Brief for Respondents in Opposition — Federal Power Commission v. Oregon

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Niel 5,0 "19 aos U. S|

LIBRARY Wi. bt ean,

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SUPREME CourrT U.S } OCT22 1954 :

| NAROLD 8. WiLLEY, Clerk |

<a ee enn " |

IN THE

upreme 4} ourt of the {]nited States

OCTOBER TERM, 1954

No. 367

FEDERAL POWER COMMISSION, Petitioner,

THE STATE OF OREGON, THE FISH COMMISSION

OF OREGON, THE OREGON STATE GAME

COMMISSION, Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

BRIEF FOR RESPONDENTS IN OPPOSITION

ARTHUR G. HIGGS

Assistant Attorney General

: State of Oregon

ROBERT Y. THORNTON Attorney for Respondents

Oregon

" ir MmPAT OR

E. G. FOXLEY OREGON STATE GAY COMMISSION

Deputy Attorney General

Of Counsel P, 0. Box 4136, Portland 8, Oregon

INDEX

Pace

Opinions Below ]

Jurisdiction ]

Questions Presented y

Statutes Involved 3

Statement .. 3

Brief of Authorities 7

Summary of Argument 12

Argument 15

Conclusion 31

TABLE OF CASES CITED

Ashwater v. Tennessee Valley Authority, 297 U.S. 288,

338, 56S. Ct. 466 Ms , : 16

Atchison v. Peterson, 20 Wall. 507, 22 L. Ed. 414 .. 8,10, 20

Basey v. Gallagher, 20 Wall. 670, 22 L. Ed. 452 10, 20

Broder v. Natoma Water and Mining Company, 1! Otto

274, 25 L. Ed. 790 . a . Rea

Brush v. Commissioners of Internal Revenue, 300 U.S.

352 . nada 10

California-Oregon Power Company v. Beaver Portland

Cement Co., 73 Fed. (2d) 555 - 8, 9, 10, 12, 19, 21, 22

Federal Power Commission v. Niagara Mohawk Corpora-

tion, 202 Fed. (2d) 190, 347 U.S. 239, 74S. Ct. 487 12, 29, 30

First Iowa Hydroelectric Cooperative v. Federal Power

Commission, 328 U.S. 152 ..... ................ he | 11

Gutierres v. Albuquerque Land & Irrigation Company,

196 US. 546, 563, 23 S. Ct. 336 .................. aa Sie

Ickes v. Fox, 300 U.S. 82, 57S. Ct. 412 _. wtesncely Ay Maem ae

Jennison v. Kirk, 98 U.S. 453, 25 L. Ed. 240 | 8, 10, 19

Kansas v. Colorado, 206 U.S. 48, 94 | 11, 16, 26

Re Water Rights of Hood River, 114 Or. 112, 227 P. 1065 y)

State of Iowa v. Federal Power Commission, 399 U.S. 979 11, 27

United States v. Rio Grande D. & I. Company, 174 U.S.

690, 706,19 S. Ct. 770 10, 21, 26

FEDERAL STATUTES CITED

49 Scrat. CoO, T. 16 ULS.C.A., Sec. 825 (b) (Section 313 (b),

Federal Power Act)

Acts ot Congress 1866, 1870 and 1877 (14 Stat. 251, 16 Stat.

217)

Territorial Act of Oregon, August 14, 1848 (9 Stat. L.

sec. 12, Ch. 177, p. 328) ....

Section % (b), Federal Power Act . ee ae

Pesert Land Acts, March 3, 1877 (43 U.S.C.A.

: : | Ser eis a = ee oa, oe, te,

STATE STATUTES CITED

Constitution of Oregon, 1859, Article XI-D, Sec. i

Constitution of Oregon, 1859, Article XVIII, Sec. 7 .........

Oregon Revised Statutes:

FLAS Ace ES eee Wr ECOL Sa PRET LU nie a Re Oe

Section 337.110 .

Section 543.110

Section 543.120

MISCELLANEOUS CITATIONS

Supreme Court Rule 19

IN THE

Supreme {ovr af the {lnited States

OCTOBER TERM, 1954

No. 367

FEDERAL POWER COMMISSION, Petitioner,

THE STATE OF OREGON, THE FISH COMMISSION

OF OREGON, THE OREGON STATE GAME

COMMISSION, Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

BRIEF FOR RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Ninth Circuit (R. 1035) is reported in 211 F.2d

347; the opinion and order of the Federal Power Com-

mission granting the license (R. II, 417-447) are reported

at 92 P.U.R. (N.S.) 247.

JURISDICTION

The order of the Court of Appeals was entered Febru-

ary 18, 1954 (R. 1034). The jurisdiction of this Court is

invoked under Section 313 (b) of the Federal Power Act

and 26 U.S. C. Section 1254 (1), 49 Stat 860, 16 U.S. C.

825 (1).

QUESTIONS PRESENTED

1. Did the Federal Power Commission have juris-

diction, power, and authority to authorize and to license

the construction, operation, and maintenance of the pro-

posed project in the absence of state authority to use, im-

pound, and divert the waters of the Deschutes River, an

internal, nonnavigable stream of the State of Oregon?

2. Did the United States Constitution delegate to

the central government power to control the acquisition

and use of nonnavigable streams?

3. Whether under the Desert Land Act of 1877 the

Federal Government irrevocably and unconditionally

surrendered or relinquished to the states, including the

State of Oregon, whatever rights the government may

have had to contro! the use of the waters of nonnavigable

streams?

4. Whether under the Desert Land Act of 1877 the

common law doctrine of riparian rights have been abro-

gated in Oregon?

5. Whether the Federal Power Commission may act

as a substitute for the local auinorities over such ques-

tions as the right to use, appropriate, divert, or impound

the waters of nonnavigable streams?

6. Whether an applicant for a license under Section

9 (b) of the Federal Power Act must show the Federal

Power Commission he has under the state law the right

to divert the waters of a nonnavigable stream for the

use of which he desires a license?

STATUTES INVOLVED

The statutes involved are adequately set forth in the

Appendix to the Petition.

ADDITIONAL STATEMENT

The Deschutes is an interior, nonnavigable river of

the State of Oregon and is a tributary of the Columbia

River (R. 330). A setting forth of some general facts

relative to the geography, topography and stream flow

may be helpful in understanding the issues of this case.

The Deschutes River rises near the summit of the

Cascade Range and flows northward along the foot of

the eastern slope to join the Columbia River at a point

about 15 miles upstream from The Dalles, Oregon. The

drainage basin, with an area of about 10,500 square miles,

has a shape somev-hat like an inverted Y, and Little

Deschutes River forms the drainage pattern of the west-

ern arm. Twenty miles below its junction with Little

Deschutes River, the main stream flows through Bend,

the most important city in the basin (R. 327).

About 55 miles north of Bend, two important tribu-

taries, the Metolius and Croked Rivers join the main

stream, from the west and east, respectively, and at

that point the flow from springs greatly augments the

run-off which is depleted by irrigation diversions above

Bend. Only two other important tributaries, Warm

Springs River and White River at mile 84 and mile 47,

respectively, enter the stream below Bend. Most of the

basin is covered with timber, and this timbered area

includes all of Deschutes National Forest, and portions

of Mt. Hood and Ochoco National Forests. Topography

of the basin is generally broken and rugged, except for

the Central Oregon plateau and the comparatively level

bench lands in the mid-valley section. Throughout the

lower 130 miles, the river flows in a narrow canyon with

an average fall ef 17.6 feet to the mile. The agricultural

lands consist largely of high table lands cut by deep

canyons through which the rivers flow and small arable

areas which border the streams. The soil is a coarse, dis-

integrated lava and the rocks of the entire area are vol-

canic and very porous. The river valley varies in width

rom 200 to 1,200 feet (R. 328).

The geological formations, being porous in nature,

act as underground reservoirs regulating run-off from

the basin. The Deschutes River has perhaps the most

uniform flow of any river of comparable size in the

Columbia River Basin, and has a maximum discharge

near Madras, which is in the vicinity of the proposed

project, of about 13,3800 cubic feet per second, the mini-

mum at the same point being about 2,900 cubic feet per

second. The mean annual run-off near Madras is 3,011,800

acre-feet, and the average flow is about 4,200 cfs (R. 328).

Flow in the Deschutes is remarkably uniform, and

because of the geological conditions in the basin, large

flocds are not regarded as prebable in any part of the

basin except on Crooked River, whicn enters the De-

schutes from the east at mile 113, or about 10 miles

above the proposed project. No floods causing major

damage are known to have occurred (R. 328).

Metolius and Warm Spring Rivers are the principal

)

salmon supporting tributaries of Deschutes River. These

streams support runs of spring chinook salmon and stee}-

head trout. Falls and dams above the confluence of

Metolius River block the upstream passage of anadromous

fish. The Oregon Fish Commission he~ constructed and

put into operation a salmon hatchery on Metolius River.

Tne Deschutes River has numerous rainbow, cutthroat,

German brown trout, steelhead and salmon and is na-

tionally known for its sport fishing (R. 329).

Seasonal low flows of Deschutes River and its tribu-

taries above Bend are completely appropriated and are

used primarily for irrigation of lands lying east of the

river (R. 329).

The proposed project would occupy lands of the

United States and would affect the Warm Springs Indian

Reservation (R. 331) (433).

On January 20, 1949, four months prior to the filing

of its application with the Federal Power Commission,

the Northwest Power Supply Company filed with the

Hydroelectric Commission of Oregon an application for

a preliminary permit, Project No. 170, commonly known

as the Pelton Project, for authority to appropriate 7,040

cubic feet per second of water from the Deschutes River

for the purpose c* developing 120,000 theoretical horse-

power under a head of 150 feet and to construct a dam

and powerhouse at the ‘Pelton Site.

This application was filed in compliance with the

terms of Oregon Revised Statutes Sec. 543.110 et seq.,

which, in substance, provides that no water-power proj-

ect involving the right to use or appropriate the waters

of any rivers or other bodics of water within the State

of Oregon, for the generation of electricity shal! be begun

or constructed except in conlormity with the provisions

of said Act, which, among other things, provides for the

issuance of a preliminary permit by the Oregon Hvdro-

electric Commission before any such water-power project

shall be initiated.

