Petition for Writ of Certiorari — Federal Power Commission v. Oregon

RARY ‘ °

SUrrRe a COURT. ue ) SEP 25 p06:

No 867 jm ce |

A

~——-

a Pout Sopreme Coupe Wied Stes

Ocroser ‘i'rxm, 1954

FPepsrat Powek Com Mission, PETITIONER =

ve

\

THE STATE OF OREGON, THE Fisk COMMISSION OF

3 OREGON, THE OREGON StaTE Gawe CoM MISSION

\

»

4

INDEX

Page

> eeerree terre rere rere ee ]

NOE ECO OE CS PEEL ELEY r re Perr rr yer, TL eee 2

Questions presented .............cccereccececccres 2

i es uh ed sbsecdelsesenes rianeeke 3

OS EE le Te Pee ee ee ree es ere ee ee a ‘

Reasons for granting the writ ............0.05 eee eee 12

NN a er aa ee ew eee eae 28

Og nr rE er ore rar rr rie cer la

PPPOE P CRETE OPT TP ee ere Tree er te l6a

CITATIONS

Cases:

Alabame v. Texas, 347 US. BIZ... 2. vecccccsvess 20

Anthony v. Veatch, 189 Ore. 462, 220 P. 2d 493, 221

Se ae oe ek bks oui caen hase ee eee 24

Arizona v. California, 283 U.S. 423.............. 14

Broder v. Natoma Water and Mining Co., 101 U.S.

Mons cos War sults vate cunts cea saws ees eRees 16

California Oregon Power Co. v. Beaver Portland

Comet Ca. Tee UE Bbc ices secesteines 15, 19, 22

Camfield v. United States, 167 U.S. 518........... 14, 20

First lowa Hydro-Electric Coop. v. Federal Power

Ce eG). ib as toes cas ebaekeuss 11, 27

Hunt v. United States, 278 U.S. 96............... 14

Hynes v. Grimes Packing Co., 337 U.S. 86........ 14

Jonmoeon ¥. Bort, OB UB. GBB... oc cccscecescveces 16

Leavenworth, Lawrence, & Galveston R.R. Co. v.

if hs ree 20

Light v. United States, 220 U.S. 523............. 14

Minnesota v. Hitchcock, 185 U.S. 378............ 15

Minnesota v. United States, $05 U.S. 382........ 14

Shannon v. United States, 160 Fed. 870........... 24

State of Iowa v. Federal Po: er Commission, 178

F. 2d 421, certiorari denied, 339 U.S. 979....... 27

(1)

Il

Cases—Continued

Page

State of Washington Dept. of Game v. Federal

Power Commission, 207 F. 2d 391, certiorari

denied, B47 UB. GOB... ccc cc cvevcccesvascess 13

United States v. California, 332 U.S. 19........+-. 13

United States v. City and County of San Francisco,

Oe TE Oe Sh ica carck s Lovasuveunatacaress 20

United States v. Conrad Inv. Co., 156 Fed. 123.... lo

United States v. Gerlach Live Stock Co., 339 US.

OD gS ws owae sake d ce tueesbenaeeieereens 15

United States v. McIntire, 101 F. 2d 650.......... 15, 24

United States v. Minnesota, 270 U.S. 181......... 24

United States v. Rickert, 188 U.S. 432............ 14

United States v. Rio Grande Irrigation Co., 174 US.

SER ER Savage ere gerne et gris erry SERA oe OCR 14, 15, 21

United States v. Utah, 283 US. 64............... 13

United States v. Utah Power & Light Co., 209 Fed.

554. affirmed, 243 US. 360... .. 0.0 eccacccns 16, 20, 21

United States vy. Walker River Irr. Dist., 104 F. 2d

Be Canin nv as Cees Ca 4 kee eew ne tive ee 24

Umted States v. Winans, 198 U.S 371............ 26

Utah Power & Light Co. v. United States, 243 U.S.

MD o52 5 eae ceed bakes Cee 21

Winters v. United States, 143 Fed. 740, affirmed, 207

5 Se SPREE ee, pe eeren, wie eon we ey 15, 21, 22, 24

Wisconsin Central R. Co. v. United States, 164 U.S.

ES DE RM rire Pati Peat T We cre ome wpe 20

U. S. Constitution, Federal Statutes, Treaty, and

State Constitution and Statute:

U. 8. Constitution, Art. IV, $3, Cl. 2............ 2

Constitution of Oregon, 1859, Art. XVIII, Sec. 7...24, lla

Act of August 14, 1848, establishing Oregon as a

territory and providing for its admission to the

RG PR iteeperat arty sista Ry ule iy 24, 10a

Act of 1866, 14 Stat. 251, See. 9 (43 U.S.C. 661)... 15, 9a

Act of 1879, 16 Stat. 217, Sec. 17 (43 U.S.C. 661)... 17, 9a

Act of June 3, 1878, c. 151, 20 Stat. 89 (43 U.S.C.

DEER ec ccusicrnt ces hav uakewsn ueeetnenewin 21

Act of March 3, 1891, ¢. 561, see. 18, 26 Stat. 1101

ee ey ont oes er Core a A 21

Ill

U.S. Constitution, Federal Statutes, Treaty, and

State Constitution and Statute—Continued

Page

Act of June 4, 1897, ¢. 2, 30 Stat. 36 (16 U.S.C. 481) 21

Act of June 11, 1906. c. 3074, sec. 3, 34 Stat. 234

OU Oe a 21

Act of June 25, 1910, c. 430, 36 Stat. 855......... 6

Act of June 25, 1910, ¢. 421, 36 Stat. 847 (438 U.S.C.

EE cS out, gl ae baie Wie baa pay ewin hee ce 6,21, 23

Desert Land Act of 1877, 19 Stat. 377 (438 USC.

