State of Oregon v. Federal Power Commission

211 F.2d 347 STATE OF OREGON et al. v. FEDERAL POWER COMMISSION et al. No. 13345. United States Court of Appeals Ninth Circuit. February 18, 1954. Rehearing Denied April 28, 1954. Robert Y. Thornton, Atty. Gen., State of Ore., E. G. Foxley, Deputy Atty. Gen., Arthur G. Higgs, Asst. Atty. Gen., for appellant. Willard W. Gatchell, General Counsel, Howard E. Wahrenbrock, Asst. Gen. Counsel, John C. Mason, Attorney, Federal Power Commission, Washington, D. C., for appellee. Phillips, Coughlin, Buell & Phillips, Clarence D. Phillips, Portland, Ore., for intervenor. Rollin E. Bowles, Carl D. Etling, Portland, Ore., amici curiæ. Before STEPHENS, HEALY and ORR, Circuit Judges. STEPHENS, Circuit Judge. 1 The Portland General Electric Company, an Oregon non-governmental public utility corporation, applied for and has been granted a license 1 by the Federal Power Commission to construct, operate and maintain a hydro-electric plant known as the Pelton Project, numbered 2030, on the Deschutes River 2 in Oregon. The Project is to be located downstream from where Crooked River and Metolius River, two principal tributaries to the Deschutes, flow into the latter. The Project is designed…

(dissenting).

I am not able to agree that the Federal Power Commission lacks jurisdiction to license the construction of the proposed hydroelectric plant, nor do I think that in doing so it has trenched upon the sovereignty of the State of Oregon. Commission authority is conferred in § 4(e) of the Federal Power Act to license such projects, not only upon navigable streams, but “upon any part of the public lands and reservations of the United States”. And to like effect see § 23(b) of the Act, negativing the right of any person, State, or municipality to undertake such project without Federal license.

The projected power plant would occupy lands of the United States set aside on the west side of the Deschutes River by treaty in 1855 as the Warm Springs Indian Reservation, and lands of the United States abutting the eastern or op *355 posite side of the stream. The latter, originally public lands, have from time to time, commencing with the year 1909, been withdrawn from entry or other disposal under the public land laws and reserved for power purposes. 1 Thus the stretch of the Deschutes affected, including its bed and banks, is entirely on reserved lands which have been severed…

The Portland General Electric Company, an Oregon non-governmental public utility corporation, applied for and has been granted a license 1 by the Fed *349 eral Power Commission to construct, operate and maintain a hydro-electric plant known as the Pelton Project, numbered 2030, on the Deschutes River 2 in Oregon. The Project is to be located downstream from where Crooked River and Metolius River, two principal tributaries to the Deschutes, flow into the latter. The Project is designed to consist of a concrete dam approximately two hundred five feet high in connection with a powerhouse containing three 36,000 kilowatt generators and is to be built across the river on United States land. Included in the Project, and three miles below the power dam, a “re-regulating” dam is to be constructed which is designed to equate the flow of water as it is released from the upper dam. It is not claimed that the lower dam will be located upon federal land or federally controlled land. Without it the flow below the power dam would be subject to extremes as the water would be released from the power dam in much greater quantity when peak loads of electric energy were required. There will be no…