Petition for Writ of Certiorari — City of Tacoma v. Taxpayers of Tacoma (No. 509)

‘LIBE RARY

SUPREME COURT, U. Ss.

“IN THE -

rome uf the Yuited ~ | ‘

OcToBER ‘THRM, 1957 ,

No, OU 9 |

THE Crry OF TACOMA, A itunicipa Corporation,

, & « Petitioner,

THE TAXPAYERS OF TACOMA, W.SHINGTON, and RoseERrt -

» SCHOETTLER, as Director of Fisheries, and JoHN

A. Biaas,. as Director of Game, of the State of

Washington, and THe State or WASHINGTON, a

Sovereign State, -

Responidents.

.. PETITION FOR A WRIT OF CERTIORARI TO THE

° e SUPREME COURT OF THE STATE OF

’ WASHINGTON

Pi ‘ Nortucete Ely

ct} Special Counsel

1200 Tower. Building

., Washington 5, D.C.

Evy, McCarty anp Duncan

Rosert L. McCarty > MarsHaLty McCormick

C, Emerson Duncan II Frank L, Bannon

Craries F. Wreatiey, Jz.- — Quinsy-BincHam

1200 Tower Building ~ 304 City Hall -

: Washington 5, D. C. Tacoma, Washington ©

‘Of Counsel — _ Altorneys for Petitioner

. Barss or Byron S. ApamMs, Wasnincton, D.C.

<>

e

INDEX

: Page

Opinions below SRG Weta te Tarren cnee a lee

Jurisdiction. ........... Necipsestatbieyeadentesgeee. Ss

Question presented ................. ee deePebevveese eo

Statute involved .:.......... Tae RECENT aR 4

ee PrP rer ere ee ere cage eee 5

- Reasons for rere the WUE conus cassdinavesteu 14

GE Viv ccewevevevaber casei asences cathe tease 24

Appendix A «2.065265 0s eee cece see. aE Or la

DE a a es . 49a

, Appendix SF fdevieceeuss eeeaereks eu eeeeeee awe 8la

Appendix D ........... igeabeweek Trae ore ayes 112a

Appendix E ............ Seeger hear reer: Pe

pogvems FF .... 6552.00: eye ear eunnnre op Ne ..131a

Appetdia G ..... 55-005. mde ey Prete re Herre

iets CITATIONS

Cases :

Arizona v. ‘California, 283 U-S. 423 (1931) ........ 17, 22

Burnett v. Central Nebraska Public Power & Irrig.

Dist., 125 F. 2d 836 (8th Cir? 1942) «..........0. 20-™-

Central Nebraska Public Power @ Irrig. Dist. v.

' Berry, 124 F. 2d 586 (8th Cir. 1942) .2.......... 2 .°

Central Nebraska Public Power € Irrig Dist. v. Fair-

. child, 126 F. 2d 302 (8th-Cir. 1942) ,.....6..%... 20

Central Nebraska Public Power & Irrig. Dist. v. Har-

‘rison, 127 F, 2d 588 (8th Cir. 1942) .........0... 20

Chappell v. United States, 160 U.S. 499 (1896) .... 17

Cherokee Nation v. Southern Kansas Ry. Co., 135

; 8 ee ee Perera ee 18

City of Davenport v..Three-Fifths of an Acre of

Land, 147 F. sist 794 (3.0. Tl, 1907) ...... ~ om

il

Page

Federal hits Com’n v. eatin 349 U.S. 435

i | Perr rrorrr rrr rer Tory cere e ey cee 4,17, 23

Feltz v. Central Nebraska Public_Power ¢ Irrig.

Dist:, 124 F..2d 578 (8th Cir. 1942) ..... akaaens 20

First lowa Hydro-Elec. Coop. v. Federal Powér

Com’n, 328 U.S. 152 (1946) ...+..3, 8, 13, 15, 17, 18, 23

Ford & Son v. Little Falls Fibre Company, 280 U. S. ;

ER CE Une aescccsuewe esi uneny tan ceeeiwnnee 14.

Grand River Dam ‘Authority vy. Grand-Hydro, 335

if ES 8s PPT ererr er errr re eer Tee 15

Grand River Dam Authortly wv. Going, 29 F. Supp.

Se Ce: Ce, SPE han c wire cccveccanstevsere 20

~ Green Bay & M. Canal Co. v. Patten Paper Co., 172

Co * ger hers 18, 23

Harris v. Central Nebraska Public Power & Irrig.

Dist., 29 F. Supp. 425 (D.C. Neb. 1938) ......... 20

Iowa v. Federal Power Com’n, 178 F. 2d 421 (8th

- * Cig. 1949), cert. denied 339 U.S. 979 (1950) ...... 3, 23

Koh# v. United States, 91 U.S. 367 (1876) ......... 17

Latinette v. City of St. Louis, 201 Fed. 676 (7th Cir.

TE. ins os Cae oa 4 ae Rha eae eck ee ae 18

Luxton v. North River Bridge Co., 153 U.S. 525 |

SE, Asedin desc bce eit ces Vee eee aa eae 18

Missouri v. Union Elect, Lt. €' Power Co., 42 F. 2d

ee Cae. ee, Woo kos cco wee ase ess keel 20, 21

McGinley v. Central Nebraska Public Power & Irrig.

_ * Dist.,.124 F. 2d 692. (8th Cir..1942) ............. 20

"New Jersey V. Sargent, 269 U.S. 328 (ee 3, 23

Oakland Club v. South Carolina Public Service Au-

thority, 110 F. 2d 84 (4th Cir. 1940) ........00.., 20)

Oklahoma ex rel. Phillips v.. Guy T. Atkinson Co. |

Bis oe : he ee er rere 17

Samuelson v. Central Nebraska Public Power &

Irrig. Dist., 125 F. 2d 838 (8th Cir. 1942) ......., 20

Seaboard Air Line R. Co. v. Daniel, 333 U.S. 118.

