United States v. Grand River Dam Authority

PETITIONER:United States
RESPONDENT:Grand River Dam Authority
LOCATION:Bonneville Dam

DOCKET NO.: 503
DECIDED BY: Warren Court (1958-1962)
LOWER COURT:

CITATION: 363 US 229 (1960)
ARGUED: May 17, 1960
DECIDED: Jun 13, 1960

Facts of the case

Question

Audio Transcription for Oral Argument – May 17, 1960 in United States v. Grand River Dam Authority

Earl Warren:

Number 503, United States, Petitioner, versus Grand River Dam Authority.

Is there are no appearance for the respondent?

You — you can answer for the Court — to the Court that if there’s no —

J. Lee Rankin:

Counsel, wouldn’t otherwise be present today.

There are no way to report the present time (Inaudible)

Earl Warren:

Well, they should be here now.

Now at the — well, Mr. Solicitor General, I don’t suppose we can go on with the matter in the absence of counsels, so we’ll have to — so we’ll have to take a recess now until 2:30.

Number 503, United States, Petitioner (Inaudible)

Jess Larson:

Mr. Chief Justice —

Earl Warren:

(Inaudible)

Jess Larson:

I — I apologize to the Court for the mix up.

It was on account of my office receiving some erroneous information and not the fault of anyone with the Court at all and I apologize to the Court.

Earl Warren:

(Inaudible)

Jess Larson:

I’m sorry, Your Honor.

Earl Warren:

(Inaudible)

J. Lee Rankin:

Mr. Chief Justice, may it please the Court.

This case involves the question of whether the United States must compensate a state authority for a state franchise to build a dam on a nonnavigable river in Oklahoma.

William O. Douglas:

On a navigable river?

J. Lee Rankin:

A nonnavigable.

And also, whether is required to compensate that same authority for water rights that it claims to have vested under state law.

Charles E. Whittaker:

Franchise and waterways.

J. Lee Rankin:

That’s all.

This case does not involve any kind of physical property in the sense of fast lands or overflowing fast lands or riparian lands of any kind that all of that part has been either settlers in the process of — of payment, so that there’s no issue between the parties about that.

Charles E. Whittaker:

Now, may I ask you, that land taken by condemnations of fast lands?

J. Lee Rankin:

Partially and partially by — I think there are some agreements about part of it, but there is no problem about it.

No issue in the case about it.

Charles E. Whittaker:

(Inaudible)

J. Lee Rankin:

There is no issue in the case about it.

And the claims here are whether or not, a state franchise.

That is this — the permit to build a dam that the State issued has to be compensated for when the United States builds the dam itself and whether or not there are vested water rights that the respondent has that have to be compensated for.

Potter Stewart:

What’s the difference between those two, the franchise to build a dam and — and the water rights —

J. Lee Rankin:

Well —

Potter Stewart:

— vested in this state commission?

J. Lee Rankin:

There are riparian rights like the Niagara Mohawk case that you worked, Niagara Mohawk, you recall what International Paper Company had and they had separated from the land, those riparian rights and the Court held that since Congress contemplated, they should be compensated for, that they would have to be paid for.

Now, those are just pure water rights as such.

Potter Stewart:

Quite apart from the franchise?

J. Lee Rankin:

That’s right.

In this case, they do not claim that they are riparian water rights.

They claim that they’re appropriate water right.

Potter Stewart:

Well who — it’s for that reason that I asked this question I can see —

J. Lee Rankin:

But they’re still separate and apart, if they were — the United States would recognize that if they were vested water rights that someone held, that legally held under law that they would have to be obtained by condemnation or purchase or otherwise.

In this case, the United States takes the position that they — the state franchise is not necessary to the United States in building a dam.

It’s worthless to it, because the United States has the power, the courts held, to proceed in under the Federal Power Act and build the dam itself and in fact no one else can do it, unless the United States in this particular situation permits, and that the water rights they have never acquired.

I’ll try to get down to that.

I’d like to —

Earl Warren:

Do I understand that you said in (Inaudible) and if water rights —

J. Lee Rankin:

350.

Earl Warren:

(Inaudible)

J. Lee Rankin:

That’s right.

That’s the position.

Earl Warren:

(Inaudible)

J. Lee Rankin:

No, that’s right and that’s the position of the Government.

They — the position of the Government here is that they don’t have any such water rights, but if they have they would be compensable property because they are a form of real property and incorporeal hereditament.

Charles E. Whittaker:

Oh, were those (Inaudible) with the property (Inaudible) fast lands on using property?

J. Lee Rankin:

Yes, fast lands.

Charles E. Whittaker:

In the Tax of Court of Government or purchase (Inaudible) isn’t not just condemnation or purchase has with it all elements of the property involved including the highest and best use of the fast lands which includes the right to build and operate a dam with these rights, and if (Inaudible) they have that compensation to (Inaudible) —

J. Lee Rankin:

Well, the Government does not claim that it has made compensation for that and it must be kept in mind that these lands are — that are involved here or — are not riparian in any way.

The authority had other lands that the Government felt necessary to acquire, but the lands where the dams they build, as I understand it, were not the lands that are the fast lands between these parties.

There are no riparian lands involved, none whatsoever.

Now, I — I think during my argument, I can reach your point, but I would like to postpone that question because I — in that form.

J. Lee Rankin:

The — the Grand River is conceded to be a nonnavigable river within the State of Oklahoma.

And there were — there was provision for three dams to be built, first, by federal authority and then the state authority.

A creature of the State of Oklahoma was created and it is in the nature of a private corporation under the holdings of the Oklahoma court for many purposes, but it is a state creature and then as an authority in developing this part, was given the power to build dams on this Grand River, nonnavigable river.

It did proceed under a state license and then a federal license to build the Pensacola Dam, which was the first one or the highest up dam on the Grand River.

The dam in — there are three dams, the middle dam is the Markham Ferry and then — the dam in issue here is the Ft. Gibson Dam, which is the lowest point.

This point is within eight miles of the Arkansas River which everyone concedes is a navigable river, according to all the definitions.

So, it’s within eight miles of the confluence of the Grand River to the Arkansas River that this whole dispute is about.

That’s where this dam in issue was built.

Now, when they wanted to build the Pensacola Dam, the first one, highest up on the river, the authority filed an application with the Federal Power Commission and they said, “This will have no substantial effect upon navigation.

And therefore, we’re giving you notice of our intent to build this dam, but we don’t need a license.”

The Federal Power Commission examined the question and they concluded that it would have a substantial effect upon navigation.

And therefore, they would have to have a federal license.

And they granted a federal license to them to build the Pensacola Dam on the highest point.

So that they — the Federal Power Commission had decided that it would have a substantial effect on navigation.

And these three dams were part of a general plan for improvement of navigation in this Arkansas basin.

It was done under the Corps of Engineers and the authority, then, after it obtained the federal license, proceeded to build the Pensacola Dam.

And under that license, they agreed to comply with the requirements of the Government in regard to releases from the dam and the Secretary of War in 1941 established a regimen of how the releases had to be made and the Pensacola Dam had a provision in it for aid to navigation, flood control and hydroelectric development.

The Ft. Gibson dam that’s an issue here also had exactly the three — same three elements.

The Court of Claims decided as one of its findings, Finding 17, that this dam had those three elements and did affect navigation.

So, we have a nonnavigable stream.

Earl Warren:

What would the three (Inaudible) in this?

J. Lee Rankin:

The first one was the effect — a substantial effect on navigation and the second was flood control, which is really a contributing factor and the other is a hydroelectric development.

So, it has been already determined in this — in regard to this authority, in the development of this stream that they could not, even though they had a state license to build this very dam at Pensacola.

It was impossible under the law for them to build it except that they got first a federal permit from the United States.

And after they got that, and in the permit, there was a condition that they comply with the provisions of the Federal Government about the releases.

And then the Secretary of War made regulations as to just how these releases should be made down the river.

Felix Frankfurter:

Why did a state license has no significance — had no words (Inaudible)

J. Lee Rankin:

Well, it was worthless as far as the United States was concerned.

The United States didn’t need any part of.

Felix Frankfurter:

As it was —

J. Lee Rankin:

Well, I —

Felix Frankfurter:

— but it would any (Inaudible)

J. Lee Rankin:

None, whatsoever, Mr. Justice.

Because they had to get a federal license before they could get any benefit out of any state permit whatsoever and we didn’t have to have one.

We got a federal court order authorizing United States on —

Felix Frankfurter:

From that I understood that they couldn’t utilize whatever they had in mind (Inaudible) by the decision (Inaudible)

J. Lee Rankin:

Well, my answer to that, Mr. Justice Frankfurter, would be that it did not.

Because I would think anybody who would come forward would have to have a federal license and if they had a federal license under the holdings of this Court, they wouldn’t have to get a state license to make that federal license good.

I think the Iowa case and Oregon Power decided that so that whenever they got the federal license, it seemed to me if we were revising plans, we’d say, “Go get your federal license.

If you have it, you can supersede anything else and your state license would be meaningless to you.”

Felix Frankfurter:

(Inaudible)

J. Lee Rankin:

I couldn’t conceive that were done to your holdings.

It seems to me it’s meaningless if you assume as is been held in this case that this does have a substantial effect upon navigation.

Therefore, it’s within the control of the Federal Power Commission in licensing.

Now, with that kind of a situation, I don’t mean that if you find the franchisers worthless that there couldn’t be water rights which were but compensable.

I think there are two separate propositions I wanted to deal with and accordingly.

But its position to the Government that there is no value to this franchise that the Government didn’t need it, the Federal Power Commission’s license or in the authority of the Congress, there’s no question about the power rule of the Congress.