Oregon Revised Statutes Sec. 509.640, provides in

substance that in the event any person desires to con-

struct a dam in any of the streams of Oregon to a

height that will make a fish ladder or fishway there-

over impracticable in the opinion of the Oregon Fish

Commission, then such person may make an applica-

tion to the Commission for a permit to construct the

dam. The Oregon Fish Commission is authorized to grant

such permit in its discretion on the condition that the

person so applying for such permit shall convey to the

State of Oregon a site of the size and dimensions satis-

factory to the Fish Commission, at such place as may be

selected by said Commission, and shall erect thereon a

hatchery residence in accordance with plans and specifi-

cations to be furnished by the Commission. The act fur-

ther provides that such person shall enter into an agree-

ment with the Commission secured by bond to furnish

all water and light without expense, to operate said pro-

posed hatchery. This act further provides that the Fish

Commission shall not issue a permit for the construction

of any such dam until the person applying for such per-

mit shall have actualiy conveyed said land to the State

and shall have erected said hatchery and hatchery resi-

dence thereon in eccordance with said plans and specifi-

cations.

BRIEF OF AUTHORITIES

The rivers and streams of water in the territory of

Oregon in which salmon are found stial! not be obstrictea

by dams or otherwise, unicss such dams or Gbhetructions

are so constructed as to allow saimon to pass freely un

and down such rivers and streams.

Act of Congress (August 14, 1848, Territory of

Oregon Act.) 9 Stat. L. Sec. 12, Ch. 177. p. 328

“All laws ir force in the territory of Oregon when thi:

constitution takes effect, and consistent therewith. shel!

continue in force unti! altered or repealed.”

Article XVIII, Sec. 7, Constitution of Oregon, 1859

ITI

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 f.sn ladder or fishway thereover impractic-

able, in the opinion of the commission, then such person

may make an application to the commission for a permi!

‘to construct such dam, and the commission is hereby au-

thorized to grant such permit in its discretion. upen the

condition that the person so applying for such permit shal!

convey to the state of Oregon a site of the size and di-

mensions satisfactory to the commission, at such place as

mas be selected by the comroission, and erect a hatchery

ind boatchery residence, according to plans and specifica-

ms to be furnished by the comission, and enter into

an agreerent with the commission, secured by a good

nd sufficient bond, to furnish all water and light without

xponse, to operate said proposed hatchery: and no permit

the construction of any such dam shall be given by

the commission unti! the person applving for such permit

cpall have actually conveved said land to the state and

i: d hatchery and hatchery residence in accord-

nee with said plans and svecifications

Oregon Revised Statutes Sec. 509.640.

The common-law doctrine of riparian rights has been

virtually abrogated in Oregon and for practical purposes

appears to be no longer more than a legal fiction.

California-Oreqon Power Co. v. Beaver Portland

Cement Co... 295 U.S. 142. 164, 79 L. Ed. 1356,

Jennison v. Kirk, 98 U.S. 453, 25 L. Fd. 240.

Aichison v. Peterson, 20 Wall. 507, 22 L. Ed. 414.

All waters within the state (Oregon) from all sources

}

of water supply belong to the public.

Oregon Revised Statutes Sec. 537.110

> Oe

The above section abolishes the rule that a roarian

owner has the right to have a stream continue to Sow

substantially undiminished in its natural channel.

California-Oregon Power Co. v. beaver Portland

-~-

f Cement Co., 73 Fed. 2nd 555.

The common-law rule as to “continuous flow” of a

stream, or riparian doctrine, may be changed by statute

except as such change may affect some vested right.

Re: Water Rights of Hood River, 114 Or. 112, 227

P. 1065.

VII

The Oregon water code has — en sustained as con-

stitutional by the Supreme Court of the United States.

California-Oregon Power Co. v. Beaver Portland

Cement Co., 295 U.S. 142, 79 L. Ec. 1356.

Vill

The rights, title and interest in and to all water for

the development of waterpower and to water power sites,

which the state of Oregon now owns or may hereafter

sccuire, shail be held in perpetuity.

Article XI-D, see. 1. Constitution of Oreceon, aod

The Desert Land Act (Act of Congress, March 3, 1877,

amended 42, U.S.C.A. 321) had ihe effect to sever all

waters upon the public domain, not theretofore appro-

priated, from the land itself.

California-Oregon Power Co. v. Beaver Portland

Cement Co.

Brush v. Commissioners of Internal Revenue, 300

U.S. 352.

Ickes v. Fox, 300 U.S. 82, 57 S.Ct. 412.

»4

Under the tederal Acts of 1866, 1870 and 1877 (Title

43. Section 661, United States Code annotated (14 Stat.

251, 16 Stat. 217)) the federal government irrevocably

and unconditionally surrendered or relinquished to the

states whatever rights the government may have had

to contro! the use of waters of nonnavigable streams in

the West.

Jennison v. Kirk, 98 U.S. 453, 25 L. Ed. 240,

California-Oreqon Power Company v. Beaver Port-

land Cement Company, 295 U.S. 142, 55 S. Ct.

725,

Atchinson v. Peterson, 20 Wall. 507, 22 L. Ed. 414,

Basey v. Gallagher, 20 Wall. 670, 22 L. Ed. 452,

Broder v. Natoma Water and Mining Company, 11

Otto 274, 25 L. kd. 790.

l’nited States v. Rio Grande D. & 1. Company, 174

U.S. 690, 706, 19 S. Ct. 770,

Gutierres v. Albuquerque Land & Irrigation Com-

pany, 188 U.S. 545, 553, 23 S. Ct. 338.

ee ee

——

POS TEA Saree eee

EEL

Fe SRE Lat

ee eR a i eS ae ee ae

The power to legislate on the question of the acquisi-

tion and control of water rights has never been delegated

to the United States and hence such power properly be-

longs to the individual! states.

Kansas v. Colorado, 206 U.S. 46, 34,

Fox v. Ickes, 137 Fed. 2nd 30.

XII

From and after the date when this act takes effect no

right to appropriate or to use the waiters of the lakes,

rivers, streams or other bodies of water within the state

of Oregon, including water over which this state has

concurrent jurisdiction, in connection with the develop-

ment of any water-power project for the generation of

electricity, shall be initiated, perfected, acquired or held,

except for and during the period or periods or extensions

thereof as herein stated. and pursuant to the provisions

hereof, (Ore. L. 1931, ch. 67, sec. 2, p. 82)

Oregon Revised Statutes Sec. 543.110 et seq.

XIII

The refusal of the Fish Commission of Oregon and

the Oregon Hydroelectric Commission to approve the

Pelton Project is an absolute bar to the licensing of the

proposed project. Sec. 9 (b) Federal Power Act (16 U.S

C.A. 802 b.)

First lowa Hydro-electric Cooperative v. Federa!

Power Commission, 328 U.S. 152

State of lowa v. Federal Power Commussion, 5

U.S. 979.

XIV

Riparian water rights, like other real property rights,

are determined by state law. Title to them is acquired in

conformity with that law.

Federal Power Commission v. Niagara Mohawk

Power Corporation, 347 U.S. 239, 74 S. Ct. 487.

The legislative history of the Federal Power Act com-

pels conclusion that it was not intended to automatical'y

abolish pre-existing water mghts on a nationwide scale,

but that it was intended to be merely regulatory.

Federal Power Commission v. Niagara Mohawk

Power Corporation, 347 U.S. 239, 74S. Ct. 487.

SUMMARY OF ARGUMENT

1. The decision below is in accord ‘vith the well

recognized, long standing principles laid down by this

court. The court below decided no question in a manner

not consistent with the interpretation of the Federal

Power Act in prior decisions of this court. The decision

below is consistent with the decision of this court in

the recent case of Federal Power Commission v. Niagara

Mohawk Power Corporation, 347 U.S. 239, 74 S. Ct. 487,

and with those earlicr decisions in Caiifornia-Oregon

Power Company v. Beaver Portland Cement Company,

295 US. 162,55 S. Ct. 731, and in Ickes v. Fox, 300 U.S.

foe

2.57 S.Ct. 412. The decision below decided no important

question of federal law which has not, but should be,

settled by this court.

2. The decision of the court below is nest in conflict

with the decision of another court of appeals. It is in

accord with the laws of the state of Oregon.

3. The court below correctly held that:

a. By adoption, under Federal Power Act, of policy

that Federal Power Commission is to work toward a

constructive national program of intelligent, economical

utilization of power resources, Congress did not and

could noi change state ownership or control of waters

located within state.

b. Within certain limitations, sovereignty of Oregon

extends over control of waters located within Oregon

as definitely as over lands therein, but the federal gov-

ernment, has paramount rights in navigable streams

under the commerce clause.

c. As owner of public domain, federal government

tossessed power to dispose of land and water thereon

together or to dispose of them separately, and fair con-

struction of the Desert Land Act is that Congress intended

to establish rule that, for ihe future, land should be

patented separately and that all nonnavigable waters

thereon should be reserved for the use of public under

‘aws of siate and territories named.

d. Regulation of the Deschutes River as it flows

‘through Oregon is one of powers of Oregon's sover-

eienty, and such power inciudes power to regulate fish

nm Oregon waters.

e, Whatever, : any, limitation there was upon Ore-

von s complete sovereignty over waters of the Deschutes

River was wiped out by the Desert Land Act of 1877.

f. The Federal Power Coinmission had legal right te

e:ve its approval to the construction of a hydroelectric

» ant on the Deschutes River in Oregon and had power to

grant its permissive Jicense to construction of such pro-

posed dam upon federal property, but ownership of power

dam site did not empower federal government to use

waters of such river either at such site or elsewhere con-

trary to Dregon law.

in view uf Rule 19 of this court which sets forth the

possible grounds for. granting certiorari, though neither

controlling nor fully measuring the court's discretion, are

indeed persuasive, surely this court will not, in the ab-

sence of any of such grounds, grant the writ of certiorari.

