will preclude the carrying out of certain plans for the Columbia River Basin which contemplate greatly enlarging the fish population in the Deschutes River area, by concentrating there other runs of fish not now using that river. While such an argument may properly be directed to the Federal Power Commission or to Congress, it is not one for us to answer upon the basis of existing legal rights.
We conclude, therefore, that, on the facts here presented, the Federal Power Act is applicable in accordance with its terms, and that the Federal Power Commission has acted within its powers and its discretion in granting the license now before us.
The judgment of the Court of Appeals, accordingly, is
Reversed.
41 Stat. 1063, as amended, 49 Stat. 838, 16 U. S. C. §§ 791a-825r.
Fish ascending rivers from the sea for breeding purposes. In this instance, especially salmon and steelhead trout. For an outline of the general problem presented, see Schwartz, Federalism and Anadromous Fish, 23 Geo. Wash. L. Rev. 535.
In 1924, the Columbia Valley Power Company, Inc., had applied to the Federal Power Commission for a license to develop Pelton Project No. 57 at substantially the same site. That license was issued but, due to the licensee’s failure to proceed with construction as required by the Commission, it was canceled in 1936.
The Deschutes River is entirely within the State of Oregon. It drains the eastern slope of the Cascade Range and flows northward, across the lands of the United States here involved, to the Columbia River, which it meets about 15 miles above The Dalles. The Commission has made no findings as to its navigability or as to the relation between its flow and the navigability of other streams. Throughout its lower 130 miles, which include the project site, it flows in a narrow canyon with an average fall of 17.6 feet per mile and, apparently, it is generally recognized as incapable of sustaining navigation. Accordingly, throughout this litigation, the river has been treated by all concerned as not constituting “navigable waters” of the United States as defined in § 3 (8) of the Federal Power Act, 49 Stat. 838, 16 U. S. C. § 796 (8). We do not pass either upon that question or upon the relationship to interstate commerce of the proposed use of the waters of the river.
The Warm Springs Indian Reservation was established by the Treaty of June 25, 1855, with the Indians in Middle Oregon. Ratified by the Senate March 8, 1859, and proclaimed by the President April 18, 1859, it secured to the Indians “the exclusive right of taking fish in the streams running through and bordering said reservation . . . .” 12 Stat. 963, 964. Oregon has recognized that it is
Indian Power Site Reserve No. 2 was created November 1, 1910, and Indian Power Site Reserve No. 294 was created October 8, 1913, both by the Secretary of the Interior under an Act of June 25, 1910, 36 Stat. 855, 858.
Power Site Reserve No. 66 was created December 30, 1909, by the Secretary of the Interior and made permanent by an Executive Order of July 2, 1910, under an Act of June 25, 1910, 36 Stat. 847. In addition, a reservation occurred in connection with the application made to the Federal Power Commission, in 1924, for a license for Pelton Project No. 57. Comparable withdrawals were made in 1949 and 1951 in connection with the present application. See § 24 of the Federal Power Act, 41 Stat. 1075-1076, and amendments, 16 U. S. C. § 818.
“(44) Under present circumstances and conditions, and upon the terms and conditions hereinafter provided in the license, the project is best adapted to a comprehensive plan for the improvement and utilization of water-power development, for the conservation and preservation of the fish and wildlife resources, and for other beneficial public uses including recreational purposes.
“(45) The Portland General Electric Co. is a corporation organized under the laws of the State of Oregon and has submitted satisfactory evidence of compliance with the requirements of all applicable state laws insofar as necessary to effect the purposes of a license for the project.” 10 F. P. C., at 456. And see §§ 9 (b) and 10 (a) of the Federal Power Act, 41 Stat. 1068, 16 U. S. C. § 802 (b), and 49 Stat. 842, 16 U. S. C. § 803 (a).
