# Brief for Respondent — United States v. Grand River Dam Authority > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386409_0256%3A5 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for Respondent - **Published:** January 1, 1960 - **Citation:** 363 U.S. 229 ## Text Lake ee ee “WAY 13 1960 NING, | st pe TRGBRGR : . INDEX. ; Page Question Presented. ........... Ferny a enyeny Araneae 1 Statement ......... Ste ah ca fats ce vc al bie ig alata a ine te 2 Summary of Argument ...... eae ney aan er oo Argument: II. Vi In the Flood Pontroi Act of 1941, Congress _ Manifested No Intention to Depart From Its . The Right to the Use ~ of the Waters in the Grand River Were. Vested in Respondent by the State of Oklahoma and Those Waters Were Appro- priated at the Time of the Taking Herein ...... A.-The Grant to Reapondent .:.......ceccecss B. The Interest of the State of Oklalioma .... ‘ C. The Appropriated Waters of the Grand Re EY aan » win aie OS wk ee The Vested Water and Franchise Rights in the Grand River Were the Private Property of Re- spondent at the Time of the Taking Herein and Just Compensation Must Be Paid ....:....... A. The Water Rights ........: SS) ea eae Pee B. The Franchise Rights *................ Long Established Policy to Recognize and Re- spect Rights to the Use of Water Vested Under Pp ARRIBA MaRS ee Satomi nes Ae There Is No Support in the Cases for Petition- er’s Claim That Its Dominant. Servitude Ex- tends to: Non-Navigable Rivers, ‘and Adoption : of That ‘Standard by This Court Can Cause Havoe With Vested Property Rights ......... RRR i ARN cd SRL Ge lwnie on AAEM EEE guna Ata og lng Ey Cb 10 10 ‘1 . 14 17 17 20 " 24 . Petitioner Must Pay Just Compensation for the’ Property Rights It Has Taken from Respondent il i Index Continued ' TABLE OF CASES Cases: | | ; Page Ashwander vy. ‘Fennessee Valley Authority, 20% U.S. 9 | err Ti i NP a ete Cr et rR ET Se. 29 Baumann v. Snirha, 145 F. Supp. 617 (D. Kan., sore eGismad, Sie UR568 2 oo sa 17- City of ‘Pulsa vy. Grand- Hydro, District Court of Mayes County, Okla. R. Pi Sie 0 Gh ta B25 . 16, 18, 34 Eastern Band ‘of the Cherokee Indians. v. “United Pasibon: B27 Biss Bae 6a oko ce ca bok eer ewes Py > Federal Power Commission ° ‘Niagara Mohawk Power Gorm, 347 UB. 290 oo as ecies ee 18 Frost v. Corporation Commission, 278 U.S. 515... .8, 20 Grand River Dam Authority v. Grand-Hydro, “B35 iS Seer eae eh a atta eae 3,6, 7, 8, 11, 20, es 21,:23, 33 Grand River Dam Authority v. Grand-Hydro, 192 Cele Wea Bae P26 TRO os Sik eee cies eae ee 15 Grand River Dam Authority v. Grand-Hvydro, 200 Okla: 157, 301 -P: 2d. 225 5005 ise i leche mahal ic 6,11 Grand River Dam Authority v. Federal Power Com-. mission, 246 F. 2d 453 (10th Cir., 1957) ......... 5 Hardin ve Jordan, 140 U. S. 371 ee Ro She Sy, > Ickes v. Fox, 300 US. 8 1S 7 OPE pam OE EERSTE hy ‘8,18 Intefnational Paper Co. v. United States, 939 U.S. Bs space ens bates oe ec dy ca eeek 8, 18, 19, 20 2 lowa- Wisconsin Bridge Co. v. United States, 84 F. Supp. 852 (Ct. CL, 1949), cert. denied, 339 U S. oe 28. Jackson v. United States, 103 F. Supp. 1019 (Ct. ¢ Ss ees epee ae ies wk nko 5 a a A ie 20 Monongahela Navigation Co. oe States, 148 Si Raa ak Daan oe be pk oka RE a A ee 20 Murphy v. Kerr, 296 Fed. 536 (D. N. M., edt affirmed, 5 F. 2d 908 (Sth ‘Cir., 1925) .2.... ,8, 15,18 Oklahoma v. Atkinson, 313 U.S. 508 ...5.......... 33 Rank v. Krug, 90 F, Supp. 773 (S.D. Cal., 1950) . 1s Southern Counties Gas Co. v. United States, 157, F. Supp. 934 (Ct CL, 1958), cert. denied, 358 US. 815 20 United States v. Ay ynalachian ‘Electric Power Co. : ae A Se. SRA Rea Ee Fea Si RAR ee a a er aa hoe 29 United States. v. Chandler- Dunbar. Water Power oe» Be Ue Sea Sener eM IDE fet 29 rey a f 7 Index Continued iil pe pe es ote ‘ Page United States! Ve. Gerlach Live Stoek Co., 339 U.S. - PE ee GE ee OEEG ss hie oe sO ARO 8, 16,18 United States. Ne Kamsas C ity Life Ins. Co., er U.S. SF ERNE MEARE EEE SOR sk ee aww bes , 30, 31, 34 United Statas Vv: ‘Kelty (reported with United States eM MOS Ne sts UE ose 5 by y 0 vipiv' n> §, 9, 18, 28, 29 United States v. ‘Powers, 94-F/2d. 783 (9th. Cir., 195), ehirmed: 300 U.S. 827 cio sive Likes es i United States v. Rio Grande levifation Co., 174 US. | EERE SS Siete ab ist FE eae 2 ten a a Pere ee oe United States vi Smoot Sand & Gravel Corporation, ee CP EI TOE Die vc sce cae nee anes 8 “United States v. Twin City Power Co., 350 U.S. 222 32 United States v. Willow River Power "Co. 324 U.S. We ge ee are ee gt toon Kae oe IF a PRE United States v. 5,677.94 Acres of Land, 162 F. Supp. + ‘108‘(D. Mont., 1958) ...... Oe es OK PE ORS imIE AE $2.28, 32 ONSTITUTION AND STATUTES: ' ; ay ¢? .@ > ( 14 ‘virtue of § 25 of the Act of April 26, 1y46, 34 Stat. 157, ‘**An Act to provide for the final disposition of the affairs of the five civilized tribes in the Indian Terri- tory and for other purposes.’’ Section 25 of that Act, which is set out in full as an Appendix to petitioner’s brief, gave to power-and light companies rights-of-way to build dams acress non-navigable streams ‘for, the purpose of generating power. The.legislative history of this Act is illuminating. When it was originally introduced as H.R. 5976, 59th »Cong., Ist Sess., it did not contain §25. When the Bill reached the Senate, § 25 was placed into the Act. After some debate on the Senate floor (See 40 Cong. Ree. 3205), the all important proviso at the end of § 25 was offered as an amendment by Senator Clapp and was unanimously adopted. Jbid. That proviso read: ‘* Provided, That all rights granted hereunder shall be subject to the control of the future Territory or State within which the Indian Territory may be situat *”’ : The House approved the conference report (H. Rep. * No. 2347, Vol. 1, 59th Cong., Ist Sess.) which recom- . mended acceptance of § 25, as. amended. It is plain from the legislative history of this Act that it was the intent of Congress that the future State of Oklahoma was to control the waters of non-navigable streams used in the production of power from dams. placed across such streams. | C. The A ppropriated Waters of the Grand River. Prior to admiss.on to statehood, the Oklahonia Terri- .. tory (as distinguished from the Indian Territory) was - governed by a Territorial Legislature. See Organic Act-of May 2, 1890, 26 Stat. 81 (contained in Okla. * Nw statutes were carried for, 1h Stat. Annot. (1952)). In one of the sessions of that Legislature (1905), there was adopted a series of Kes compiled in the statutes of the Oklahoma Territory ywn- der a chapter entitled *‘ Irrigation’’. See historical ndte following § 3929 in the Compiled Laws of Oklahoma of 1909. This was the genesis 06 the.“‘ Arid States Doe- trine”’ as it applies to Oklahoma. Most of these early when Oklahoma was ad- | “day in the Oklahoma Codg Annotated,s rm a part of the “Water Code” ff the State. This Water Code pro- vides {gr the appropriation of water in non-navigable streams and establishes the machinery whereby such appropriation for beneficial use may be accomplished and adjudicated. - Under the Water € sehe, the State a asserted its right to coutrol the manner in which the water of. the _ State’s non-navigable streams may be utilized. See, Grand River Dam Authority v. Grand-Hydro, 192 Okla. 693, 139. P. 2d 798.°. The procedure it establishes is the law of Oklahoma; and it applies to all who seek / 8 | | *The Oklahoma Territory and the Indian Territory were ad- mitted into the Union /as the State of Oklahoma pursuant to the Enabling Act of June 16, 1906, 34 Stat. 267: the Constitution of , . the State was adopted by popular vote; the Proclamation of State- ~ hood was issued (No. 6869, contained in Okla. Stat. Annot. (1952) Const.,°p: 405); and Oklahoma became a state on equal footing with the original states on November 16, 1907. Séction 2 of the Schedule to the Oklahoma Constitution (Okla. Stat. Annot. (1952). Const., p. 583) provided that the laws in force in the Oklahoma Territory were to be carried forward and be ing full foree and effect at the moment of statehod. *In Murphy v. Kerr, 296 Fed, 536 (D.N.M., 1923), affirmed, 5 F.2d 908 (Sth Cir., 1925), the, Court said: “Water running in a natural stream belongs to the public. By statutory enactment the states of Arizona, Colorado, Cali- fornia, Montana, Nevada, New Mexico, Oklahoma, Oregon, North Dakota, South Dakota, ark. ‘aes Wyothing, and 16 the beneficial -use of the. waters of non-navigable streams.” : The legislation which created respondent, in practical effect, made an exception to the appropriation pro- cedure provided by the Water Code. Instead of re- quiring respondent to follow the procedure outlined in the Water Code, the Oklahoma Legislature directly vested in respondent the right to the use of the waters of the Grand River. The courts of Oklahoma have so held. City of Tulsa v. Grand-Hydro, supra at R. 101. The technique which the State of Oklahoma employed ‘to vest in respondent the right to control, store and '- tioner, Were not rights to unappropriated waters, as preserve the waters of the Grand niver is withqut sig- nificance for purposes of this case. What is significant is that by the statute creating respordent, all of the rights to the use of the water in the Gand River were vested in respondent. Thus, the water rights which were taken by peti- * Idafio have declared in substance that all waters within the state are the property of the public, or belong to the state. The modern ciation is that such waters are owned by the state in trust for the people." (Emphasis added). 296 Fed. at 540. * Petitioner has set out, in a footnote at p. 30 of its brief, the. full text of 60 Okla. Stat. Annot. (1949), Sec. 60, for the purpose, apparently, of indicating that the appropriation doctrine in Okla- homa is nét entirely pure. Whether or not this is so seems entirely irrelevant. ‘See, United States v. Gerlach Live Stock Co., 339 U.S, 725. It is also irreleyant that the State of Oklahoma may have changed from the riparian Woetrine to the appropriation doctrine at or abont- the time of its Admission to Statehood (See, Br. for the United States, pp. 41-42). Certainly.,a change from the riparian to the appropriation doctrine coulnot have operated -to divest the federal government of its riparian rights (See, Br. for 17 ; _s : petitioner suggests (Br. for the United States, p. 35). At the time petitioner built its dam at Fort Gibson, all rights tothe waters of.the Grand River had been appropriated and were actually being put to beneficial use. In consequence, and-contrary to the contentions of petitioner, the only issue in this case is