Federal Power Commission v. Oregon/Dissent Douglas

Mr. Justice DOUGLAS, dissenting.

I would not suppose the United States could erect a dam on this nonnavigable river without obtaining its water rights in accordance with state law. If I am right in that assumption, then this dam cannot be built without satisfying Oregon's water-rights law. For the federal licensee who will build this dam acquires all its rights from the United States. And the United States cannot give what it does not have.

The argument pressed on us by the United States is akin to the one urged in State of Nebraska v. State of Wyoming, 325 U.S. 589, 611 et seq., 65 S.Ct. 1332, 1347, 89 L.Ed. 1815. In that case, the United States struggled to be rid of the rule of law that made its water rights on nonnavigable streams of the West dependent on state law. It claimed that it owned all the unappropriated water in the basin of the North Platte River. The argument was made not only under the Reclamation Act of 1902, 32 Stat. 388, but also under the Desert Land Act of 1877, 19 Stat. 377, the Act involved here. We reserved decision as to whether under some circumstances the United States might be the owner of unappropriated water rights. But we held that under those Acts the United States took its water rights like other landowners, viz., pursuant to state law governing appropriation.

Unless we are to depart from that ruling, we must accept Oregon's claim here.

Oregon's position has for its support two other decisions of this Court, both construing the Desert Land Act. The first of these is California-Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142, 55 S.Ct. 725, 728, 79 L.Ed. 1356, which construed the provision of the Desert Land Act, crucial here, which reads:

'all surplus water over and above such actual appropriation     and use, together with the water of all lakes, rivers and      other sources of water supply upon the public lands and not      navigable, shall remain and be held free for the      appropriation and use of the public for irrigation, mining      and manufacturing purposes subject to existing rights.'

The Court interpreted that provision as follows:

'The fair construction of the provision now under review is     that Congress intended to establish the rule that for the      future the land should be patented separately; and that all      non-navigable waters thereon should be reserved for the use      of the public under the laws of the states and territories      named.' 295 U.S. 142, 162, 55 S.Ct. 725, 731.

That case, to be sure, involved a contest between private owners. But the principle announced was shortly applied to the United States as a property owner on a nonnavigable stream. In Ickes v. Fox, 300 U.S. 82, 57 S.Ct. 412, 81 L.Ed. 525, the Court held that by the Desert Land Act, 'if not before, Congress had severed the land and waters constituting the public domain and established the rule that for the future the lands should be patented separately. Acquisition of the government title to a parcel of land was not to carry with it a water right; but all nonnavigable waters were reserved for the use of the public under the laws of the various arid-land states.' Id., 300 U.S. at page 95, 57 S.Ct. 417.

The Fox case involved water rights of farmers under a federal irrigation project, the claim being that the United States, owner of the irrigation system, owned the water rights. The Court rejected that claim and looked to state law to determine who had the water rights; and finding that the farmers owned them, the Court held that the United States was not an indispensable party in litigation concerning them.

Those cases should control here. The Desert Land Act applies to 'public lands'; and the Federal Power Act, 41 Stat. 1063, as amended, 16 U.S.C. § 791a et seq., 16 U.S.C.A. § 791a et seq., grants the Commission authority to issue licenses for power development 'upon any part of the public lands and reservations of the United States.' § 4(e). The definition of those terms in the Act says nothing about water rights. And, as I have pointed out, it has been the long-term policy of Congress to separate wastern land from water rights.

The final resort of the Commission is to the Act of June 25, 1910, 36 Stat. 847, providing:

'That the President may, at any time in his discretion,     temporarily withdraw from settlement, location, sale, or      entry any of the public lands of the United States including      the District of Alaska and reserve the same for water-power      sites, irrigation, classification of lands, or other public      purposes to be specified in the orders of withdrawals, and      such withdrawals or reservations shall remain in force until      revoked by him or by an Act of Congress.'

It was under this Act that some of the lands here involved were reserved for a power site. But the Act of June 25, 1910, by its very terms, did no more than withdraw these public lands 'from settlement, location, sale, or entry.' The Act did not purport to touch or change in any way the provision of the Desert Land Act that pertains to water rights. If the words of the 1910 Act are to control, water rights remained undisturbed. The lands remained 'public lands,' save only that settlers could not locate on them. I assume that the United States could have recalled its grant of jurisdiction over water rights, saving, of course, all vested rights. But the United States has not expressly done so; and we should not construe any law as achieving that result unless the purpose of Congress is clear.

The reason is that the rule adopted by the Court profoundly affects the economy of many States, ten of whom are here in protest. In the West, the United States owns a vast amount of land in some States, over 50 percent of all the land. If by mere Executive action the federal lands may be reserved and all the water rights appurtenant to them returned to the United States, vast dislocations in the economies of the Western States may follow. For the right of withdrawal of public lands granted by the 1910 Act is not only for 'water-power sites' but for a host of public projects-'irrigation, classification of lands, or other public purposes.' Federal officials have long sought that authority. It has been consistently denied them. We should deny it again. Certainly the United States could not appropriate the water rights in definance of Oregon law, if it built the dam. It should have no greater authority when it makes a grant to a private power group.