are not "public lands" but "reservations." Even without that express restriction of the Desert Land Act to sources of water supply on public lands, these Acts would not apply to reserved lands. "It is a familiar principle of public land law that statutes providing generally for disposal of the public domain are inapplicable to lands which are not unqualifiealy subject to sale and disposition because they have been appropriated to some other purpose." United States v. O'Donnell, 303 U. S. 501, 510. See also, United States v. Minnesota, 270 U. S. 181, 206. The instant lands certainly "are not unqualifiedly subject to sale and disposition. .. Accordingly, it is enough, for the instant case, to recognize that these Acts do not apply to this license, which relates only to the use of waters on reservations of the United States.

III. APPLICATION OF THE FEDERAL POWER ACT TO THIS PROJECT.

Finally, respondents question the discretion used by the Commission in granting the license. They point to the consequences which the project will have beyond the limits of the reserved lands on which it will be located.

The first consequence is the inevitable variation in, or the temporary interruption of, the flow of the stream. The Commission is satisfied that it has overcome this objection by its provision for a reregulating dam. It has approved the technical features involved and the site for that dam will be acquired in accordance with the property laws of Oregon.20 In this reregulation of the flow of the stream, the Commission acts on behalf of the people of Oregon, as well as all others, in seeing to it that the interests of all concerned are adequately protected.

There remains the effect of the project upon anadromous fish which use these waters as spawning grounds. All agree that the 205-foot dam will cut off access of some fish to their natural spawning grounds above the dam and that such interruption cannot be overcome by fish ladders."1 However, the State does not flatly prohibit the construction of dams that cut off anadromous fish from their spawning or breeding grounds." One alternative, thus recognized, is the supplying of new breeding pools to which the fish can be removed at appropriate times.23 The Fish Commission of Oregon has denied a permit to the Portland General Electric Company to carry out its present proposal but there appears to be no disagreement as to the underlying principle involved."

22

20 While the final approval of the engineering requirements of this feature rests with the Commission, there is no reason why the Commission and the State of Oregon, which also desires appropriate reregulation of the flow of the stream, should not seek a mutually satisfactory s lution. In fact, the applicant for the federal license did submit its proposals for reregulation to the state authorities.

21 The Oregon Fish Commission made a rough estimate of the annual runs of spring chinook and salmon passing the Pelton site, en route upstream, at 2,500 and of summer steelhead trout at 5,000. On the basis of this escapement past the project, the Fish Commission estimated the annual value of the Deschutes salmon and steelhead fishery attributable to the river above the Pelton site to be $177,375. 10 F. P. C., at 449, 92 P. U. R. (N. S.), at 252.

23

In the event that any person desires to construct a dam in any of the streams of this state to a height that will make a fish ladder or fishway thereover impracticable, in the opinion of the [Fish] commission, then such person may make an application to the commission for a permit to construct such dam, and the commission is hereby authorized to grant such permit in its discretion, upon the condition that the person so applying for such permit shall convey to the state of Oregon a site of the size and dimensions satisfactory to the commission, at such place as may be selected by the commission, and erect thereon a hatchery and hatchery residence, according to plans and specifications to be furnished by the commission, and enter into an agreement with the commission, secured by a good and sufficient bond, to furnish all water and light, without expense, to operate said proposed hatchery; and no permit for the construction of any such dam shall be given by the commission until the person applying for such permit shall have actually conveyed said land to the state and erected said hatchery and hatchery residence in accordance with the said plans and specification. Italics supplied.) Ore. Comp. Laws, 1940, § 83-316.

23 The Federal Power Commission here found that: "(29) There is nothing novel, unusual or out of the ordinary with respect to the fishery conservation facilities proposed by applicant.

"(30) The applicant proposes to operate or arrange for the operation of the fish conservations facilities in accordance with approved methods.

"(31) Construction, or operation and maintenance of the Pelton project will not be detrimental to the fishery resources below the reregulating dam.