as to waters which have been appropriated, —.: . me 62 Ne ee eam“ It is respectfully submitted that the State of Okla- homa had the power and the authority to, and in fact did, appropriate to-and vest in respondent all of the water rights in the Grand River, t3gether with the exclusive franchise and right to develop the same; and that, at the time of the taking by petitioner herein, - the waters of the Grand River at the Fort Gibson site were approprigited waters under the absolute control of respondent. OS II The Vested Water and Franchise Rights in the Grand River * Were the Private Property of Respondent at the Time of the Taking Herein and Just Compensation Must Be Paid A. The Water Rights. The holdings of fis Court, as well as the uniform holdings of other cotwts, make it plain that rights to the use of running water are determined by state law. See, -e.g., Federal Power Commission v. Niagara Mohawk Power Corp., 347 U.S. 239, where this Court said: ‘‘[W]ater /rights, like other real property rights, are determined by state law. Title to them is acquired in conformity with that the United States, p. 41) since, as the history set out at pp. 12-13, supra, indicates, the federal government had no riparian rights to be divested of. Furthermore, there would be nothing to preclude Oklahoma from changing from one doctrine to the other. See Baumann ¥. Smrha, 145 F. Supp. 617, 624 (D. Kan., 1956) (and cases cited), affirmed, 352 U.S. 863. . 18 law.’’? 347 U.S. at 252; accord, United States v. Gerlach Live Stock Co., 339 U.S. 725, 742; Ickes v. Fox, 300 U.S. - 82, 95; Hardin v. Jordan, 140 U.S. 371; Murphy v. Kerr, 296 Fed. 536, 540 (D. N.M., 1923), affirmed, 5 F. 2d 908 (8th Cir., 1925); Rank v. Krug, 90 F. Supp. 773, 786 (S.D. Cal, 1950) and cases cited at 785. . This Court has recognized on innumerable occasions that where-state law grants a property right in and to the use of waters of a running stream, such a prop- erty right must be recognized in determining just, compensation for the taking thereof. International Paper Co. v. United States, 282 U.S. 399, 407: United States v. Kelly, 2483 U.S. 316; Federal Power Commis- ston V. Niagara Mohawk Power Corp., supra. And this principle does not depend upon whether the right . to use the waters of a runningsstream is acquired by virtue of the riparian doctrine (Federal Power Com- mission V. Niagara Mohawk Power Corp., supra) or under the -doctrine of appropriation ¢ Heke ‘Vv. For, supra) or, indeed, by a mixture of the two. United States v. Gerlach Live Stock Co., supra. It is the - right to the use of the waters which is recognized, and the legal basis upon which the right may have been - acquired is quite irrelevant. ae It is clear from the discussion in Part I, pp. 10-14, supra, that respondent was vested, by the State of Oklahoma, with the right to the use and control of the waters in the Grand River; and that the State of. Oklahoma had the power and authority to vest. these water rights in respondent: And there is an un- equivoéal declaration by the Oklahoma courts that the waters In question were in fact appropriated to and vested in the Grand River Dam Antbority. Cit Tulsa Vv. Grel-Hydro, supra at R. 101. In 19. quence, there can be no doubt that respondent had vested water rights in the Grind River at the time the United States built the Fort Gibson Dam, and that the construction of that Dam took or destroyed the private property of respondent, thus entitling it to , just compensation. | | 2 This issue has long been settled and certainly seems foreclosed by this*Court’s decision in International Paper Co, v. United States, supra. In that case, it ‘will besrecalled, the International Paper’ Company ‘had been authorized, pursuar. to the law of the State of New York, to draw a po.tion of the flow of the Niagara River from a still larger diversion authorized to the Niagara Falls Powe: Company. During World War I, the Seeretary of War directed the Power Company to take all of the flow and utilize energy therefrom for certain named companies whose work was deemed more useful fr national defense pur- poses than that of the Paper Company. The con- sequence was that the Paper Company lost its rights to that portion of the flow of the River which it had -had theretafore. Tis Court, in holding that the Paper Company was entitled to just compensation, expressly noted: “The petitioner’s Yight was to the use of the water; and when all the water that it teed was withdrawn .* *.* and turned elsewhere — by vovernment., requisition “for: the production” of power it is hard to see what more the Govern- ment could do to _ the use.’? 282 U.S. at 407. No valid distinction ‘can be made. between what occurred in the International Paper Co, ease and what has occurred here. ‘There is no room for quibbling distinctions’’. 282-U.S. at 407. Respondent's ‘‘right é 20 a was to the use of the water’’ at the Fort Gibson site ; and when all of this water which respondent was - entitled to use was taken from it by the Government, ‘it is hard to see what more the Government could do to take the use.’’ /bid. As in International Paper Co.,. respondent here was deprived of a valuable property right for which it is entitled te just compensation. B. The Franchise Rights. There is no dispute that respondent hel@ a franchise from the. State of Oklahoma to develop and generate poy power and energy at the Fort Gibson site. Theté is also no” dispute under the decisions of this Court, and the decisions of other’ courts, that such a franchise or license is a property right for the taking of which compensation must be paid. Monongahela Navigation Co. v. United States, 148 U.S. 312"; Frost v. Cor- poration Commiission, 278 U.S. 515; International: Paper Co. v. United States, 282 U.S. 399; see also, - Jackson v. United States, 103 F. Supp. 1019 (Ct-CL, 1952); ef., Southern Counties Gas Co. vy. United | States, 157 F. Supp. 934 (Ct. CL, 1958), cert. denied, 358 U.S. 815. cet This specific issyp has already deen deternrined for all practical purposes by this Court. In Grand River — Darn Authority v. Grand-Hydro, 335 U.S. 359, this Court had before it a dispute between the ‘present The language of the court in the Monongahela case is partic-— ularly approppiate to the instant case : ‘Ang here it may be noticed that, after taking this prop- erty, te government will have the right to exact the same - tolls the navigation company has been receiving. It would seem strange that if, by asserting its right to taka.the prop- . erty, the government could strip it largely of ios Salve: de- streying all that value whic’, omes from the receipt of tolls, | / - 21 respondent and.Grand-Hydro, a private corporation which had been given a state license to appropriate the waters of the Grand River for the development of hydro-electric power. After the license had been - granted to Grand-Hydro, “the Oklahoma Legislature created the Grand River Dam Authority, respondent herein, and granted-te it the exe ‘Lusive authority to develop the Grand River. .This Court observed that “In effect, the petitioner [the Authority] ‘thus acquired. a state priority over the respondent . |Grand-Hydro}, although the respondént held title to certain water rights and to the land needed for the project.” 385 U.S. at 363. The specifie issue before this Court in the Grand-H ydro litigation was whether, ‘in determining the value of certain land which the Authority had taken over from Grand-Hydré, it was : appropriate to consider the value of that land fer power sife purposes This Court affirmed the ‘decision of the Supreme Court of Oklahoma which had held that it was necessary to consider the value of the land asa power site. , This Court has ees settled the issue of whether a permit or franchise to generate electric power and energy from the waters of ‘the Grand. River js a property right; and certainly, this property right ix _ no different when it belongs to the Grand River Dam Authority than when it belonged to Grand-Hydro. and having taken the property at this reduced valuation, im-— mediately possess and enjoy all t'.e profits from the collection of the same tolls. In éther words, by the contention this ele- ment of value exists before and. after the taking, and disap- pears only during the very moment and process of taking Surely, reasoning which leads to such a result must have "Some vice, at } toaat the vice of injustice. ** 148 U.S. at 337-38." “£ . . 2) ‘g oo ‘ Y } Petitioner argues that the claim for the’ value of the franchise right does not give rise to: a right of compensation since it ‘is no more than a claigy that a prospective business opportunity was lost/’ (Br. for the United States, p. 34), and only ‘ta hope or ' expectancy’? was destroyed (Br. for the] United States, p. 28). But this. argument disregitrd established facts of record. While concededly 6 ent-had ‘not hegun physival construction of. the Fort Gibson project before petitioner bhit the project, it’ t- had taken many of the steps preliminary thereto. It hid developed a comprehensive plan hu whic the Fort Gibson project played an important. role. It hac constructed and placed in operation the Pensacola unit ‘which was the largest and the keyunit #6 the operation of the nits downstream. It had acquired land, ease- ‘ments, and rights-of-way, and lad constructed trans- ‘odenlan lines, substations and facilitiés to intereom- municate the Fort Gibson project with the Pensacola ' project and the Markham ony project. (Pp. 3-4, supra), By the time of the taking” herein, respondent had ~ already been making beneficial use of the water rights _in the Grand River, had developed and had in opera- tion a going concern, had pledged the revenues from the water rights and franchise rights “in the (irand River for the payment of revenue bonds, and had speyt millions of dollars in_ providing facilities to make beneficial use of the water and frane hise rights. é It ix hardly appropriate to characterize the Authority’s loss as being one of **prospectivé business opportunity”, or the destruction of ‘ta hope or ex-° peetaney’’. Respondent's foss was exactly what the Court of Claims held it to be—that of ‘property , ww 23 | ¥ 9 ares rights which: could not be taken without just com- pensation”. (i. 109). fi any event, a similar argument’ was made and rejected in the Grand-Hydro case, supra. There it - was contended that sinees Grand-Hydro had not * procured a license from the Federal Power Commis- sion, the rights grantetl to it by the State had not « betome: sufficiently ‘real to justify payment “for its. claimed franchise right: .335 U.S. at 