RESPONDENT: Taxpayers of Tacoma
LOCATION: Hazlehurst Manufacturing Company
DOCKET NO.: 509
DECIDED BY: Warren Court (1957-1958)
CITATION: 357 US 320 (1958)
ARGUED: Apr 30, 1958
DECIDED: Jun 23, 1958
Facts of the case
Media for City of Tacoma v. Taxpayers of TacomaAudio Transcription for Oral Argument - April 30, 1958 (Part 2) in City of Tacoma v. Taxpayers of Tacoma
Audio Transcription for Oral Argument - April 30, 1958 (Part 1) in City of Tacoma v. Taxpayers of Tacoma
Number 509, The City of Tacoma, Petitioner, versus the Taxpayers of Tacoma, Washington and Robert Schoettler.
Mr. Chief Justice, may it please the Court.
The Supreme Court of the State of Washington at the instance of the State of Washington, they're enjoying the financing and construction by the City of Tacoma of a power project which had been licensed to 1952 by the Federal Power Commission for a construction upon the Cowlitz River in that State, navigable waters of the United States, and the tributary of the Columbia.
The Court did so upon the sole ground that Section 21 of the Federal Power Act which provides that licensees may exercise the right of eminent domain, did not and could not authorize Tacoma to condemn a state-owned fish hatchery which is located within the reservoir area and which the project would inundate in the absence of state legislation authorizing a municipality to condemn state-owned lands devoted to a public use.
I ought to know, but I don't.When was it -- what was the tenure of this -- the period for this license?
Fifty years, Your Honor.
Fifty years, the usual one.
We are here on certiorari to that judgment.
This, however, is not a condemnation action, but a declaratory judgment proceeding which Tacoma initiated to validate a bond issue for a construction of the licensed project after the license was issued.
The State intervened or was added as a defendant upon motion of the State Department of Game and Fishery alleging the violation of its laws and the taking of its property.
This was after the State had unsuccessfully appealed from the Power Commission's order to the Ninth Circuit Court of Appeals and after that Court had sustained the order in a proceeding under Section 313 (b) of the Federal Power Act.
This Court denied certiorari in that case.
The facts are as follows.
On August 6, 1948, 10 years ago, Tacoma filed with the Federal Power Commission the required declaration of intention under Section 23 (b) of the Federal Power Act, and the Commission found that the Cowlitz River was navigable waters of the United States that the project would affect this navigable capacity and the interest of interstate and foreign commerce.
It required a license.
It entered an order accordingly in March of 1949 and in that order, described the Cowlitz River that appears in your record as a stream with the flow of approximately 10,000 cubic feet per second that is junctioned with the Columbia.
The Cowlitz is consequently an important stream.
That flow is about seven-eighths of the flow of the Potomac at Washington and is about equal to the flow of the Mississippi at St. Paul.
Tacoma thereupon -- thereupon filed its application for a license.
The project as described by the Commission in the subsequent proceedings in hearings before the Commission would consist of two dams; Mayfield Dam which is 52 miles upstream from the junction with the Columbia, which would rise 240 feet above bedrock and the Mossyrock Dam, 13 1/2 miles further upstream which would rise 510 feet.
The project would cost $146 million and would generate ultimately 460,000 kilowatts.
It would be interconnected through the Bonneville system with the entire Pacific Northwest.
By a comparison, this project is slightly less than the installed capacity of the Bonneville Dam which is just over 500,000 kilowatts.
The Commission ordered this license issued after hearing objections by the State of Washington.
The objections were of two kinds.
First, that the project would violate the State's laws.
It pleaded six of them, including specifically a statute which declared the Cowlitz River to be a fish sanctuary for the protection of anadromous fish, that is, those which spawned in the fresh water, go to the sea, and return to spawn again, which would hatch them, I should say in fresh water, and that that statute prohibited the construction of any dam higher than 25 feet.
A second group of objections was that the downstream dam, Mayfield, would inundate state-owned lands including a game-fish hatchery.