ARGUMENT

The respondents contend that under the Desert Land

Acts (43 U.S.C.A. 321), the Federal government irre-

vocably and unconditionally surrendered and _ relin-

guished to the State of Oregon whatever rights the gov-

ernment may have had to control the use of the waters

of its nonnavigable streams; that common law rule as

to “continuous flow” of a nonnavigable stream, or ri-

parian doctrine, has been changed by statute and laws

ot the State of Oregon; that said Desert Land Acts had

the efect to sever all waters upon the public domain from

the land itself; thet the rights, title and interest in and

to all waters of the State, and the right to regulate its

use, are vested in the State; that the State of Oregon

has refused to license the proposed project; that under

Section 9b of the Federal Power Act (16 U.S.C.A. 802b),

the refusal of the State to approve the project is an

absolute bar to the licensing of the project by the Fed-

eral Power Commission.

From the system of state control, enormous property

rights have been developed in the West. This Court has

recognized that rights of water secured in conformity

with state laws are vested property rights. There is no

provision in the federal constitution delegating to the

ventral government power to control the acquisition and

use of nonnavigable streams. The government, recog-

| nizing this position, has on occasion claimed that the

ee \'nited States has proprietary title in wa er and hence

‘ull power to dispose of and regulate such waters

in the case of Kansas v. Colorado, 206 U.S. 46, the

United States invoked this provision (Ciause 2, Section

3, Article IV, United States Constiution) in support of

its claim of national control as asserted in that case. The

Court there, after referring to the constitution provision

said (p. 89): “The tult scope of this paragraph has never

been definitely seitled. Primarily, at least, it is a grant

of power to the United States of control over its property.

* clearly it does net grant to Congress any legislative

control over the states, and must, so far as they are con-

cerned, be limited to authority over the property belong-

ing to the United States within their limits.”

Referring to this constitutional provision, i.e., power

in the federal government to control the acquisition and

use of water it was said in Ashwater v. Tennessee Valley

Auhtority, 297 U.S. 288, 388, 56S. Ct. 406:

“The constitutional provision is silent as to the

method of disposing of property belonging to the

United States. That method, of course must be an

.ppropriate means of disposition according to the

nature of the property, it must be one adopted in

the public interest as distinguished from private

or personal ends, and we may assume that it must

be consistent with the foundation principles of our

dual svstem of government and must not be con-

trived to govern the concerns reserved to the

states.”

The siate has taken the position that under the Fed-

eral Acts of 1866, 1890 and 1877. the federal government

irrevocably and unconditionally surrendered or relin-

quished to the states whatever rights the government

may have had to control the use of the waters of non-

navigable streams in the West. The first of these federal

Acts, that of July 26, 1866 (14 Stat. 251) and the second,

that of July 9, 1870, (16 Stat. 217), are codified together

as Section 641, Title 43, United States Code, which reads

as follows:

“Whenever, by priority of possession rights to the

use of water for mining, agricultural, raanufactur-

ing, or other purposes, have vested ard accrued,

and the same are recognized and acknowledged by

the local customs, |aws 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 purpose herein specified is ac-

knowledged and confirmed; but whenever any

person, in the construction of any ditch or canal,

injures or damages the possession of any settler on

the public domain, the party committing such in-

jury or damage shall be liable to the party injured

for such injury or damage.

“All patents granted, or pre-emption or home-

steads 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 recog-

nized by this section.”

The first paragraph of the above quoted section 1s

from the original Act of 1866. The second paragraph 1s

from the amendatory Act of 1870 and had for its purpose

the clarification of the 1566 statute.

The third pertinent federal Act is the so-called

“Desert Land Law” (Act of March 3, 1877. as amended,

43 U.S.C.A. 521), which, after providing for desert land

entries, reads as follows:

‘“* * * 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 three hundred

and twenty acres shall depend upon bona fide ap-

propriation: and such right shall not exceed the

amount of water actually appropriated, and neces-

sarily used for the purpose of irrigation and recla-

mation: and all surplus water cer 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 noi 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.”’

Section 2 and section 3 of this 1877 Act (19 Stat. 377)

further provides:

“Section 2. That all lands exclusive of timber lands

and mineral lands which will not, witheut irriga-

tion, produce some agricultural crop, shall be

deemed desert lands, within the meaning of this

act. which fact shall be ascertained by proof of two

or more credible witnesses under oath, whose af-

fidavits shall be filed in the tand office in which

said tract of land may be situated—

“Section 3. That this act shall only apply to and

take effect in the States of California, Oregon and

Nevada, and the Territories of Washington, Idaho.

Montana, Utah, Wyoming, Arizona, New Mexico

and Dakota. and the determination of what mav

be considered desert land shall be subject to the

decision and regulation of the Commissioner of the

General Land Office.”

The historical background of the Acts of 1866, 1870

and 1877 has been related many times. Jenison v. Kirk,

98 U.S. 453, 25 L. Ed. 240, decided in 1879 contains an

account of the 1866 law by Justice Field who did much

to mold the form of the earlier decisions. It was there

said (Jennison v. Kirk, supra}: “The doctrines of the

common law respecting the rights of riparian owners

were not considered as aplicable, or only in a very

limited degree, to the condition of miners in the moun-

tains.”

With reference to the 1866 Act the decision had this

Lo Say:

“It merely recognized the obligation of the govern-

ment to respect private rights which had grown up

under its tacit consent and approval. It proposed

no new system, but sanctioned, regulated, and con-

firmed a system already established, to which the

people were attached.” |

A more recent decision, California-Orer ~~ Power

Company v. Beaver Portland Cement Company, 295, U.S

142, 55S. Ct. 725, decided in 1935 reviews the conditions

in the West which lead to the passage of these three fed-

eral Acts and states (295 U.S. 157-158):

“The streams and other sources of supply from

which this water must come were separated fron

one another by wide stretches of parched and bar-

ren land which never could be made to produce

agricultural crops except by the transmission of

water for long distances and its entire cons’ 'mption

in the process of irrigation. Necessarily, that in-

volved the compiete subordination of the common-

law doctrine of riparian rights to that of ap-

propriaticn. And thi; substitution of the rule of

appropriation for that of the common law was to

have momentous consequences. It became the de-

termining factor in the long struggle to expunge

from our vocabularly the legend “Great American

Desert” which was spread in large letters across

the face of the old maps of the far west.”

In Atchinson yv. Peterson, 20 Wall. 507, 22 L. Ed. 414,

Justice Field after referring to the silent acquiescence

of the United States in permitting the occupation of the

public lands for mining and appropriation of water in

connection with those operations said (22 L. Ed. 41€, 20

Wal., 507, 513): “This doctrine of right by prior ap-

propriation was recognized by the legislation of Congress

in 1866.”

In Basey v. Gallagher, 20 Wall. 670, 683, 684; 22 L. Ed.

452, the same judge referred to the 1866 Act and said:

“It is very evident that Congress intended, although

the language used is not happy, to recognize as

valid the customary law with respect to the use of

water which had grown up among the occupants of

the public land under the peculiar necessities of

their condition; and that law may be shown by

evidence of the local customs, or by the legislation

of the state or territory, or the decisions of the

courts.”

In Broder v. Natoma Water and Mining Company, 11

Otto "4, 276; 25 L. Ed. 790, it was held that the Act of

i866 was “rath *a voluntary recognition of the pre-ex:s‘

in right of possession, constituting a valid claim to its

continued use, than the establishment of a new ore.’

In United States v. Rio Grande D. & 1. Company. 174

US. 690, 706, 19 S.Ct. 770, it was said: “Obviously by

these acts so far as they extended, Congress recognized

and assented ic the apprepriation of water in contra-

vention of the common law rule as to continuous flow.”

Likewise Gutierres v. Albuquerque Land & Irrigation

Company, 188 U.S 545, 553, 23S. Ct. 388, held:

“By the Act of March 3, 1877, c. 107, 19th Stat. 377,

the right to appropriate such an amount of water

as might be necessarily used for the purpose of ir-

rigation and reclamation of desert land, part of the

public domain, was granted * * *”,

In the case of California-Oregon Power Company v.

Beaver Portland Cement Company (supra), the power

company which had appropriaticn rights freri interfer-

in with the water of Rogue River in Oregon. The Court

reviewed at length the conditions in the West which lead

to the passage of the Acis of 1866, 1870 and 1877, and

commended upon these Acts and the decisions construing

them. The decision reached was that the appropriation

rights of the defendant were good and hence the injune-

tion could not issue. The Court thus summarized its

decision (295 U.S. 142. 163, 55 S. Ct. 725):

“What we hold is that following the Act of 1877, if

not before, all nonnavigable waters then a part of

the public domain became publici jurts, subject to

the plenary contro! of the designated states. includ-

ing those since created out of the territories named,

with the right in each te determine for itself to

what extent the rule of appropriation or the

common-law rule in respect of riparian rights

should obtain.”

The doctrine of the California-Oregon Power Com-

pany decision has been rciterated in two subsequent

opinions of the United States Supreme Court. We quote

from Ickes v. Fox, 300 U.S. 62, 95,57 S. Ct. 412, wherein

it Was sald:

“The federal government, as owner of the public

domain, had the power to dispose of the land and

water Composing it together or separate!v: and by

the Desert Land Act of 1877 (c. 107, 19 Stat. 377),

if not before, Congress had severed the land and

waters constituting the public domain and estab-

lished the rule that for the future the lands should

be patented separately. Acquisition of the govern-

ment title to a parce! of land was not to carry with

ita water mght: but all nonnavigable waters were

reserved for the use of the public under the laws

of the various arid-land states.”