Index Continued

PR, ooo a hae ee 19

State of -W ash, Dept. of Game v. Federal Power

"om’n., 207 F. 2d 301 (9th Cir. 1953), cert. denied

347 U.S. 936 CREE. ois anaes heceeve ous 3, 8, 9, 16, 18

Stockton v. Baltimore d N.¥.R. Co:., 32 Fed. 9 (CC,

ae RRO ian? 18, 19, 29

Tacoma v. Nisqually, 57 Wash. 620, 107 Pac. 199

WR sooo es ee 93

x Winiee —31-GS.-377 (1940) TECK CE EERE Eee ee = i; HERAT

~

Index Continned - iii

Page

Tacoma v. State, 121 Wash. 448, 209 Pac. 700 ares a

5

United States v. Appalachian Electric Power Co.,

United States v. Carmack, 329 U.S "930 (1946) . 17-18

United States ex rel. Chapman y. Federal Power

Comte, TAS OB. 150 (GG)... ue ce vccccewscects 19

United States v. Gettysburg Elec. R: Co., 160 U.S.

a Yk KO ae tiger _18

United States v. Twin City Power.Co., 350 U.S, 222

CS Co ca aces phos eae cues see wae deuhsts ies cn 22

United States y Utah, 283 U.S. 64 (1931) eer oe 22

Wisconsin v. FS fies Power Com’n., 214 F. 2d 334

(7th Cir. 1954), cert. denied 348 U.S; 883 ...... in

STATUTES: ‘

Act of August 14, 1946, 16 U.S.C/A. $661 .......... og

The Fedéral Power Act, 16 U.S.C.A. §$791°........ 17

Section 7 of the Federal Power Aa. 16 U.S.C.A.

ME Ou ene De Pay ae uss hen ua eet tae ouae at 23

Section 21 of the Federal Pow er Act, re Stat..1074,

Oe eo chs ch coh oc kabe ina eee ee 4

Revised Code of Washington: pA eter gerne 10

TORI |... ccssxcs 10

Ne

‘

IN THE

| Supreme Court at the Rnited Bates

Ocroszr TERM, 1957

No. rasa” oe

Pe

Dd

THE Cry OF. Wciatinds A a Cor pica: |

Petitioner,

| a

: ms

THE TAXPAYERS OF TACOMA, WASHINGTON, and RoRERT

ScHOETTLER, as Director of Fisheries, and JoHNn

A. Biacs, as Director of Game, of the State of

Washington, and THE State OF WASHINGTON, a

Sovereign State, 3

: _ Respondents.

PETITION FOR A WRIT- OF CERTIORARI TO THE

_ SUPREME COURT OF THE STATE OF !

; WASHINGTON 7

The City of Tacoma prays. that a writ of certiorari

issue to review the judgment of the Supreme Court

of the State of Washington entered in the above en-

titled case on April 30, 1957.

e

____ CITATIONS TO OPINIONS BELOW

: “The opinion of the Supreme Court of the State of

Washington (No. 33706), as supplemented by~ the .

Court, is reported in the official reports in 49 Wn. 2d.

a:

. 2

3

bina ieee as cea A, infra, p. ~~

A prior opinion in the same ease is reported in 43

Wn. 2d 468, 262 P. 2d 214 (1953), (See R. 37- 61): at-

tached ‘hereto as Appendix B, infra, p..49a. ve

The related opinion, and order of the Feder al Power

Commission, granting the petitioner the license to con-

struct the dams in question, is reported in 92 Pur.

(N: 8.) 79 (Fed. Power Commission Opinion No. 221 .

gon Project No. 2016), attached hereto as Appendix C,

infra, p. 8la. The related opinion of the United

States Court of Appeals for the Ninth Circuit. affirm-_

ing the Federal Power Commission’s grant of the

license, is reported in 207 F. 2d 391 (9th Cir. 1953Y,

cert. denied; 347 U. S. 936 (1954) attached hereto as

haa D, shies P. A12a.

JURISDICTION

(1) The Fudan of. tlie Supreme Court ‘of the .

State of ‘Washington is dated and was entered ‘on

April 30, 1957 (R. 559), a copy of which is attached

hereto«together with the judgment-of the lower court

>’ which was: affirmed ( R. ‘320-322) as Appendix FE,

infra, p- 126a, |

(ii) Rehearing was denied on ‘April 30, 1957¢(R.

558), and a copy of the Court's order is attached

hereto as Appendix F, infra, p. 131a. By Order dated

July 22, 1957, this Court extended the time in which

petitioner could. file for a writ of certiorari until and

including September 27, 1957. Appendix @, infra, YP.

12a. ; ae |

— (ill) The jurisdiction of this Court is invoked un-

der 28: U.S. C.; Section 1257(3).

3

QUESTION PRESENTED

May a state enjoin construction of a dam and power

plant affecting navigable waters of the UnitedStates,

licensed by the Federal Power Commission, upon the.

ground: that the power.of eminent,domain conferred

by Section 21 of the Federal Power Act upon licensees

cannot. be exercised by a municipality. to condemn

larids dedicated by the state to a publie use (here as.a

fish hatchery) within the project reservoir area,

absent state legislation spec ifically’ conferring such

authority ?* :

In historical pérapeetive, the issue is whether a

device to enable a state to veto federal jurisdiction to

authorize a project under the Federal Power Ac

ees -essfully sought in various forms in New Jersey

. Sargent, 269 U. S. 328 (1926); United States v.

ened ae Electric Power Co., 310-U. S. 377 (1940) ;

First Iowa Hydro-Electric Coop. v. Federal Power

~ Com’n, 328 U. S. 152 (1946); Towa v. Federal Power

Com’n, 178 F. 2d 421 (8th Cir. 1949). cert. denied

339 U. S..979 (1950) ; State of Wash. Dept. of Game

v. Federal Power Com’n, 207 F. 2d 391 (9th Gir. 1953),

cert. denied 347 U.S. 936 (1954) : Tesconsin v. Federal .