“Sec. 4. The Commission is hereby authorized and empowered—
“(e) To issue licenses ... to any corporation organized under the laws of the United States or any State thereof ... for the purpose of constructing, operating, and maintaining dams, water conduits, reservoirs, power houses, transmission lines, or other project works necessary or convenient for the development and improvement of navigation and for the development, transmission, and utilization of power across, along, from, or in any of the streams or other bodies of water over which Congress has jurisdiction under its authority to regulate commerce with foreign nations and among the several States, or upon any part of the public lands and reservations of the United States . . . : Provided, That licenses shall be issued within any reservation only after a finding by the Commission that the license will not interfere or be inconsistent with the purpose for which such reservation was created or acquired, and shall be subject to and contain such conditions as the Secretary of the department under whose supervision such reservation falls shall deem necessary for the adequate protection and utilization of such reservation: ....
“Sec. 23. . . .
“(b) It shall be unlawful for any person, State, or municipality, for the purpose of developing electric power, to construct, operate, or maintain any dam, water conduit, reservoir, power house, or other works incidental thereto across, along, or in any of the navigable waters of the United States, or upon any part of the public lands or reservations of the United States (including the Territories), or utilize the surplus water or water power from any Government dam, except under and in accordance with the terms of a permit or valid existing right-of-way granted prior to June 10, 1920, or a license granted pursuant to this Act. Any person, association, corporation, State, or municipality intending to construct a dam or other project works across, along, over, or in any stream or part thereof, other than those*443 defined herein as navigable waters, and over which Congress has jurisdiction under its authority to regulate commerce with foreign nations and among the several States shall before such construction file declaration of such intention with the Commission, whereupon the Commission shall cause immediate investigation of such proposed construction to be made, and if upon investigation it shall find that the interests of interstate or foreign commerce would be affected by such proposed construction, such person, association, corporation, State, or municipality shall not construct, maintain, or operate such dam or other project works until it shall have applied for and shall have received a license under the provisions of this Act. If the Commission shall not so find, and if no public lands or reservations are affected, permission is hereby granted to construct such dam or other project works in such stream upon compliance with State laws.” (Italics supplied except for the initial word of the proviso.) 49 Stat. 839, 840, 846, 16 U. S. C. §§ 797 (e), 817.
In what is somewhat of a companion case to the one before us, the Court of Appeals for the Ninth Circuit has recognized that, despite contentions as to state control of the use of water and the conservancy of fish within the Columbia River Basin, the Federal Power Commission has the authority to make effective a license and to provide facilities for anadromous fish much as is here proposed, when the waters involved are navigable waters of the United States. Washington Department of Game v. Federal Power Commission, 207 F. 2d 391. We denied certiorari April 5, 1954. 347 U. S. 936.
"Sec. 3. The words defined in this section shall have the following meanings for purposes of this Act, to wit:
“(1) 'public lands’ means such lands and interest in lands owned by the United States as are subject to private appropriation and disposal under public land laws. It shall not include ‘reservations’, as hereinafter defined;
“(2) ‘reservations’ means national forests, tribal lands embraced within Indian reservations, military reservations, and other lands and interests in lands owned by the United States, and withdrawn, reserved, or withheld from private appropriation and disposal under the public land laws; also lands and interests in lands acquired and held for any public purposes; but shall not include national monuments or national parks; . . . .” 49 Stat. 838, 16 U. S. C. § 796 (1) and (2).
See note 6, supra.
See United States v. Utah, 283 U. S. 64, 75.
See note 5, supra.
See Hynes v. Grimes Packing Co., 337 U. S. 86, 103-104; Minnesota v. United States, 305 U. S. 382, 386.
“Sec. 27. That nothing herein contained shall be construed as affecting or intending to affect or in any way to interfere with the laws of the respective States relating to the control, appropriation, use, or distribution of water used in irrigation or for municipal or other uses, or any vested right acquired therein.” 41 Stat. 1077, 16 U. S. C. § 821.
“To require the petitioner to secure the actual grant to it of a state permit ... as a condition precedent to securing a federal license for the same project under the Federal Power Act would vest in the Executive Council of Iowa a veto power over the federal project. Such a veto power easily could destroy the effectiveness of the Federal Act. It would subordinate to the control of the State the ‘comprehensive’ planning which the Act provides shall depend upon the judgment of the Federal Power Commission or other representatives of the Federal Government.