This same controversy involving the Yakima project

inthe State of Washington, came before the United States

Court of Appeals fer the District of Columbia ard a de-

cision was rendered by that court on June 30, 1943. The

Secretary of Interior attempted to limit the amounts of

water which the farmers could secure under contracts

with the Bureau of Reclamation to 3 er 3%2 acre-feet per

acre and to impose an additional charge if more water

was desired. The Secretary had urged that the United

States was an indispensab’e party, but the Supreme Court

ruled otherwise holding (300 U.S. 62, 95, supra) that the

appropriation of water was not for the use of the Govern-

ment, but, under the Reclamation Act, for the lan¢d-

owners, and that the Government was simply a carrier

and distributor of water with a lien upon the land and

the water rights as security to assure the repayment of

the cost of construction and maintenance. The United

States Court of Appeals (Fox v. Ickes, 137 F.2d 30) ruled

against the Secretary, holding that in the operation of

the project he is in the position of a carrier of water to

all entrymen under the project and that “he must distri-

bute the available water according to the priorities among

the different users which are established by the law of

the State of Washington.” The Appellate Court went on

to say that “the amount of water, to which appellants are

entitled by reason of prior appropriations for beneficial!

use can only be finally determined wy a court of the State

of Washington.”

The only true cwnership in water is one of a right to

use. Neither the United States nor any individual state

can possess 4 true title unless and until a beneficial use

of .1e water is made. This use is exercised by an indi-

vidual, a group of individuals, or a legal entity through

beneficial application of the water in compliance with

state laws.

The effeet of the dedication of the waters of the state

to the state or to the people confers no ownership of title

in the running waters flowing within such respective

jurisdiction. Neither the United States, a state, nor an

individual can, under the law, acquire any absolute

ownership or title to the waters flowing in their natural

channels. The only right that can be acquired by any

one is usufructuary. Again, such a dedication confers

upon the state no absolute title or right even to the use

of such waters. The public ownership. if any distinction

is made, is rather of sovereign than that of a proprietor.

Therefore, such a dedication confers upon the state the

power of administration or regulation of the waters flow-

ing within its Foundaries, and also the power of regulat-

ing the appropriation and use of ,uch waters as between

the respective individual claimants therete. In other

words, the state acts under this terms of dedication in its

sovereign capacity only, and not as proprietor or owner

of the water.

A constitutional and statutory provision dedicating

water to the public should be construed as meaning the

same as the pnrase publici juris, that the water is a

wandering thing whose corpus is incapable of ownership

either by the state or the United States, the utmost right

being usufructuary and subject to acquisition by any

member of the public first applying in conformity with

state regulations.

These principles are in strict conformity with the 1935

decision of the United States Supreme Court in Cali-

fornia-Oregon Power Company (supra), wherein it was

said that by virtue of the Act of 1877, if not before,

LS LTP Aer

yn Ra NaN

295

the waters of nonnavigable streams “became publici juris

subject to the plenary control of the designated states.”

Section 543.110, Oregon Revised Statutes, provides

as follows: |

From and after the date when this act takes effect no

right to appropriate or to use the waters of the lakes,

rivers, streams or other bodies of water within the state

of Oregon, including water over which this state has

concurrent jurisidiction, in connection with the develop-

ment of any water-power project for the generation of

electricity, shall be initiated, perfected, acquired or held,

except for and during the period or periods of extensions

thereof as herein stated, and pursuant to the provisions

hereof.

Section 543.120, Oregon Revised Statutes, reads 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 water over which this state

has concurrent jurisdiction, for the generation of elec-

tricity. shall be begun or constructed except in conformity

with the provisions hereof.

Federal! Government has only such powers as are

delegated to it by the United States Constitution. All

powers not so delegated are by the express provisions of

the Tenth Amendment reserved to the states. The power

to legislate on the question of acquisition and control of

water rights in nonnavigable streams has never been

delegated to the United States and hence such power

properly belongs to the individual states. Th's position

was definitely decided in Kansas v. Colorado (supra),

wherein it is said:

“It (a state) may determine fer itself whether the

common-law rule in respect to riparian rights or

that doctrine which obtains in the arid regions of

the west of the appropriation of waters for the

of irrigation shall control. Congress cannot enforce

either rule upon any state.”

This principle was followed in the California-Oregon

Company case (supra), the court holding that: “The full

power of choice must remain with the state.” To the

same effect are [/nited States v. Rio Grande Dam and Ir-

rigation Company, 174 U.S. 690, and Gutierres v. Albu-

querque Land and Irrigation Company, 188 U.S. 545.

The State of Oregon, by constitution and statute in

the adoption of its water code, has determined this right

in favor of the appropriation doctrine. Oregon Revised

Statutes 537.110; Article 11-D, sec. 1, Constitution of

Oregon, 1859.

Constitution Article 11-D, section 1, Oregon Constitu-

tion, provides the rights, title and interest in and to all

water for the development of waterpower and to water

power sites, which the State of Oregon now owns or may

hereafter acquire, shall be held in perpetuity.

Oregon Revised Statutes 537.110 provides:

“All waters within the state (Oregon) from all

sources of water supply belong to the public.”

Under the iaws of this state, applicant may not ap-

propriate or use the water of the state in connection with

the development of any waterpower project for the gener-

ation of electricity without first having obtained from

the Hydroelectric Commission of the State of Oregon a

license so to do.

The Federal Power Cemmission has no authority to

grant to the Portland General Electric Company, \the

applicant, a license to construct the project in question

until the applicant has complied with section 9 (b) of the

Federal Power Act by showing comptiance with the laws

of the State of Oregon.

This proposition was decided by this court in First

Iowa Hydroelectric Cooperative v. Federal Power Com-

mission, 328 U.S. 152 (1946). The supersedure by the

Federal Power Act of conflicting\state laws was further

emphasized by the denial of certidrari when the State of

Iowa attempted for the second time to impose its own

statute in opposition to the federal license for this project,

State of lowa v. Federal Power Commission, 399 U.S. 979

(1950), in which certiorari was denied thereby affir..ing

the decision of the United States Court of Appeals for

the Eighth Circuit, affirming order of the Commission

granting the license. 178 Federal 2d, 421 (1949).

In the first lowa Hydroelectric case (supra), petitioner

applied to the Federal Power Commission for a license

for a power project in Iowa involving the construction of

a dam on a navigable* stream and the diversion of water

from two navigable* streams into another. Petitioner

showed no attempt to comply with the Iowa Code, 1939,

chapter 363, which forbids the construction of dams and

the diversion of water for industrial purposes without a

permit froin the State Executive Council and authorizing

the issuance of such permit upon the finding inter alia,

that “any water taken from the stream “ * * is returned

thereto ut the earliest practicable place.” The State inter-

vened und urged that the application be denied because

the petitioner did not submit evidence of its compliance

with the requirements of the Iowa Code for a permit from

the State Exectuive Council. The Federal Power Com-

mission found that a federal license for the project was

required under the Federal Power Act and that the

project called for practical and reasonably adequate

watcr power development with certain recreational! ad-

vantages, all at a cost not appearing to be unreasonable;

but it dismissed the application without prejudice on the

ground of petitioner’s failure to present satisfactory evi-

dence, pursuant to section 9 (b) of compliance with re-

quirements of the laws of lowa requiring a state permit.

The Court held that compliance with the requirements

for a state permit under the Iowa Code is not a condition

precedent to, or an administrative procedure that must

be exhausted before, securing a federal license. In dis-

cussing this point the Court said: “It is the Federal Power

Commission rather than the lowa Executive Council that,

under our constitutional government, must pass on issues

affecting the use of navigable* waters—on behalf of the

people as well as on behalf of all others.” (p. 182)

The securing of an Iowa State permit is not in any

sense a condition precedent or an administrative pro-

cedure that must be exercised before securing a federal!

* Emphasis supplied.

license. It is a procedure required by the State of Iowa

in dealing with its local streams and also the water of the

United States within that state in the absence of an as-

sumption of jurisdiction by the United States over the

navigability” of its waters. Now that the federal govern-

ment has taken jurisdiction of such waters (navigable

waters) under the Federal Power Aci, it has not by

statute or regulation added the state requirements to its

federal requirements.” (p. 170)

In the Niagara Mohawk Case (supra) the United States

Court of Appeals in rejecting the contention of the peti-

tioner that the Federal Power Act had superseded state

water laws said (p. 32):

‘Much of the difficulty in this case has arisen fromm

what we regard as ea misconception of the Water

Power Act and of the nature of licenses issued

thereunder. The Act is purely a regulatory measure.

A federal iicense is not an original grant of author-

ity, but a permission to use a state’s grant of author-

ity. To be sure, a license is a prerequisite in that

water rights under state law in a navigable stream

may not be exercised without one, as the Supreme

Court held in the New River case. And when state

law or regulation conflicts with the Act, or with any

lawful federal regulatory action, or with lawful

terms of a federal license, state authority must

vield to federal, as the Supreme Court held in the

First lowa case. But these considerations do not

by any means require the conclusion that the Act

and a license thereunder constitute the source from

which all water rights flow. An applicant for a

* Emphasis supplied.

Jicense must show the Commission he has under

state law the right to divert the water for the use

of which he desires a license. Unless he has that

right, we think the Commission cannot lawfully

, issue a license to him.”

This court in affirming the decision of the lower court

in that case said (p. 495):

“The references in the Act to pre-existing water

rights carry a natural implication that those rights

are to survive, at least until taken over by purchase

or otherwise. Riparian water rights, like other real

property rights, are determined by state law. Title

to them is acquired in conformity with that law.

The Federal Water Power Act merely imposes upon

their owners the additional obligation of using them

in compliance with that Act.

The legislative history of the Act discloses no

sustantial support for the drastic policy which the

Commission seeks to read into it. To convert this

act from a regulatory Act to one automatically

abolishing pre-existing water rights on a nation-

wide scale calls for a convincing explanation of

that purpose. We find none. In fact, the legislative

bistory point the other way.”

In the dissenting opinion Mr. Justice Douglas (p. 498)

stated “And I agree that the Federal Power Act was

not intended to interfere with water rights created by

state law.”

The decision of the lower court in the instant case, in

rejecting the same contentions of the petitioner as was

made in the Niagara Mohawk case, relied in part on the

decision of this court in the Niagara Mohawk case (p. 354).

CONCLUSION

For the above reasons, the peition for write of certi-

orari should be denied.

