Opposition Brief — Iowa v. Federal Power Commission

MAY17

CHARLES ELMORE

Huvreme Court of the United States

October Term, 1949

State or Iowa, Conservation Commission or Iowa, HicH-

way Commission or Lowa, Grorce CorRRIELL, ET AL.,

Petitioners

Vv.

FrepERaL Power Commission, Respondent

First Iowa Hypro-Execrric Coopgrative, Intervenor

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Eighth Circuit

BRIEF FOR THE INTERVENOR IN OPPOSITION

WILSON - EPES PRINTING Co. - RE 6003 - WASHINGTON 1, D. C.~ .

PAGE

Opinions Below ............-----.--------:s-s-ssesessceeeseeseseceeneneeneenenneans 1

: JUVISGICHION -....-.----n----neeenneeneneesencenesseneceenteeeencensncemenennenenneases 2

Questions Presented ................--------cssc-snssesssseseseenseeseesnsenenss 2

II iste enrnreancencnrenosnenennarvnnneiveeanineemnienatie 2

ATZUMENLE ........-.--------n----cec-cnereeeneeneesenecseeeeseectetnsntennnnenenensnenes 8

sis cresinpelbchininloaeilensilbicninaniecionannmenweness 14

Citations

? Cases:

‘ Arizona v. California, 283 U. S. 428.00... 11

Federal Communications Commission v. Pottsville

; Broadcasting Co., 309 U. 8S. 134...........------.-------- 11

; First lowa Hydro-Electric Cooperative, 2 F. P. C.

‘ Ae RES IG EE ee 8

| First lowa Hydro-Electric Coop. v. Federal Power

’ Com’n., 80 U. S. App. D. C. 211, 151 F. 2d 20) 5

( First Iowa Hydro-Electric Coop. v. Federal P.

f Com., 328 U. S. 152, reh. den. 328 U. S.

_ 5 _ AIS EERSTE AE reece areas 3, 5, 9, 13

General Talk. Pictures Corp. v. Western El. Co.,

A iat aise Anis stage aitig ocean apuaninnsiecs 12

Georgia Power Commission v. Federal Power

Commission, 152 F’. 2d 709.................................- 11

Montana Power Company v. Federal Power Com-

| eS RE.) ee ene 12

National Labor Rel. Board v. Donnelly Garment

I A i asc cies oaechentnatnets 10

National Labor Rel. Board v. Waterman 8S. S.

I I a eetincicnatrpiaineranibniagptinbinisinan 12

National Labor Relations Board v. Link-Belt Co.,

ali sit desc sndininaianiacianiribebeiees 12

; a ES | ERE CC ee 10

State of Iowa, et al. v. Federal Power Commis-

I I Nn essai 1

— Anthracite Coal Co. v. Atkins, 310 U. S.

a arti la ashe eka incitdinn ec nccdacinabdcomieapleiobaienivhicheior 10

INDEX (Continued)

PAGE

ee CUE 11,13

United States v. United States Smelting, Ref. &

Min. Co. (No. 173, October Term 1949, decided

209 U. S. 306

Vinson v. Washington Gas Iaght Co., 321 U.S. 489

Washington Bridge Co. v. Stewart, 3 How. 413... 10

Statutes:

Federal Power Act of June 10, 1920, c. 285, 41 Stat.

1063, as amended August 26, 1935, ¢. 687, 49

Stat. 838, 16 U.S. C. 791a-825r

3

See. 313(a), 16 U. S. C. see. 825 l(a)... 8

See. 313(b), 16 U. S. C. see. 825 I(b).... 5, 8, 12

Wildlife Resources Act of August 14, 1946, 60

Miotenendeinicreti sissinanteniniece ices cig 2, 13, 14

Iowa Code of 1935, c. 390-G-1 and sec. 8341... 3

Miscellaneous: .

H. R. Doc. No. 134, 71st Cong., 2d Sess. 86, 87,90.. 2

State of Iowa Brief (No. 603, Oct. Term 1945)... 5, 9

State of Iowa Pet. for Reh. (No. 603, Oct. Term

1945)

ee

In THE

Supreme Court of the Gnited States

October Term, 1949

No. 760

State or Iowa, Conservation Commission or Iowa, HicH-

way Commission OF lowa, GrorGe CoRRIELL, ET AL.,

Petitioners

V.