“In the Federal Power Act there is a separation of those subjects which remain under the jurisdiction of the States from those subjects which the Constitution delegates to the United States and over which Congress vests the Federal Power Commission with authority to act. To the extent of this separation, the Act establishes a dual system of control. The duality of control consists merely of the division of the common enterprise between two cooperating agencies of government, each with final authority in its own jurisdiction. The duality does not require two agencies to share in the final decision of the same issue. Where the Federal Government supersedes the state government there is no suggestion that the two agencies both shall have final authority. . . .
“The Act leaves to the States their traditional jurisdiction subject to the admittedly superior right of the Federal Government, through*446 Congress, to regulate interstate and foreign commerce, administer the public lands and reservations of the United States and, in certain cases, exercise authority under the treaties of the United States.” First Iowa Coop. v. Federal Power Commission, 328 U. S. 152, 164, 167-168, 171.
“Sec. 9. And be it further enacted, That whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right of way for the construction of ditches and canals for the purposes aforesaid is hereby acknowledged and confirmed: Provided, however, That whenever, after the passage of this act, any person or persons shall, in the construction of any ditch or canal, injure or damage the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or damage.” (Italics supplied except for the initial words of the enacting clause and the proviso.) 14 Stat. 253, see 43 U. S. C. § 661.
“Sec. 17. . . . all patents granted, or preemption or homesteads allowed, shall be subject to any vested and accrued water rights, or rights to ditches and reservoirs used in connection with such water rights, as may have been acquired under or recognized by the ninth section of the act [14 Stat. 253, supra] of which this act is amenda-tory. . . .” (Italics supplied.) 16 Stat. 218, see 43 U. S. C. § 661.
“. . . it shall be lawful for any citizen of the United States, or any person of requisite age ‘who may be entitled to become a citizen, and who has filed his declaration to become such’ and upon payment of twenty five cents per acre — to file a declaration under oath with the register and the receiver of the land district in which any desert land is situated, that he intends to reclaim a tract of desert land not exceeding one section, by conducting water upon the same, within the period of three years thereafter, Provided however that the right to the use of water by the person so conducting the same, on or to any tract of desert land of six hundred and forty acres shall depend upon bona fide prior appropriation: and such right shall not exceed the amount of water actually appropriated, and necessarily used for the purpose of irrigation and reclamation: and all surplus water over and above such actual appropriation and use, together with the water of all, lakes, rivers and other sources of water supply upon the public lands and not navigable, shall remain and be held free for the appropriation and use of the public for irrigation, mining and manufacturing purposes subject to existing rights. Said declaration shall describe particularly said section of land if surveyed, and, if unsur-veyed, shall describe the same as nearly as possible without a survey. At any time within the period of three years after filing said declaration, upon making satisfactory proof to the register and receiver of the reclamation of said tract of land in the manner aforesaid, and upon the payment to the receiver of the additional sum of one dollar per acre for a tract of land not exceeding six hundred and forty acres to any one person, a patent for the same shall be issued to him. Provided, that no person shall be permitted to enter more than one tract of land and not to exceed six hundred and forty acres which shall be in compact form.” (Italics supplied except for the initial words of the provisos.) 19 Stat. 377, 43 U. S. C. § 321.
While the final approval of the engineering requirements of this feature rests with the Commission, there is no reason why the Commission and the State of Oregon, which also desires appropriate reregulation of the flow of the stream, should not seek a mutually satisfactory solution. In fact, the applicant for the federal license did submit its proposals for reregulation to the state authorities.
The Oregon Fish Commission made a rough estimate of the annual runs of spring chinook and salmon passing the Pelton site, en route upstream, at 2,500 and of summer steelhead trout at 5,000. On the basis of this escapement past the project, the Fish Commission estimated the annual value of the Deschutes salmon and steel-head fishery attributable to the river above the Pelton site to be $177,375. 10 F. P. G, at 449, 92 P. U. R. (N. S.), at 252.