PR Pee eee ee 14, 17-18, 20, 8a

Federal Power Act of June 10, 1920, ¢. 285, § 24, 41

Bk BS ee rr 21

Federal Power Act, 49 Stat. 8388 (16 U.S.C. 79la):

Ba | 5 fT Sara aha) Se ee er arr aee 15, la

MEE Geeta ce Paes eae SG ue Kanara 15, la

ro ee ere oe a aed Bay Soar atai Es 4,la

ea ke wee Woks Md bbe k a eee 15, 2a

8 TEENA eae se Na eet mpi ATSDR da

ea Ure ek et oe 5 caked bb Saas 5a

a oe sar ei rae Ck oa 6,23, 5a

Federal Power Act, 49 Stat. 860 (16 U.S.C. ome

et EO aera ce rie waebaneoutwavus 2

Wildlife Resources Act of August 14, 1946, 60 § Stat.

Re, ee. eM Os ov vce aecaaeeses 26

Treaty of June 25, 1855, 12 Stat. 963............. 5

Laws of Oregon:

er a ee 1, 12a

I ba ot hee ays ve Las sey 7, 144

i ese es iene 7, lla

I Coe hoe ee Ce a US 7, 12a

Miscellaneous:

Executive Order of July 2, 1910................. 6

Executive Order of October 8, 1913.............. 6

House Rept. No. 1944, 79th Cong., 2d sess., p. 3.... 27

Kinney on Irrigation, § 124..................... 15

Inthe Supreme Court of the Gnited Strtes

OcTOBER TERM, 1954

No. —

FEDERAL POWER (‘OM™M ISSION, PETITIONER

v.

THE STATE OF OREGON, THE FISH COMMISSION OF

OREGON, THE OREGON STATE GAME COMMISSION

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

The Solicitor General, on behalf of the Federal

Power Commission, prays that a writ of certiorari

issue to review the judgment of the United States

Court of Appeals for the Ninth Circuit setting

aside an order issued December 21, 1951, by the

Commission, granting a license to Portland General

Electric Company for the construction, operation

and maintenance of a hydroelectric project on the

Deschutes River in Oregon.

OPINIONS BELOW

The opinions in the United States Court of Ap-

peals for the Ninth Circuit are reported at 211 F. 2d

347, and are reprinted in Appendix B, infra, pp.

(1)

9

l6a-37a, The opinion and order of the Federal

Power Commission granting the license (R. II, 417-

447) are reported at 92 P.U.R. (N.S.) 247.

JURISDICTION

The judgment of the Court of Appeals was

entered on February 18, 1954 (see Appendix B,

infra, p. 38a). A timely petition for rehearing was

denied on April 28, 1954 (Appendix B, infra, p.

39a). On July 23, 1954, Mr. Justice Black extended

the time within which to file a petition for a writ of

certiorari to and including September 25, 1954

(Appendix b, infra, pp. 39a-40a). The jurisdiction

of this Court is invoked under 28 U.S.C. 1254(1),

and Section 313(b) of the Federal Power Act (49

Stat. 860, 16 U.S.C. 8252).

QUESTIONS PRESENTED

1. Whether by reason of the Desert Land Act of

1877, and related legislation, the United States has

irrevocably surrendered to the western States its

powers over non-navigable waters on Government-

owned lands within these States, so that the States

may exercise their police power to control and regu-

late use of, and rights to, the waters on such lands

in a manner contrary to that directed by the ap-

propriate federal agency.

2. Whether, in any case, the Desert Land Act and

related legislation applies to Government lands

which are not ‘‘public lands’’ but have been re-

served for power purposes.

3. Whether permits from the Fish and Hydro-

electric Commissions of the State of Oregon are

7.

+

conditions precedent to the grant of a license by the

Federal Power Commission under the Federal

Power Act for a hydroelectric project which will

utilize, without interference with prior appropria-

tions (if any), waters flowing across Government

lands which were reserved by the United States for

the Indians before 1877 and for power-site purposes

many years before Oregon enacted its regulatory

laws for the protection of fish in State waters and

the licensing of water-power projects.

STATUTES INVOLVED

The pertinent provisions of the Federal Power

Act (49 Stat. 838, 16 U.S.C. 791a, et seq.) ; of the

Desert Land Act and related legislation (19 Stat.

377, 43 U.S.C. 321; 14 Stat. 253, 43 U.S.C. 661; 16

Stat. 218, 43 U.S.C. 661); of the Act of Congress

establishing Oregon as a territory and providing

for its admission to the Union (9 Stat. 323, 328);

and of the Constitution and Laws of Oregon (Art.

XVIII, Sec. 7, Constitution of Oregon, 1859; Sec-

tions 83-314, 83-316, 119-102, 119-103, O.C.L.A.),

are set forth in Appendix A, infra, pp. la-lia.

STATEMENT

By order issued December 21, 1951, the Federal

Power Commission (Commission) granted a li-

cense under Part I of the Federal Power Act to

Portland General Electric Company’ to construct,

1 The application of the Portland General Electric Company

was as successor in interest to the Northwest Power Supply

Company (R. II, 418). The Northwest Power Supply Com-

pany of Portland, Oregon was originally organized in 1949 by

4

vperate, and maintain the Pelton hydroelectric

project, designated by the Commission as Project

No. 2030, in Jefferson County, Oregon, on the

Deschutes River, below the point where the Me-

tolius and Crooked Rivers, principal tributaries of

the Deschutes, flow into the latter (R. 11, 417-447).

The Pelton project :— As described by the Court

of Appeals (Appendix B, infra, p. 17a), the

Pelton project ‘is designed to consist of a concrete

dam approximately two hundred five feet high in

connection with a power house containing three

36,000 kilowatt generators and is to be built on

United States land’’ across the Deschutes River

(a stream which the Commission did not find navi-

gable’). Included in the project, ‘‘and three miles

below the power dam, a ‘re-regulating’ dam is to be

constructed which is designed to equate the flow of

water as it is released from the upper dam.’’* This

lower dam will not be located upon federally owned

three Gperating utility companies to secure a license for devel-

opment of the Pelton Hydroelectric Project. Subsequently,

two of the sponsoring companies became interested in other

power developments, leaving the Portland General Electric

Company of Portland, Oregon, as the only one of the operating

companies directly interested.