FrpERAL Power Commission, Respondent

First Iowa Hypro-ELecrric Cooperative, Intervenor

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Eighth Circuit

BRIEF FOR THE INTERV1INOR IN OPPOSITION

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Eighth Cireuit (R. 11-25) is reported at 178 F. 2d 421.

The order of the Federal Power Commission here involved

(R. 106-111, ef. 91-94) is not yet officially reported.

2

JURISDICTION

The judgment of the Eighth Cireuit was entered on

December 28, 1949 (R. 25). A petition for rehearing was

denied January 20, 1950 (R. 43). The petition for cer-

tiorari was filed on April 17, 1950. The jurisdiction of

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

QUESTIONS PRESENTED

1. Whether the Federal Power Commission has juris-

diction under the Federal Power Act to license the power

project proposed by First Iowa Hydro-Electric Coopera-

tive on and along the Cedar and Mississippi Rivers in

Muscatine and Cedar Counties, Iowa.

2. Whether there is substantial evidence in the record

to support the Commission’s finding that the project in

question is economically sound, practicable, and feasible.

3. Whether the Commission erred in failing to require

First Iowa Hydro-Electric Cooperative to comply with

certain Iowa statutes in conflict with the Federal Power

Act.

4. Whether the Commission failed to give effect to the

Wildlife Resources Act of August 14, 1946.

STATEMENT

In 1929 the Chief of Engineers (U. 8. Army) submitted

to Congress a report covering navigation, flood control,

power development and irrigation on the Iowa River and

its tributaries... In this report the Chief of Engineers

recognized that the diversion of substantially all of the

waters of the Cedar River near Moscow, Iowa to the

"H.R. Doc. No. 134, 71st Cong. 2d Sess. 86, 87, 90.

c/a

Mississippi River near Muscatine, lowa was an engineer-

ing possibility and constituted the largest power develop-

ment foreseeable on either the Cedar or Iowa Rivers, First

Iowa Hydro-Klectric Cooperative (hereinafter referred

to as First Iowa) was organized in 1938 under the laws

of lowa,’ as a non-profit cooperative association, with a

view to developing such a project on the Cedar River near

Moscow and Muscatine, Iowa. First Iowa obtained op-

tions to 98% of the riparian rights on the Cedar River

inthatarea. 328 U.S. 152, 158,

On January 29, 1940 First Iowa, pursuant to section

23(b) of the Federal Power Act, 16 U. S. C. sec. 817, filed

a declaration of intention with the Federal Power Com-

mission for a_ hydro-electric development utilizing the

waters of the Cedar River in Cedar and Muscatine Coun-

ties, lowa (Tr. 3099). In accordance with its usual prac-

tice, the Commission notified the Governor of Iowa by

letter dated February 7, 1940 of the filing of this declara-

tion of intention by First Iowa (Tr. 3097). On April 2,

1941 the original declaration of intention was supplemented

to extend the power development, by means of a diversion

canal, to the Mississippi River north of Muscatine, Iowa

(Tr. 3105). On June 3, 1941 the Commission made the

following findings (R. 238) :

(1) The Cedar and Iowa Rivers are navigable

waters of the United States;

(2) The diversion of water from the Cedar River

by means of the diversion canal as set forth above

would have a direct and substantial effect upon the

flow and stage of the Iowa River and hence would

affect the navigable capacity of that river;

(3) The alternate withholding of water in the res-

ervoir and canal during periods of shut-down of the

power plant and the release of water at substantial

; rates of flow during periods of operation of the power

plant, as set forth above, would cause extreme fluctua-

* Ch. 390-G-1 and section 8341 of the Iowa Code of 1935.

4

tions in the flow of the Mississippi River at Muscatine,

Iowa, and would substantially affect the navigable

capacity of that river;

(4) The interests of interstate commerce would be

affected by construction of the project as described

in the declaration of intention as supplemented;

(5) The two small islands ... [in the Cedar

River] are public lands of the United States and will

be partly or wholly flooded by the reservoir of the

proposed project and will be occupied by the project;

(6) A license for the construction proposed above

: required under the provisions of the Federal Power

ct.