Oklahoma against Atkinson decides all of that in regard to the Denison Dam.

The Congress had the power to say on this nonnavigable river if it substantially affected navigation, then that dam can be controlled by the Federal Power Commission.

The power is there and this — there’s a separate question about the compensation factor.

Now, when you get to the question of water rights, how did they get any water rights?

They rely upon the statute which authorizes them to use the water of the Grand River in general terms.

We — the Government thinks that is an authorization for them to use water.

This also excludes other parties.

It’s a state statute, excludes other parties.

Now, it’s clear here that they have never applied this water to beneficial use, which is element number one in regard to the appropriative rights.

Charles E. Whittaker:

Water at this place?

J. Lee Rankin:

Yes.

They had never applied water at this place and that’s the only thing that’s involved here because they tried to get the Commission, the Federal Power Commission to assess damages against the United States for the values that might be in their reservoir at the Pensacola.

And the Federal Power Commission, the Court of Appeals held that they weren’t entitled to such damages that the United States wouldn’t — couldn’t have been required to pay such damages, in regard to their pool above the Pensacola Dam.

J. Lee Rankin:

So then, there’s the question of what kind of water rights they get.

Now, remember where the United States here is using a run of the stream in this use of this water on this dam.

The water is held back not over 24 hours in the entire time.

The water is not consumed under water law.

There’s no consumption of water.

It’s just passing it through the penstocks and the — the turbines and goes right on down the stream without any diminution whatsoever.

Now the only water — we’re not asking to make a change of one drop in their releases.

The only water we’re going to use and are using — because this is an operation now.

At the Ft. Gibson Dam is the water that they are required under the federal law, under their federal license and under the regulations of the Secretary of War to deliver down that stream.

We’re not asking to release one additional drop of water beyond what they have, to now, locally release.

And they claim that they’ve got some kind of water rights.

I think their claim is appropriate to water rights in that — that water that goes down below their dam and we have to pay for because we have erected a federal dam at the Ft. Gibson site.

Now, that’s the basic issue about the compensation for water rights.

Now, it’s the position of the United States that they could not have such water rights under the Oklahoma law.

Oklahoma law is complicated about water rights.

It has apparently — the best we can determine from their decisions and from the writers, a combination somewhat like California in regard to riparian and appropriative water rights.

Both are present within the State of Oklahoma.

There aren’t any riparian lands so there just can’t be riparian rights here.

There was no claim that they’ve ever been, had and separated and sold off like international power, nothing of that kind.

So, the only thing left that they’ve got is that they’ve got to be appropriative rights.

Now, the test of appropriative rights generally in all western water is that it’s got to be diverted and applied to beneficial use.

And until that time it’s in court.

It isn’t a vested water right at all.

Now, that is described in so many words by the laws of Oklahoma.

We set that out in a footnote in our brief.

Felix Frankfurter:

And I take it that — that the law of means — that Oklahoma law is dependent.

That is (Inaudible)

J. Lee Rankin:

Yes.

I think that there is federal law about how they could get a water right away from the United States.

The Court of Claims just said that Oklahoma own all the water in the streams and said three lines to support that in — and one Oklahoma case and — and I guess it was New Mexico case.

Felix Frankfurter:

Is there a right, suppose rights.

J. Lee Rankin:

If the Court of Claims was right —

Felix Frankfurter:

(Inaudible)

J. Lee Rankin:

Then I think that the– the handling of water rights in the State of Oklahoma, if they got title to it anytime, would be in accordance with their laws.

But I think you can’t get a property right away from the United States unless you can show that you’ve got to conveyance or a transfer or some kind.

Now, this — this is what’s called an incorporeal hereditament, as you well know, in regard to a water right.

And therefore, it is a character, a form of property.

It’s one of the bundle of rights.

And as a part of that, it’s just like it was — it — it fits right into our real property law and the whole structure and therefore, you have to find somebody had title and that title has to pass.

It just can’t hang in the air.

So, of course, the United States had title to all of that, with the Louisiana Purchase.

There’s no question about that.

Now, in some place, you have to — just like you take a piece of black paper, you have to trace that title down from A to B to C and on down the line and that’s the problem you have in regard to —

If — if under Oklahoma law, there was title in the authority of this water, what would be the position of the United States then, as to its compensability?

J. Lee Rankin:

Well, in this, you then still get to the problem of the navigation servitude.

Well, I was going to say that.

J. Lee Rankin:

But I don’t think you reach that.

I don’t think you have to reach that in this case because I don’t think they have anything to sell so that you get — have to get to that question.

But there still is the question of whether or not the United States would have to pay for that if under the navigation servitude because if — and that involves the Twin City question of whether or not Twin City applies to a nonnavigable river.

But the United States takes the position that there’s no problem about that.

All I was raising of course, is the question of the status of these alleged water rights under state law, a determinative question in this case?

J. Lee Rankin:

Well, I think that you still have to apply the laws of the United States in regard to how they got the water away from United States.

You don’t allow a State to say that and according to the decisions of this Court, you don’t allow a State to say, “We shall take the federal courthouse away from the Federal Government.

Now, it’s ours.”

There’s nothing like that’s have been allowed by this Court.

You — you apply your federal statutes to see whether Congress, which you said has plenary power about the property of the United States, has ever done anything about that property.

Charles E. Whittaker:

But Congress could.

J. Lee Rankin:

Oh, yes.

Congress could dispose of all the property of the United States within some limits.

I don’t want to say that it could just not carry out its obligation to all of the States.

J. Lee Rankin:

So that — but generally, you said that they have plenary power in that area and certainly within what they’ve tried to do and you’ve never questioned when they have plainly done it.

Felix Frankfurter:

May I ask (Inaudible)

J. Lee Rankin:

Yes.

Felix Frankfurter:

I understand, there is no (Inaudible)

J. Lee Rankin:

Mr. Justice Frankfurter, I think you’ve — this Court very definitely has not decided that question.

Felix Frankfurter:

(Inaudible)

J. Lee Rankin:

Yes.

Felix Frankfurter:

(Inaudible)

J. Lee Rankin:

That’s what I think.

Felix Frankfurter:

You do repeat that problem as before?

J. Lee Rankin:

I think that’s open and this Court hasn’t decided that question and I think you’ve made that claim in your decisions that there is a difference between the power of Congress to control the — a stream that has an effect or substantial effect on navigation and one that’s — is navigable and the navigation servitude that there is a separate factor in regard to navigation servitude of its effect upon property rights in connection with water.

But I think in this case, you never get down to those points because you have to find some place, first, that they have a right because mere prospects, mere frustration of business opportunities, all those things you’ve held are non-compensable.

The Court of Claims held that they did have.

J. Lee Rankin:

The Court of Claims held that they — that this was different than Twin City and because it was nonnavigable.

And —

J. Lee Rankin:

And —

And —

Felix Frankfurter:

(Inaudible)

J. Lee Rankin:

Yes.

Felix Frankfurter:

(Inaudible)

They had the property (Voice Overlap) —

J. Lee Rankin:

Yes.

And that they had property rights because the State of Oklahoma owned all the water in the nonnavigable streams —

Felix Frankfurter:

That ought (Inaudible)

J. Lee Rankin:

— in Oklahoma —

Felix Frankfurter:

(Inaudible)

J. Lee Rankin:

(Inaudible) because they have to first get the water away from United States by federal law.

Felix Frankfurter:

(Inaudible)

J. Lee Rankin:

On anything.

The whole —

Felix Frankfurter:

(Inaudible)

J. Lee Rankin:

Well, I think —

Felix Frankfurter:

(Inaudible)

J. Lee Rankin:

I think that they have a right.

They — they can get rights from the United States to authorize certain action.

I don’t think they can get title away from United States unless the Congress provides for it.

Felix Frankfurter:

(Inaudible)

J. Lee Rankin:

Yes.

Felix Frankfurter:

(Inaudible)

J. Lee Rankin:

Well, you also have the — the property view of the United States.

Felix Frankfurter:

As to (Inaudible)

J. Lee Rankin:

As —

Felix Frankfurter:

(Inaudible)

J. Lee Rankin:

— as to the water because the water is a property right as well as the land.

Now, you do not treat in your decisions the fact that a state is created as giving the State all the property within that State.

The United States owes — owns over 40% of the land of this country.

Felix Frankfurter:

That’s my — that depends on —

J. Lee Rankin:

Well —

Felix Frankfurter:

— what is — what — what the statute is somehow (Inaudible)

J. Lee Rankin:

Well —

Felix Frankfurter:

(Inaudible)

J. Lee Rankin:

Yes.

I concede that — that navigable or nonnavigable doesn’t determine the title to the water as such, but I do say that a water right is a property right and no one can get that away from the United States.

It might get the right to use it.

It might get an authorization of some kind by —

Felix Frankfurter:

(Inaudible)

J. Lee Rankin:

I’m saying that the — the waters and all lands and so forth, that the United States —

Felix Frankfurter:

(Inaudible)

J. Lee Rankin:

— originally owned.

It continued to have a — a legal property interest in.

Felix Frankfurter:

But the United States (Inaudible)

J. Lee Rankin:

Well, it would depend upon what the United States provided.

What it consented to.

Charles E. Whittaker:

Or what the United States owned at one time and has not conveyed it still owned.

J. Lee Rankin:

That’s right.

Charles E. Whittaker:

All right.

So the mere admission of Oklahoma as a State did not divest the United States of titles it then owned.

J. Lee Rankin:

That’s right.

Charles E. Whittaker:

But did not the deed of the United States to the Cherokee Nation in 1838 convey this particular property to the Cherokee Nation and then by mean conveyance to Oklahoma.