Respectfully submitted,

ARTHUR G. HIGGS

Attorney for Respondents

ROBERT Y. THORNTON

ATTORNEY GENERAL

STATE OF OREGON

EK. G. FOXLEY

DEPUTY ATTORNEY GENERAL

OF COUNSEL

October, 1954

BRIEF

fOR

RESPond

ENTS

'BRARY ———

i Pre -y - - " . & + ad

SU FR - \4t ua ei. lrg ”

No. 367 | HAN 08

IN THE

Supreme court of the d|nited States

OCTOBER TERM, 1954

FEDERAL POWER COMMISSION, Petitioner,

THE STATE OF OREGON, THE rISH COMMISSION

OF OREGON, THE OREGON STATE GAME

COMMISSION, Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR RESPONDENTS

ARTHUR G. HIGGS

Assistant Attorney General

State of Oregon

Attorney for Respondents

ROBERT Y. THORNTON P. O. Box 4136

Attorney General Portland 8, Oregon

State of Oregon

E. G. FOXLEY

Deputy Attorney General

of Counsel

Salem, Oregon

INDEX

Opinions Below

Jurisdiction

Questions Presented |

Statutes Involved

Statement i

. Brief of Authorities

Argument

Conclusien

TABLE OF CASES CITED

Ashwater v. Tennessee Valley Authority, 297 'J.S. 288,

338, 56 S. Ct. 466

Atchinson v. Peterson, 20 Wall. 597, 22 L. Ed. 414. 9.

Basey v. Gallagher, 20 Wall. 670, 22 L. Ed. 452 __...

Broder vy. Natoma Water and Mining Company, 11 Otto

274, 25 L. Ed. 790

Brush v. Commissioners of Internal Rev enue, 300 U.S. 352

California-Oregon Power Company v. Beaver Portland

Cement Co., 73 Fed. (2d) 555 __. .....9, 10, 11, 19,

Federal Power Commission v. Niagara Mohawk Corpora-

tion, 202 Fed. (2d) 190, 347 U.S. 239, 74 S. Ct. 487

13, 15, 24,

First Iowa Hydroelectric Cooperative v. Federal Power

Commission, 328 U.S. 152 .

Gutierres v. Albuauerque Lad & irvlgition Company,

188 U.S. 545, 553, 23 S. Ct. 338 ........ ote, li,

Ickes v. Fox, 300 U.S. 82, 57 S. Ct. 412 10, 12,

Jennison v. Kirk, 98 U.S. 453, 25 L. Ed. 240 9,

Kansas v. Colorado, 206 U.S. 46, 94 12,

Re: Water Rights of Hood River, 114 Or. 112, 227 P. 1065

State of Iowa v. Federal Power Commission, 399 U.S. 979

I'nited States v. Rio Grande D. & I. enpeny, 174 U.S.

690, 706, 19 S. Ct. 770 _...... 1],

United States v. Twin City Power Company, 215 F.2d

592

Page

11,2

suv wns =

— wba

FEDERAL STATUTES CITED

dave

49 Siat. 860, T. 16 US.C.A., Sec. 825 (b} (Section 313 ib),

Federal Power Act) ]

Acts of Convress 1866, 1870 and 1877 (14 Stat. 251. 16 Stat.

2i7) li

Territorial Act of Orecon, August 14. 184° (9 Stat. L.

Sec. 12, Ch. 177, p. 328) i

Section 9 (b), Federal Power Act 12. 14.27

Desert Land Acts. March 3. 1877 (43 U.S.C.A. 371)

10, 11, 14, 15. 16, 17, 18, 2)

STATE STATUTES CITED

Constitution of Oregon. 1859, Article XJ-D. See. i 16, 26

Constitution of Oregon, 1859, Article XVII. Sec. 7 8

Oregon Revised Statutes:

Section 509.640 0.0... aa ee §

Section 537.110 9.96

Section 543.110 ............................. 12, 2

Section 543.120 0... ....... 25

IN THE

Supreme { ourt of the ‘|nited Niates

| orn IBERK TERM, ‘tase |

No. 367

FEDEKAL POWER COMMISSION. Petitioner

THE STATE OF O&*GON, THE FISH COMMIsni0N

OF OREGON, THE OREGON STATE GAME

COMMISSION. Respondents

ON WRIT OF CERTiGRAR! TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUTI

BRIEF FOR RESPONDENTS

OPINIONS BELOW

The opinion of the Un:ted States Court of Appeai,

for the Ninth Circuit (R. 1035) is reported in 211 F.2d

347; the opimion and order ef the Federal Power Com-

mission granting the license (R. Il, 417-447) are reported

at 92 P.U.R. (N.S.) 247.

JURISDICTION

The order of the Court of Appeals was entered Febru-

arv 18, 1954 (R. 1033). The jurisdiction of this Court

is invoked under Section 313 (b) of the Federal Power

8% US.C. Seetion 1254 (1), 49 Stat 860, 16

| y\ | RI ~ |." % TED

‘ { i sClice-

’ f ¢ ’ q } license

‘ tt nce o1 the pro-

tnority to use,

Deschutes River

: ea c* . ")

i! eli! i the state of Oregon:

qc % % 4 4. ) } I

Stat Constitution delegate to the

wer to control the acauisition and

fice ”

’ ‘ tye ! J

her under the Desert Land Act of 1877 the

C70OV' yovent rrevocably and unconditionally

i j Pt . } ‘

iished to the states. including the

Mey hatever rights the covernment mav

, } 7 4 . . e

ito contral the use of the waters of nonnavicable

Whether under the Desert Land Act of 1877 the

law doctrine of riparian rights have been abro-

Whether the Federal Power Commission may act

ute for the toi authorities over such ques-

the right to use, appropriate, divert. or impound

rs of nonnavigabie streams

‘hether an applicant for a leense under Section

the Federal Power Act must show the Federal

nmission he has under the state law the right

“

—

to divert the waters of a nonnavigable stream for the

use of which he desires a license?

STATUTES INVOLVED

The statutes involved are adequately set forth in the

Appendix to Petitioner's brief.

ADDITIONAL STATEMENT

The Deschutes is an interior, nonnavigable river of

the State of Oregon and is a tributary of the Columbia

River (R. 330). A setting forth of some general facts

relative to the geography, topography and stream flow

may be helpful in understanding the issues of this case.

The Deschutes River rises near the summit of the

Cascade Range and flows northward along the foot of the

eastern slope to join the Columbia River at a point about

15 miles upstream from The Dalles, Oregon. The drain-

age basin, with an area of about 10,500 square miles, has

a shape somewhat like an inverted Y, and Little De-

schutes River forms the drainage pattern of the western

arm. Twenty miles below its junction with Little De-

schutes River, the main stream flows through Bend,

the most important city in the basin (R. 327).

About 55 miles north of Bend, two important tribu-

taries. the Metolius and Crooked Rivers join the main

stream, from the west and east, respectively, and at that

point the flow from springs ereatly augments the run-off

which is depleted by irrigation diversions above Bend.

Only two other important tributaries, Warm Springs

River anc White River at mile &4 and mile 47, respec-

tively, enter the stream below Bend. Most of the basin

is covered with timber, and this timbered area includes

all of Deschutes National Forest, and portions of Mt.

Hood and Ochoco National Forests. Topography of the

basin is generally broken and rugged, except for the

Central Oregon plateau and the comparatively level

bench lands in the mid-valley section. Throughout the

lower 130 miles, the river flows in a narrow canyon with

an average fall of 17.6 feet to the mile. The agricultural

lands consist largely of high table lands cut by deep

canyons through which the rivers flow and small arable

areas which border the streams. The soil is a coarse, dis-

integrated lava and the rocks of the entire area are vol-

caniec and very porous. The river valley varies in width

from 200 to 1,200 feet (R. 328).

The geological formations, being porous in nature, act

as underground reservoirs regulating run-off from the

basin. The Deschutes River has perhaps the most uni-

form flow of any river of comparable size in the Colum-

bia River Basin, and has a maximum discharge near

Madras, which is in the vicinity of the proposed project,

of about 13,300 cubic feet per second, the minimum: at

the same point being about 2,900 cubic feet per second.

The mean annual run-off near Madras is 3,011,800 acre-

feet, and the average flow is about 4,200 cfs (R. 328).

Flow in the Deschutes is remarkably uniform, and

because of the geological conditions in the basin, large

floods are not regarded as probable in any part of the

basin except on Crooked River, which enters the De-

)

schutes from the east at mile 113, or about 10 miles above

the proposed project. No floods causing major damage

are known to have occurred (R. 328).

Metolius and Warm Spring Rivers are the principal

salmon supporting tributaries of Deschutes River. These

streams support runs of spring Chinook salmon and steel-

head trout. Falls and dems above the confluence of

Metolius River block the upstream passage of anadromous

fish. The Oregon Fish Commission has constructed and

put into operation a salmon hatchery on Metolius River.

The Deschutes River has numerous rainbow, cutthroat,

German brown trout, steelhead and salmon ana is na-

tionally known for its sport fishing (R. 329).

Seasonal low flows of Deschutes River and its tribu-

taries above Bend are completely appropriated and are

used primarily for irrigation of lands lving east of the

river (R. 329).

The proposed project, frequently referred to as the

Pelton Project, would consist of a principal structure or

generating dam, power plant, generators, switching sta-

tion, and other facilities and a “re-regulating” dam to be

constructed three miles below the power dam (R. 417-

447).

In Petitioner’s statement on page 7 of the brief, it is

stated, ‘No use of the waters of the Deschutes River

will be made by or at the ‘re-regulating’ structure nor

is there objection directed to it.”

In this, counsel for the Petitioner are in error. The

respondents have consistently and repeatedly objected to

the project, as such, in its entirety (R. 310, 431, 497, 500).

The Petitioner has, throughout these proceedings, treated

the Pelton Project as a unit consisting of both the main

and the re-regulating dams (R. 431).