A copy of these findings was transmitted to the State

Commerce Commission, Des Moines, Iowa. From these

findings the State of Iowa filed no petition for rehearing

or for court review. The sixty days thus allowed for re-

view having expired, First Iowa on August 11, 1941, pur-

suant to section 4(e) of the Federal Power Act, filed an

application with the Federal Power Commission for a

license to construct, operate and maintain the proposed

power development project on the Cedar and Mississippi

Rivers (R. 1-6). It was at this stage of the proceedings

that the State of Iowa, on October 16, 1941, petitioned to

intervene for the first time (R. 6-13). The petition was

allowed on November 4, 1941 (R. 6). Other state agencies

intervened at approximately the same time (R. 28-39).

After extended hearings the Commission on January

29, 1944 found that the applicant’s ‘‘present plans call for

a practical and reasonably adequate development to utilize

the head water available, create a large storage reservoir,

and make available for recreational purposes a consider-

able area now unsuitable for such use, all at a cost which

does not appear to be unreasonable’’ (Tr. 3387). The

Commission, nevertheless, dismissed the application for

license upon the finding that the ‘‘applicant has not pre-

sented satisfactory evidence, pursuant to Section 9(b) of

the Federal Power Act, of compliance with the require-

=

5

ments of applicable laws of the State of Iowa requiring a

permit from the State Executive Council to effect the

purposes of a license under the Federal Power Act, and

the pending application, as supplemented, should be dis-

missed without prejudice’’ (R. 45). In further explana-

tion of its dismissal, the Commission stated that the ‘‘ap-

propriate place for a determination of the validity of such

State laws [of Iowa requiring a license from the State

Executive Council] is in the court and, if we dismiss the

application for license on the basis of failure to comply

with the requirements of Section 9(b), applicant may

seek review of our action and its contentions under Section

313(b) of the Federal Power Act’’ (Tr. 3389-3390).

A petition for rehearing having been denied (Tr. 3401),

First Iowa petitioned the United States Court of Appeals

for the District of Columbia for review. The State of

Iowa intervened. That court affirmed the order and

opinion of the Commission. First Iowa Hydro-Electric

Coop. v. Federal Power Com’n., 80 App. D. C. 211, 151 F.

2d 20 (1945).

Thereupon First Iowa applied for and over the State’s

objections obtained a writ of certiorari. The State there-

after filed a brief on the merits and participated in the

oral argument, contending inter alia that the Cedar and

Iowa rivers were non-navigable (No. 603, Oct. Term 1945,

Br. 39-41). This Court reversed (First Iowa Hydro-Elec-

tric Coop. v. Federal P. Com., 328 U. S. 152), holding (p.

181) that ‘‘the detailed provisions of the [Federal Power]

Act providing for the federal plan of regulation leave no

room or need for conflicting state controls’’ and (p. 182)

that ‘‘it is the Federal Power Commission rather than

the Iowa Executive Council that under our constitutional

Government must pass upon [power developments on navi-

gable waters of the United States] on behalf of the people

of Towa as well as on behalf of all others.’’ In the course

q of its opinion, this Court pointed out (p. 159, fn. 4) that

6

the Commission on February 7, 1940 ‘‘had sent notice to

the Governor of Iowa of the filing of the original declara-

tion of intention and invited him to present information

and comments relative thereto. The State, however, took

no part in the proceedings.’’ This Court further observed

that ‘‘the findings made by the Commission on June 38,

1941, in response to the petitioner’s declaration of intention

are not in question. For the purposes of this application®

[for a license from the Federal Power Commission] it is

settled that the project will affect the navigability of the

Cedar, Iowa and Mississippi Rivers, each of which has

been determined to be a part of the navigable waters of

the United States; will affect the interests of interstate

commerce; will flood certain public lands of the United

States; and will require for its construction a license

from the Commission. The project is clearly within the

jurisdiction of the Commission under the Federal Power

Act’’ (p. 163). The judgment of the Court of Appeals

for the District of Columbia was accordingly reversed

with directions to remand the case to the Commission for

further proceedings in conformity with this Court’s

opinion.

The State of Iowa filed a 31 page petition for rehearing

in which it contended that ‘‘Cedar River is not a navigable

water of the United States,’? and hence not subject to

the jurisdiction of the Federal Power Commission, citing

inter alia the Acts of Congress of May 6, 1870 and Au-

gust 18, 1894 (No. 603, Oct. Term 1945, Pet. for Rehear-

ing, pp. 2-11, 26-28, 30-31). Rehearing was denied (328

U.S. 879).