*The Commission made no findings as to the navigability

of the Deschutes River at the site of the project. For pur-

poses of this case, therefore, it is assumed that the Deschutes

River is not “navigable waters” of the United States as defined

in Section 3 (8) of the Federal Power Act (16 U.S.C., 796 (8)).

% As the court noted (Appendix B, infra, p. 17a), with-

out the “re-regulating” dam the flow below the power dam

would be subject to extreme fluctuations as the water would

be released from the power dam in much greater quantities

at times of peakload operation. By the operation of the

re-regulating dam, however, the wide fluctuations in flow im-

or controlled lands. The project also incorporates

facilities for the conservation of the streams fish-

ery resources, Which are not referred to in the

court’s description of the project (CR. TT 525, 326,

bodd-do08, 420, 431). As designed, the project would

neither divert water from the Deschutes River nor

encroach upon any vested rights to the use of water

in that stream."

The project will occupy lands of the United

States on the east and west sides of the Deschutes

River. Those on the west side are within and area

part of the Warm Springs Indian Reservation

established by treaty in 1855 °* which secures to the

Indians the use of the waters for agricultural pur-

poses and ‘the exclusive right of taking fish in the

streams running through and bordering said reser-

ration’’ (12 Stat. 964). The lands on the west side

mediately below the power house will be equated and the

flow downstream from the re-regulating dam will be substan-

tially the same as that which would have prevailed without

the project.

*The license is subject to the condition that the “use of

waters in the Deschutes River and its tributaries in conneéc-

tion with the Licensee’: project under this license shall be sub-

ordinate to” all “existing rights, whether or not perfected, to

the waters of the Deschutes River and its tributaries for

domestic, stock, municipal and irrigation purposes” and to

the use of certain specified “additional flows * * * pursuant

to rights which may be initiated hereafter 1or the diversion

and storage of waters for domestic, municipal, stock and ir-

rigation purposes in connection with any reclamation projects

undertaken pursuant to the Federal Reclamation Laws * * *”

(R. Il, 443-444).

* Treaty of June 25, 1855, with Indians in Middle Oregon

establishing Warm Springs Indian Reservation, 12 Stat. 963.

6

were also withdrawn for power purposes in 1910,"

2nd those on the east side of the river were with-

drawn from entry, location, or disposal under the

public land laws and were reserved for power pur-

poses in part in 1909‘ and the remainder in 1913."

In short, as the court recognized, the *‘high power

dam, and the powerhouse immediately below, will be

located entirely upon lands of the United States

set aside and reserved for power purposes.’’ (R.

IT 331, 418, 435; Appendix B, infra, p. 18a).

The proceedings before the Commission: At the

hearing before a Presiding Examiner of the Com-

mission, the State of Oregon, its Fish and Game

Commissions, and the Oregon Division of the

Isaak Walton League of America, Inc., intervened

(CR. TT 324-325, 418) and objected to the issuance

®*Indian Power Site Reserve No. 2, -reated November 1,

1910, by the Secretary of the Interior pursuant to Act of June

25, 1910, 36 Stat. 855.

7 Power Site Reserve No. 66, created December 30, 1909, by

order of the Secretary of the Interior, made permanent by

Executive Order of July 2, 1910, pursuant to Act of June 25,

1910, 36 Stat. 847.

* Power Site Reserve No. 294, created by Executive Order

of October 8, 1913, pursuant to the Act of June 25, 1910, 36

Stat. 847. There was a rurther reservation of the lands on the

vast side of the river involved in the Pelton project upon the

filing of an application for license for Project No. 57 in 1920,

and upon the filing of an application for the Pelton project,

since Section 24 of the Federal Power Act (Appendix A, infra,

pp. 5a-7a), in pertinent part, provides:

Any lands of the United States included in any proposed

project under the provisions of this Part shall, from the

date of filing of application therefor be reserved from

entry, location, or other disposal under the laws of the

United States until otherwise directed by the Commis-

sion or by Congress.

of the license on the ground that the construction

and operation of the project will prevent the ascent

of anadromous fish to their spawning grounds

above the dam site; will result in the serious cur-

tailment of the fish population and preven‘ its

increase; and will impair the productivity and use-

fulness of the State’s Metolius fish hatchery located

on the Metolius River upstream from the project

site (R. IT 418-419; Appendix b, infra, p. 18a).

The State agencies further contended that the is-

suance of permits by the Hydroelectric Commis-

sion of Oregon® and the Oregon Fish Commis-

sion,’ which had refused to issue them because of

*TIn 1931, Oregon enacted legislation providing for the li-

eensing of the construction and operation of water-power

projects by its Hydroelectric Commis-ion and forbade the ap-

propriation and use of the waters of the lakes, rivers, streams,

or other bodies of water within the State of Oregon, including

waters over which the State has concurrent jurisdiction, in

connection with the develomuent of any water-power project

for the generation of electricity and the construction of water-

power projects in such waters, except in accordance with a

license issued by the State commission (8 O.C.L.A. $§ 119-102,

119-103, Appendix A, infra, pp. 1la-12a).

Tn 1921, Oregon adopted legislation declaring unlawful

the construction or maintenance of dams in streams “‘fre-

quented by salmon or other food fish” without “a passageway

for such fish over such obstructions” (5 O.C.L.A. § 83-314, Ap-

pendix A, infra, pp. 12a-14a) and providing for the issuance

of permits by the Oregon Fish Commission for the construction

of dams “to a height that will make a fish ladder or fishway

thereover impracticable” upon condition that the applicant

shall first convey to the State a site for the erection of a hatch-

ery as specified by the Fish Commission, ereet the hatchery

according to plans and specifications furnished by that com-

mission, and agree to furnish water and light, at no expense to

the State, to operate the hateherv (5 O.C.L.A. § 83-316, Ap-

pendix A, infra, pp. 14a-1a).