372. This argu- ; ment was rejected by the Supreme Court of Okkihoma — and by this Court. Jbid. The Grand-ydro case thus stands with other decided cases, supra, as holding that the franchise right to bo the waters of a flowing stream in order ‘to preéduce electric power is a property right entitled to the protection of the Fifth Amendment.” '! Petitioner refers to certain sections Othe Act establishing the | Grand River Dam Authority and suggests that this Act contem-— plated that the developnent of 4he dams on the Grand: River would be a cooperative effort of the Authority and the United States (Br. for the United States, p. 34a. 17). From this it concludes: that the federal construction of: the Fort Gibson project did not frustrate either the state or federal objectives. Petitioner, however, misconstrues the language of § 862(e) (set. out in’Br. for the United States at p. 4). The so-called ** coopera- tive language’’ gvas solely for the purpose of insuring that the op- eration of the dams for flood control purposes woul e under the supervision of the Corps of Engineers. _ This in faet was~pro- vided for in the licenses issued by the Federal Power Commission for the operation-of the Pensacola and Markham Ferry projects (Fag. 8(e), R. 119; Fdg 22, R. 129-31). ? a 24 TT In the Flood Control Act of 1941, Congress Manifested No Intention to Depart From Its Long Established Policy to 8 => a ee . Under ‘State.Lew : t + Nothing: contained in the Flood Control Act of 1941, which provided for the construction/of the Fort Gibson Dam, ‘indicates, an intention by Congress to depart from its well established policy to recognize and respect rights. to the use-of water vested‘ or aceryed under state law. | mite : In §8 of the Reclamation Act of June 17, 1902, 43° U.5.C. 383, 32 Stat. 390, Congress expressly Provided : “Nothing ‘in this chapter shall be construed as ‘affecting or intended to affect,or to in any wav sinterfére with the laws of. any State or Territory relating to the control, appropriation, use,eor distribution of water * * * or any vested right ‘acqnired ii@under phe Fre f Similarfy, in ‘Béetion 97 of the Federal Power on % of June 10, 1920, 16. U.S.C. 81, 41 Stat. 107 i, Aon-- e gress expressly provided ait 5 : +» ‘Nathing’ contained in this chapte’ rm shall be af ~ eonstfued as affecting or intending to affect or / ri in any way to interfere wifh the laws of the respective States relating {6 the control? ay ae priation, use or distribution*ef water wT , any vested right acquired therein’ rede the Flood Control Act of December 22, 1944, $3 U.S.C. 701-1, 58 Stat. 887, Congress oxpereny he - provided: | | “* * * I[T]t is declared to be the policy of the Congress to recognize the interests and rights of the States * * * to preserve and protect to the, iia oe: : fullest possible extent established and * potential uses, for all purposes, of the waters of the Nation’s rivers * * *.” ae --These Acts—all dealing -with problems relating to reclamation, ° the generation of power, and. flood control—manifest a deep rooted concern on the part of Congress with respect to rights vested under the if laws: of any state. A reversal of this policy should not be lightly imputed. : Although, Congress did ‘not expressly set forth a declaration similar to those “quoted above when it enacted the Flood Control Act of 1941, it did indicate that the Fort Gibson Dam was té be constructed it accordance with House Document 107 of the te ‘Congress, First Session. That Document clearly in- dicated a recognition by Congress that the State of Oklahoma had established7 respondent and had cranted to it rights -with respect to the development and sale of power from. the Grand River. Sd for “gr the Chief of Engineers, stated: re. ¢ , a . , \, CO * * * Local interests desire construction of Na “\ yeservoirs on fthe lower Grand ( Neosho) Rivér sata ke ae the—Pens cola, ‘Markham Ferry and Fort ail “+ » Gibson sites’ for the productiow of hydroelectric ares ae Se power ant for flood control. The desired im-. Sy arate articularly with respect to the “YE ee” development éf water power, are proposed by the State of* Oklahoma which, through legislative enactment, has created a Conservation and ieee Reclamation District known as the Grand River s Dam Authority, this .authority estabiished pri- ti hg . o e et. . ¥ marily for the development and sale of power ‘ © from improvements on Grand River. * * *”’ *> .°» House Doe. No. 107, 76th Cong., at p. 103. ~ 96 The same Document further stated: ° ‘* * * Tt is noted that development of the Pensacola site for power development and flood control is planned by the Grand River Dam ' Ayithority, a Conservation and Reclamation Dis- trict, created by the State of Oklahoma primarily for the development and sale ofpower from the Grand River. The work is dding financed by a loan and grant obtained frédm the Federal Emergency Administration of Public Works.”’ _ House Doe. No. 107, 76@h Cong., at p. 104. And the’ District Engineer reported : ‘*In 1935 the State of Oklahoma created the Grand -River Dam _ Authority. Legally this Authority has the right to issue bonds for the construction of power development on Grand River, but the Ae prohibited the Authority from distributing power to the consumer. The 1937 Oklahoma Legislature removed this restriction. The Authority has been‘actively interested in this _ project and obtained, through the¢ National » Resources ‘Committee, a report on the Npcial and economical aspects of the Pensacola \project, together with a preliminary analysis of thApower market applicable to this project. Said report: was ~published as- Flood Control Committee’ Document No. 4, 74th Congress, Ist Session. Its veheral tenor was favorable. A loan and grant has been made by the Publie Works Administra- tion to the Grand River Dam Authority for the development of the Pensacola project.’’ House Doe. No. 107, 76th Cong., at p. 9. Accordingly, it seems clear that when. Congress authorized the construction of the Fort Gibson dam in the Flood Control Act of 1941, it did so with the knowledge that this respeudent held the franchise and water power rights to develop the water power ft “? inappropriate to attribute to Congress a v Shr TT . @ t 27 of the Grand River and that respondent had actually completed one of the units (Pensacola). Moreover, Congress has also recognized and com- pensated the City of Muskogee, Oklahoma, tor water rights in the Grand. River which were destroyed or damaged as a result of the construction of the Fort Gibson Dam. Act of August 26, 1954, Public Law 663, gsr: Congress, 63 Stat. 822." ; . ae Ri eee | Under the expressed policy of Congress as set Gut in the Reclamation Act, the Federal Power Act and the Flood Control Aet—and there being nothing to the contrary in the Flood Control Act of 1941-—-it is not wutention that its vested respondent would be compensated for apy g rights which were destroyed or damage. of the construction of the Fort Gibson Dam. MY Petitioner Must Pay Just Compensation for the Property _ Rights It Has Taken From Respondent ee The question presented in: this «ase is whether respondent’s vested water and franchise rights, acquired under state law, In a non-navigable stream ean be taken or destroyed by the United States with- out the payment of just compensation. ————— 12 Publie Law 663, Chap. X, p. 22, states: ‘For contention to the City of MusRogee foward the con- struction of a water supply pipeline from existing city water supply intake on eho River near. its junetion with the Arkansas River to Fort Gibson dayiin settlement of @l dam- ages to the water/supply of the City & Muskogee, on account of the construction and operation of ort Alibsor Reservoir, $200,000.00 out of fund) previonsly appropriated.”’ (Em- phasis added). » “ As a result- 28 Preliminarily, it should be noted that respondent concedes that the United States has the power, under the Commerce Clause of the Constitution, to take or Mlestroy water. rights in non-navigable streams, in- cluding those which respondent has in the Grand River. But the issue in this case is not one of power, but rather of compensation. And respondent stren- uously contends—and the Court of Claims has held— that when the U nited States exercises its power to take property, rights in non-navigable streams, it can do so only upon payment of just compensation. The holding of the Court of Claims on this question is neither novel nor new; on the contrary, it is entirely consistent with established decisions. United States v. Kelly (reported with L ited States v. Cress), 2% U.S. 316; Jowa-Wisconsin Bridge Co. v. United States, 84 F. Supp. 852, 857, 867. (Ct. Cl, 1949), cert. denied, 339 U.S. 982; see, United™States v. 5,677.94 Acres of Land, 162 F. Supp. 108, 112 (D. Mont., 1958). -In the Kelly case, this Court held that where the United States, by the erection of a dam ona navigable river, affected the flow of water in a ndén- -navigable tributary so as to make it impossible to operate the respondent’s mill, it was required to pay just compensation, This case is even stronger than Kelly. In Kelly, the Government's activities were confined to navigable waters but affected respondent’s property in the non-navigable tributary. Here, by contrast, the Goverfiment’s activities were themselves in the non-navigable river and directly destroyed respond- ent’s rights. If the payment of just compensation iz) . 2) was necessary in the Kelly case, it is 4 fortiori required here.” | | The distinction between what the Government may take without compensation and what it may take only upon payment of just compensation, has been, we submit, plainly delineated in thi Court’s decisions. The governing principal is that water, rights in navigable streams are inferior to, and subject to, the superior navigation easement of the federal govern- ment; and thus, such water rights may be taken or destroyed by the Government without compensation, United States v. Chandler-Dunbar Water Power Company, 229 U.S. 53; Ashwander V. Tennessee Valley Authority, 297 U.S. 288; United States Vv. Appulachian Electric Power o,, 311 US. 377. The touchstone in all of these cases is the para- mount servitude of the federal government. This 13 Petitioner’s efforts to attenuate the holding in the Kelly case (Br. for the United States, pp, 26-28) are ingenuous but unavail- ing. Despite its suggestion that the decision has all but been overruled (Br. for the United States, p. 27), this Court has ex- pressly declined to do so. United States v. Willow River Power Co., 324 US. 499, 506-07. ' That Kelly involved an award of only $1,500 (Br. for the United , States, p. 26), does not make it any the less binding since constitu- tional principles plainly do not vary with the amount of money involved. ° And that Kelly was a riparian owner does not make, his posi- tion stronger than respondent's here. Respondent's right to t use of the waters of the Grand River were vested under the law of Oklahoma and are entitled to the same constitutional protection as Kelly’s rights which were derived under the law of Kentucky. The suggestion that Kelly's mill had been in operation when its utility was destroyed by the United States and that respondent here had only ‘‘a hope or expectaney"’ (Br. for the United States, pp. 27-28) is a distinction which does not comport with the facts - of record in this case (pp. 21-22, supra). oO . servitude is-limited to the bed and banks of navigable streams, and igh roperties within the bed and banks of navigable” streams may therefore be taken or destroyed without compet&ation. But the superior right of the Ujifted States has never been held to extend beyond the bed and banks of the navigable streams, ahd when property outside the bed and banks of navigable streams is taken, just compensation must be paid. ‘This proposition has been very clearly expressed by Justice Burton, speaking for the Court, in United States v. Kansas City Life Ins. Co., 339 USS. 799: oo ‘It is not the broad constitutional power to regulate commerce, but rather the servitude. derived from that power and narrower in scope, _ that frees-the Gevernment from. liability in these © cases. When the Government exercises this seryitude, it ig exercising its paramount power in the interes of navigation, rather than taking the private property of anyone. The owner's use .of property riparian to a navigable stream long has been limited by the right of the publie4o use the. stream in the interest of navigation. See Gould on Waters, ¢. IV, §§ 86-90 (1883): I Farn- ham, Waters and Water Rights, «. ELL §29 * (1904). This has applied to the stream and to the land submerged by the stream. There thus has been ample notice over the years that such property is subject to a dominant public interest. This right of the public has crystallized in terms of a servitide over the bed of the stream. The relevance of the high-water level of the navigable stream is that it marks its bed. Accordingly, it is consistent with the history and reason of the rule to deny compensation where the claimant's private title is burdenc with this servitude but lo award compensation where his title is not so burdened.’ (Emphasis added). 339 U.S, .at 808, 2 s 31 Since the ‘Grand River is concededly a noen- navigable stream, wider the criterion set forth in the Kansas City Life Ins. Co. ease, its bed and banks were not burdened with a dominant servitude renin te the United States. In consequence, at the time respondent was vested with all of the water power and franehise rights in the Grand River at the Fort Gibson site, its property interests were not burdened by any federal servitude. It follows then that when the . United fare constructed the Fort Gibson. project, it corfld not avail itself of the servitude which it could have only on a navigable river. Though it’ had the power to take respondent’s water cmc] franchise rights, it could take them only subject. to the limitations imposed by the Fifth Amendment. Contrary te petitioner’s contention (Br. for the United States, p. 18), it has no ‘* federal prerogatives” by virtue of its ‘commerce power”. The commerce power gives it only a #paramount servitude over the bed and banks of a navigable river;/it gives no servitude over the bed and banks of a non-navigable river. And absent the servitude, the taking by peti- tioner is a taking subject to the Fifth Amendment and only upon payment of just compensation. Vv ‘s There Is No Support in the Cased for Petitioner's Claim That Its Dominant Servitude Extends to Npn-Navigable Rivers and Adoption of, That Standard by This Court Can Cause Havoc With Vested Property Rights aE. Petitioner apparently recognizes that it cannot prevail in this case under established law. Perhaps this recognition accounts for petitioner's assertion that the question is ‘not whether the Grand Biver is navi- gable but whether it directly and substantially affects 32 navigation and commerce in the Arkansas River jasin.”’ (Br, for the United States, p. 13; see also, p. 20). Such audacity is rare even for the Govern- ment—it is an effort to extend its dominant servitude, _ hitherto limited to: the bed and banks of a navigable river, into non-navigable tributaries of those rivers. Petitioner does not—and indeed cannot—cite any eases to support this. extraordinary assertion. The decision in United States v. Twin City Power Co., 350 U.S, 222, is,-as petitioner concedes (Br. for the United States, p. 19), a decision which deals with a navigable, river (the Savannah River). Petitioner also concedes that the Court of Claims found this distinction significant. Jbid. It is to be noted that the Court of Claims is not alone in this regard. See, United States v. 5,677.94 Acres of Land, 162 F. Supp: 108 (D. Mont., 1958), where the Court said: ‘‘It is my opinion that the rule of Twin City Power. Co, case would in any event be limited in its application _.to a navigable stream.’’ 