Being of the opinion that the record should be supple-

mented by a further showing as to the design and eco-

nomic feasibility of the project under 1946 conditions, the

Commission by order dated August 6, 1946 (R. 52), re-

5 Italics supplied throughout this brief.

— =

opened the record in conformity with this Court’s opinion

and set the matter down for public hearing upon those

points. In view of its own findings in the June 3, 1941

order and the explicit language of this Court’s opinion, it

denied the petition of the State of Iowa seeking to reopen

the issues of jurisdiction and navigability (R. 46, 70).

Further hearings were held by the Federal Power Com-

j mission in September and October 1946 before a Trial

Examiner. It was at this point in the proceedings that

George Corriell and certain other landowners directly af-

fected by the project became parties intervenor (R. 39-43).

In due course, after oral argument, the Commission on

December 19, 1947 issued a preliminary opinion stating |

that it would issue a license for the construction of the |

proposed project if certain specified conditions were com-

plied with by First Iowa (R. 243-248). On September 8,

1948 the Commission found that these conditions had been

met and issued a license to the applicant to construct and

operate the proposed project (R. 106-111).

After denial by the Commission of a petition for re-

hearing (R. 111-150), the State of Iowa and those asso-

ciated with it petitioned the Fighth Cireuit for review.

First Towa was allowed to intervene (R. 10). On Decem-

ber 28, 1949 the Eighth Circuit unanimously denied the

State’s petition to set aside the orders of the Federal

Power Commission (R. 25-26). A petition for rehearing

was similarly denied January 20, 1950 (R. 43).

8

ARGUMENT

I

Petitioners’ present attacks (Pet. 4-5, 6-10, 15-24) on

the jurisdiction of the Federal Power Commission to li-

cense the Moscow dam project on the Cedar and Mississippi

Rivers in Muscatine and Cedar Counties, lowa, have been

previously considered and rejected by this Court in its

earlier review of the proceedings in this case. That deter-

mination, if not res judicata, has certainly become the law

of the case.

Notice of the filing by First Iowa of its declaration of

intention to utilize the waters of the Cedar River for a

hydro-electric power project was sent to the Governor of

Towa in accordance with the Commission’s usual practice

in section 23(b) proceedings (Tr. 3097). The State did

not intervene. On June 3, 1941 the Commission found

that the proposed project would affect navigable waters

of the United States and that a federal license was there-

fore required under the Federal Power Act (2 F. P. C.

958). A copy of these findings was likewise served on

State officials of Iowa. No petition for rehearing or for

court review was filed by the State of Towa within the

statutory period prescribed by the Federal Power Act.

Sections 313(a) and (b); 16 U.S. C. sees. 825 l(a) and (b).

The jurisdictional findings of the Commission are thus

res judicata.

By subsequently intervening in the license application

proceeding instituted by First Towa on August 11, 1941,

the State of Towa becaine a party to the proceeding as it

then stood and could not relitigate issues already resolved.

Vinson v. Washington Gas Light Co., 321 U. 8. 489, 498.

In any event, by reason of the previous appeals in this

proceeding, the Commission’s jurisdictional findings have

become the law of the case. On January 29, 1944 the Com-

9

mission dismissedi, without prejudice, First Iowa’s appli-

cation for a licensee. From that dismissal order First Iowa

took an appeal to ithe United States Court of Appeals for

the District of Collumbia, which affirmed the action taken

by the Federal Power Commission. From there the case

came to this Court on certiorari. The State of Iowa

actively participatted in the review proceedings in both

courts as a party intervenor. It was free to defend the

dismissal order on any grounds it saw fit, including juris-

dietional grounds, and such arguments were advanced by

the State in its brief on the merits (No. 603, Oct. Term

1945, Br. 39-41) and in a subsequent petition for rehearing

(No. 603, Oct. Term 1945, Pet. for Reh. pp. 2-11, 26-28,

30-31).

This Court nevertheless reversed the Commission’s order

of dismissal and remanded the case to the Federal Power

Commission for further proceedings. After quoting in

full the Commission’s jurisdictional findings of June 3,

1941, this Court made pointed reference to the fact that

the Commission had sent notice to the Governor of Towa

of the filing of the declaration of intention and that ‘‘the

State, however, took no part in the proceedings’? (328

U.S. 159). Regarding the jurisdictional findings of June

3, 1941, the Court thereafter made this comment at page

163:

‘For the purposes of this application it is settled

that the project will affect the navigability of the

Cedar, Iowa amd Mississippi Rivers, each of which has

been determined to be a part of the navigable waters

of the United States; will affect the interests of inter-

state commerce; will flood certain public lands of the

United States; and will require for its construction a

license from the Commission. The project is clearly

within the jurisdiction of the Commission under the

Federal Power Act.’’