Power Com’n, 214 F. 2d 334 (rth fy 1954), cert. de-

'. * Should, certiorari be. granted upon the foregoing question, the

* petitioner requests the privilege of briefing and arguing the fol-

lowing question :

‘‘Is a state barred from litigating the authority of munici-

palities to condemn such property where the Federal Power

Commission, in license proceedings to which the state was a

* party, has held that. the-applicant ‘has submitted satisfactory

evidenee of compliance with-the requirements of all applidable

State laws insofar. as necessary to effect the purposes of a .

livense for the project’; and the Federal Circuit Court of

Appeals, on the state’s petition for rev iew, has sustained the.

‘Commission * s order and license?”’ ‘%.

* ; { +

mied 348 U.S. 883; Federal Power Com’n V. State of

Oregon, 349 U.-S. 435 (1955); has now been dis-'

covered: namely, acquisition by a. ‘state of a” few

acres in a reservoir area, dedication thereef to a

public purpose (such as a highway, fish hatchery, oi:

“ comfort station), ‘and refusal to sell. This device, if

successful in the form asserted « hhere—denial to a

municipality of the right ‘of condemnation conferred

_upon licensees by the Federal .Power Act—has an

‘additional’ facet: the state may thereby veto the

preference right of municipalitiés granted by, Section

7 of the Federal Power Act if the-project necessitates

taking state-owned lands of. this character, while leav-

‘ing undisturbed-the same right of eminent domain if

asserted against those same lands by a private power

company. mais

STATUTE INVOLVED

The- statutory provision involved is, Section 21

of the Federal Power Act,.41 Stat. 1074, 16 U.S. C.

‘$814, which provides as follows:

Section 21.°**When any licensee cannot acquire

by coutract or pledges ‘an unimproved dam site

or the. right to use or damage the lands or prop:

erty of others necessary to the construction, main-

tenance, or operation of any dam, reservoir, diver-

sion structure, or the works appurten ant ar acces-

sory thereto, in conjunction with an impr ovement

which in the judgment of the commission is de-

sirable and justified in the publie ‘interest for the

purpose of improving or developing a waterway

or waterways for the use or benefit of interstate

oF foreign commerce, it may_acquire the same by J

the exercisé of the right of eminent domain in

the district court of the United States for the dis-

trict,in which such land or other property may be

loc ated, or in the State courts. The practice ‘and

-o

rpecdure in any action or proceeding for that

Pp ‘pose in the district eourt of the United States

shall conform as nearly as may be with the prac-

tice and procedure in similar action or proceed-

ing in the courts of ‘the State where the property

is situated: Provided, That United States dis-

trict courts shall only have jurisdiction of cas¢s

when the amount claimed by the owner of the

property to be condemnéd exceeds $3,000." ,

STATEMENT OF THE CASE

On December 28, 1948, the City of ‘Tacoma, Wash-

ington, filed with the Federal Power Commission an

application for a Federal license to constPuct tivo

power dams on the Cowlitz River in the State of

Washington, affecting navigable waters of the United

States.” ~

~The Cowlitz River flows south, joining the Columbia

‘River below Portland, Oreg’n. The Cowlitz project

comprises two dams, Mossyrock and Mayfield, with

appurtenant -power plants and other works. Mossy-

rock, to be located sixty-five miles upstream from the

junction of the Cowlitz and Columbia, comprises a

dam to rise five hundred ten feet above bedrock, with

a natural reservoir extending upstream twenty-one +

miles, covering an area of about 10,000 acres. (The

river’s flow, eqhated by the dam, will pass through a’

hydroelectrie power plant having an initial installation

of 225,000 kilowatts and an ultimate potential of

300,000. .Mayfield dam, located thirteen and: one-half

miles downstream from Mossyrock, -will rise two

hundred forty feet ahove bedroc ke delivering. Ww ater , ieee

* The Federal Power Commission found that the Cowlite River

_was navigable below the site of the proposed dams and that tlieir

construction would affect the interests of interstate and foreign

commerce. a L

- 6

a power. plant with an initial eta of 120,000

k-lowatts and an ultimate potential of 160,000, from —

a reservoir pool of about 2,200 acres extending to the

tailwater of the Mossyrock dam. The ultimate com-

- bined capacity of the two dams is 460,000 kilowatts.*

‘he project will cost about $135,000,000,** plus

$9,465,000*** for devices to enable anadromous fish

to pass upstream and their young to return to the sea,

and new fish hatcheries. The lower.dam, Mayfield, will

inundate a state-owned fish hatchery, ona sixty acre

tract, worth about $150,000, which would be replaced

at Tacoma’s expense by a new hatchery about 1,000

feet away from the old location, outside the reservoir

but supplied by the same springs. But the State

refuses to sell this nelchery or accept a replacement,

_and. denies Tacoma’s right to condemn it under the

' Federal, Power Act, thus prnceeeer ne the issue here

presented.

> .-/The Department of Fisheries and Department of

Game of the State of Washimeton, and. the State of

Washington | through ‘its _ Attorney General were -

granted leave to intervene ‘in the license proceeding. —

They asserted that the license should be denied he-

cause of injury to anadromous fish, asserted conflict

of the project with the laws of aenete, and

specifically alleged in their petition: ;

“That the reservoirs which would be created’ by

the proposed dams would inundate a-yaluable and

* Federal Power Commission Finding 63. (Appendix ¢, infra,

_p. 104a).

. Poder Power Commission Finding 29 (Appendix “C,. ‘infra,

p. 98a).

*** Federal Powér Commission Fintng 47 ( Appendix C, infra,

p. 102@).

irreplaceable fish hatchery owned, by the State of

Washington, as well as much productive spawn-

ing areas.”’ (Petition, paragraph 9.)

‘Dele date of Novembiy 28, 1951, the em Com

mission entered iis opinion ( No. 221) ‘and order issn-

ing the license to petitioner (Appendix C) CR. 436).