J. Lee Rankin:

Well, let me say it first that there was a conveyance that they rely upon to the Cherokee Nation.

That conveyance involved whatever riparian rights there were to those lands because there was no reservation in connection with it.

That they also — there were certain conveyances out from that in allotments which you’re familiar with I’m sure —

Charles E. Whittaker:

(Voice Overlap) well, I wouldn’t —

J. Lee Rankin:

In which the — I don’t mean the detail, but that’s the general procedure there that the allottees got individual holdings from time to time.

There is no showing of any kind that these people or the State of Oklahoma ever got any title from any of those people, none whatsoever.

Charles E. Whittaker:

Then the United States passed it to the Cherokee Nation, but the Cherokee Nation conveyed it to Oklahoma.

Is that it?

J. Lee Rankin:

Well, that’s as far as they have shown.

Now, there are a lot of questions about whether that even happened that far because of the reservations about disposal of such property as — by the Indians and by their allottees, the restrictions that there are under the law and the fact that they have to be consulted in — in regard to all of those things.

Now, they — they rely on to Section 25 statute that’s set out in the appendix and that is a provision back in 1906 that authorized private or public utilities to acquire such land and water rights and so forth for a dam on various rivers within the Indian territory.

And if they had proceeded to do that and there is a provision there for condemnation under state law and the Oklahoma State Courts have held that that has to be brought within the federal courts.

They could then have obtained a right in regard to that property to build a dam and get the water rights and so forth away from the Indians, if they couldn’t make an agreement to do it.

That’s the general substance to that statute.

Neither had occurred.

They haven’t got any deeds from these people, from the Indians having kinds of restrictions on — they’re getting some — from some of them.

Now, some of them were probably emancipated.

I — we haven’t got into that in the case but I — that’s the general picture.

But the allottees themselves can’t dispose of their property without numerous restrictions or protection by the United States through the Secretary of the Interior.

And the nation itself cannot dispose of the property.

Now, it’s a basic principle of property law that you never can prove your title by showing a weakness of the — the other side.

J. Lee Rankin:

You’ve got to show title in yourself in any quiet title action.

The mere fact that they say, “We deeded away the property, the United States does.”

It doesn’t approve that Oklahoma ever got.

Charles E. Whittaker:

The fact that — that the other form of title may not be good doesn’t mean you have them.

J. Lee Rankin:

It doesn’t mean that we have the title, but we are trying to quiet on this title.

They are trying to get the money from us for a title we say they don’t have.

And it’s — the burdens on them to prove that they’ve got that title, as a basic property rule.

And they haven’t established even by their deed theory.

Any chain of title would get it away.

Now, this Court hasn’t ever decided the question of who owns the water in these streams.

Passed it out in Nebraska against Wyoming and in Ivanhoe and I think you should pass it up this time.

I don’t think you have to get to it.

I think the questions are much simpler than that and that’s a very grave question between the United States and the States and I wouldn’t ask this Court to decide that question until it became crucial to the interest of the particular litigation and something of major importance to the United States.

Felix Frankfurter:

(Inaudible)

J. Lee Rankin:

Well, I think also the Court has tried to address itself to the problems of the use of this water and that the country should have the use of it and not be quarreling over these incidents that whether it should be a system that made it possible for the country to use it.

But I don’t think you have to reach it in this case at all.

I don’t think there’s any proof in this case that they’ve ever had a title to any water rights.

We’re not asking anything except to make the releases that they have to make under their federal license.

There are no riparian lands involved.

They have no riparian water rights.

Their franchise is useless to the United States.

You clearly held that United States doesn’t have to get a franchise from a State in order to build this dam.

There’s no question about the substantial effect on navigation and that this –and therefore, seems to me that the only thing that you could possibly have is this prospective interest that someone might want to pay something for a state franchise that they don’t need — that we get a federal franchise, that this very authority wasn’t and wasn’t worth anything to them because they had to get a federal franchise to build the Pensacola.

Now, there’s one case by this Court I want to call attention to.

That’s the Grand-Hydro case in 335 U.S. — I think it’s 359.

And in that case, the Court did hold that this very authority the respondent in this case had to pay the Grand-Hydro for a state license on this particular stream, state franchise.

And it held that because in that action they brought a condemnation proceeding, as a state licensee, not as a federal licensee.

And they brought it claiming under the state condemnation laws and not federal condemnation laws.

And this Court in explicit terms, on page 373 toward the bottom of page of that case said that either the United States or its licensee as such were seeking to acquire this land under the Federal Power Act, it might face different considerations from those stated above.

The United States enjoys special rights and power in relation to navigable streams and also the streams which affect interstate commerce.

Would you mind straightening me out, why we don’t have to decide the property interest, the alleged property interest to — the authority in these waters?

J. Lee Rankin:

I don’t think that you —

I don’t understand that.

J. Lee Rankin:

I don’t see where they — even under state law can establish that they ever got it.

We’d mean because as a matter so clear that they haven’t got time.

J. Lee Rankin:

That’s right.

Oh, all right.

I misunderstood you.

J. Lee Rankin:

Yes.

I thought you were (Inaudible).

I see.

J. Lee Rankin:

It seems —

All right.

J. Lee Rankin:

— to me the state laws that they’re relying, their authorization and to take water from the stream for it to build dams and the Section 25 that I referred to about Indian —

Are you sure?

J. Lee Rankin:

— tribes are all general authorizations.

But the basic policy, if they’re going to claim appropriative rights and they can’t have any riparian, they haven’t got any.

Any riparian lands which would have riparian rights.

Then they’ve got to rely on appropriative — and on appropriative, they have not established that they ever applied it to beneficial use at the point where they’ve got to — to charge us and that’s at this dam.

In other words, you’re saying that the Court of Claims on that possibly the case was demonstrably in error.

J. Lee Rankin:

That’s right, Mr. Justice.

I see.

J. Lee Rankin:

Yes.

Charles E. Whittaker:

Mr. Solicitor, would you clear me up on with this page please?

You can’t build a dam at just any place on the Grand River.

You have to pick a dam site, do you not?

J. Lee Rankin:

Yes, Mr. Justice.

Charles E. Whittaker:

All right.

Now, they pick three here.

J. Lee Rankin:

Well, the Corps of Engineers did, but —

Charles E. Whittaker:

All right.

Now, did they at one time own a dam site at Ft. Gibson?

J. Lee Rankin:

Not all of it.

They own 70 acres there that was not riparian.

Charles E. Whittaker:

Now then, could you both build, after you built your dam, nor could they still build their dam?

J. Lee Rankin:

Oh, no.

Charles E. Whittaker:

You’ve appropriated that’s fact.

J. Lee Rankin:

That’s right and we have the federal license.

Nobody can do it without the federal license.

Charles E. Whittaker:

Yes and you’ve acquired their land, at least 70 acres of it, that was incident to that purpose back on the motion proceeding.

J. Lee Rankin:

Yes.

I think it would be necessary to the purpose.

Charles E. Whittaker:

All right.

Now, the value of that land as I would suppose, you tell me whether this is right or wrong.

That it’ll be measured by at least — considered in connection with its highest and best use, isn’t it?

And wouldn’t that be in connection with its possibilities as a dam site and under its license?

And when you — you have paid the value, thus inherent in that land, have the full compensations been made?

J. Lee Rankin:

Well, I don’t — Mr. Justice, I don’t want to claim on behalf of the United States that we’ve compensated for this because we expressly said that’s not compensable and if — if they settled on that basis, they’ve misunderstood because they didn’t mean to.

They didn’t get anything that we never intend to pay them anything, for the franchise over the water rights in regard to their 70 acres.

Charles E. Whittaker:

Was that the payment for the 70 acres, just watched and viewed this farming land?

J. Lee Rankin:

No, for any other use, except they couldn’t have any value for the franchise because it was worthless and they couldn’t have anything for the appropriative water rights because they didn’t have any and it didn’t have any relation to it.

Charles E. Whittaker:

The value was determined on that basis?

J. Lee Rankin:

Yes.

Charles E. Whittaker:

All right.

J. Lee Rankin:

Now it’s — but on the water rights, I think that has no effect on the best use of the land itself.

Anyone would have to — as I understand the law in Oklahoma, would have to get that right or they would have to get it from the United States of its licensee if it had any reserved lands or all the other things that are involved with the Federal Power Act.

So that’s separate and apart from the highest and best use of the land.

But I think it’s clear that the franchise value is a factor that they claim that they should be compensated for.

Now, they didn’t have the dam site itself.

So that they can’t say, “Well, we had all these property like in Twin City,” which was a riparian land and nail down the dam site itself.

J. Lee Rankin:

But they did have something that we needed, 70 acres at least, in order to develop it as the dam site although they didn’t have the dam site itself.

And they claimed that they had the franchise in addition to whatever value there was for that land.

Charles E. Whittaker:

(Inaudible) it’s a separate element piece of property?

J. Lee Rankin:

That’s right, separate property.

And we say the United States has the right under Federal Power Act and — and the power of Congress since this substantially affects commerce, to say the United States can build this dam.

It doesn’t have to ask anybody and the state franchise has no value and it would merely be permitting the State or this party or the — the two in combination to impose a — an additional cost upon the United States to develop this partially for — in assistance or aid to navigation, partially for flood control, which is also aid to navigation, and also for hydroelectric.

And that the United States, under your holdings, has not been required to pay for any such property.

And they don’t have the appropriative rights.

They don’t have any water rights of any kind.

This is a run of a stream dam.

All they have to do is comply with their federal license in the federal laws, in the federal regulations to the Secretary of War and that’s all the water we use, just after they release it.

It’s served their full purpose and that there’s no compensable rights there.

