# Brief for Respondents in Opposition — Federal Power Commission v. Oregon > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA04386408_0135%3A05 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for Respondents in Opposition - **Published:** January 1, 1955 - **Citation:** 349 U.S. 435 ## Text Niel 5,0 "19 aos U. S| LIBRARY Wi. bt ean, : $ Ar rc SUPREME CourrT U.S } OCT22 1954 : | NAROLD 8. WiLLEY, Clerk | Oe 9 Vi 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 -~- i 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 10 iX 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 a li XI 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. 12 a 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. XV 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 13 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. 14 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. 15 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 16 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 17 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 18 “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 19 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 20 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.” 21 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 22 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 23 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 24 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 26 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 27 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 28 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. 29 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. 30 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). 31 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, v. 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 11,2 suv wns = ao — 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 ~~ “ ~ — 3 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- 4 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 6 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- 7 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 I 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. 8 II “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. 9 IV 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. V7 All waters within the state (Oregon) from all sources of water supply belong to the public. Oregon Revised Statutes Sec. 537.110 VI 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. 10 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. VI 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. IX 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. 1] X 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. XI The power to legislate on the question of the acquisi- tion and control of water rights has never been delegated 12 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. 13 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. XV 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. 14 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. 15 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 16 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 17 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 18 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 t 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 SM. te et nine lana « { eT ! tha ili © 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 19 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.” 20 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.” 21 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 22 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 24 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.” 25 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 26 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.” ra 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 28 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 29 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. 30 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- 31 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 32 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA04386408_0135%3A05. Public record. Not legal advice.