8

the effect of the project on the fish in the stream,"

was 2 condition precedent to the construction of the

project and that without such permits the construc-

tion and operation of the project may not be li-

censed by the Federal Commission (R. I] 419;

Appendix B, infra, pp. 18a-19a). On the other hand,

the Tribal Council of the Warm Springs Indian

Reservation, which was represented at the hear-

ings, gave its consent to the construction of the

project (R. 11354, 498; Appendix b, infra, p. 21a).

After the hearings, the Presiding Examiner is-

sued a Recommended Decision, subject to Commis-

sion review, granting a license for the construe-

tion, operation, and maintenance of the Pelton

project (R. LI 321-890). Exceptions were filed

by the State of Oregon and its Fish and Game Com-

missions (R. I] 390-414), and on review the Com-

mission issued an opinion (No, 222) and order, on

December 21, 1951, granting a hcense fer the con-

struction, operation, and maintenance of the proj-

ect subject to certain specified conditions, including

conditions relating to fish conservation (supra, p.

5) (R. LI 417-447).

1! The Portland General Electric Company had proposed to

the Oregon Fish Commission to undertake extensive develop-

ment in the construction of the reregulating dam and facilities

for the protection of anadromous fish (R. I], 420, 506-507).

Total cost of that undertaking would be at least $4,430,000,

with an annual cost of $410,000; costs of operation and mainte-

nance of the reregulating construction would be $10,000; in

addition to those costs, the Company offered to contribute

$100,000 a year as its share of the operation and maintenance

of the fishery conservation facilities. The Fish Commission and

the Hydroelectric Commission nevertheless refused to issue the

permits.

9

The Commission found (R. II 433) that a license

was required under the provisions of the Federal

Power Act because the project would affect lands

of the United States and a reservation of the United

States ;’* and that the refusal of the Oregon Fish

and Game Commissions to issue permits for the

construction of the project ‘‘is not a bar to the is-

suance of a Federal Power Act license and to the

construction and operation of the proposed proj-

ect under such license, if that project is found to

meet the standards specified for comprehensive

water power development in the I'ederal Power

Act.”’

The Commission referred to the severe power

shortage in the Pacific Northwest as a matter of

national concern, and found that construction of

the Pelton project will be in the public interest,

will provide for comprehensive development of the

affected stretch of the Deschutes River as re-

quired by Section 10(a) of the Act (Appendix A,

infra, p. 5a), and will be consistent with further

comprehensive development of the stream and of

the Columbia River Basin, including conservation

and possible enhancement of the fishery resources

of the Deschutes River (R. II 422, 427). The Com-

mission also found that the improvements to be

provided by the project will contribute valuable

public benetits which will not accrue if the river is

maintained in its present natural condition (R.

IT 427).

12 The Commission did not base its authority on the navi-

gability of the Deschutes River. See fn. 2, supra, p. 4.

10

The proceedings before the Court of Appeals:

Following denial by the Commission of their ap-

plication for rehearing (R. I] 481-482), the State

of Oregon and its Fish and Game Commissions

filed a petition for review in the Court of Appeals

for the Ninth Circuit, as authorized by Section 313

(b) of the Power Act (R. LI 495-496), and on Feb-

ruary 18, 1954, the Court of Appeais (per Steph-

ens, Orr, JJ.), set aside the Commission’s order

granting the license (Appendix B, infra, pp. 16a-

30a). Judge Healy dissented (Appendix B, infra,

pp. 30a-37a).

The majority of the court agreed (Appendix Bb,

infra, p. 29a) that the Commission ‘thas the

legal right to give its approval to the Project as a

whole”’ and ‘‘has the right to grant its permissive

license to the consiruction of the proposed dam

upon its own property’? (emphasis insoriginal),

but held that the Commission in this case ‘texceeded

its legal jurisdiction’? when it ‘‘issued a license

purporting to grant the complete legal right to the

construction and operation of the whole Project”’

‘‘in that the ownership of the power dam site does

not empower the United States government to use

the waters of the Deschutes River either at the

site of the power dam or elsewhere, contrary to the

Oregon state law.’’ The Commission, accor¢ing

to the majority (Appendix B, infra, p. 30a),

‘“‘trenched upon the sovereignty of the State of

Oregon’’ over the Deschutes River.

The fundamental basis of the majority’s deci-

sion appears to be that by the Desert Land Act of

1877, and related statutes, Congress irrevocably

1}

surrendered to the States all regulatory power

over honnavigable waters on arid or semi-arid lands

in the public domain and wiped out, ‘| w lhatever,

if any, limitation there was on Oregon's complete

sovereignty over the waters of the Deschutes

River’? (Appendix B, imfra, p. 29a). The *reg-

ulation of the river as it tlows through the -tate,”’

the court held (Appendix B, tfra, p. 29a), **is

one of the powers of the state’s sovereignty and

includes regulatory powers as to fish in state

waters.”

Judge Healy, dissenting, disagreed that the Com-

inission “lacks jurisdiction to license the construc-

tion of the proposed hydroelectric plant’ or

‘**trenched upon the sovereignty of the State of Ore-

gon’ (Appendix B, infra, p. 30a). In his view, the

Desert Lana Act of 1877 and related legislation, is

inapplicable since these statutes apply only to** pub-

lic lands,’’ in the accepted technical sense, whereas

the Pelton preject was to ecenpy tribal lands and

lands reserved for power purposes, which were

(iovernment-owned but not **public lands’ ( Ap-

pendix B, infra, p. 82a). Accordingly, he held

that the United States has not consented to State

control of fishing resources in the waters of the

Deschutes River on lands of the United States

reserved for power purposes or reserved for the

Warm Springs Indians who had given their con-

sent to the project (Appendix B, infra, pp. 32a-

34a). The dissent concluded, therefore, that under

First lowa Hydro-Electric Coop. v. Federal Power

Commission, 328 U.S. 152 $‘ state laws or objections

aa)

i

cannot stand as a legal bar to federal authoriza-

tion of a power project which is within federal

competence and which, in the judgment of the

Commission, will be in the public interest and will

meet the standards specitied in the Federal Power

Act for comprehensive power development” (Ap-

pendix B, infra, p. 37a).