On January 20, 194$, four months prior to the filing

of its application with the Federal Power Commission,

the Northwest Power Supply Company filed with the

Hydroelectric Commission of Oregon an application for

a preliminary permit, Project No. 170, commonly known

as the Pelton Project, for authority to appropriate 7,040

cubic feet per second of water from the Deschutes River

for the purpose of developing 120,000 theoretical horse-

power under a head of 150 feet and to construct a dam

and powerhouse at the Pelton Site.

This application was filed in compliance with the

terms of Oregon Revised Statutes Sec. 543.110 et seq.,

which, in substance, provides that no water-power project

involving the right to use or appropriate the waters of

any rivers or other bodies of water within the State of

O-egon, for the generation of electricity shall be begun

or constructed except in conformity with the provisions

of said Act, which, among otner things, provides for the

issuance of a preliminary permit by the Oregon Hydro-

electric Cominission before any such water-power project

shall be initiated.

Oregon Revised Statutes Sec. 509.640, provides in sub-

stance that in the event any person desires to construct

a dam in any of the streams of Oregon to a height that

will make a fish ladder or fishway thereover imprac-

ticable in the opinien of the Oregon Fish Commission,

then such person may make an application to the Com-

mission for a permit to construct the dam. The Oregon

Fish Commission is authorized to grant such permit in

its discretion on the condition that the person so applying

for such permit shall convey to the State of Oregon a

site of the size and dimensions satisfactory to the Fish

Commission, at such place as may be selected by said

Commission, and shall erect thereon a hatchery residence

in accordance with plans and specifications to be fur-

nished by the Commission. The act further provides

that such person shall enter into an agreement with

the Commission secured by bond to furnish all water

and light without expense, to operate said proposed hatch-

ery. This act further provides that the Fish Commission

shall not issue a permit for the construction of any such

dam until the person applying for such permit shall

have actually conveyed said land to the State and shall

have erected said hatchery and hatchery residence

thereon in accordance with said plans and specifications.

BRIEF OF AUTHORITIES

The rivers and streams of water in the territory of

Oregon in which salmon are found shall not be obstructed

by dams or otherwise, unless such dams or obstructions

are so constructed as to allow salmon to pass freely up

and down such rivers and streams.

Act of Congress (August 14, 1848, Territory of

Oregon Act.) 9 Stat. L. Sec. 12, Ch. 177, p. 328.

“All laws in force ir the territory of Oregon when

this constitution takes effect, and consistent therewith,

shall continue in force until altered or repealed.”

Article XVIII, Sec. 7, Constitution of Oregon, 1859.

Ill

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 imprac-

ticable, in the opinion of the commission, then such person

may make an application to the commission for a permit

to construct such dam, and the commission is hereby

authorized to grant such permit in its discretion, upon

the condition that the person so applying for such permit

shali convey to the state of Oregon a site of the size and

dimensions satisfactory to the commission, at such place

as may be selected by the commission, and erect a hatch-

ery and hatchery residence, according to plans and speci-

fications to be furnished by the commission, and enter

into an agreement with the commission, secured by a

good and sufficient bond, to furnish all water and light

without expense, to operate said proposed hatchery; and

no permit for the construction of any such dam shall be

given by the commission until the person applying for

such permit shall have actually conveyed said land to

the state and erected said hatchery and hatchery resi-

dence in accordance with said plans and specifications.

Oregon Revised Statutes Sec. 509.640.

The common-!aw doctrine of riparian rights has been

virtually abrogated in Oregon and for practical purposes

appears to be no longer more than a legal fiction.

California-Oregon Power Co. v. Beaver Portland

Cement Co., 295 U.S. 142, 164, 79 L. Ed. 1356,

Jennison v. Kirk, 98 U.S. 453, 25 L. Ed. 240,

Atchinson v. Peterson, 20 Wall. 507, 22 L. Ed. 414.

All waters within the state (Oregon) from all sources

of water supply belong to the public.

Oregon Revised Statutes Sec. 537.110

The above section abolishes the rule that a riparian

owner has the right to have a stream continue to flow

substantiaily undiminished in its natural channel.

California-Oregon Power Co. v. Beaver Portland

Cement Co., 73 Fed. 2nd 555.

The common-law rule as to “continuous flow” of a

stream, or riparian doctrine, may be changed by statute

except as such change may affect some vested right.

Re: Water Rights of Hood River, 114 Or. 112, 227

P. 1065.

Vil

The Oregon water code nas been sustained as con-

stitutional by the Supreme Court of the United States.

California-Oreqgon Power Co. v. Beaver Portland

Cement Co., 295 U.S. 142, 79 L. Ed. 1356.

The rights, title and interest in and to al] water for

the development of water power and to water power

sites, which the state of Oregon now owns or may here-

after acquire, shall be held in perpetuity.

Article XI-D, Sec. 1, Constitution of Oregon, 1859.

The Desert Land Act (Act of Congress, March 3, 1877,

amended 42, U.S.C.A. 321) had the effect to sever all

waters upon the public domain, not theretofore appro-

priated, from the land itself.

California-Oregon Power Co. v. Beaver Portland

Cement Co. (supra)

Brush v. Commissioners of Internal Revenue, 300

U.S. 352.

Ickes v. Fox, 200 U.S. 82, 57 S Ct. 412.

Under the Federal Acts of 1866, 1870 and 1877 (Title

43, Section 661, United States Code Annotated (14 Stat.

251, 16 Stat. 217)) the federal government irrevocably

and unconditionaily surrendered or relinquished to the

states whatever rights the government may have had

to control the use of waters of nonnavigable streams in

the West.

Jennison v. Kirk, 98 U.S. 453, 25 L. Fd. 240,

California-Oreron Power Co. v. Beaver Portiand

Cement Co., 295 U.S. 142, 55 S. Ct. 725,

Atchinson v. Peterson, 20 Wall. 507, 22 L. Ed. 414,

Basey v. Gallagher, 20 Wali. 670, 22 L. Ed. 452,

Broder v. Natoma Water and Mining Company, 11

Otto 274, 25 L. Ed. 790,

- United States v. Rio Grande D. & I. Company, 174

U.S. 690, 706, 19 S. Ct. 770,

Gutierres v. Albuquerque Land & Irrigation Co.,

188 U.S. 545, 553, 23S. Ct. 338.

The power to legislate on the question of the acquisi-

tion and control of water rights has never been delegated

to the United States and hence such power properly be-

longs to the individual states.

Kansas v. Colorado, 206 U.S. 46, 94,

Fox v. Ickes, 137 Fed. 2nd 30.

XII

From and after the date when this act takes effect no

right to appropriate or to use the waters of the lakes,

rivers, streams or other bodies of water within the state

of Oregon, including water over which this state has

concurrent jurisdiction, in connection with the develop-

ment of any water-power project for the generation of

electricity, shall be initiated, perfected, acquired or held,

except for and during the period or periods or extensions

thereof as herein stated, and pursuant to the provisions

hereof. (Ore. L. 1931, ch. 67, sec. 2, p. 82)

Oregon Revised Statutes Sec. 543.110 et seq.

XIII

The refusal of the Fish Commission of Oregon and

the Oregon Hydroelectric Commission to approve the

Pelton Project is an absolute bar to the licensing of the

proposed project. Sec. 9 (b) Federal Power Act (16 U.S.

C. A. 802 b.)

First Iowa Hydroelectric Cooperative v. Federal

Power Commission, 328 U.S. 152.

State of Iowa v. Federal Power Commission, 399

U.S. 979.

XIV

Riparian water rights, like oth_r real property rights,

are determined by state law. Title to them is acquired

in conformity with that law.

Federal Power Commission v. Niagara Mohawk

Power Corporation, 347 U.S. 239, 74 5. Ct. 487.

The legislative history of the Federal Power Act com-

pels conclusion that it was not intended to automatically

abolish pre-existing water rights on a nationwide scale,

but that it was intended to be merely regulatory.

Federal Fower Commission v. Niagara Mohawk

Power Corporation, 347 U.S. 239, 74S. Ct. 487.

XVI

Rights of federal government in navigable waters

within the several states is limited to control thereof for

purposes of navigation.

United States v. Twin City Power Co., 215 F.2d

592.

ARGUMENT

INTRODUCTION:

The respondents contend that under the Desert Land

Acts (43 U.S.C.A. 321), the federal government irre-

vocably and unconditionally surrendered and relin-

quished to the State of Oregon whatever rights the gov-

ernment may have had to control the use of the waters

of its nonnavigable streams; that common law rule as to

“continuous flow” of a nonnavigable stream, or riparian

doctrine, has been changed by statute and laws of the

state of Oregon; that said Desert Land Acts had the effect

to sever all waters upon the public domain from the

land itself; that the rights, *itle and interest in and to

all waters of the State, and the right to regulate its use,

are vested in the State; that the State of Oregon has

refused to license the proposed project; that under Sec-

tion 9 b of the Federai Power Act (16 U.S.C.A. 802 b),

the refusal of the State to approve the project is an abso-

lute bar to the licensing of the project by the Federal

Power Commission.

THE DESERT LAND ACT (ACT OF CONGRESS,

MARCH 3, 1877, AMENDE® 43, U.S.C.A. 321)

HAD THE EFFECT TO SEVER ALL

WATERS UPON THE PUBLIC DO-

MAIN, NOT THERETOFORE

APPROPRIATED, FROM

THE LAND ITSELF.

From the system of state control, enormous property

rights have been developed in the West. This Court has

consistently recovnized that rights of water secured in

conformity with state laws are vested property rights.

(Federal Power Commission v. Niagara Mohawk Power

Corporation supra.) There is no provision in the federal

constitution delegating to the central government power

to control the acquisition and use of nonnavigable

streams. The government, recognizing this position, has

on occasion claimed that the United States has proprie-

tary title in water and hence full power to dispose of and

regulate such waters.

In the case of Kansas v. Colorado, 206 U.S. 46, the

United States invoked this provision (Clause 2, Section

3, Article IV, United States Constitution) in support of

its claim of national contro! as asserted in that case. The

Court there, after referring to the constitution provi-

sion said (p. 89): “The full scope of this paragraph has

never been definitely settled. Primarily, at least, it is

a grant of power to the United States of control over its

* clearly it does not grant to Congress

any legislative control over the states, and must, so far

property. * *

as they are concerned, be limited to authority over the

property belonging to the United States within their

limits.”