The Commission found, inter alia ( Finding D9,

Appendix (©, ‘infra, p. 104a) 1

‘“‘Under present ace es and conditions

‘and upon the terms and conditions hereinafter

included in the license, the project is best adapted -

-to a comprehensive plan for improving or

developing the.waterway involved for the use or

benefit of interstate or foreign commerce, for the

improvement and utilization of water-power

development, for the conservation and preserva-

tion of fish and wildlife resources, and for other

beneficial public uses including recreatidnal

purposes. ’’* | : :

The Commission re the ‘following “spec ial

condition’”’ in the license :

o

“Article 31. The ¥ icon shall construct. main-

tain and operate such fish ladders, fish traps or

other fish handling facilities or fish protective de-’

viees and make such. stream improvements and

provide such fish hatcheries and similar facilities

and comply with such rgasonable modifications of

the project structures and operation in the inter-

est of fish as may be prener nee merearer by the

. * The ssielin elsewliere (apeiadix C, infra, p. 8la) states that

these two plants, with a combined eapacity of 460,000 kilowatts,

“would add 190 percent to the present capacity of the Tacoma

generating plants and nearly ‘10 percent to the present combined

total installation of 4,700,000 kilowatts in the Pacific Northwest

power pool.”’

8

_Commission upon its own motion or upon the

recommendation of the Secretary of the Interior.*’

(Appendix C, infra, p. 109a) _ (Emphasis -sup-

plied) * | vane nee

>. ‘eo i =>.

The Commission made express finding that:

(53) The Applicant is .a municipal corpora-

tion; it has submitted satisfactory evidence of.

compliance with the requirements of all applicable |

State laws insofar as necessary to effect the pur-

poses of a license for the project; and it is: a.mu-

nicipality within the meaning of Section 3(7) of -

the Act.”” (Appendix’C, infra, p. 103a) . ef

The State of Washington and its Departments of ;

Fisheries and Game appealed to the United States 7

Court of Appeals for the Ninth.Circuit, contending

among other things that the City had not complied

with certain State laws as required’ by Section 9(b) of

the Act and that the City of Tacoma, as a creature. of

the State of Washington, could not act in opposition to

the polisy of the State or in derogation of its laws.

~The Ninth Circuit ins decision dated October 5,

1953. held that the contentions raised by the State

and its Departments of Fisheriés and Game were an-

swered by. the Supreme Court’s decision in First Towa

‘Hydro-Elec, Coop. v. Federal Power Com ’n., 328 U.S.

152 (1946), which rejected any requirements of State

Jaw in conflicth ith the Federal Power Act, which -

would give the State or State authorities a veto power

over the federal project. (See Wash. Dept. of Game v.

Federal Power Ggm’n., 207 F. 2d 391 ;-Appendix’ D,

sntaialele ah, , P

*The Act of August 14,1946 (66 Stat. 1080, 16 U.S.C.A. § 661

+t seq.) requires the Commission to receive the recommendations

of. the Secretary of the Interior for fish protection.

- 9

infra, p. 112a) The Court answered the apfellants’

‘“‘creature’’ argument by holding that in the First Tova

My

5d

case, the applicant’ was also a creature of the. State and-

the chief opposition came from the State itself:

“Vet, the Supreme Court permitted the Ap-

plicant to act inconsistently with the declared -

| policy of its creator, and to prevail in obtaining a

license.’’ (207 F, 2d at 396; Appendix D, infra,

'p. 120a) : nee .

The Ninth Circuit concluded :

“Consistent with the First Iowa case, supra, we’

conclude that the state laws cannot prevent the

Federal Power Commission from issuing a license

or bar the lIfeensee from acting under the license

to build a dam on a navigable stream since the

stream is under the dominion of the. United

States.”’ . .

It then added the following dietum: »

‘*. .. However, we do not touch the question as to

legal capacity of the City of Tacoma to initiate

and act under the license onee.it is granted, There

may be limitations in the City Charter, for in-

stance, as to indebtedness ‘limitations. Questions

of this nature,may be inquired into by the Com-

mission as relevant to the practicability of ‘the

plan, but the Commission has no power to adjudi-

- cate them.”? (207 F. 2d at 396-7; Appendix. D.

infra, p.121a) (Emphasis supplied )

Certiorari was denied on April 5; 1954. (347 U.S.

IBA Y > te 7

%

In the meantime, subsequent to the Commission's

issuance of the license, the -Citv. of Tacoma instituted |

in the State courts on February”3, 1952, the present

10

»

2

action against the Taxpayers of Tacoma and the Direc-

tors of Game and Fisheries of the State of Washing-

ton, under the provisions of R. C. W. 7.24.010, relat-

ing ‘to deelaratory judgments, and R. C. W. 7.24.150,

providing for testing and determining the validity, of

a. proposed. bond issue (R. 1-16). The defendants .

made no contention that the City lacked authority to.

issue bonds, but asserted that it was barred from ‘con-

structing the project because of certain laws of the

State of Washington, relating to the protection of fish.

The case wat decided by the lower courtjon the plead-

ings.. -Cross appeals were taken by’ poth the City

and the Departments of Game and Fisheries to the

Washington Supreme Court,

The Supreme Court of Washington in a sweeping

decision dated October 14, 1953 (First decision, 43-

Wn. od 468; 262 P. 2d 914 (1953): Appendix B. infra,

n. 49a), affirmed. the position ofthe City and held the

state statutes in question invalid as conflicting with

the Federal Power Act; by which Congress exercised

its superior powers over navigable waters under the

United States Constitution.

' To the argument of the taxpayers and the Depart-

ments of Game and. Fisheries that the City, being a

munieipal corporation created by the State, may not

~ act under the authority of the Federal laws which are

at varianee with the laws of the State. its creator.* the

court ruled:

“The Federal Power Act defines the term mu-

ni¢ipal corporation and authorizes the power com-

* This contention was the basis ofthe opinion of ‘the: dissertins

judge and appears to have been adopted by the new majority in

the second decision of the Washington Supreme Court: from whie h

this petition of certiorari is sought.