“. . .In the event that any person desires to construct a dam in any of the streams of this state to a height that will make a fish ladder or fishway thereover impracticable, in the opinion of the [Fish] commission, then such person may make an application to the commission for a permit to construct such dam, and the commission is
The Federal Power Commission here found that:
“(29) There is nothing novel, unusual or out of the ordinary with respect to the fishery conservation facilities proposed by applicant.
“(30) The applicant proposes to operate or arrange for the operation of the fish conservation facilities in accordance with approved methods.
“(31) Construction, or operation and maintenance of the Pelton project will not be detrimental to the fishery resources below the reregulating dam.
“(32) There is no substantial evidence in the record to show that the fishery facilities proposed by the applicant in accordance with the plans prepared by the Fish Commission of Oregon will not maintain existing runs, and there is a possibility that the run can be increased.” 10 F. P. C., at 455.
In addition to its application to the Federal Power Commission, the Portland General Electric Company also sought approval of the Pelton Project by the Oregon Hydroelectric Commission. While we hold that such approval is not necessary, there is no reason why the company should not thus seek state as well as federal approval of the project. In its application for the Federal Power Commission
The pertinent Oregon provisions are as follows:
“From and after the taking effect of this act, no water-power project involving the use of the waters of any of the lakes, rivers, streams or other bodies of water within the state of Oregon, including waters over which this state has concurrent jurisdiction, for the generation of electricity, shall be begun or constructed except in conformity with the provisions hereof.
“The [Oregon Hydroelectric] commission shall have power: . . . .
“(b) To issue licenses, as hereinafter provided, to citizens of the United States, associations of citizens, private corporations organized under the laws of the United States or any state thereof, to appropriate, initiate, perfect, acquire and' hold the right to the use of the waters within the state, including the waters over which the state has concurrent jurisdiction, and to construct, operate and maintain dams, reservoirs, power houses, conduits, transmission lines, and all other works and structures necessary or convenient for the use of such waters in the generation and utilization of electricity.” Ore. Comp. Laws, 1940, §§ 119-103,119-106.
See also, “The provisions of this act shall not apply to any waterpower project or development constructed by the government of the United States.” Id., § 119-101.
Dissenting Opinion
dissenting.
I would not suppose the United States could erect a dam on this nonnavigable river without obtaining its water rights in accordance with state law. If I am right in that assumption, then this dam cannot be built with
The argument pressed on us by the United States is akin to the one urged in Nebraska v. Wyoming, 325 U. S. 589, 611 et seg. In that case, the United States struggled to be rid of the rule of law that made its water rights on nonnavigable streams of the West dependent on state law. It claimed that it owned all the unappropriated water in the basin of the North Platte River. The argument was made not only under the Reclamation Act of 1902, 32 Stat. 388, but also under the Desert Land Act of 1877, 19 Stat. 377, the Act involved here. We reserved decision as to whether under some circumstances the United States might be the owner of unappropriated water rights. But we held that under those Acts the United States took its water rights like other landowners, viz., pursuant to state law governing appropriation.
Unless we are to depart from that ruling, we must accept Oregon’s claim here.
“all surplus water over and above such actual appropriation and use, together with the water of all lakes, rivers and other sources of water supply upon the public lands and not navigable, shall remain and be held free for the appropriation and use of the public for irrigation, mining and manufacturing purposes subject to existing rights.”
The Court interpreted that provision as follows:
“The fair construction of the provision now under review is that Congress intended to establish the rule that for the future the land should be patented separately; and that all non-navigable waters thereon should be reserved for the use of the public under the laws of the states and territories named.” 295 U. S. 142, 162.
That case, to be sure, involved a contest between private owners. But the principle announced was shortly applied to the United States as a property owner on a nonnavigable stream.
The Fox case involved water rights of farmers under a federal irrigation project, the claim being that the United States, owner of the irrigation system, owned the water rights. The Court rejected that claim and looked to state law to determine who had the water rights; and finding that the farmers owned them, the Court held that the United States was not an indispensable party in litigation concerning them.