Referring to this constitutional provision, ie., power

in the federal government to control the acquisition and

use of water it was said in Ashwater v. Tennessee Valley

Authority, 297 U.S. 288, 388, 56 S. Ct. 466:

“The constitutional provision is silent as to the

method of dispesing of property belonging to the

United States. That method, of course must be an

appropriate means of disposition according to the

nature of the property, i: must be one adopted in the

public interest as distinguished from private or per-

sonal ends, and we may assume that it must be con-

sistent with the foundation principles of our dual

system of government and must not be contrived to

govern the concerns reserved to the states.”

The state has taken the position that under the Federal

Acts of 1866, 1870 and 1877, the federal government ir-

revocably and unconditionally surrendered or relin-

quished to the states whatever rights the goverment

may have had to control the use of the waters of non-

navigable streams in the West. The first of these Fed-

eral Acts, that of July 26, 1866 (14 Stat. 251) and the

second, that of July 9, 1870, (16 Stat. 217), are codified

together as Section 661, Title 43, United States Code,

which reads as follows:

“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 pos-

sessors 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 ior

the purpose herein specified is acknowledged and

confirmed; but whenever any person, in the con-

struction of any ditch or canal, injures or damages

the possession of any settler on the pudlic domain, the

party committing such injury or damaye shall be

liable to the party injured ter such injury or damage.

“All patents granted. or pre-emption cr home-

steads allowed, shal! be subject to any vested and ac-

crued water rights, or mghts to ditches and reservoirs

used in connection with such water rights, as may

have been acquired under or recognized by this sec-

tion.”

The first paragraph of the above quoted section is

from the original Act of 1866. The second paragraph is

froin the amendatory Act of 1870 and had for its purpose

the clarification of the 1866 statute.

The third pertinent federai . .ct is the so-called “Desert

Land Law” (Act of March 3. 1877, as amended, 43 U.S.

C.A. 321), which, after providing for desert land entries,

reads as follows:

“* * * 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 three hundred

and twenty acres shall depend upon bona fide appro-

priation: and such right shall not exceed the amount

of water actually appropriated, and necessarily used

for the purpose of irrigation and reclamation: and ali

surplus water over and above such actual appropria-

tion and use, together with the water of all j

’

akes.

vers, and other sources of water supply upon the

public lands and not navigable, shal! remain and be

held free for the appropriation and use of the public

‘or irrigation, mining, and manufacturing purposes

subject to existing rights.”

Section 2 and Section 3 of this 1877 Act (19 Stat. 377)

provides

“Section 2. That all lands exclusive of timber

lands and mineral lands which wil] not. without irri-

gation, preduce seme agricultural crop, shall be

deemed desert lands. within the meanine of this 2 i

‘hich fact shall be\ascertained by proot of two or

+ 4

more creqaidte witnesses under oath whoes affidavit

} i | ‘ } +] yy } Ly ] raged

tion 3. That et shall only apply to and

; ‘ ‘ , » States of Californi i Ore mon and

ind the Territories of Washington. Idaho.

\t t) W gMmypne A rmzona. Ne WwW’ Ni xico and

TY ned th ce tion of hat ma DOC CONn-

/ 1 dosert i} st If th rec i une deci: nand

lation of the Con er of the General Land

{ ct

} round of the Ac Oo: iS66, 1870

— ia , iF t, , r bi FP 7} j Pyi ; K rt

7 + 25 i Ky +47) ces ar a 379 contains ai}

¢ ; 1{ fs la ji ‘ H £°!'¢} ‘ iO aid muc?

cid the form of the Carrier GetCtsion tt Wi the r¢

(Jennison v. Kirk, supra): “The doctrins of the

common law respecting the rights of riparian owners

were not considered as applicable, or only in a very

limited degree, to the condition of miners in the moun-

tains.”

With reference to the 1866 Act the decision had this

to say:

“It merely recognized the obligation of the gov-

ermment to respect private rights which had grown

up under its tacit consent and approval. It proposed

no new system, but sanctioned, regulated, and con-

firmed a system already established to which the

people were attched.”

A more recent decision, California-Oregon Power

Company v. Beaver Portland Cement Company, 295

U.S. 142, 55 S. Ct. 725, decided in i935 reviews the

cond.tions in the West which lead to the passage of these

three federal Acts and states (295 U.S. 157-158):

“The streams and other sources of supply from

which this water must come were separated from one

another by wide stretches of parched and barren land

which never could be made to produce agricultural

crops except by the transmission of water for long

distances and its entire consumption in the process

of irrigation. Necessarily, that involved the complete

subordination of the common-law doctrine of riparian

rights to that of appropriation. And this substitution

of the rule of appropriation for that of the common

law was to have momentous consequences. It became

the determining factor in the long struggle to ex-

punge from our vocabulary the legend “Great Amer-

ican Desert” which was spread in large letters across

the face of the old maps of the far west.”

In Atchinson v. Peterson, 20 Wall. 507, 22 L. Ed. 414,

Justice Field after referring to the silent acquiescence of

the United States in permitting the occupation of the

public lands for mining and appropriation of water in

connection with those operations said (22 L. Ed. 416, 20

Wal., 507, 513): “This doctrine of right by prior appro-

priation was recognized by the legislation of Congress

in 1866.”

In Basey v. Gallagher, 20 Wall. 670, 683, 684; 22

L. Ed. 452, the same judge referred to the 1866 Act and

said:

“It is very evident that Congress intended, al-

though the language used is not happy, to recognize

as valid the customary law with respect to the use

of water which had grown up among the occupants

of the public land under the peculiar necessities of

their condition; and that law may be shown by evi-

dence of the lecal customs, or by the legislation of

the state or territory, or the decisions of the courts.”

In Broder v. Natoma Water and Mining Company,

11 Otto 274, 276; 25 L. Ed. 790, it was held that the

Act of 1866 was “rather a voluntary recognition of the

pre-existing right of possession, constituting a valid claim

to its continued use, than the establishment of a new

%’

one.

In United States v. Rio Grande D. & I. Company, 174

U.S. 690, 706, 19 S. Ct. 770, it was said: “Obviously by

these acts so far as they extended, Congress recognized

and assented to the appropriation of water in contraven-

tion of the common law rule as to continuous flow.”

Likewise Gutierres v. Albuquerque Land & Irriga-

tion Company, 188 U.S. 545, 553, 23 S. Ct. 388, held:

“By the Act of March 3, 1877, c. 107, 19th Stat.

377, the right to appropriate such an amount of water

as might be necessarily used for the purpose of irri-

gation and reclamation of desert land, part of the

public domain, was granted * * *”.

In the case of California-Oregon Power Company v.

Beaver Portland Cement Company (supra), the power

company which had appropriation rights sued to enjoin

the Cement company from interfering with the water of

Rogue River in Oregon. The Court reviewed at length

the conditions in the West which lead to the passage of

the Acts of 1866, 1870 and 1877, and commented upon

these Acts and the decisions construing them. The deci-

sion reached was that the appropriation rights of the de-

fendant were good and hence the injunction could not

issue. The Court thus summarized its decision (295 U.S.

142, 163, 55 S. Ct. 725):

“What we hold is that following the Act of 1877,

if not before, all norinavigable waters then a part of

the public domain became publici juris, subject to

the plenary control of the designated states, includ-

ing those since created out of the territories named,

with the right in each to determine for itself to what

extent the rule of appropriation or the common-law

rule in respect of riparian rights should obtain.”

The doctrine of the California-Oregon Power Com-

pany decision has been reiterated in two subsequent

opinions of the United States Supreme Court. We quote

from Ickes v. Fox, 300 U.S. 82, 95, 57 S. Ct. 412, wherein

it was said:

“The federal government, as owner of the public

domain, had the power to dispose of the land and

water composing it together or separately; and by

the Desert Land Act of 1877 (c. 107, 19 Stat. 377).

if not before, Congress had severed the land and

waters constituting the public domain and established

the rule that for the future the lands should be pat-

ented separately. Acquisition of the government title

to a parcel of land was not to carry with it a water

right; but all nonnavigable waters were reserved

for the use of the public under the laws of the vari-

ous arid-land states.”

This same controversy involving the Yakima project

in the State of Washington, came before the United

States Court of Appeals for the District of Columbia

and a decision was rendered by that court on June 30,

1943. The Secretary of Interior attempted to limit the

amounts of water which the farmers could secure under

contracts with the Bureau of Reclamation to 3 or 3!»

acre-feet per acre and to impose an additional charge if

more water was desired. The Secretary had urged that

the United States was an indispensable party, but the

Supreme Court ruled otherwise holding (300 U.S. 82,

95, supra) that the appropriation of water was not for

the use of the Government, but, under the Reclemation

Act, for the landowners, and that the Government was

simply a carrier and distributor of water with a lien upon

the land and the water rights as security to assure the

repayment of the cost of construction and maintenance.

The United States Court of Appeals (Fox v. Ickes, 137

F.2d 30) ruled against the Secretary, holding that in the

operation of the project he is in the position of a carrier

of water to all entrymen under the project and that “he

must distribute the available water according to the

priorities among the different users which are established

by the law of the State of Washington.” The Appellate

Court went on to say that “the amount of water, to which

appellants are entitled by reason of prior appropriations

for beneficial use can only be finally determined by a

court of the State of Washington.”

The only true ownership in water is one of a right

to use. Neither the United States nor any individual state

can possess a true title unless and uni.l a beneficial use

of the water is made. This use is exercised by an in-

dividual, a group of individuals, or a legal entity through

beneficial application of the water in compliance with

state laws.

The effect of the dedication of the waters of the state

to the state or to the people confers no ownership of title

in-the running waters flowing within such respective

jurisdiction. Neither the United States, a state, nor an

individual can, under the law, acauire any apsolute own-

ership or title to the waters flowing in their natural

channels. The only right that can be acquired by any

one is usufructuary. Again, such a dedication confers

upon the state no absolute title or right even to the use

of such waters. The public ownership, if any distinction

is made, is rather of sovereign than that of a proprietor.