From the context and from other passages in the opinion,

it is obvious that this Court was referring to First Iowa’s

10

‘“‘application’’ for a license and not its ‘‘petition’’ for

certiorari. In short, for purposes of its application to

construct a hydro-electric power project on the Cedar and

Mississippi Rivers, it was ‘‘settled’’? and ‘‘determined”’

that the rivers in question are ‘‘part of the navigable

waters of the United States’? and that ‘‘the project is

clearly within the jurisdiction of the Commission under the

Federal Power Act’’. Ina subsequent 31 page petition for

rehearing the State argued at length that the judgment

of the court below dismissing First Towa’s application for

a license should be affirmed on the ground that the Cedar

River was not a navigable water of the United States,

citing the Act of Congress of August 18, 1894, and numer-

ous other authorities upon which the State again relies in

its instant petition (Pet. 6, 16). The Commission’s juris-

dictional findings have thus become the law of the case and

should not be reopened on a subsequent petition to this

Court. Washington Bridge Co. v. Stewart, 3 How. 413,

425; ef. Sunshine Anthracite Coal Co. v. Atkins, 310 U. S.

381, 403.

It is well settled that after a case has been taken to this

Court and there decided and a mandate issued to the court

below, that if the case is taken up for review a second time,

it brings up for review nothing but the proceedings sub-

sequent to the mandate. Jn re Potts, 166 U. S. 263, 267;

National Labor Rel. Board v. Donnelly Garment Co., 330

U. S. 219, 227-228.

In view of this Court’s categorical language in its earlier

opinion in this proceeding and its pointed reference to the

jurisdictional findings of June 3, 1941, the Commission

rightly determined on remand to refuse to hear further

evidence on jurisdictional questions and to confine the fur-

ther hearings to bringing the record up to date on the

questions of design and economic feasibility. The Com-

mission was not required to reopen any issue as to which

its ruling was left unassailed by this Court’s previous

Rat eo mace pe

11

decision. Federal Communications Commission v. Potts-

vile Broadcasting Company, 309 U. S. 134, 146; United

States v. Morgan, 307 U. S. 183, 186-187.

While the rule of the law of the case is a rule of practice,

it is nevertheless based upon sound policy that when an

issue is once litigated and decided, that should be the end

of the matter. Cf. United States v. U.S. Smelting, Refining

& Mming Co., (No. 173, Oct. Term 1949, decided March 28,

1950). Administrative and judicial proceedings in connec-

tion with First Iowa’s application for a license for its

power project in Iowa have already dragged out for ten

years. Under the terms of the license granted September

8, 1948, construction must be begun within two years.

Financing cannot be concluded with litigation pending. A

grant of certiorari to review jurisdictional questions al-

ready resolved by this Court would carry this case over

to the October Term 1950, beyond the two-year period

allowed for commencement of construction. The doctrine

of the law of the case is clearly a salutary one under these

circumstances.

Furthermore, this Court will certainly take judicial no-

tice of the fact that the Mississippi River is a navigable

interstate stream. Arizona vy. California, 283 U. 8. 423,

452. It is a fact too clear to admit of argument that the

diversion of the waters of the Cedar River into the Missis-

sippi River near Muscatine, Iowa, rather than at the con.

fluence of the Towa and Mississippi Rivers some 20 miles to

the south, will affect the flow of the Mississippi River for

at least a distance of 20 miles and thus affect interstate

commerce, This fact alone confers jurisdiction on the

Federal Power Commission. Georgia Power Co. v. Federal

Power Commission, 152 F. 2d 908 (C. C. A. 5, 1946) ; ef.

United States vy. Appalachian Electric Power Co., 311 U.S.

377, 399, 401, 402, 419-498,

12

II

There is a short answer to petitioners’ next contention

(Pet. 12-13, 24-25) that the project is not economically

feasible. Section 313(b) of the Federal Power Act ex-

pressly provides that the findings of the Commission as

to the facts, if supported by ‘¢‘substantial evidence’’, shall

be conclisive on the courts. 49 Stat. 860, 16 U. S. C. see.

825 l(b). Under such a statute the courts will not reweigh

the evidence and substitute their jadgment for that of the

administrative agency. National Labor Relations Board

v. Link-Belt Co., 311 U. S. 584, 596-597.