REASONS FOR GRANTING THE WRIT

This case is of vital publie significance. The

dominant underlying issue is whether the western

States may, through the exercise of their police

power, regulate and control the use of the waters

of non-navigable rivers on all Government-owned

lands, whether or not ‘‘publie lands.’’ Viewing

the Desert Land Act as an irrevocable surrender

to the States of all rights of the United States in

the waters of such streams, appropriated or un-

appropriated, the court below declared that the

State’s will must prevail over the orders of the

Federal Power Commission issued under the Fed-

eral Power Act. This case involves the Power

Act and Government lands withdrawn from the

publie domain for power purposes, but the reach

of the holding below extends to the authority of

other federal agencies to administer, in accordance

with the will of Congress, the vast areas withdrawn

from the public domain in the West for other pur-

poses military enclaves, Indian reservations, na-

tiona! forest reserves, national parks, grazing dis-

triets, reclaniation projects, veterans’ facilities,

and other areas essential to our national defense

or welfare.

13

Kiven as limited to federal power activities,

the decision below concerns not only the present

appheant but may affect every license application

involving the use of nonnavigable waters flowing

across lands of the United States where, as here,

the Commission’s jurisdiction rests solely on the

'S The decision

proposed occupancy of such lands.

is of importance also to existing licenses based

solely on occupancy of United States lands where

there may not have been compliance with State

laws governing the construction and operation of

water-power projects. The Court of Appeals,

therefore, has decided a basie and important ques-

tion in the administration of Part | of the Federal

Power Act respecting the Commission’s licensing

authority based upon the occupancy of federal

lands,

1. The United States admittedly owns the land

on which the major dam is to be built. including

the bed of the nonnavigable Deschutes River

(United States v. Utah, 283 US. 64, 75)", as well

13 In State of Washington Dept. of Game v. Federal Power

Commission, 207 F. 2d 391, certiorari denied, 347 U.S. 936, the

Ninth Cireuit recently held that, where the Commission’: au-

thority to license stems from the navigability of the stream,

its authority is not subject to State police power with respect

to fish. If the present decision stands, the relationship of

federal hydroelectric projects to state regulatory laws will

depend, within the Ninth Cireuit, upon whether the Federal

Power Commission's authority rests on propesed occupancy

of Government lands or on the navigability of the stream.

"Tt is settled that title to the bed of rivers passed to the

States which were formerly territories when they were ad-

mitted to the Union, if the rivers were navigable; if they were

not navigable, the title remained in the United States. CT.

United States v. California, 382 US. 19.

14

as the lands of the Indian reservation (United

States v. Rickert, 188 U.S. 4382; Minnesota v.

United States, 305 U.S. 382; Hynes v. Grimes

Packing Co., 337 U.S. 86). It is equally clear that,

in the absence of federal legislation authorizing

State action, such Government-owned property is

immune from regulation or control by the State;

properly authorized federal agencies may use and

regulate the land, as well as its waters and re-

sources, without regard to State regulatory laws.

Caumfield vy. United States, 167 U.S. 518, 526; Light

v. United States, 220 U.S. 523; Hunt v. United

States, 278 U.S. 96, 100; Arizona v. California, 283

U.S. 423, 451-2; United States v. Rio Grande Irri-

gation Co., 174 U.S. 690, 708. If that were not the

rule, the properties of the United States, particu-

larly in the semi-arid West, would be ‘*completely

at the mercy of state legislation’. Camfield v.

United States, supra. Unless, therefore, the Desert

Land Aci granted regulatory authority to the west-

ern States over such lands and waters as those

involved here, the State of Oregon ean have no

foundation for its claim of control.

2. (a). The Court of Appeals committed plain,

and very significant, error when it disregarded its

own prior decisions and those of this Court that

the Desert Land Act of 1877, 19 Stat. 877 (48 U.S.C.

321). like the related Acts of 1866 and 1870 (45

U.S.C, 661), ‘‘applies only to publie lands and

waters of the United States’’, subject to those Acts,

and does not apply to lands set apart and reserved

15

from the public domain.” Winters v. United States,

143 Fed. 740, 747 (C.A. 9), affirmed, 207 U.S. 564;

United States v. McIntire, 101 EF. 2d 650, 652, 654

(C.A. 9); United States v. Gerlach Live Stock Co.,

339 US. 725, 748; United States v. Rio Grande Irri-

gation Co., 174 U.S. 690, 706; California Oregon

Power Co. v. Beaver Portland Cement Co., 295 U.S.

142, 158, 162, 163, 164; United States v. Conrad Inv.

Co., 156 Fed. 123, 127 (C.C.D. Mont.) ; Minnesota

v. Hitchcock, 185 U.S. 378, 387. The correctness of

this course of rulings is shown by the history, terms,

and purpose of this set of early statutes.

Consideration of the Desert Land Act begins

with the Acts of 1866 and 1870 for they are part

of the intention of Congress ‘‘to further the dis-

position and settlement of the public domain.”’

California Oregon Power Co. v. Beaver Portland

Cement Co., 295 U.S. 142, 161. Section 9 of the

1866 Act (14 Stat. 251, 253, 48 U.S.C. 661, Appen-

dix A, infra, pp. 9a-10a) provided:

Whenever, by priority of possession, rights,

to the use of water for mining, agricultural,

“Public lands” are defined in the Federal Power Act

(Section 3(1)), and are generally accepted, as lands of the

United States which are ‘subject to private appropriation and

disposal under public land laws.” Kinney on_ Irrigation,

§ 124). They do not inelude lands “withdrawn, reserved, or

withheld from private appropriation and disposal under the

public land laws” (Sections 3 (1), 3 (2), Appendix A, infra,

p. la (emphasis added)). This is conceded but disregarded

by the court below (Appendix B, infra, p. 21a, fn. 7). The Com-

mission's authority to issue licenses for water-power projects

on “any part of the public lands and reservations of the United

States” is unquestioned. Section 4 (e), Appendix A, infra,

pp. 2a-4a.

16

manufacturing, or oth2r purposes have vested

and acerued, 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 herein specified

is acknowledged and confirmed; * * *.