Potter Stewart:

Mr. Solicitor what is the substantial effect upon navigation that was found as distinguished from flood control?

J. Lee Rankin:

Well, I assume, although I’m not very well informed as technician on this but within eight miles of the confluence of the river that there’s so much effect on — that there couldn’t be any question.

All of — all three dams were found —

Potter Stewart:

To have an effect.

J. Lee Rankin:

— to have and has the substantial effect.That’s the test on the Federal Power Act.

Potter Stewart:

But this dam actually is using the hydroelectric purposes for generating electricity?

J. Lee Rankin:

Well, there are substantial reservations in it for flood control.

Potter Stewart:

Yes.

J. Lee Rankin:

There’s 28 feet of — of this reservoir that’s for that specific —

Potter Stewart:

For flood control.

J. Lee Rankin:

Yes.

Potter Stewart:

And, of course, flood control in and out itself would have an effect on navigation by what — but that the Court of Claims put them on the three categories and I wondered what affect on navigation there would be outside of the flood control?

J. Lee Rankin:

Well I think that —

Potter Stewart:

— flood control I suppose maybe is the channel in the Arkansas River’s problem?

Does —

J. Lee Rankin:

Well, all of those rivers are at certain times of the year as you know that they get very low in fact even Ohio was low enough to have special provision to get some water down there at one —

Potter Stewart:

I suppose this is an uncontested finding isn’t — but it has a substantial effect on the fact that it does have.

This dam does have —

J. Lee Rankin:

It isn’t contested here and it’s determined.

Potter Stewart:

Because in the —

J. Lee Rankin:

I think it’s rather uniform approach of the Corps of Engineers that whether or not there is a substantial effect on navigation and then flood control and — and hydroelectric.

I’d like to reserve the rest of my time.

Earl Warren:

Mr. Larson.

Jess Larson:

Mr. Chief Justice, Members of Court.

If I may, I would like to review the history of this case very briefly from the stand point of the respondent in this case.

The Solicitor General has very graciously conceded that if the Grand River Dam Authority a duly constituted agency of the State of Oklahoma can show that the waters of the Grand River were appropriated to it and put to beneficial use that then the Grand River Dam Authority would be entitled to compensation for the taking which has been accomplished by the Government in the building of the Ft. Gibson dam.

The — the Corps of Engineers in 1932 made an exhaustive study of the water shed of the Grand River and its extension on up into the State of Kansas where it is called Neosho River.

As a result of that study it published in 1935 and made available to the Congress in House Document Number 308 which is cited in our brief and in the Government’s brief, likewise, some very exhaustive findings and some recommendations.

Those recommendations, were generally, that navigation is not materially affected by the activities of the waters in the Grand River, that the production of power on the Grand River was deemed to be economic and that if it were economic it should be left to the — to private capital to exploit and –and use and it recommended that there was no interest that there be no interest to the Federal Government insofar as flood control is concerned.

This report was made after extensive hearings, public hearings that were held throughout the State of Oklahoma.

This was a big public issue in the State at that time.

Having received the decision of the Federal Government in the form of this recommendation which was adopted by the Chief of the Corps of Engineers and forward it on to the Congress, Oklahoma decided to take its problems to itself.

And it thereby created by legislative act, the Grand River Dam Authority and the court below and its findings have set forth generally and specifically as to what this authority constituted.

In general terms, it was vested with the control of the waters of the Grand River, exclusive control of the waters of the Grand River.

And it was vested with an exclusive franchise for the production of power by the use of the water power of the Grand River.

This was, in our contention, legislative appropriation.

This was a legitimate and legal act of the people of the State of Oklahoma acting through their legislature to take on to themselves the benefits of the flow of the water in a nonnavigable stream with in its boundaries.

Tom C. Clark:

If they do that, if Oklahoma did not have a title?

Jess Larson:

I’ll come to that, Your Honor, in just a moment.

Tom C. Clark:

Very well.

Jess Larson:

Now, in 19 —

Earl Warren:

Before you get off that subject, could you tell me what — what you mean by given the exclusive control, does that mean that’s exclusive for purchases out of its power or (Inaudible)

Jess Larson:

That — they could use it for purposes of irrigation, for storage, for making it available to municipalities for water supply and for recreational and conservation and other purposes.

Earl Warren:

So they have to be given (Inaudible)

Jess Larson:

That — that is correct to the —

Earl Warren:

All — of all the waters —

Jess Larson:

Of all the waters of the Grand River as they flow through Oklahoma.

To the exclusion of the United States?

Jess Larson:

Well the — the — it — it is our position, Your Honor, that the United States has never exercised any control over the waters of a nonnavigable stream to this extent unless it was necessary in carrying out its constitutional right to control navigation.

And any appropriation resulted from the creation of the Dam Authority would be subject to that, those paramount rights —

Jess Larson:

It — it is such —

— in each of the States, whatever they were.

Jess Larson:

Yes, Your Honor.

It’s subject to the paramount navigational right of the Federal Government and we concede that and it is not an issue in this case so far as we are concerned.

Now, in 1935, this Act was written.

It was copied just after a — a similar Act which had been adopted for the State of Texas for the control of the lower Colorado River.

It was copied as a matter of fact almost verbatim and has been patterned after that in a good many ways ever since.

The Grand River Dam Authority thus being constituted with the authority to borrow money in order to — to develop this natural resource as set about in the employment of engineers and they developed and the court below has so found a comprehensive plan for the beneficial use of the Grand River.

And this plan which is set forth in the findings on page 6A in the form of a map depicts the building of the head water dam, the Pensacola Dam.

This is the larger of the three units that were contemplated and the key unit to the development of water power and of flood control incidentally, on the Grand River.

The second dam was down the stream some 50 miles known as the Markham Ferry Dam.

And the Markham Ferry Dam, The Federal Power Commission has issued a license to the State of Oklahoma and the — they are to the Grand River Dam Authority an agency of the State of Oklahoma and they are in the process of going forward with the construction of that dam.

The third unit in this plan which was adopted by the authority was a dam at Ft. Gibson, eight miles up from the confluence of the Grand and the Arkansas River.

At the site, at the — practically the exact site where the Government has come in and appropriated the water rights and the franchise of the State by building a dam there on, which it had the right and the power to do but not without compensating the Grand River Dam Authority for the loss of its property right, is our position.

Now, the Government, the — the Grand River Dam Authority not only adopted a plan.

It set about to acquire the lands.

And it acquired all the lands necessary to build the Pensacola unit which was the big head water unit that would be the big reservoir, that would release the water to flow down the stream to turn the turbines of the downstream generating plants and was, incidentally and under specific authority of the Act, cooperative with the Federal Government and the Corps of Engineers in flood control.

And the top five feet of that reservoir are reserved and these are the waters that are controlled by the regulations promulgated by the Corps of Engineers referred to by the Solicitor General and not the power too, but the flood control waters, the release of the flood control waters.

These are further regulated by the Federal Power of Commission under its authority which extends to all tributaries of — of navigable streams, likewise.

Now, the Grand River Dam Authority then built the Pensacola Dam at the cost of approximately $20,000,000.

It put in its hydroelectric development equipment.

It obtained rights of way and built a 110 volt transmission line, a 110 kV transmission line down to the site which it acquired for the building of the Markham Ferry Dam.

And then it extended this transmission line on, actually, built it down to the Ft. Gibson dam site.

And it acquired the certain fast lands and rights of way in — in that vicinity.

So, it was moving forward to — to accomplish its purpose and to carry out its plan.

Legislature had given it authority to —to borrow moneys, to borrow $10, 000,000 additional money specifically for the purpose of building the Markham Ferry and the — the Ft. Gibson Dam.

And then along came the Corps of Engineers and made another study of the water shed and they did a complete reversal of their previous recommendation.

They recommended that the Federal Government do exactly what the Grand River Dam Authority was in the process of doing and had already partially accomplished.

Jess Larson:

This was the Flood Control Act of 1941 which is cited in the brief.

Well, there was naturally a great deal of confusion at this time.

I might say that in — in House Document Number 107, the report of the Corps of Engineers that is referred to in the Flood Control Act of 1941 authorizing the Federal Government to build not only the Ft. Gibson Dam but the Markham Ferry Dam and the Pensacola Dam which had already been built.

That document refers to the fact that the State of Oklahoma through the Grand River Dam Authority was already attempting to accomplish this very same thing.

Yet in spite of that, the Corps of Engineers went ahead with their plan to superimpose on their plan upon what this — the Grand River Dam Authority was doing.

William J. Brennan, Jr.:

Now, do you really mean that the —

Jess Larson:

I beg your pardon?

Earl Warren:

What was the date of that second report, do you recall?

Jess Larson:

The second report was in — in, I think it was the same, it was 1941 the same time as the —

Earl Warren:

1941.

Jess Larson:

I beg your pardon.

My colleague tells me that that report was made in 1939 and it was during the course of the construction of these properties.

But the flood — the Act creating the authority was passed in 1941 making reference to this report and at that time the — the Pensacola unit had been built, the transmission lines had been built and the dam sites had been acquired and the — the borrowing authority was there.

Bonds have been issued which pledged all of the property rights of the system which included the vested water rights that we say, we acquired by legislative action and the exclusive franchise that we likewise acquired.

Now, then came the war, the emergency.

And the Federal Government took this property over under its emergency powers, which made it impossible, for the Grand River Dam Authority to proceed as long as it was — as these properties were under the control of and the active management of the — of the War Department.

In 1946, the properties were returned to the State of Oklahoma or to the Grand River Dam Authority and shortly after that or at about that time the Corps of Engineers started forward with the construction of the Ft. Gibson dam site.