11

.

mission to issue a license to such an entity.. Ap-

pellant has complied with the state law with re- |

spect to the right of a municipality to engage in

the business of developing, transmitting and dis-_

* tributing power. Having been _—s a license

by the power commission, we hold that appellant

is at the present time in the same’ position as any

> other licensee under the act.” (43 Wn. 2d 492,

’ Appendix B, infra, p. 74a)

e s. si ‘ i Pes :

The decision of the lower court was thus feversed and

an ordér remanding the cause thereto.was entefed.

~The City, then helieving”that all legal questions had

been decided, proceeded with preliminary: engineering

work and called for and let bids awarding the contract

for the huilding of the smaller of the two dams (Mavy-

field Dam) in.the approximate amount of $16,000.-

000.00 (R. 287). Bonds were sold and construction

commeneed in compliance with the license.

' Thereafter, on August 8, 1955, some three and a half

vears after the City had filed the action, and almost.

two years after the decision of the Ninth Circuit. the

State of Washington, in its sovereign capacity. wes

entered as a party deféndant to the action (R. 134-

. 135) on,motion of the Directors of Game and of Fish-

eries. The defendants revived the issue of the power

of ¢he City as a municipality of the State of Wash-

“ington fo condemn the same state-owned fish hatchery

that the State and its Departments of Game and Fish-

eries had posed as a bar to the granting of a license in

the proceedings before the Commission some five. vears:

o

ureviously.*

* Defendant's Answer and Cross-Complaint dated and filed An-

enst 29, 1955 \te City’s Amended Complaint (R. 151-160S: Para- .

graph TT, Second Affirmative Defense 9 R. 155) and Paragraph IV,

- 42

“In a) Judgment entered March 6, 1956, the lower

court ruled that it lacked jurisdietion to determine the

_ question‘as.to thé City’s s power of eminent domain, ‘but

held that the City. was acting illegally and in excess

of its authority to construct these dams as they would

interfere with public navigation contrary ® the stat-

utes’ of Washington. On this sole ground, the court

ordered the City enjoined from‘spending any sums of

“money to construct either of the two dams (R. 320-

322). From this decision the City again appealed to the .

Washington Supreme Court, and cross-appeals were —

taken by the defendants.

“The appeal was heard en bane, aid the opinion in

— thereto is dated and was entered on February

, 1957 (Appendix A). .On April 30, 1957 an ‘*Addi-

oe to.Opinion’’ was entered. - (This, by the court’s

direction, appears as the last paragraph of’its opinion

as published; Appendix *A.) In its ‘‘Addition’’: the

court decided all issues in the City’s favor except those

‘related to the City’s power of eminent domain to take—

the fish hatchery lands in question. |

With respect to the issue ‘as to the City’s powers of

eminent domain. the’ court below held that it prop-

erly had before it the determination of the power of

the City fo condemn the lands in question, even though

no condemnation proceedings had been instituted.

The Washington Supreme Court delineated the

eminent domain issue into two facets, one of state law,

and the other of federal law, as follows: (1) Whether

Cross-Complaint (R.154)). The City’s Reply denied that the City

lacked eminent domain authority under the ‘laws of the United |

States’’ to aequire the lands (Paragraph II, R. 202; Paragraph

VII. R. 203-204 ; eee IV, R. 239). :

3

13

the City, which was clearly authorized under Wash-

ington law to condemn state land for power projects

(Tacoma v. State, 121 Wash. 448, 209 Pac. 700 (1922) ),

was also authorized to, condemn state land which the

State: has administratively dedicated to a.public use

(here as a fish hatchery); if not, then (2) ‘‘ean a

municipal corporation be endowed by Federal legisla-

_ tion with power to condemn such lands belonging: to:

the state?”?. The court after ruling that no state law

existed which authorized’ the City to take state lands

dedicated to a public use, then held with = to the

federal question that: ~° *

‘‘The Federal government may not confer cor-

porate capacity upon Jocal units of government he-

vond the ¢ capacity given them by their creator, and

the Federal Pow er Act, as we read it, does not pur-

port to do so.” (49 Wn. 2d 744, 761; Appendix

A, infra, p. 20a)

The court distinguished. oe H ydro-Elect ric

Coop. Vv. Federal Power Comm., 328 U.S. 152 (1946)

and its own earlier decision in Tacoma v. , Tar payers,

43 Wn. 2d 468. (1953), (Appendix B, infra, p. 49a)

on the ground that the present matter ‘‘does not pre-

‘sent a question of staie statutory prohibition; it pre--

‘sents a question of lack of state statutory power in the

city.’

ty

3 8

Based on this ruling, the Washington) Supreme

Court affirmed the injunction against the City’s con-

struction of either of the two dams (R. San, . 322: :

Appendix F, infra, p. 126a)

14

a

%

REASONS FOR GRANTING THE WRIT

1. THE PETITIONER HAS BEEN DEPRIVED OF AN IMPORTANT

FEDERAL RIGHT ON A QUESTION ARISING. UNDER. THE

FEDERAL POWER ACT OT PREVIOUSLF- DECIDED BY THIS

COURT.

anat ae —=

~The decision of the court below appears to be in con-

flict with the express: intent of Congress, in enacting

Section 21 of the Federal Power Act,.to give author-

ized licensees under that Act a federal right of eminent

domain w here, as here, the Commission has found that

the project ‘‘is desirable and justified i in the publie in-

terést for the purpose of improving or developing a

waterway or waterways for the use or benefit of inter-

state or foreign commerce.’’ Nothing in Section 21

requires. that the Federal licensee shall also have a

right of eminent domain under state law to build the

‘Federal project. To the contrary, Section 21, by spec-

_ifying that only the ‘(practice and procedure” shall

conform to that of the state courts where the property

is situated, is clear that the substantive right of emi-

nent domain conferred upon-the licensee stems from a

federal power, independent of the existence or non-

existence of. state legislation conferring such a right.