The ‘‘object of the section was to give the sanc-

tion of the United States, the proprietor of the

lands,@o possessory rights, which had previously

rested solely upon the local customs, laws, and deci-

sions of the courts, and to prevent such rights from

being lost on a sale of the lands.”’ It ‘‘merely rec-

ognized the obligation of the government to respect

private rights which had grown up under its tacit

consent and approval. It proposed no new system,

but sanctioned, regulated, and confirmed a system

already established, to which the people were at-

tached.” Jennison v. Kirk, 98 U.S. 453, 456-457,

459. It was ‘‘a voluntary recognition of a pre-exist-

ing right of possession, constituting a valid claim to

its continued use, [rather] than the establishment

of a new one.’’ Broder v. Natoma Water and Mining

Co., 101 U.S. 274, 276. There was ‘‘no grant of spe-

cific rights by the Congress of the United States.”’

United States v. Utah Power & Light Co., 209 Fed.

554, 560 (C.A. 8), affirmed, 243 U.S. 389. There

was only recognition and assent ‘‘to the appropri-

17

ation of water in contravention of the common law

rule as to continuous flow’? by individuals in ae-

cordance with any system of local customs, laws

and decisions in respect to the appropriation of

water. United States v. Rio Grande Irrigation Co.,

174 U.S. 690, 704, 706. No general powers of regu-

lation were given to the States; the Act was con-

cerned only with the rights of private appropri-

ators.

The 1866 Act was unclear whether it was limited

to rights existing at the time of its enactment or

whether rights of appropriation could thereafter

be acquired. It was therefore amended by the 1870

Act (16 Stat. 217, 218, 48 U.S.C, 661, Appendix A,

infra, p. 10a) to make it clear that the law not only

protected and recognized existing rights to appro-

priate waters of the streams of the pubhce domain

as against ‘tall patents granted, or preemption or

homesteads allowed’’, but permitted the future ac-

quisition of such rights where recognized by local

law.**

Then came the Desert Land Act of 1877 (19 Stat.

377, 43 U.S.C. 321, Appendix A, infra, pp. 8a-9a)

which authorized the entry and reclamation of des-

ert lands within Oregon and other named States

16 Section 17 of the Act of 1870 provides:

* * * 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 connec-

tion with such water rights, as may have been acquired

under or recognized by the ninth section of the act of

which this act is amendatory.

18

and Territories.’ This was the last general statute

providing for the acquisition by private persons

of rights to waters of the streams of the public

domain through appropriation. It required a

declaration that the entryman intended te reclaim

the land by irrigation. Then there followed this

proviso:

Provided, however, That the right to the

use of water by the person so conducting the

same * * * shall depend upon bona fide prior

appropriation; and such right shall not ex-

ceed the amount of water actually appropri-

ated, and necessarily used for the purpose of

irrigation and reclamation; and all surplus

water over and above such actual appropria-

tion 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 publie for irrigation, mining

and manufacturing purposes subject to exist-

ing rights. [kmphasis added]

The consistent emphasis in the 1866, 1870 and

1877 legislation on the rights of private possessors,

appropriators, and entrymen—taken together with

the express reference to the ‘‘sources of water sup-

ply upon the public lands and not navigable’’—

17 This Act covers the States of California, Colorado, Ore-

gon, Nevada, Washington, Idaho, Montana, Utah, Wyoming,

Arizona, New Mexico and North and South Dakota. The

Ninth Cir: uit ineludes seven of these thirteen States.

19

prove that this and the lower federal courts (in-

cluding the Ninth Cireuit) have not erred in uni-

formly reading this body of legislation as appli-

cable only to ** public lands’’, t.¢. those Government

lands which are subject to private appropriation

and disposal.”

(b). Moreover, the statutes culminating in the

Desert Land Act do not go so far as to grant to

the States all rights over the waters even of the

public lands. Unquestionably, Congress expressed

its purpose 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.”? California Oregon Power Co. v. Beaver

Portland Cement Co., 295 U.S. 142, 162. But res-

ervation for future use, without more, is not syn-

onymous With irrevocable surrender to the States

of all the rights of the United States in and over

the unappropriated waters of the public domain.

To expand the limited terms of these Acts into such

a sweeping and permanent grant would do violence

to the well-settled principle that ‘‘ * * * statutes

18 California-Oregon Power Co. v. Beaver Portland Cement

Co., 295 U.S. 142, on which the court below relies heavily (Ap-

pendix B, infra, pp. 27a-28a), appears to deal solely with public

lands since the Court was addressing itself to lands acquired

by “patent from the United States under the Homestead Act

of May 20, 1862” (p. 151). In discussing the Acts of 1866,

1870, and 1877, the Court refers frequently to the “publie

lands” and “public domain” (see pp. 155, 157, 158, 160, 161,

162) and sneaks constantly in terms of settlers who obtained

land under the homestead, preemption, and other federal land

laws.

20

granting privileges or relinquishing rights of the

public are to be strictly construed against the

grantee.’’ lnited States v. Utah Power & Light

Co., 209 Fed. 554, 559, affirmed, 243 U.S. 389; Wis-

consin Central R. Co. vy. United States, 164 U.S.

190; Camfield vy. United States, 167 U.S. 518; Leav-

enworth, Lawrence, & Galveston R. R.Co.v. United

States, 92 U.S. 733.

Also, since, as we have shown (supra, pp. 16-19),

the purpose of the Desert Land Act was to pro-

mote development of the desert lands, there is no

impelling reason to read the Act as an irrevocable

surrender to the State of unappropriated waters

or as precluding an additional beneficial use of ap-

propriated water Which does not in any degree im-

pair vested rights. The proviso in the 1877 Act

(supra, p. 18) was a mere declaration of policy

respecting the waters unused by the entryman,

which was subject to change at any time by Con-

gress in the exercise of its constitutional power

(U.S. Const., Art. IV, § 3, Cl. 2) to control the

disposition and use of government property, sub-

ject, of course, to the condition that the change in

policy may not affect existing vested individual

rights. Cf. Alabama vy. Texas, 347 U.S. 272; United

States v. City and County of San Francisco, 310

U.S. 16,29. No other construction is necessary to

give full effect to the aims of the Desert Land Act.”

