# Grand River Dam Authority v. United States > United States Court of Claims · July 15, 1959 · 175 F. Supp. 153 URL: https://www.frixlaw.com/law-library/cases/8592232 ## Case - **Full name:** GRAND RIVER DAM AUTHORITY v. United States - **Court:** United States Court of Claims - **Decided:** July 15, 1959 - **Citations:** 175 F. Supp. 153; 146 Ct. Cl. 728; 1959 U.S. Ct. Cl. LEXIS 178 - **Precedential status:** Published - **Opinion:** Dissent by Whitaker - **Judges:** Bet, Jones, Laeamore, Littleton, Madden, Whitaker - **Cited by:** 2 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8592232 ## Opinion text Whitaker, Judge, dissenting: The vice in the opinion of the majority stems from the concept embraced in this sentence from its opinion: “The State of Oklahoma owns the waters of the Grand Eiver, a non-navigable stream * * The State of Oklahoma did not “own” the waters of the stream; it merely had the right to regulate and control the use of them for the benefit of its citizens. “Ownership” by the state is a concept repugnant to the American theory of government; it is “contrary to *735 the genius of a free government.” Under the American system of government, natural resources belong, not to the state, but to the people. The state is not the overlord, doling out privileges to his underlings; it is the servant of the people, chosen by them to administer their common resources for the benefit of all, according to their respective rights. Its sole right is that of regulation and control. But this right of one of the states of the Union is subject to the superior right of the United States to regulate and control the waters of the river, in the interest of navigation and purposes, related thereto. Because the United States had this superior right, it is not liable for the actions complained of. That, in the opinion of the Chief Judge and me, is the essence of the case. If we are correct in our premise, there has been no taking of private property for public use for which the Fifth Amendment requires the payment of just compensation. Plaintiff, the state’s agent, of course has no greater right than its creator, the State of Oklahoma. The issue presented is a clash in the exercise of the powers of two sovereignties — on the one hand, the power of the Federal Government, under the Commerce Clause of the Constitution, to use and control the waters of a non-navigable tributary of a navigable stream, in the interest of navigation on the navigable stream; and, on the other hand, the power of a state to use and control those waters for irrigation, the production of power or otherwise, in the interest of its citizens. If the powers of the Federal Government extend to the right of regulation and control of the waters of a non-navigable tributary of a navigable stream to the extent necessary to control and improve navigation on the navigable stream, its power to do so supersedes the power of the state to use and control the waters of this stream. That the powers of the Federal Government do extend to the control and use of the waters of a non-navigable stream for the improvement of navigation on a navigable stream to which it is tributary is settled by Oklahoma v. Atkinson Co., 313 U.S. 508, 523 . Wherever this power comes in conflict with state power, the state power must yield. It was so *736 held in Oklahoma v. Atkinson Co., supra. It had been so held long before in United States v. Rio Grande Irrigation Co., 174 U.S. 690 . In that case the state sought to use the waters of the Rio Grande, far above the point where it was navigable, for irrigation, and had given the respondent the right to do so. The Supreme Court said the United States might enjoin such a use because it would interfere with the navigability of the river down stream. The Court said that the power of New Mexico to use those waters was “limited by the superior power of the General Government to secure the uninterrupted navigability of all navigable streams within the limits of the United States.” (Page 703.) In Florida v. Mellon, 273 U.S. 12, 17 , it was said: “Whenever the constitutional powers of the federal government and those of the state come into conflict, the latter must yield,” citing a number of cases. In Oklahoma v. Atkinson Co., supra, the Federal Government had let a contract to respondent to erect a dam on the Red River some 500 miles above the point where it was navigable. Oklah Article 17. * * * In the event the project is taken over by the United States upon the termination of the license, as provided in Section 14 of the Act, or is transferred to a new licensee under the provisions of Section 15 of the Act, the Licensee, its successors and *753 assigns will be responsible for and will make good any defect of title to or of right of user in any of such project property which is necessary or appropriate or valuable and serviceable in the maintenance and operation of the project, and will pay and discharge, or will assume responsibility for payment and discharge, of all liens or incumbrances upon the project or project property created by the Licensee or created or incurred after the issuance of the license * * *. (b) Article 12 was deleted by an order of the Commission issued on December 13,1954. (c) Article 13 was amended by an order issued by the Commission on December 13, 1954, and was amended again by an order issued by the Commission on March 22, 1957. As amended the second time, Article 13 reads as follows: The United States specifically retains and safeguards the right to use water in such amount, to be determined by the Secretary of the Army, as may be necessary for the purposes of navigation on the navigable waterway affected; and the operations of the Licensee, so far as they effect the use, storage and discharge from storage of waters above the dead storage pool (dead storage pool being that portion of the pool which is not used for operational purposes), shall at all times be controlled by such reasonable rules and regulations as the Secretary of the Army may prescribe in the interest of navigation and flood control, and as the Commission may prescribe for the protection of life, health, and property, and in the interest of the fullest practicable conservation and utilization of such waters for power purposes and for other beneficial public uses, including recreational purposes; and the Licensee shall release water from the project reservoir above the dead storage pool at such rate in cubic feet per second, or such volume in acre-feet per specified period of time, as the Secretary of the Army may prescribe in the interest of navigation or flood control, or as the Commission may prescribe for the other purposes hereinbefore mentioned. 23. The Board of Directors of the plaintiff has never granted to the defendant, or to any department or agency thereof, any franchise, right, or privilege to develop and generate electric power and energy on the Grand River in Oklahoma, or any right, title, or interest in and to the waters of the Grand River for the production of electric power and *754 energy, or any right to control, supervise, conserve, and develop the water power at the Fort Gibson dam-and-reservoir project. CONCLUSION OE LAW Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes ás a.matter of law that the plaintiff is entitled to recover, together with interest thereon, as part of just compensation and judgment will be entered to that effect. The amount of recovery will be determined pursuant to Eule 88(c). The statutory provisions quoted in findings 4 and 5 relative to the establishment and functions of the plaintiff have been amended in a number of respects since 1935. However, none of these amendments is especially significant from the standpoint of the present litigation. The style o£ the condemnation suit was united States y. 1,031.15 acres of land, more or less, situate In Mayes County, Oklahoma, and Ray Bonnella. Grand Riyer Dam Authority, et al. (No. 2116-Ciyil). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8592232. Public record. Not legal advice.