Grand River Dam Authority v. Grand-Hydro/Dissent Douglas

Mr. Justice DOUGLAS, with whom Mr. Justice BLACK, Mr. Justice MURPHY and Mr. Justice RUTLEDGE join, dissenting.

The result of this decision, no matter how it is rationalized, is to give the water-power value of the current of a river to a private party who by reason of federal law neither has nor can acquire any lawful claim to it. The United States has asserted through the Federal Power Act its exclusive dominion and control over this water power. That Act specifies how one may acquire a license to exploit it, § 23(b), and the conditions under which the licensee must operate. See First Iowa Hydro-Electric Co-op. v. Federal Power Comm., 328 U.S. 152, 66 S.Ct. 906, 90 L.Ed. 1143.

Petitioner has such a license. Respondent has none and, for reasons unnecessary to relate here, concededly cannot obtain one. Respondent therefore has no claim to the water-power value which the law can recognize, if the policy of the Federal Power Act is to be respected. When respondent's claim is recognized, the effect is to make petitioner pay a private claimant for a privilege which only the United States can grant.

That is the bald result whether the condemnation takes place in a state or a federal court. Whatever the procedure, the conse quence is to give private parties an entrenched property interest in the public domain, which the Federal Power Act was designed to defeat.

The public burden is the same and the impairment of the policy of the federal act is identical whether the judgment is entered by a state or a federal court. Never before, I believe, has a federal right been allowed less protection in a state court than it is entitled to r ceive in the federal court.