There are at least eleven reported d&isions by lower

federal courts, none‘of which werediscussed or anal-

-yzed by the court below, recognizing that Section 21

of the Federal Power Act confers a federdl right of

eminent domain upon authorized. licensees.* This

court, however, has never direc tly decided the point. In

Ford & Son v. Little Falls Fibre Company, 280 U.S

369 (1930), the question was reserved as follows:

. Whether § 21, giving to licensees the power of

eminent domain, confers on them power to con-

* Cited at page 20, infra.

K

19 -

demn rights such as those of respondents, and .

whether it might. have been invoked by the peti-

tioner in the present situation, , are questions not ©

-_ before_us.’” Ap S87 (Emphasis supplied )

In Grand River Dam ‘Authority v. Grand-H ydro, 335

U. S. 359 (1948), the were was also carefully

~ saved by the Court:

“« .. The petitioner, likewise, is not seeking to

enforee: such rights as it might have to condemn

this land by virtue of its federal license. Accord-

ingly, we express no opinion upon what would be

the appropriate measure of value in a condemna-

tion action brought by the United States or by one

of its licensees in reliance upon rights derit: ed Un-”

-der the Federal Power Act.’’ (p. 373) ee

supplied)

Since the court below has denied that the petitioner

has any federal right of eminent domain under the

Federal Power Act to take the lands necessary for the:

project, this important question, previously left unde-

cided by this court, is now directly aiuecciel

/ THE DECISION OF THE COURT BELOW PROBABLY CON- .

FLICTS WITH THE OPINION OF THIS COURT IN FIRST IOWA

HYDRO-ELECTRIC COOP. v. FEDERAL POWER COM'N, 328

U. S. 152 (1946).

In that case, this: Court made a careful analysis of

‘the Federal Power Act with respect to the proper”

sphere of federal and state powers thereunder. It was

concluded there: that the Federal Power Act was ¢ ‘losely

drawn. and “resulted in a dual system involving the

ciose integration of these. powers rather than a dual

system of futile. duplication of two authorities over the

rame subject matter."’ At page 181 of its decision, this :

Court stated: | |

2.

16

‘‘The detailed provisions ‘of the: Act. providing

for the federal plan of regulation leave no room .

or need for conflicting state controls.*”"" —-

In footnote 25, the Cougt describes the specitic provi-

sions to which it refers, listing. ‘thereunder : |

oar”

‘*$ 21, federal powers: - condemnation vested

-in licensee. Pa

That a Federal licensee, although one ees d or-

ganized under state law, may exercise power¥ granted

by the Federal Power Act regardless of its: granted *

nowers under state law, is also established by the First

Towa case. There the applicant was a local ecoopera-

- tive established under the laws of Iowa. Though a

creature of the state, the Supreme Court permitted the

applicant to act inconsistently with the declared policy

_of its creator, and to prevail in obtaining a license.

Accord, State of Wash. Dept. of Game vy. Federal

Power Com’n, 207 F. 2d 391, 396 (9th Cir. etal cert,

denied, 347 U. S. 936 (1954).

As in the First Lowa case, to require the Federal °

‘licensee to secure from the state the counterpart of

the authority it has received from the Federal Power

Commission would vest in the state ‘ta veto power

over the federal project,’ and, as said there:

“Such a veto power easily could destroy the

effectiveness of the federal act.”’

and:

“*) . . It would subordinate to the control of the

State the ‘comprehensive” planning which the Act

provides shall depend upon the judgment of the

Federal Power Commission or other a ee

tives of the Federal Government.’ (328-0.

at 164) | eae as

i

3. THE DECISION OF THE SUPREME COURT OF ,WASHINGTON

BELOW IS BELIEVED TO BE NOT IN ACCORD WITH FIVE

GROUPS OF DECISIONS BY FEDERAL COURTS, INCLUDING. .

THIS COURT, WHICH WERE NOT DISCUSSED OR ANALYZED

BY THAT COURT IN ITS OPINION. .

These federal cases éstablish five principles, which,

viewed. together as one mosaic, present.a clear picture

of the federal power asserted here but denied by the

court below: : , ,

. First, the Federal Govern ment acting through its au-

thorized agents has constitutional power under the

commerce clause to construct a Federal dam on state-

owned land without conforming to state law.: See Ari-—

Zona V. California, 983 U.S. 423, 451-52 (1931); Okla-

homa er rel. Phillips v. Guy F. Atkinson Co., 313 U.S

508 (1941). The Federal Power Act (16 U.S.C. A.

§ 79a, et seq.), to the extent that it has been construed

by this Court, has been repeatedly upheld as within the

plenary power of Congress over navigable waters, and

state laws to the extent that they conflic ‘t with the Act or

give the states a veto right over Federal projects there-.

under, are deemed superseded... United States v. Ap-

palachian Electric Power Co., 311 U.S. B77 (1940) ;

First Tow al H ydro- Elec. C oop. V. Fe deral Power

Com’n., 328 U.S. 152 (1946): Federal Power Com'n.

v. Oregon, 349 U.S. 435 (1955). -

Second, the right of eminent domain is a sovereign

power inherent in the Federal Government when act-

ing pursuant to its Constitutional powers, and may be-

—erercised without the consent of a state. See Kok! vy.

United States, 91 U.S. 367 (1876); Chappell vy. United

States, 160 U.S. 499, 510 (1896). The fact that the land

is already devoted to a public use does not-affect or im-

“pair this power. Oklahoma er rel. Phillips v. Guy F.

Atkinson Co., 313 U.S. 508 (1941): United States. v.