The Commission considered voluminous testimony on

the question of economic feasibility, only a portion of which

was included by petitioners in the printed record in the

court helow. Some of the additional evidence in support

of the Commission’s finding that the project is economically

feasible was included in a supplemental record printed by

the Federal Power Commission (R. 249-257). Additional

testimony (not printed) was supplied by applicant’s own

witnesses, e. g. Nash (Tr. 3174, 4909) and Holway (Tr.

3042, 2096, 3168, 4741). Since the record contains sub-

stantial evidence in support of the Commission’s findings

(e. g. R. 249-257), the findings on economic feasibility,

being findings of fact, are thus conclusive under Section

313(b) of the Federal Power Act. Montana Power Co. v.

Federal Power Commission, 112 F. 2d 371-874 (C. C. A. 9,

1940), Certiorari does not ordinarily lie to review evidence

or the inferences to be drawn therefrom. General Talk.

Pictures Corp. v. Western El. Co., 304 U. S. 175, 178;

National Labor Rel. Board v. Waterman 8. S. Corp., 309

1. S. 206, 208-209.

III

Petitioners’ further contention (Pet. 13-14, 25-26) that

the Commission, on remand, ignored section 9(b) of the

J’ederal Power Act and the mandate of this Court is with-

out merit. This Court, in its prior decision in this pro-

ceeding, held that section 9(b) of the Federal Power Act

does not require the Commission to compel an applicant

to comply with conflicting requirements of state law. 328

U.S. 152, 162, 170. This Court further held (p. 181) that

the ‘detailed provisions of the [Federal Power] Act pro-

viding for the federal plan of regulation leave no room or

need for conflicting state controls’’, a result previously

reached in United States v. A ppadlachian Electric Power

Co., 311 U.S. 377, 404-405, 426-497. “It is the Federal

Power Commission rather than the Towa Executive Coun-

cil that under our constitutional Government must pass

upon these issues on behalf of the people of Towa as well

as on behalf of all others”’ (p. 182). This Court elsewhere

observed that ‘‘if it had been the wish of Congress to make

the applicant obtain consent of state, as well as federal

authorities, to each project, the simple thing would have

heen to so provide’, but that section 9(b) had not so

provided (p. 178).

It is thus clear that the Commission was not required

under section 9(b) of the Act to give further consideration

to the conflicting provisions of Towa State law relied upon

hy petitioners. The subsequent proceedings hefore the

Commission were in complete conformity with this Court’s

opinion and the resulting mandate.

13

IV

Petitioners’ final contention (Pet. 14-15), not briefed,

that the Commission ignored and refused to give effect to

the Wildlife Resources Act of August 14, 1946 is devoid

of merit. In view of the limited issues left to be deter-

mined on remand, it is doubtful whether the Act of August

14, 1946 adopted in the interval between the first and

second hearing should be given retroactive application in

a proceeding theretofore begun and substantially con-

cluded. United States Fidelity Company vy. Struthers

Wells Co., 209 U.S. 306, 314. In any event the Commis-

14

sion’s order of September 8, 1948 granting the license in

question carefully provides for the protection of fish and

wildlife resources. Paragraph 12(c) states that ‘‘the li-

censee shall construct, maintain, and operate such fish

protective devices and shall comply with such reasonable

conditions in the interests of fish life as may be hereafter

prescribed upon the recommendation of the Secretary of

the Interior’’ (R. 106, 108). Since the Act of August 14,

1946 merely requires ‘‘consultation’’ with State agencies

(60 Stat. 1080), the Commission has given due effect to

the Wildlife Resources Act of August 14, 1946.

CONCLUSION

The questions presented were correctly decided by the

court below. There is no conflict of decisions. The juris-

dictional objections which petitioners seek to raise have

already been rejected by this Court in its previous con-

sideration of this ease. The other issues present no ques-

tions of general importance. The petition for a writ of

certiorari should be denied.

Respectfully submitted,

“Anprew G. Hatey

v James A. McKenna, JR.

J Vernon L. WILKINSON

Attorneys for First Iowa

Hydro-Electric Coopera-

tive, Intervenor

Second Floor, Duryea Bldg.

. 1101 Connecticut Avenue,

/ N. W.

Washington, D. C.

Davin W. Rosrnson, JR.

Of counsei for Intervenor

Columbia, S. C.

May 1950