162 F. Supp. at 116. The decision in United States vy. Rio Grande Trrigqa- tion Co., 174 U.S. 690, is completely irrelevant. to petitioner’s assertion.. In that case, the Attcrney General of the United States, acting pursuant to a federal statute (which made it a criminal offense to create an obstruction ‘to the navigable capacity of any waters, in respect to which the United States has juris- diection,”’ and which authorized proceedings in equity to enjoin such obstructions), sought to enjoin a private ¢company from constructing a dam aeross the Rio Grande River in the territory of New Mexico on the ground that such appropriation by the defendant would substantially interfere with the navigable capacity of the river in the downstream areas. This.Court merely 4 oF 33 sustained the right of the federal government to proceed in that fashion, No claim for compensation was involved. Oklahoma vy. Atkinson, 313 U.S. 508, is the other side of the coin. In that case, the state of Oklahoma sought to enjoin the construction of the Denison Dam on the Red River. The sole question determined by this Court in that case was that the Dam could be constructed pursuant to the power of the federal government to regulate commerce and navigation. Sig- nificantly, the opinion by Mr. Justice Douglas, fer an unanimous Court, specifically pointed out: ¢ “There is no complaint that any property owner will not receive just compensation for the land taken.”? 313 U.S. at 554. The reliance placed by petitioner on Grand River Dam Authority v. Grand-Hydro, 385 U.S. 359, is equally unavailing. It is signifieant that petitioner a 7 ‘ °° ‘ does not rely upon thiS Court’s opinion in that case, ‘but rather upon what petitioner there unsuecessfully ’ asserted in its brief (Br. for the United States, pp. 22- 5) and what the minority of the Court wrote in dissent (Id. at 25-26). We have. discussed the Grand-Hydro case in detail (pp. 20-23, supra), and it is readily ap- parent that the @rand-Hydro casy did not and indeed could not have determined the right of the United States to the waters of non-navigable streams, since ne rights of the, United States were involved in that ease.” "The observation in the majority. opinion that ‘The United States enjoys special rights and power in relation to navigable streams. and also to streams which affect interstate commerece”’ (335 US. at 373), was unnecessary to the decision of the case and i hardly support for petitioner's contention. ; ** 34 The fact of the matter is that never before Has it been held that the federal government can take water rights in ‘a non-naviyable stream without paying compensation therefor. To embrace \ petitioner's ” audacious suggestion would. be to wreak, in in- numerable instances, untold havoe to holders of vested property rights and to open a Pandora’s box of, unending trouble, The test petitioner suggests (i.c., directly and substantially affecting navigation and commerce) would encompass almost any non-navigable stream. And, while it may not be important for this Court to concern itself with the vested rights which may exist on ‘‘every rivulet, creek, and stream”’ (c¢f., Br. for the United States, pp. 23-24 n. 9), what of the rights which have vested in the more substantial, but nevertheless non-navigable, waters throughout the United States? In Oklahoma alone, the applicea- tion of this doctrine would mean that the federal government could take and destroy the water rights of such cities as Tulsa and Muskogee, and of towns such as Fort Gibson, Wagoner and Pryor Creek (all determined in City of Tulsa v. Grand-Hydro, R. 91), without paying just compensation. It is difficult to believe that the framers of our Constitution intended to immunize the federal govern- ment from the reach of the Fifth Amendment by such an ‘extraordinary extrapolation of the commerce power, | ; It is not amiss to turnagain to this Court's decision in United States v. Kansas City Life Ins. Co., supra. There, it will be recalled, this Court. justified the exercise of the Government's dominant’ servitude by netting that “[t}here thus has been ample notice over the years that such property is subject te a ad ; 306 dominant public interest.” 339 U.S. at 808. But that was written cera to the Government's "rights over navigable waters, Not until the instant has there ever been a claim by the federal government that tts dominaut servitude extended to ‘the waters of now-navigable streams, There has been no “ample notice over the yvears’’ to the holders of _ vested water rights in ‘non-navigable streams that their’ property ‘is subject to a dominant public interest.” The standard now urged by petitioner js a belated, unjustified, uuwarranted and utterly-illegal effort to clude its constitutional obligation to make just compensation. CONCLUSION For the reasons set forth above, it is respect fully submitted that the judgment below should be affirmed. Y. B. BoypstuN i. O. Drawer 112 Vinita, Oklahoma Jess LARSON . 1000 Connectient Ave. N. W. Washington 6, D.C. Attorneys for Respondent. Forp, Larson, GREENE & Horaate 1000 Connecticut Ave., N:. W. Washington 6, D.C. z WLAN Y. COLE 815 15th Street, N. W. Washington, 5, D. €. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386409_0256%3A5. Public record. Not legal advice.