. «

Se ae

Carmack, 329 U. 8. 230 (1946) ; United State v. Get-

tysburg Elec: R. Co., 160 U. S. 668, 685 (1896).. In the

. Oklahoma ex rel. Phillips case, this Court upheld the

power of the Federal Government, against a direct

attack by the State of Oklahoma to condemn state-

owned highways, bridges, schools, townships, and a

prison farm, to be inundated by the.proposed Deni-

-son Dam and Reservoir on the Red River authorized

by Congress in the Flood Controi Act of 1938.

Third, this Court has upheld the power of Congress ~

to grant eminent domain powers to private cor aga

tions, endow ed with no such powers under state‘law,

furtherance of interstate commerce. See Lurton v.

North River Bridge Co., 153 U.S. 525 (1894) ; Cherokee

Nation v. Southern Kansas Ry. Co.,.135 U.S. 641, 657-8

(1890). ‘In this respect, the cases ‘ake no distinction

between private corporations and municipal corpora-

tions as grantees. Latinette v. City of St. Louis, 201 ©

‘Fed. 676 °(7th Cir. 1912); City of Davenport v. Three-

Fifths of an Acre of Land, 147 F. Supp. 794 (D.C. TI.

1957); see Stockton v. Baltimore & ON, Y. R. Co., 32

Fed. 9,15 (C .C. N. J., 1887) ; ef. Green Bay &.M.-

Canal Co, v. Patten Paper Co., 172 U.S: ‘58, 68-9, SI)

(1898); First Lowa Hydro-Elee. Coop. vy. Federal

‘Power Com’n., and State of Wash. Dept. of Game v.

. Federal Power Com’n., cited supra, pp. 17-18. Tn the

*Latinette case, which held that the City of St. Louis

could condemn land in Illinois for a bridge over the

Mississippi River pursuant to a -Federal statute despite

the City’s lack of eminent domain powers under Hli-

nois law, the court ruled that Congress could select

the city as an agency through which a national power

could be exercised. The court held:

. Nothing in the Constitution forbids the se-

me tion of a state cor poration as a national agent.

ae

Pa

| aiee .

In reason the material: ‘thing is the principal’s au-

thority, not the parentage or birth place si the

agent.”’? (p. 679) ~ .

The same view was stated by Justice Bradley at circuit

in Stockton v. Baltimore & N. _¥. R. Co., 32 Fed. 9.

(C. C..N. J., 1887): as follows: ae

“In our judgment, if congress itself has the

power to. construct a bridge across a navigable

stream for the furtherance of commerce among the

states, it may authorize the same to be done by

agents, whether individuals, or a corporation cre-

ated by itself, or a state corporation already exist-

ing and concerned,in the, enterprise. The objection

“that congress cannot confer powers on a state cor-

poration. is untenable. ” (p.15)

Ina fairly recent case, not involving eminent do-

main, this Court, in a: tmanimous decision, held that

under the Interstate Commerce Act the, Commission .

could validly bestow superior federal powers upon

a railroad corporation ‘‘over and above those bestowed

upon it by sep state of. its creation’’.* Seaboard Air

Line R. Co. v. D&niel, 333 UT. S. 118 (1948). The

Court stated: ;

se These fede rally conferred powers can be

exere reised- in the same manner as though they had

heen granted to a federally created corporation.

[citation] Here, just as a federally. created rail-

road corporation could for federal purposes op-

erate in South Carolina, ‘so can this Virginia

3 corporation exercise its federally granted power

to operate in that State."" (pp. 126-7)

“The functions and powers of the Federal Power ‘Commission

‘are ‘Seomparable to those of the Interstate Commerce Commission

in the field of transportation’’, United States er rel. Chapman v.

Federal Power Com’n., 345 U.S. 153, 168 (1953).

20

Fourth, Section 21 of the Federal Power Act entitles

duly authorized licensees under the Act, even though

_ public agencies created by the State, to exercise a fed- °

' eral right of eminent domain against property situ-

ated ‘within the state, without regard to whether such

: public agencies are endowed with.similar eminent do-

main ‘powers by state law. See the following: cases in

the lower federal courts: Central Nebraska Public

-Power & Irrig. Dist. v. Harrison, 127 F: 2d 588 (8th: —

Cir. 1942) ; Central. Nebraska Public Power & Irrig.

' Dist. v. Fairchild, 126 F. 2d 302 (8th Cir. 1942) ; Sam-

uelson v. Central Nebraska Public Power & I rreq. Dist.,

125 F. 2d 838 (8th Cir. 1942); Burnett v. Central. New 7

braska Public Power & Irrig. Dist., 125 F. 2d 836 (8th

Cir. 1942); Central Nebraska Public Power & Irrig. —

Dist. v. Berry, 124 F. 2d 586 (8th Cir. 1942); McGinley

v. Central Nebraska. Public Power & Trrig: Dist., 124

F. 2d 692 (8th Cir. 1942); Feltz v: Central Nebraska |

Public Power & Irvig. Dist., 124 F. 2d 578 (8th Cir.

1942) ; Oakland Club v. South Carolina Public Serv ice

Authority, 110 F. 2d 84 (4th Cir. 1940); Harris v.

Central Nebraska Public Power & Irrig. Dist:, 29 F.

Supp. 425. (D. C. Neb. 1938); Grand River.Dam Au-

thority v..Going, 29 F. Supp. 316 (D. C. Okla. 1939).

Fifth, Section 21 of the Federal Power Act grants

licensees the right of eminent domain: over state-owned

property dedicated to a public use. aia

A case closely in’ point here is the oft-cited leading

case of Missouri v. Union Elect. Lt. & Power Co., 42

F. 2d 692 (D. C. Mo. 1930). This was an action by the

_ State of Missouri. (on behalf of one of its counties)

against the Union Electric Light and Power Co., a

private utility, which held a license from the Federal

Power, Commission under the Federal Power Act to-

21

build a dam on ‘the navigable Osage River, to enjoin °

its construction.. The licensee had ‘no. capacity or

power under Missouri law to condemn state’ land,

dedicated to a public use.’ The court found that:

‘“The evidence was undisputed that the dam, as

proposed by the defendant Union Electric Light & —

Power Company, would have the effect to accumu. .

late a: vast body of water in a huge reservoir, and

that the entire region within the valley of the

Osage river and the vallevs of its tributaries, for a

distance’ of more ‘than 100 miles, would be over-

flowed. This would result in, submerging both

public and private property, including the court- |

house and jail in the village of Linn Creek, a large .

number of school districts, and at sundry points

gnundate the public highways .-..”’ (p. 694) ..