Now, that brings us up to our statement, the — of the — of the current status of this project as we see it and of this law suit as we see it.

Now, our argument is a simple one.

We contend that the respondent, the Grand River Dam Authority here, had the right to use the waters of the Grand River Dam.

That they were vested in the Grand River Dam Authority and that they had been appropriated at the time and put to beneficial use.

The Solicitor General has conceded that if that is the case, then we are entitled to compensation.

That is the view that the court below —

Earl Warren:

Does — as you rely entirely on that Act that legislature appropriated and — appropriated it for your title?

Jess Larson:

Yes, Your Honor.

We — we rely basically upon the act of the legislature and the cases which have adjudicated that act which I might point out here start as is provided in the water code of Oklahoma with a — the Oklahoma case entitled, City of Tulsa versus Grand-Hydro which is cited in our brief and in the record, I think, at page 91.

Earl Warren:

Are you going to trace for us how — how the —

Jess Larson:

Yes.

Earl Warren:

— water rights got to the States so that —

Jess Larson:

Yes — yes.

Earl Warren:

— it could mean.

So that it could —

Jess Larson:

Yes, Your Honor.

That adjudication — yes, Mr. Chief Justice.

That adjudication was carried on and — and affirmed by the Oklahoma Supreme Court in 139 Pacific, which is cited in our brief and was recognized by this Court in the — in the Grand River Dam versus Grand-Hydro case which has been referred to by the Solicitor General and which is likewise cited.

Now, how did the State of Oklahoma acquire its property rights?

How did the — the legislature?

How did the people of the State of the Oklahoma acquire any right to permit this property to be appropriated in the manner in which they tried to do it by a legislative act?

We go back to the basic document.

The basic document is the patent from the United States Government which we have cited in our brief and which sets forth in no uncertain terms, that the lands which were to constitute the Cherokee Nation, the lands which — which were later to be encompassed in the Indian Territory, Indian Territory together with the Oklahoma Territory on November the 6th, 1907, being brought into the Union, being vested with statehood on an equal footing with the original States.

This is the language of the Enabling Act.

This is the language of the proclamation on an equal footing with the original States.

Now, the — the patent which was issued to the Cherokee Nation on December the 31st, 1938 — 1838, I beg your pardon, certainly used language that has been used since the time of Blackstone to convey a fee simple title to have and to hold the same, together with all the rights, privileges, appurtenances, thereto, belonging to the Cherokee Nation, forever.

(Inaudible)

Jess Larson:

Page 12 — page 12 of the brief, of the respondent’s brief.

Now, there — there were certain reservations in this deed.

Those reservations did not affect the water rights or the titles to these lands except that it was provided that the other red man could go upon lands that might have been conveyed by this deed to get the result.

The — the Federal Government was granted the authority to go up on these lands and build military roads and posts.

And a further reversionary clause which said that if the Cherokee Nation ever ceased in being, that the lands would revert to the United States.

In 1893, the Act of — the first Allotment Act of the Cherokees in 1893, I think it was April the 2nd, 1893, we have cited in the brief, the United States withdrew by Act of Congress it’s reversionary interest in these lands in order that they could be allotted.

And under that authority and the — and the authority of subsequent acts, these lands were allotted to the members of the Cherokee tribe who were entitled to them and to their freedom, alloted in several and at the time Oklahoma became a State, these lands had been so allotted and title was vested in the individual Indians who were holding that land.

The Indian Territory was governed by Act of Congress or was administered by Act of Congress which imposed upon the Indian Territory, the common law provisions of the State of Arkansas as set forth Mansfield’s Digest.

This was the riparian right doctrine, that is familiar since the time of Blackstone and insofar as riparian rights are concerned.

And this was the law that governed the Indian Territory.

Oklahoma Territory as distinguished from Indian Territory had been authorized to set up a legislature and govern itself through an appointed governor in an elected legislature.

And it adopted laws.

It adopted a set of laws which are referred to in the brief and now appear in Title 82 of the 1952 annotated statutes of the State of Oklahoma and are a basic part of the Water Code of Oklahoma today.

In Section 2, the schedule of the constitution of Oklahoma which was drawn up under the authority of the Enabling Act which made Oklahoma — made it possible for Oklahoma to become a State, provided that the laws of Oklahoma Territory would at the moment of statehood be enforced in the new State of Oklahoma.

So, those statutory provisions of Oklahoma Territory were imposed upon and became the laws governing the water rights in what had formerly been the Cherokee Nation.

In Oklahoma versus Texas; which this Court decided the boundary between Oklahoma and Texas, in the case which is not cited in the brief the Brewer-Elliott Oil Company versus the United States at 260 U.S. 77, both of those cases go to some length in pointing out that Oklahoma having been admitted to the Union on an equal footing with the original States, acquired all of the property that the original States had likewise acquired or had in being at the time that they became States in the Union.

Jess Larson:

And all of the rights that were — were given to the States under the provisions of the Constitution and were not reserved to the Federal Government itself by the specific terms of the Constitution.

The — the — therefore, we say that as a result of these acts, the State of Oklahoma, the people of the State of Oklahoma own the control of the waters in the nonnavigable Grand River and acting through their legislature they appropriated these waters to their agency; the Grand River Dam Authority.

Now, the Solicitor General has pointed out that there were certain reservations.

There were laws which restricted the — the conveyance of property by the Indians who had the fee title.

The Nation had the free title, Cherokee Nation.

Cherokee Nation passed this free title, all of the patents, all of the deeds given by the Cherokee Nation were authenticated by the Secretary of Interior to the several Indians.

He says that — that he implies that there is some further, indefinite extension of the powers of the Federal Government over the waters of the Grand River as a result of these restrictions on — on the conveyance of land.

Well, Chief Justice Marshall held in a very early opinion that — that the Indians were to be looked upon as — as a — as being in a sort of pupilage category as he calls them.

The guardianship that the Federal Government has exercised over the Indians is — is well-known.

Well-known to those of us from Oklahoma who have struggled with — through our — all of the titles to our land through these — these many, many provisions of law and provisions of treaties.

But that did not affect the fee titles of the land as wards of the Government, the Federal Government on these whole certain conditions that they couldn’t throw away their land or they couldn’t have it stolen from them or they couldn’t have it taken from them.

And it set itself up as a guardian and — and all of the administrative acts that they had accomplished was for that purpose.

We say that as a result of the admission of Oklahoma as a State in the Union on equal footing with the original States that we acquired the right to do — the legislature required the right to do what it has done here, namely to, appropriate these waters to the Grand River Dam Authority.

Having so appropriated these waters to the Grand River Dam Authority, having extended to the Grand River Dam Authority an exclusive franchise for the development of power, this authority has vested property rights in the water and in the franchise.

Now, had it put it to beneficial use, we — we don’t concede that under legislative appropriation, it’s necessary to have put it to beneficial use.

But the facts of this case will clearly demonstrate that the water was being put to beneficial use to the extent that this authority could physically move forward and accomplish the things that it was set out to accomplish and build the units that its plan called for (Voice Overlap) —

Assuming all that’s true, what has the United States done by way of taking the use of that water and that it is compensable, just looking at it from the point of view of the water rights as distinguished from franchise rights.

Jess Larson:

The United States, Mr. Justice Harlan, has built the Ft. Gibson dam.

It has prevented the Grand River Dam Authority from building the dam which it had planned there, which it had brought its transmission lines down to serve in order that there could be an interconnection of the power.

It has prevented by its acts.

It has taken the vested property rights in that dam site and in the operation of a dam from the Grand River Dam Authority unto itself and we say that we are entitled to compensation.

Now, the question of how much compensation is not before this Court.

That’s — that’s his franchise isn’t it, not the use of the waters?

As I understand it —

Jess Larson:

Well —

— the United States is not impaired by any — to any degree the amount of water that whatever the Dam Authority’s rights are they’re still available to the dam without you?

Jess Larson:

But it’s impossible.

If — if that is true, I don’t think the Government concedes that point.

I think they — they feel that they have — that they have the control over this water.

We are prevented from exercising control over it to the extent that we cannot utilize it to carry out our franchise.

Earl Warren:

Could you use it anyway if that wasn’t within your plan, if you could (Inaudible) a license to stand there?

Jess Larson:

Well, we would be required as is true in the case of any authority or any private company if we expect to develop power on — on a stream in the United States, anywhere in the United States, we must go under the provisions of Section 27 of the Federal Power Act to the Federal Power Commission for the purpose of that body determining whether or not navigable interests are involved here or other federal interest.

And if they are so found to be involved, then we have to operate under license which is as the Solicitor General pointed out what we had to do in the Pensacola case, it’s what we’ve done, in the Markham Ferry case in the — in the dam that we are about to build.

However, this is a regulatory administrative procedure prescribed by an Act of Congress.

It does not concede by its terms the Federal Power Act that it is depriving the — the respective States of exercising their control over the waters of the State.

This control which is exercised by the Federal Power Commission is that paramount control which transcends the — the control which the State of Oklahoma may use because of the Commerce Clause in the Constitution.

Now, this Court has held time and time and again, going all the way back up to the Rio Grande case and all of the cases that have been cited.

That these power insofar as navigable streams are concerned is a dominant power in the Federal Government and we do not dispute that.

But this Court has never held in the case of a nonnavigable stream that this dominant servitude extends to the property rights, the taking of the property rights without compensation in a nonnavigable stream.

There is no question of hydraulics here.

There is no question of the navigable stream, namely, the Arkansas River raising the water level to deprive water rights as was in some of the cases that had been before this Court, the Willow River case as an example.

There is no question about the interest in the flow of the stream of the navigable rivers as in the case of — of the Twin City case, for instance.