1°To follow the court below in its interpretation of the

Desert Land Act is also to disregard numerous acts of Con-

gress, enacted after 1877, purporting to exercise control over

21

Perhaps of even greater significance are the de-

cisions of this Court and the Ninth Cireuit’s own

holdings which conflict with the broad interpreta-

tion of the Desert Land Act (given in the opinion

below) as an irrevocable grant of all power and

rights. United States v. Rio Grande Irrigation

C'o., 174 U.S. 690; Winters v. United States, 207

U.S. 564, affirming 143 Fed. 740 (C. A. 9); Utah

Power & Light Co.v. United States, 243 U.S. 389,

406, affirming 209 Fed. 554,560. Inthe Rio Grande

‘ase, supra, this Court held that the Desert Land

Act was not an irrevocable surrender of rights.

The United States sought to enjoin a proposed di-

version of the waters of the Rio Grande in the

nonnavigable portions of the river which, for pur-

poses of decision, the Court assumed would impair

the navigable capacity of the lower reaches. It

was contended by the Irrigation Company that the

diversion was authorized by the 1866 Act and the

Desert Land Act. Adverting to a later statute pro-

hibiting obstructions to navigation without the

consent of Congress (Act of September 19, 1890, 26

nonnavigable waters on the public domain which disclose that

Congress seems never to have regarded the Acts of 1866, 1870,

and 1877 as irrevocable surrenders of the rights of the United

States in the waters on the public lands. See, e.g., Act of

June 3. 1878, ¢. 151, 20 Stat. 89, 43 U.S.C. 311; Act of March

3, 1891, c. 561, see. 18, 26 Stat. 1101, 43 U.S.C. 946; Act of

June 4, 1897, ¢. 2, 30 Stat. 36, 16 U.S.C. 481; Act of June 11,

1906, c. 3074. sec. 3, 34 Stat. 234, 16 U.S.C. 508; Act of June

25, 1910, e 421, 36 Stat. 847, 43 U.S.C. 141, 142; and the

Federal Power Act of June 10, 1920, ¢. 285, $24, 41 Stat.

1075, 16 U.S.C. 818, Appendix A, infra, pp. 5a-7a.

29

Stat. 4o4, § 10), the Court rejected the claim, saying

(174 U.S. at 707):

As this is a later declaration of Congress,

so far as it modifies any privileges or rights

conferred by prior statutes it must be held

controlling, at least as to any rights attempted

to be created since its passage; and all the pro-

ceedings of the appellees in this case were sub-

sequent to this act. * * *

In Winters, supra, the United States sued to re-

strain Winters and others from constructing or

maintaining dams or reservoirs in the Milk River,

a nonnavigable stream in Montana which, as in the

instant case, formed one boundary of an Indian

Reservation, or in any manner preventing the

waters of the river or its tributaries from flowing

to the Reservation. The Reservation had been

established in 1888, subsequent to the Acts of 1866,

1870, and the Desert Land Act of 1877. Nonethe-

less, citing the Rio Grande case, supra, this Court

held against Winters, saying (207 U. S. at 577),

‘oe * * The power of the Government to reserve

the waters and exempt them from appropriation

under the state laws is not denied, and could not

be.”’

California Oregon Power Co.v. Beaver Portland

Cement Co,, 299 U.S. 142, relied on below (Ap-

pendix B, infra, pp. 27a-28a ), is completely consist-

ent with our position that the Desert Land Act was

not an irrevocable surrender of federal rights in

the waters of the public domain. That case in-

volved a conflict between two private parties; it

did not, present the question here invelved, nor

Was disposition of that issue necessary to the de-

cision. And opposed to the interpretation placed

on the opinion by the Court of Appeals is the fact

that the Rio Grande case, supra, was twice cited

and quoted with approval (295 U.S. at 155, 158-

159).

(a). The particular lands involved here are

indisputably not now publie lands and therefore,

under the general principles we have discussed

(supra, pp. 14-19), are not subject to the Desert

Land Act. The portion on the east bank of the

Deschutes River was withdrawn from entry, loca-

tion, or disposal under the pubiice land laws and

reserved for power purposes in part in 1909, and

the remainder in 1913, pursuant to the Act of

June 25, 1910, 36 Stat. 847 (supra, p. 6). It

is immaterial that these withdrawals came after

the Desert Land Act of 1877—although before the

1921 and 1931 laws of Oregon on which the State

rests its case (see fns. 9 and 10, supra, p. 7)—

because, as we have shown, the 1877 Act was not a

grant by the United States to the States of its

rights in nonnavigable Waters on the public do-

main and in any event not an irrevocable grant.

Supra, pp. 19-23.

2° The lands on the east bank were also withdrawn from

entry and reserved for power purposes by the filing of an ap-

plication for license in 1920 and by the instant application filed

in 1949 as provided by Section 24 of the rederal Power Act.

See fn. 8, supra, p. 6; Appendix A, infra, pp. 5a-7a

24

What we have said with respect to the linds on

the east bank of the river applies with equal, if

not greater, force to those on the west bank within

the Warm Springs Indian Reservation. For those

lands were never a part of the public lands. They

belonged to the Indians under the treaty of 1855

long before the Desert Land Act of 1877 was en-

acted. United States y. Minnesota, 270 U.S. 181,

206; Winters v. United States, 143 Fed. 740, 748

(C. A. 9), affirmed, 207 U. S. 564, 577; United

States v. McIntire, 101 F. 2d 650, 653, 654 (C. A.

9): United States v. Walker River Irr. Dist., 104 F.

2d 334, 339-340 (C. A.9); Shannon v. United States,

160 Fed. 870, 873 (C. A. 9). ‘*The United States

became a trustee, holding the legal title to the land

and waters for the benefit of the Indians’’ and

‘““* * * no title to the waters could be acquired by

anyone except as specified by Congress.”’ United

States v. McIntire, supra. And it has been said

that no ‘‘subsequeat law or sale should be construed

to embrace or operate’’ upon the lands so reserved.