Therefore, such a dedication confers upon the state the

power of administration or regulation of the waters flow-

ing within its boundaries, and also the power of regulat-

ing the appropriation and use of such waters as between

the respective individual claimants thereto. In other

words, the state acts under these terms of dedication in

its sovereign capacity only, and not as proprietor or

owner of the water.

A constitutional and statutory provision dedicating

water to the public should be construed as meaning the

same as the phrase publici juris, that the water is a

wandering thing whose corpus is incapable of owner-

ship either by the state or the United States, the utmost

right being usufructuary and subject to acquisition by

any member of the public first applying in conformity

with state regulations. Federal Power Commission v.

Niagara Mohawk Power Corporation (supra).

These principles are in strict conformity with the 1935

decision of the United States Supreme Court in Cali-

fornia-Oregon Power Company (supra), wherein it was

said that by virtue of the Act of 1877, if not before,

the waters of nonnavigalle streams “became publici

juris subject to the plenary control of the designated

states.”

THE WATERS OF THE STATE OF OREGON MAY

NOT BE APPROPRIATED WITHOUT ITS

CONSENT.

Section 543.110, Oregon Revised Statutes, provides

as follows: From and after the date when this act takes

effect no right to appropriate or to use the waters of

the lakes, rivers, streams or other bodies of water within

the state of Oregon, including water over which this state

has concurrent jurisdiction, in connection with the devel-

opment of any water-power project for the generation

of electricity, shall be initiated, perfected, acquired or

held, except for and during the period or periods of ex-

tensions thereof as herein stated, and pursuant to the

provisions hereof.

Section 543.120, Oregon Revised Statutes, reads as

follows: From and after the taking effect of this act, no

waterpower 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 water 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 Federal Government has only such powers as are

delegated to it by the United States Constitution. All

powers not so delegated are by the express provisions

of the Tenth Amendment reserved to the states. The

power to legislate on the question of acquisition and

control of water rights in nonnavigable streams has never

been delegated to the United States and hence such power

properly belongs to the individual states. This position

was definitely decided in Kansas v. Colorado (supra),

wherein it is said:

‘It (a state) may determine for itself whether

the common-law rule in respect to riparian rights or

that doctrine which obtains in the arid regions of the

West of the appropriation of waters for the purposes

of irrigation shall control. Congress cannot enforce

either rule upon any State.”

This principle was followed in the California-Oregon

Power Company case (supra), the court holding that:

“The full power of choice must remain with the state.”

To the same effect are United States v. Rio Grande Dam

and Irrigation Company, 174 U.S. 690, and Gutierres v.

Albuquerque Land and Irrigation Company, 188 U.S.

545.

The State of Oregon, by constitution and statute in

the adoption of its water code, has determined this right

in favor of the appropriation doctrine. Oregon Revised

Statutes 537.110; Article 11-D, Sec. 1, Constitution of

Oregon, 1859. Federal Power Commission v. Niagara

Mohawk Power Corporation (supra).

Constitution Article 11-D, Section 1, Oregon Consti-

tution, provides the rights, title and interest in and to

all water for the development of waterpower and to

waterpower sites, which the State of Oregon now owns

or may hereafter acquire, shall be held in perpetuity.

Oregon Revised Statutes 537.110 provides:

“All waters within the state (Oregon) from all

sources of water supply belong to the public.”

Under the laws of this state, applicant may not

appropriate or use the water of the state in connection

with the devolpment of any water-power project for

the generation of electricity without first having ob-

tained from the Hydroelectric Commission of the State

of Oregon a license so to do.

THE FEDERAL POWER COMMISSION HAS

NO AUTHORITY TO GRANT TO THE PORTLAND

GENERAL ELECTRIC COMPANY, THE APPLI-

CANT, A LICENSE TO CONSTRUCT THE PROJ-

ECT IN QUESTION UNTIL THE APPLICANT HAS

COMPLIED WITH SECTION 9 (b) OF THE FED-

ERAL POWER ACT BY SHOWING COMPLIANCE

WITH THE LAWS OF THE STATE OF OREGON.

This proposition was decided by this court in First

Iowa Hydroelectric Cooperative v. Federal Power Com-

mission, 328 U.S. 152 (1946). The supersedure by the

Federal Power Act cf conflicting state laws was further

emphasized by the denial of certiorari when the State

of lowa attempted for the second time to impose its own

statute in opposition to the federal license for this project,

State of Iowa v. Federal Power Commission, 399 U.S.

979 (1950), in which certiorari was denied thereby affirm-

ing the decision of the United States Court of Appeals

for the Eighth Circuit, affirming order of the Commission

granting the license. 173 Federal 2d, 421 (1949).

In the first Jowa Hydroelectric case (supra), petitioner

applied to the Federal Power Commission for a license

for a power project in Iowa involving the construction of

a dam on a navigable* stream and the diversion of water

from two navigable* streams into another. Petitioner

showed no attempt to comply with the Iowa Code, 1929,

chapter 363, which forbids the construction of dams and

the diversion of water for industrial purposes without a

permit from the State Executive Council and authoriz-

ing the issuance of such permit upon the finding inter

alia, that “any water taken from the stream * * * is

returned thereto at the earliest practicable place.” The

State intervened and urged that the application be denied

because the petitioner did not submit evidence of its

compliance with the requirements of the Iowa Code for

a permit from the State Executive Council. The Federal

Power Commission found that a federal license for the

project was required under the Federal Power Act and

that the project called for practical and reasonably ade-

quate water power development with certain recreational

advantages, all at a cost not appearing to be unreason-

able; but it dismissed the application without prejudice

on the ground of petitioner’s failure to present satis-

factory evidence, pursuant to Section 9 (b) of compliance

with requirements of the laws of Iowa requiring a state

permit.

The Court held that compliance with the require-

ments for a state permit under the Iowa Code is not a

condition precedent to, or an administrative procedure

* Emphasis supplied.

a ee a ee ee ee ee ee ee ee ee ON ee eee hae Nn, ay Te eee ae ees ee eee

that must be exhausted before, securing a federal li-

cense. In discussing this point the Court said: “It is

the Federal Power Commission rather than the Iowa

Executive Council that, under our constitutional govern-

ment, must pass on issues affecting the use of navigable*

waters—on behalf of the people as wei! as on behalf of

all others.” (p. 182)

The securing of an Iowa State permit is not in any

sense a condition precedent or an administrative pro-

cedure that must be exercised before securing a federal

license. It is a procedure required by the State of Iowa

in dealing with its local streams and also the water of the

United States within that state in the absence of an as-

sumption of jurisdiction by the United States over the

navigability* of its waters. Now that the federal govern-

ment has taken jurisdiction of such waters (navigable

waters) under the Federal Power Act, it has not by

statute or regulation added the state requirements to its

federal requirements.” (p. 170)

In the Niagara Mohawk Case (supra) the United States

Court of Appeals in rejecting the contention of the peti-

tioner that the Federal Power Act had superseded state

water laws said (p. 32): .

“Much of the difficulty in this case has arisen from

what we regard as a misconception of the Water

Power Act and of the nature of licenses issued there-

under. The Act is purely a regulatory measure. A

federal license is not an original grant of authority,

* Emphasis supplied.

but a permission to use a state’s grant of authority.

To be sure, a license is a prerequisite in that water

rights under state law in a navigable stream may not

be exercised without one, as the Supreme Court held

in the New River case. And when state law or regula-

tion conflicts with the Act, or with any lawful federal

regulatory action, or with lawful terms of a federal

license, state authority must yield to federal, as the

Supreme Court held in the First Iowa case. But these

considerations do not by any means require the con-

clusion that the Act and a license thereunder con-

stitute the source from which all water rights flow.

An applicant for a license must show the Commission

he has under state law the right to divert the water

for the use of which he desires a license. Unless he

has that right, we think the Commission cannot law-

fully issue a license to him.”

The court in affirming the decision of the lower court

in that case said (p. 495):

“The references in the Act te pre-existing water

rights carry a natural implication that those rights

are to survive, at least until taken over by purchase

or otherwise. Riparian water rights, like other real

property rights, are determined by state law. Title

to them is acquired in conformity with that law. The

Federal Water Power Act merely imposes upon their

owners the additional obligation of using them in

compliance with that Act.

The legislative history of the Act discloses no

substantial support for the drastic policy which the

Commission seeks to read into it. To convert this act

from a regulatory Act to one automatically abelish-

ing pre-existing water rights on a nation-wide scale

calls for a convincing explanation of that purpose.

We find none. In fact, the legislative history points

the other way.”

In the dissenting opinion Mr. Justice Douglas (p. 498)

stated, “And I agree that the Federal Power Act was not

intended to interfere with water rights created by state

law.”’

CONCLUSION

The Respondents respectfully submit that the Fed-

eral Power Act was not intended to abolish pre-existing

water rights on a nation-wide scale, but that it was

intended to be merely regulatory; that by adoption of

the Federal Power Act Congress did not and could not

change state ownership or control of waters located

within the State; that the sovereignty of Oregon extends

over control of waters located within the state: that as

owner of public domain, federal government possessed

power to dispose of land and water thereon together or

to dispose of them seperately, and fair construction of

the Desert Land Act is that Congress intended to estab-

lish the rule that, for the future, land should be patented

separately and that all nonnavigable waters thereon

should be reserved for the use of the public under laws of

the state and territories named; that .egulation of the De-

schutes River as it flows through Oregon is one of the

powers of Oregon's sovereignty, and such power includes

power to regulate fish in Oregon waters: that the decision

of the Court below is in accord with the well-recognized,

long-standing principles laid down by this Court and,

therefore, the judgment of the Court below should be

affirmed.

Respectfully submitted,

ARTHUR G. HIGGS

Attorney for Respondents

ROBERT Y. THORNTON

Attorney General

State of Oregon

E. G. FOXLEY

Deputy Attorney General

of Counsel

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