This is a vested right, property right which was vested in the Grand River Dam Authority and which the Government has taken.

And which we say that the Government must compensate as the Court of Claims has said.

Now, that is this — that is this action insofar as we are concerned.

We think that the Congress was not unaware of this situation when it passed the Flood Control Act of 1941 because it had before it, what was going on, down in Oklahoma by way of the Grand River Dam Authority.

It had on several occasions in enacting legislation in the Flood Control Act, in the Federal Power Act, it had specifically pointed out that the power as granted under those acts were not to interfere with the rights of the State to control the waters of the State.

So, it is not inconceivable that the Congress knew exactly what it was doing and intended that the Grand River Dam Authority be compensated as a matter of fact and as is cited in our brief in a footnote in the case of the City of Muskogee.

The Congress passed the special act paying damages to the City of Muskogee for the damages that that city incurred as a result of the building of the Ft. Gibson dam by the Federal Government.

A property right of the City of Muskogee was taken as a result of building this dam.

We say that the property right of the Grand River Dam Authority has likewise been taken and we are prevented from carrying out our plan and having the benefits of generating power and selling it at cost.

This is a non-profit authority.

It’s a non-profit by legislative act.

It can only act under its charter and within the limits of this charter and can only act for the benefits of the people of the State of Oklahoma which it serves.

Now, to sum up —

Potter Stewart:

Just before you leave that, where is the power now being generated by the Federal installation?

Where is that power going?

And who is it being sold to?

Jess Larson:

I’m — I’m not familiar, Mr. Justice Stewart, where that power is being sold.

I think a part of it is being sold to private utilities and a part of it to the South West Power Administration which is an agency of the Interior Department.

Potter Stewart:

Is not a cooperative hooked up between the — your two existing dams and — and this Ft. Gibson dam?

Jess Larson:

No.

Not — not for purposes of cooperating in that manner.

I — I am under the impression that there is an emergency type of hook up.

Potter Stewart:

One other thing, it occurs to me, you’ve just told us now that this power can only be sold at costs that there cannot be a profit realized by the State under the terms of the –?

Jess Larson:

Under the terms of the Act creating the authority.

Potter Stewart:

Well, now then why does the loss of the opportunity to generate that power result to any damage to the authority?

Jess Larson:

Well, now this is — this is a — a real loss is there number of — of elements of loss.

Number one is that in order to bring the project as far as it has been brought to date, bonds, revenue bonds under the provisions of the authority have been issued and these — these — the property rights have been pledged.

As — as a matter of fact, if — if property rights are taken away, it’s conceivable that under indenture the bondholders might have some action immediately against the authority.

So, it is for the benefits that would accrue, that would go toward the repayment of the debt already incurred and toward the repayment of the debt which is to be incurred.

And for the distribution of power to the private utilities and the municipalities and the rural electrification cooperatives in the area that, otherwise, have been deprived of dealing with the Grand River Dam Authority and are now required to deal with the — the Corps of Engineers or its agency selling power and that power rate is somewhat higher than the rate that is currently being charged at Grand River Dam Authority.

William J. Brennan, Jr.:

Mr. Larson may I — Mr. Larson, I’ve — I feel like to catch the significance of your equal footing argument.

You start with the basic proposition, as I heard you, that the United States divested itself of all interest by transfer to the Cherokee Nation —

Jess Larson:

Right

William J. Brennan, Jr.:

— is that right?

Jess Larson:

Yes, sir.

William J. Brennan, Jr.:

Now then, I’m not quite sure I understand how then the equal footing argument becomes heard.

Jess Larson:

Well, the equal footing argument or the point —

William J. Brennan, Jr.:

Are these alternatives or this —

Jess Larson:

No, no.

There — they go — the — the — it is our position that the — the original rights in this stream, whatever they were, were conveyed by the Federal Government in the deed to the Cherokee Nation.

William J. Brennan, Jr.:

Yes.

Jess Larson:

Those rights have been reconveyed by the Cherokee Nation with the approval of the Federal Government to the individuals of the Cherokee Nation.

William J. Brennan, Jr.:

Yes.

Jess Larson:

And there they rest whatever the riparian rights are, rest in the current owners today of the property.

But the State of Oklahoma upon becoming a State on an equal footing with the original 13 States, assumed the right to the — the ownership of the riverbeds, of the navigable streams and to control the waters within its port.

William J. Brennan, Jr.:

Theretofore, resting in whom?

Jess Larson:

The — Therefore, resting in whom?

William J. Brennan, Jr.:

Theretofore —

Jess Larson:

That — theretofore —

William J. Brennan, Jr.:

Theretofore because —

Jess Larson:

Therefore, resting in the case of the Cherokee Nation and the Indian Territory in the lands joining — abutting the — the Grand River.

They were controlled by — they — they rested in the riparian owners.

Felix Frankfurter:

(Inaudible)

Charles E. Whittaker:

The citizens of Oklahoma.

Jess Larson:

They became citizens of Oklahoma upon statehood.

Felix Frankfurter:

But if — if they never had an attacking (Inaudible) never compared to the Cherokee, Oklahoma couldn’t (Inaudible)

Jess Larson:

I’m not —

Felix Frankfurter:

And they came to Oklahoma by the Cherokee, is that right?

Jess Larson:

They — they — the Cherokees got —

Felix Frankfurter:

That’s a fact.

Jess Larson:

— got the title from the United States Government, Cherokee Nation.

Felix Frankfurter:

(Inaudible) is that right?

At least they were unaware that they were out of hand in this Federal Government because they been debating (Inaudible)

Jess Larson:

That’s — that’s correct.

Now, —

Felix Frankfurter:

(Inaudible)

Jess Larson:

Well, the — the equal footing is held in the Oklahoma versus Texas case at 258 U.S. 573.

States that upon admission of a State into the Union, the new State by virtue of the constitutional rule of equality among the States becomes as was each of the original States, the owner of the soil underlying the navigable waters within its boundaries.

This was as far as that went in the Oklahoma, Texas case.

Felix Frankfurter:

(Inaudible)

Jess Larson:

Well, I — I — it is the position of the respondent here, Mr. Justice Frankfurter, that the State of Oklahoma by virtue of its becoming a State on equal footing had the right to control the waters of the nonnavigable streams.

We do not — the word ownership is used by the Court of Claims might have been unfortunate I think.

It must be read in light of the decision of Murphy versus Kerr which is cited by the Court of Claims that it is in trust for the people.

The water is running water.

You can’t go out and grab the water and say that I own this water.

The State can’t do it.

An individual can’t do it.

The water goes on down the stream and the riparian owners have the right to the continued flow of that stream in certain jurisdictions.

Jess Larson:

But the State of Oklahoma had the paramount right to exercise control over that water.

William J. Brennan, Jr.:

Well, what you have said this if there had not been a conveyance by the United States —

Jess Larson:

I wouldn’t have said this if —

William J. Brennan, Jr.:

— and the Cherokee Nation?

Jess Larson:

— there had not been a conveyance —

William J. Brennan, Jr.:

That’s what I thought.

Jess Larson:

— for the Indians.

I think that under these circumstances that when Oklahoma became a State on equal footing with the original States that this was a power which every State —

William J. Brennan, Jr.:

So, that has the right —

Jess Larson:

— has the right (Voice Overlap) —

William J. Brennan, Jr.:

— so that exactly, the transfer of the Cherokee Nation’s unimportant to your argument?

Jess Larson:

Well, it — it only shows that the Federal Government never tried to reserve any rights in the nonnavigable waters of the State of Oklahoma because it specifically did not do so.

William J. Brennan, Jr.:

Yes.

But I want to be sure.

You’re not saying, however, that that’s essential to your equal footing argument, without regard to any —

Jess Larson:

I — I —

William J. Brennan, Jr.:

— transfer of the Cherokee Nation.

Jess Larson:

It — it is my position that the equal footing admission to the State insofar as those lands over which the State could control that it — it assumed the authority.

It had the right to exercise control over those waters.

Now, I — I don’t go as far as to say that in public lands, there are no public lands involved here.

In a reserved land, there’s no reservation involved here that — that in any — any property rights that were vested in the United States would — would still be in the United States as they have in many of the western States and which brought about necessity of the desert — of — of the Desert States Act which had to do with the allocation of these waters.

Are you — I’m still a little puzzled that — are you saying that if there had been no conveyance by the United States to the Cherokee Nation that in — so that the title prior to the statehood, these waters remained in the United States.

Are you saying that in consequence of admission the equal footing clause divested the United States of whatever it had?

Jess Larson:

Well, I — I say that if the lands — no, I don’t say it divested the United States of any riparian rights.

It might have been —

Well —

Jess Larson:

— in any of these lands.

— riparian rights are rights — ownership rights.

Jess Larson:

Well, I — I say that upon admission to equal footing, the State of Oklahoma became clothed with the authority to control these waters and to control the waters is — carried with it the authority to appropriate the waters.

Take the voice of the United States.

Jess Larson:

Well, these waters were the not property of the United States.

Well, they were before they’ve been conveyed to the Indians and before the statehood certainly.

Jess Larson:

Well, the — insofar as the lands —

My question is prompted by your answer to Mr. Justice Brennan that your equal footing argument —

Jess Larson:

Well —

— made the conveyance to the Indians an irrelevant in the circumstance.

Jess Larson:

Well, the — the land was owned by its citizens insofar as the citizens of the State concerned by its admission to the — to the Union on an equal footing if it was clothed with the right to exercise control over the navigable waters within the limits of — of what its own constitution could provide and within the limits of the Federal Constitution it could exercise control over those waters as a result of it being admitted on an equal footing.