Winters v. United States, supra”

(b). In addition, the Desert Land Act (and the

earlier legislation) would not grant the State the

power it asserts here, even if the lands be viewed as

part of the public domain. As we have pointed out

(supra, pp. 19-23), those Acts do not bar Congress

21 Oregon law has clearly recognized such treaty rights of

the Indians as exempt from State control. Act of August 14,

1848, 9 Stat. 323, See. 1 (Appendix A, infra. pp. 10a-11a);

Oregon Constitution of 1859, Article XVIIT, See. 7 (Appendix

A, infra, p. lla}; Anthony v. Veatch, 189 Ore. 462, 482-485, 220

P. 2d 493, 502-3, 221 P. 2d 575.

25

from thereaiter reserving the lands and waters,

at least insefar as not already appropriated, for

special purposes including power uses. The waters

of the Deschutes River at and below the project

site must be treated as unappropriated,” and there-

fore the reservations of the lands for power pur-

poses, in 1909, 1910, 1913, 1920, and 1949 (see

supra, pp. 6, 23) were fully effective, notwithstand-

ing anything in the State’s legislation.

4. Even if the Desert Land Act be regarded as

an irrevocable surrender of the rights of the United

States in nonnavigable waters on ell Government

lands (public domain or not), unaffected by the

withdrawals, the 1921 and 1931 laws of Oregon

(supra, p. 7) do not stand in the way of federal

licensing of a utilization of the waters of the

De. chutes for water-power purposes.

First, the consent of the Indians has been given

to the occupancy of their reserved lands and to the

interference with their right to and use of the

stream. The Indians’ rights in those waters are

continuing ones against the United States and its

22 The record contains no evidence showing appropriation of

the waters and it is not open to question that the construction

and operation of the project will have no effect on existing

rights of appropriation and use of the waters above or below

the project site (Appendix B, infra, p. 17a). In fact, as hereto-

fore noted, fn. 4, supra, p. 5, the license expressly provides that

it is subject to existing appropriations and to specified unper-

fected appropriations (R. If 409-410}.

Oregon does not assert that it has appropriated the waters

of the Deschutes River by appropriation for beneficial pur-

poses, nor that it has complied with the Desert Land Act's

requirements for appropriation.

26

grantees, as well as against the State and its

grantees, United States v. Winans, 198 U.S. 371.

As the dissenting opinion below states (Appendix

b, infra, p. 34a):

It is thus indisputable that the Indian Tribe,

not the State of Oregon, possesses authority,

as granted by the treaty, to control fishing re-

sources of the Deschutes bordering on its res-

ervation no less than those in streams en-

tirely within the boundaries of the reservation.

As contemplated by § 10 (e) of the Federal

Power Act, the Warm Spring Indians have

given their approval to the Pelton project,

hence have consented to the use of their lands

for power purposes and to the consequent in-

terference with their exclusive fishing rights.

Second, nothing in the Desert Land Act or its

purpose justifies the conclusion that the local laws,

customs, and decisions there given recognition in-

clude State regulations for the protection of fish.

On the contrary, it seems clear that Congress did

not intend to confer such power on the State. The

Desert Land Act deals, in terms, only with the

usual problems incident to use of water for irri-

gation and like purposes. Other federal legisla-

tion coneerns fish. The Wildlife Resources <Act

of August 14, 1946, 60 Stat. 1080, 16 U.S.C. 661,

for the conservation of wildlife, fish and game, pro-

vides (Section 2, 16 U.S.C. 662) that whenever

‘‘the waters of any stream or other body of water

are authorized to be impounded, diverted, or other-

97

wise controlled for any purpose whatever by any

department or agency of the United States, or by

any pubdlie or private agency under Federal per-

mit’ such department or ageney ‘shall con-nit

with the Fish and Wildlife Serviee and the head

of the” State agency ‘exercising administration

over the wildlife resources of the State’ with ‘ta

view to preventing loss of and damage to wildlife

resources.” The recommendations of the State

agency as to the fish and wildlife resources are to

be given due consideration but there is no require-

ment which makes them controlling. Instead. there

is the assertion of federal control. House Rept.

No, 1944, 79th Cong., 2d Sess.. p. >: State of lowa

v. Federal Power Commission, 178 F. 2d 421. 428,

certiorari denied, 339 ULS., 979. In the ease of a

project: requiring a license under the Federal

Power Act, the final decision as to the resolution of

the fishing resources is left upto the Federal Power

Commnission.

». As the court below explicitly recognized ( Ap-

pendix B, infra, pp. 22a-23a), once the 1866, 1870,

and 1877 legislation is shown to be inapplicable, the

governing principle is that declared by this Court

in First lowa-Hydro-Electric Coop. Vv. Federal

Power Commission, 828 US. 152. That holding

was that the Federal Power Act superseded State

law and that the securing of a State permit was

not a condition precedent to the obtaining of a fed-

eral license. ‘*The Act leaves to the States their

traditional jurisdiction subject to the admittedly

superior right of the Federal Government, through

On

Congress, to regulate interstate and foreign com-

merece, administer the public lands and reservations

of the United States and, in certain cases, exercise

authority under the treaties of the United States.”’

S28 U.S. at 171. * The detailed provisions of the

act.” this Court said, ‘providing for the federal

vlan of regulation leave no room or need for con-

flieting state controls.’ S28 ULS. at 181.

CONCLUSION

or the foregoing reasons, it is respectfully sub-

mitted that this petition for a writ of certiorari

should be granted. The case presents issues which

are not only important in the administration of the

Federal Power Act but are also of pressing signi-

ticanee to the Federal Government's rights and

powers over its vast properties in the West.

Respectfully submitted,

SIMON E. SOBELOFF,

Solicitor General,

Winttarp W. GATCHELL,

Gieneral Counsel,

Federal Power Commission.

SEPTEMBER, 1954.