The court cited Section 21 of the Act, concluding that:

“The licensee has been granted the power to ac-

quire property by the exercise of eminent domain

in express terms. .

: ae ee ee ee ee ee ‘

‘*In this connection it cannot be questioned but

that the Congress had the power to confer the

right of eminent doptain upon the defendant Union

Electric Light & Power-Co.”” (p. 698)

With respect to the issue as to whether public prop-

erty dedicated to a public use may be taken by the li-

censee, the court held:

“>. To deny the right of eminent domain as

against this public property woukl not only defeat

the functions of the national government. but

would run eontrary to the obvious intent of the

Congress as expressed in the Water Power Act.”’

_(p. 698) - ;

a

Other federal decisions closely analogous that cannot

be reconciled with that of the Supreme Court of Wash-

ington below are City of Davenport v. Three-Fifths of

an Acre of Land, 147 F. Supp. 794.(D. C. IIl.,:1957)

and Stockton v. Baltimore & N.Y. R. Co.,.32 Fed. 9

(C. C. N. J. 1887). The City of Davenport case held:

_ If the State of Illinois or the City of Moline

could supersede or prevent the exercise of this

‘power. of eminent domain it would be: impos-

sible to construct the authorwed improvements.

The inability of the States so to condition a right

granted by Congress within its constitutional pow-

ers has often ayn made clear by both ‘federal and.

state courts.’? (p. 797)

4. CLEARLY THE QUESTION IS OF IMPORTANCE NOT ONLY

WITH RESPECT TO THE PARTICULAR PROJECT :HERE IN-

VOLVED BUT WITH REGARD TO THE RELATIVE POWERS

OF THE <STATES AND FEDERAL GOVERNMENT TO CON.

TROL THE CONSTRUCTION OF FEDERALLY’ AUTHORIZED

PROJECTS ON NAVIGABLE STREAMS UNDER THE FEDERAL

POWER ACT. ‘

~ Ee the decision of the .court ew is permitted to

stand, the states will have at their finger tips an easy

method to veto. practically. any Federal ‘project - li-

censed to a public agen¢y under the Federal: Power

Act. The ownership of lands under or adjacent to

navigable streams by the various states is common-

place. Cf. United States v . Utah, 283 U.S. 64, 75

(1931). Control of a few acres in a reservoir area

may be as effective a key to construction of a project

as contro] of: the damsite itself. Compare United

States v. Twin City Power Co., 350 U. S, 222 (1956),

with Arizona v. California, 283 U. 8. 423 (1931).

no lands in.the reservoir area are owned by the State,

— they could be easily purchased and dedicated to a

+ “publie‘use’’ of some kind.

a.

Hence the states’ by the manipulation of their state

lands, or their eminent domain laws, w ill have an easy

way to avoid the result ‘of this Court’s decisions in

First lowa Hydro-Electrie Coop. Vv. Federal Power,

Com’n., 328 U. S. 152 (1946), and Federal Power

Com’n. v. State of Oregon, 349 U. 8. 435 (1955). “Cf.

New Jersey v. Sargent, 269 U. S. 328 (1926). Jowa v.

“Federal Power Com’n., 178 F. 2d-421 (8th Cir. 1949),

cert, denied, 339 U. S. 979 (1950).

ae J

C

_ In such matters there can be no divided eni-

pire,” Green Bay & M. Canal Co. vy. Patten Paper

Co., 172. U.S. 58, 80 (1898).

-Inasmuch as the decision below and its rationale

apply only to licensees which are public agencies of a

state, then the way is open for-one state official or

agency which is opposed to the congressionai policy

of preference to public bodies expressed in Section 7

of the Federal Power Act (16 U. S. C. A. 800) to

block all development by, municipalities of that state

‘in favor of private power companies. ~ . ,

_ The City of Tacoma is one of the oldest public: power

agencies in the United States, having been established .

in 1893. It is granted ‘broad powers under state law

to condemn lands for power projects, inc uding state

lands, Tacoma v. State, 121 Wash. 448, 209 Pace, 700

(1922), or lands held by a private power company

dedicated to the public use for a power project,

Tacoma v. Nisqually, 57 Wash. 620, 107 ,Pae. 199

(1910). If, notwithstanding Tacoma’s broad powers

thus adjudicated, the State can block Tacoma from

- proceeding with the present project under its federal

license by administratively dedicating some small

| portion of State property in the reservoir area to some

publie use, then a fortiori the functioning of the Fed-

eral Power Act in any state can be thwarted. |

D4

CONCLUSION

For the reasons stated, itis believed that the decision

of the court below poses fundamental issues regarding

the proper sphere of federal and state powers with re- ..

spect to projects for the development of the Natign’s

water-power resources authorized and: licensed under

the Federal Power Act, that the decision was wrong

on the merits, and that this petition for a writ of cer-

- tiorari to review that decision should be granted. }

Respectfully,

NorTHCUTT ELy

Special Counsel

1200 Tower Building

Washington 5, D. C.

nLY, MeCarty anp.DuNcAN

Ropert L. McCarry MarRsHALL MoCorMIcK

. C, Emerson Duncan II Frank L. BaNNoN

. CuaRLes F, WHEATLEY, JR. QuinBy BINGHAM

1200 Tower Building: 304. City Halli |

Washington 5, D.C. . Tacoma, Washington

_ Of Counset.. Attorneys for Petitioner

yY