That — that’s — that was what I intended to convey to Justice Brennan.

Charles E. Whittaker:

Based upon this — that argument it is your announcement that it was the conveyance by the United States to the Cherokees that passed the Government’s title.

Jess Larson:

That’s right.

Charles E. Whittaker:

So that’s not immaterial than not conveyance, is it?

Jess Larson:

Well, I — I — it is not immaterial insofar as fee simple title is concerned and I didn’t mean to imply that.

I — I meant to say that this was immaterial insofar as the rights that the State of Oklahoma acquired over its citizens.

Felix Frankfurter:

How do you (Inaudible)

Jess Larson:

I think we are, Mr. Justice Frankfurter.

I — I appreciate you’re clearing that point out.

That’s exactly the point that I take.

Now, if the position taken by the Solicitor General were true but for some vague reason, there are still rights in these waters in the United States there isn’t a clear title in all of what was Indian Territory, because every one of the Indian Nations of the Five Civilized Tribes were involved in the same way.

Potter Stewart:

Let me ask you this just for information they — that the conveyance from the Cherokee Nation to the individual nation, to the individual Indians was conveyed, what kind of an estate to these individuals?

Jess Larson:

It — the fee simple state.

Potter Stewart:

To individual estates or to them and as tenants by the —

Jess Larson:

No, no, the fee simple title —

Potter Stewart:

Yes.

Jess Larson:

— was conveyed to them.

Now, under Federal Acts —

Potter Stewart:

Not individually as by name was it?

Jess Larson:

Yes, individually by name.

Yes, sir.

Charles E. Whittaker:

As allottees.

Jess Larson:

As allottees.

Potter Stewart:

Of particular tracts or —

Jess Larson:

That’s right.

They — they —

Potter Stewart:

Particular Indians, is that it?

Jess Larson:

In the case of the Cherokees, it was 110 acres, 40 acres of which they designated as their homestead and –and this land was surveyed and set up described in the patents that were issued.

These patents were issued by the Cherokee Nation and authenticated by the Secretary of Interior.

Potter Stewart:

Particular tracts to particular —

Jess Larson:

Particular —

Potter Stewart:

— Indian.

Jess Larson:

— tracts to particular land.

This was the allotment to the Indians.

Now, what the Solicitor General refers to as the prohibitions against the conveyance to that land or alienation of that land derive from the authority of the Federal Government over these Indians as a guardian of the Federal Government and not to the title of the property which they received from their Nation authenticated by the Federal Government.

Potter Stewart:

Now, you would — you would — your position as that those Indians or their successor is entitle still would have riparian rights?

Jess Larson:

Well, riparian right and so far as they exist under Oklahoma Law is concerned.

Potter Stewart:

Yes, yes.

And that of course is open (Voice Overlap) —

Jess Larson:

And as the Solicitor General pointed out —

Potter Stewart:

Yes.

Jess Larson:

— there is.

There is the Title 60 — Section 60 of the annotated statutes of Oklahoma, 1952, which tends to give riparian owners the normal right, common law right in the flow of the stream.

But there is a water code under Title 82 of the statute which provides how this water maybe appropriated and taken from the riparian owners and put to other uses and how it may be adjudicated as was the case in this case.

Now —

Earl Warren:

But supposing (Inaudible)

Jess Larson:

No, I don’t imply that at all, Your Honor — Mr. Justice.

Earl Warren:

I’d like to (Inaudible)

Jess Larson:

I — I contend that this applies only to these set of facts that we have before us here.

Here is an instance where a State has created an authority, has appropriated the waters and put those waters to beneficial use.

These are the circumstances that are necessary in order to create the situation that we say it is deserving of compensation under the Fifth Amendment.

Earl Warren:

Now what (Inaudible)

Jess Larson:

Well, we — we acquired the land.

Jess Larson:

We acquired the rights of way.

We built the transmission lines of such size and capacity that they could carry the power from one dam to the other and redistribute it as between them.

We formulated our plans.

We issued bonds, pledging the revenues from the entire system which system was described as that promulgated by the Engineers in their plan and adopted by the authority to constitute three dams, the Pensacola, Markham Ferry and Grand River.

Earl Warren:

Is that allowed by the plans of the Army Engineers?

Jess Larson:

Of the Army Engineers?

Earl Warren:

Yes.

Jess Larson:

Well, this plan of which I speak was a plan of the Grand River Dam Authority.

The Army Engineers drew up a separate plan which very nearly followed as nearly as I can ascertain.

Earl Warren:

(Inaudible)

Jess Larson:

No and in further answer to your question, Mr. Chief Justice, the hypothetical case which you — which you have put to me, this could not happen.

This could not be carried out as the Solicitor General says without coming to the Federal Power Commission and obtaining a license.

And if the Federal Power Commission determines that the navigation right of the Federal Government is paramount, it can set up the conditions under which that authority must operate as it has here.

And thereby, the Federal Government exercised its — its control.

The — the Flood Control Act has a — has a plenary statute which — which makes the misdemeanor to — to build and to — to go ahead with the project of this kind with — if it — if it interferes with navigation.

And the Government has been enjoined.

Earl Warren:

(Inaudible) the question where you can exercise your right of giving (Inaudible)

Jess Larson:

We —

Earl Warren:

(Inaudible)

Jess Larson:

We– we —

Earl Warren:

(Inaudible)

Jess Larson:

We — we do not contend.

We do not contend Mr. Chief Justice that — that the Government does not have the right where it determines that navigation is involved, that it does not have the right.

We do not contend that it does not have the right to go and build these projects, to prohibit their building or to regulate.

We do not contend that because it can and does but it has never heretofore gone in and said under the Commerce Clause of the Constitution, “We can take your property.

We can take your vested water rights which is a property,” which this Court in the Grand River Dam case versus Grand-Hydro which was alluded to by the Solicitor General.

This Court held that the franchise of Grand-Hydro had been given to the State of Oklahoma was a property right and that the Grand River Dam Authority had to pay and it did pay over $600,000 as a result of the decision in this Court and a retrial of the case for farmlands which it contended it should only pay some — a much smaller sum.

Now, on nonnavigable streams, the dominant servitude exercised by the Government in its control of navigation under its Commerce Clause has never, in any decision as I can find in this Court, has ever been held to apply to nonnavigable streams to the flow of the nonnavigable streams and that is the distinction.

Now we do —

Felix Frankfurter:

(Inaudible)

Jess Larson:

I beg your pardon?

Felix Frankfurter:

(Inaudible) that’s true?

Jess Larson:

Would or had an additional work if — if —

Felix Frankfurter:

(Inaudible)

Jess Larson:

That conceivably, that work would have been greater had the project been completed with all three dams.

Felix Frankfurter:

And you should know how to do (Voice Overlap) —

Jess Larson:

Yes, sir.

Felix Frankfurter:

(Inaudible) is that right?

Jess Larson:

To that extent, yes, sir.

Felix Frankfurter:

(Inaudible)

Jess Larson:

Well, Mr. Justice Frankfurter, I have not gone into that question and I don’t think I can intelligently answer it for you, except I can say this that the question of compensation is not before us here today.

Charles E. Whittaker:

But —

Felix Frankfurter:

(Inaudible) what the compensation is to being on (Inaudible)

Jess Larson:

If the right to — the right to compensation.

Felix Frankfurter:

That is (Inaudible) does not represent (Inaudible)

Jess Larson:

The —

Felix Frankfurter:

(Inaudible)

Jess Larson:

— the right if we have no right to compensation, of course, we — we can get no compensation.

Felix Frankfurter:

Well, that’s exactly is, but what I’m referring to — has gained (Inaudible)

Charles E. Whittaker:

Mr. — excuse me.

Felix Frankfurter:

(Inaudible)

Jess Larson:

Yes, I — I think I understand, Mr. —

Felix Frankfurter:

A lot of these have got to (Inaudible) in exercise of the constitutional authority.

Jess Larson:

Well, I — I — I’m not sure that I would agree with you under the provisions of the Monongahela case, for instance, of which is cited in the brief.

There, this Court held that a franchise was taken and used by the Federal Government which is comparable to this case here.

The — the same use has been put to it.

I don’t think so.

Jess Larson:

And as — as the Grand River Dam Authority would have put to it and this Court held that that was a property right and we were —

Felix Frankfurter:

(Voice Overlap) —

Jess Larson:

— entitled to compensation.

Felix Frankfurter:

(Inaudible)

Jess Larson:

Yes, sir.

Felix Frankfurter:

In that case, if the franchise brings something to the United States, without which it wouldn’t have built its own (Inaudible)

Jess Larson:

No.

As I remember that case, the United States under its — under its navigation authority could have operated those locks and the — and the locks is what they were and the pertinences were without the state franchise which they vested.

Felix Frankfurter:

In other words (Inaudible) without — it sells property by what it has destroyed, as I understand the case, if I maybe all wrong.

No confrontation followed (Inaudible) takes — takes away the bad news of what we previously enjoy, but it is not (Inaudible)

Jess Larson:

Well, thank you very much, Your Honor.

I’m — I’m sorry I can’t help your troubled mind on that anymore.

My time has expired and I only want to — practically expired — sum up by referring again to the Grand River Dam versus Grand-Hydro case which was settled in this Court, settled by this Court.

This Court held that the State of Oklahoma had issued a — a vested franchise right in Grand-Hydro and that it had to pay for it on the basis of what that right was worth and not on the basis of what the land alone was worth.

Charles E. Whittaker:

Mr. — Mr. Carter may I — would you please answer this question for me.

Could you at Ft. Gibson use either the waters of the Grand River or the franchise from the State of Oklahoma without ownership of the Ft. Gibson dam site?