Those cases should control here. The Desert Land Act applies to “public lands”; and the Federal Power Act, 41 Stat. 1063, as amended, 16 U. S. C. § 791a et seq., grants the Commission authority to issue licenses for power development “upon any part of the public lands and reservations of the United States.” § 4 (e). The definition of those terms in the Act says nothing about water rights.
The final resort of the Commission is to the Act of June 25, 1910, 36 Stat. 847, providing:
“That the President may, at any time in his discretion, temporarily withdraw from settlement, location, sale, or entry any of the public lands of the United States including the District of Alaska and reserve the same for water-power sites, irrigation, classification of lands, or other public purposes to be specified in the orders of withdrawals, and such withdrawals or reservations shall remain in force until revoked by him or by an Act of Congress.”
It was under this Act that some of the lands here involved were reserved for a power site. But the Act of June 25, 1910, by its very terms, did no more than withdraw these public lands “from settlement, location, sale, or entry.” The Act did not purport to touch or change in any way the provision of the Desert Land Act that pertains to water rights. If the words of the 1910 Act are to control, water rights remained undisturbed. The lands remained “public lands,” save only that settlers could not locate on them. I assume that the United States could have recalled its grant of jurisdiction over water rights, saving, of course, all vested rights. But the United States has not expressly done so; and we should not construe any law as achieving that result unless the purpose of Congress is clear.
The Deschutes River is nonnavigable and part of the Columbia River Basin. It is, indeed, a direct tributary of the Columbia. Control of this tributary might be important to an effective flood-control program for the Columbia. If so, this dam could find constitutional sanction under the Commerce Clause. See Oklahoma v. Atkinson Co., 313 U. S. 508, 525. That constitutional power over the Deschutes would not be lost through nonuse or through intervening legislation. In case the constitutional power were exercised, private rights would give way. Oregon could demand compensation for the loss of any water-power rights it possessed. See Federal Power Commission v. Niagara Mohawk Power Corp., 347 U. S. 239, 254-255. But Oregon could not assert its regulatory powers to defeat the federal program, for the Supremacy Clause would prevent her.
No effort has been made to bring this case under the Commerce Clause. The findings are inadequate for that purpose. The case turns on the authority of the United States as a proprietor.
If this were a navigable stream, the authority of the United States in the water power would be complete without reference to state law. United States v. Chandler-Dunbar Co., 229 U. S. 53; United States v. Chicago, M., St. P. & P. R. Co., 312 U. S. 592; United States v. Commodore Park, Inc., 324 U. S. 386. In that case, the Act authorizes the Commission to proceed, irrespective of the approval of the State where the dam is located. First Iowa Coop. v. Power Commission, 328 U. S. 152. But the present project, dealing as it does with nonnavigable waters, is dependent on the state law of water rights for its execution. In the First Iowa Coop, case, we recognized the room left for that degree of control by the States in this situation:
“In the Federal Power Act there is a separation of those subjects*455 which remain under the jurisdiction of the States from those subjects which the Constitution delegates to the United States and over which Congress vests the Federal Power Commission with authority to act. To the extent of this separation, the Act establishes a dual system of control. The duality of control consists merely of the division of the common enterprise between two cooperating agencies of government, each with final authority in its own jurisdiction. The duality does not require two agencies to share in the final decision of the same issue.” Id., at 167-168.
Those terms are defined as follows in § 3:
“(1) 'public lands’ means such lands and interest in lands owned by the United States as are subject to private appropriation and disposal under public land laws. It shall not include 'reservations’, as hereinafter defined;
“(2) 'reservations’ means national forests, tribal lands embraced*456 within Indian reservations, military reservations, and other lands and interests in lands owned by the United States, and withdrawn, reserved, or withheld from private appropriation and disposal under the public land laws; also lands and interests in lands acquired and held for any public purposes; but shall not include national monuments or national parks; ...”
Reference
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