Jess Larson:

If I understand your question correctly, we could not do so without ownership of a dam site.

We —

Charles E. Whittaker:

And you had one.

Jess Larson:

We had a dam site.

Charles E. Whittaker:

Is there another there or — or did the Government take the only one?

Jess Larson:

It’s — it — there was — engineering-wise, there was one logical dam site.

Charles E. Whittaker:

And that’s the one the Government took?

Jess Larson:

And — and for all practical purposes, that is the one that the Government took.

Charles E. Whittaker:

And you had some interest in the 70 acres of that?

Jess Larson:

That’s — that is correct.

Charles E. Whittaker:

You got paid for that?

Jess Larson:

The question of compensation has not yet been settled.

Charles E. Whittaker:

Oh, it hasn’t been?

Jess Larson:

No.

Charles E. Whittaker:

Was that —

Jess Larson:

— not so far as that dam site is concerned.

Charles E. Whittaker:

It —

Earl Warren:

The amount of the (Inaudible)

Charles E. Whittaker:

Oh, really?

Jess Larson:

The — the amount —

Charles E. Whittaker:

The amount —

Jess Larson:

— of compensation.

Charles E. Whittaker:

Is it being taken in the condemnation proceeding?

Jess Larson:

There is a condemnation proceeding going.

Let me check this a minute.

Oh, I’m — I — there — the — the — I was confused.

We have in litigation and condemnation, the Markham Ferry Dam site.

There is no litigation.

There is no 70 acres involved insofar as the Ft. Gibson Dam site.

Charles E. Whittaker:

Oh, was there?

You did have some interest in Ft. Gibson dam site.

Jess Larson:

We had a dam site at Ft. Gibson.

Charles E. Whittaker:

Now then, how — why — why don’t you have it now?

Why don’t you have the Ft. Gibson dam site now?

Jess Larson:

I — I am told and I — I beg your pardon.

I am told by Mr. Boydstun who is the general counsel of the authority that we had not yet acquired the dam site.

We had only acquired the right of way to a dam site and had built our power lines or our transmission lines over that right of way.

Charles E. Whittaker:

But did not have —

Jess Larson:

We did not —

Charles E. Whittaker:

— any dam site at Ft. Gibson?

Jess Larson:

We — we had not acquired — Grand River Dam Authority had not acquired the physical dam site.

It had surveyed it and selected but had not acquired it.

Charles E. Whittaker:

So, the Government acquired it, some third parties, is that right and not from you?

Jess Larson:

They did not acquire it from Grand River Dam Authority.

Charles E. Whittaker:

All right, that’s close enough for me.

You made your point.

Jess Larson:

Thank you very much.

Earl Warren:

Mr. Solicitor General.

J. Lee Rankin:

Mr. Chief Justice, may it please the Court.

Felix Frankfurter:

Before you — before you (Inaudible)

J. Lee Rankin:

Yes, Mr. Justice.

Felix Frankfurter:

How will you know (Inaudible)

J. Lee Rankin:

It is not like that at all.

I think, Mr. Justice, you described exactly what this is.

This was the prospect or the opportunity.

It’s — involved in the Powelson case and the Omnia case.

The Monongahela case is not like this case.

Monongahela case, the Government moved in and took the locks and other property which was in operation at that time and proceeded to operate that very property.

Felix Frankfurter:

And did you go definitively?

J. Lee Rankin:

Exactly and that’s the difference.

Here was an opportunity that they hoped to enjoy in the future and this Court has never held that the United States has to pay under the Fifth Amendment for that kind of a frustration of opportunity.

That’s the distinction.

Felix Frankfurter:

(Inaudible)

J. Lee Rankin:

That’s right.

Felix Frankfurter:

(Inaudible)

J. Lee Rankin:

Yes, Mr. Justice.

Felix Frankfurter:

(Inaudible)

J. Lee Rankin:

Yes, except that I think this is even more than that because this is a frustration of an opportunity rather than something that is destroyed.

If — it’s even more remote.

Felix Frankfurter:

(Inaudible)

J. Lee Rankin:

This facility?

Felix Frankfurter:

Yes.

J. Lee Rankin:

They had no facility.

They had no dam.

They had no dam site.

They had nothing, except plans.

I don’t think we have any difference there.

Felix Frankfurter:

I understood it.

There’s no dams (Inaudible)

J. Lee Rankin:

Well, they have hoped to have a dam here and the facility that they (Voice Overlap) —

William J. Brennan, Jr.:

Well, didn’t they actually have any process, Mr. Solicitor, the procedures for acquiring the lands upon which the dam would be built when you moved in?

J. Lee Rankin:

I don’t know, but I would assume what Mr. Larson said in that regard.

(Voice Overlap) —

William J. Brennan, Jr.:

From what I understood this is what in the fact that they’d moved the transmission lines as I understood it, the right of way down to the place where the dam was to be constructed and were in the process of about to acquire the lands when you stepped in (Inaudible)

J. Lee Rankin:

I have assumed that what he said.

I’m not — I know we acquired and paid for the transmission lines that they had built to possibly that site.

Potter Stewart:

And is it true that these three dams were all under the basic master plan to be part of a — a coordinated complex for the generation of electricity and flood control and navigation?

J. Lee Rankin:

That is correct.

Potter Stewart:

And that possibly the three together were taking away — taking — possibly taking away one dam would do more damage to the whole than just the — that particular — that portion or the part?

J. Lee Rankin:

Well, I don’t — I think that’s all resolved in the denial of their claim with the Federal Power Commission, but you — the further fact that you should know that it’s in our brief is that the Markham Ferry Dam was allotted by the Federal Power Commission to the Government to build and then Congress decided to have the authority build it.

So, Congress has resolved the question, the political question there about who should build the Ft.Gibson by not interfering with the Federal Power Commission’s action there, but interfering on the Markham Ferry.

Now, they have also —

Felix Frankfurter:

So this is a value of those plans, no dams would be left.

The authority can, if not a compensable pay.

That’s — I guess (Voice Overlap) —

J. Lee Rankin:

Well, there’s a $6,500,000, we’d say it tell about in the footnote that Congress has voted as an appropriation for them with the release connected to it.

They haven’t taken it yet.

So, the Government doesn’t say that it binds.

But they have that provision that apparently Congress has worked out as some kind of a settlement.

Now, it —

Potter Stewart:

That was all like damage to the residue idea.

J. Lee Rankin:

Apparently.

Now, it — I want to clear here too that the Government has not overreached anybody in this transaction.

The Pensacola Dam cost something like $20,000,000.

$8,500,000 of it was an outright grant to the authority from the United States Government.

And as a part of WPA, $12,000,000 was a loan from the Government.

So, that much has all come out of Uncle Sam and now we’re — the Congress has voted $6,500,000 additional to try to make up to the many difficulties they have.

J. Lee Rankin:

Now (Inaudible) that Congress examined.

They’ve — it required because of the building of this dam, the way it was, that they put their waterline differently than they’d it before and they gave them the money to take care of that.

So, the Congress has tried to take care of these various problems and resolve them in a political area.

Now, on regard to the Indian deeds, I don’t see yet how they ever get the title to this water that they say the water right is in the allottees and the Indian Nation over to anybody else.

For example, in my State of Nebraska, there are all kinds of Indian lands.

I don’t know of any power on the part of the State of Nebraska when it became a State, changed from a territory into a State to automatically take those Indian lands and make them belong to the — the State of Nebraska.

There isn’t any such power that’s ever been recognized.

Now, as far as equal footing is concerned, all through the eastern state this Court has held up time — held time after time that people continued to have their riparian rights, and no State that I know of, has claimed under the right of equal footing or any other constitutional power, the right to take the riparian rights of people that have had them even before the country was established, away from them, just because they were created a State.

They’ve recognized that under the common law those riparian rights were there.

They were a property right and they continue to enjoy them over the years.

And how or any other State could — it’s got to have some right far greater and different than the equal footing or treating like the other eastern state, the 13 States of the Union in order to make any such claim as that.

Now, the position of the Government that if the title was in the United States, then they can’t get it away from them just by some declaration of a State.

And they can’t get it away from the Indians or the wards of the United States.

And they cannot get it away from anybody else.

Now, there is this problem about this matter and I want the Court to understand about the riparian and appropriative rights.

The riparian rights are the right to enjoy the flow of the river constantly coming down and if you want to divert that water, you’ve got to return it to the stream in substantially the same way less your reasonable use.

And if you don’t use it as a riparian, you’ve got to continue to let it go down to the next (Inaudible) until such time as you’re ready to use it.

In the meantime, there are all kinds of appropriative rights that are unappropriated yet because nobody has moved up to use them in that water that are available.

And California is an ideal State.

There are numbers of cases there in which they have recognized the proposition that there is a water right.

The riparians can have rights on that same stream.

If they don’t exercise them, they’re unappropriated water rights there that other people can file for according to state law and under the Desert Land Act and acquire those rights and have vested rights and there’s no question about it.

So that both of them can live together, but there’s none of that in this case.

There’s no provision.

Now, the question that the Chief Justice asked here is basic to this case.

It’s whether or not, in every case where the United States wants to exercise the power that it has under the Commerce Clause, to provide through the Federal Power Commission for the construction of a dam on a nonnavigable river because it substantially affects commerce.

That they have to pay a tribute, because someone has stepped up and gotten a license to build that dam and done nothing more, got a license and a statute passed through the legislature to get some water rights and done nothing more in regard to it except that.

Then do you have to — does the United States have to add that kind of value in order to get this facility built in the interest of the country?

And I’d say it never should that there’s no reason why that kind of value should be recognized under the Fifth Amendment.