"(32) There is no substantial evidence in the record to show that the fishery facilities proposed by the applicant in accordance with the plans prepared by the Fish Commission of Oregon will not maintain existing runs, and there is a possibility that the run can be increased." 10 F. P. C., at 455.

24 In addition to its application to the Federal Power Commission, the Portland General Electric Company also sought approval of the Pelton Project by the Oregon Hydroelectric Commission. While we hold that such approval is not necessary, there is no reason why the company should not thus seek state as well as federal approval of the project. In its

The applicant has agreed to provide facilities for conserving the runs of anadromous fish in accordance with plans approved by the Federal Power Commission. The capital cost of these facilities and of the reregulating dam, to be borne by the applicant, is estimated at $4,430,000. The total annual cost due to these facilities is estimated at $795,000. The Commission has found each of these estimates to be reasonable. Of the $795,000 annual cost, the applicant will bear $410,000 (cost of borrowed money, depreciation and taxes on the capital investment), and the $10,000 maintenance cost of the reregulating dam. In addition, it has offered to contribute $100,000 annually toward the estimated $375,000 cost of operation and maintenance of the fish conservation facilities, and the Commission has retained the power to fix the amount of the applicant's contribution if a sum is not agreed upon.

The care given to the preparation of this conservation program and the large investment to be made in it are impressive. It also is of interest that the Fish Commission of Oregon already is operating somewhat comparable but smaller facilities of this kind on the Metolius River.

One argument against the project goes beyond the need to conserve the existing fish population. It is argued that the project will preclude the carrying out of certain plans for the Columbia River Basin which contemplate greatly enlarging the fish population in the Deschutes River area, by concentrating there other runs of fish not now using that river. While such an argument may properly be directed to the Federal Power Commission or to Congress, it is not one for us to answer upon the basis of existing legal rights.

We conclude, therefore, that, on the facts here presented, the Federal Power Act is applicable in accordance with its terms, and that the Federal Power Commission has acted within its powers and its discretion in granting the license now before us.

The judgment of the Court of Appeals, accordingly, is Reversed.

MR. JUSTICE HARLAN took no part in the consideration or decision of this case. MR. JUSTICE DOUGLAS, dissenting.

I would not suppose the United States could erect a dam on this nonnavigable river without obtaining its water rights in accordance with state law. If I am right in that assumption, then this dam cannot be built without satisfying Oregon's water-rights law. For the federal licensee who will build this dam acquires all its rights from the United States. And the United States cannot give what it does not have.25

The argument pressed on us by the United States is akin to the one urged in Nebraska v. Wyoming, 325 U. S. 589, 611 et seq. In that case, the United States struggled to be rid of the rule of law that made its water rights on nonnavi

application for the Federal Power Commission license, the company referred to these simultaneous state preceedings, which did not reach a conclusion until shortly before the granting of the federal license. The license from the Hydroelectric Commission was denied because of the applicant's failure to secure the permit from the Fish Commission of Oregon which it had sought.

The pertinent Oregon provisions are as follows:

"From and after the taking effect of this act, no water-power project involving the use of the waters of any of the lakes, rivers, streams or other bodies of water within the state of Oregon, including waters over which this state has concurred jurisdiction, for the generation of electricity, shall be begun or constructed except in conformity with the provisions hereof.

"The [Oregon Hydroelectric] commission shall have power: .

"(b) To issue licenses, as hereinafter provided, to citizens of the United States, associations of citizens, private corporations organized under the laws of the United States or any state thereof, to appropriate, initiate, perfect, acquire and hold the right to the use of the waters within the state, including the waters over which the state has concurrent jurisdiction, and to construct, operate and maintain dams, reservoirs, power houses, conduits, transmission lines, and all other works and structures necessary or convenient for the use of such waters in the generation and utilization of electricity." Ore. Comp. Laws, 1940, §§ 119-103, 119-106.

See also, "The provisions of this act shall not apply to any waterpower project or development constructed by the government of the United States.' Id., § 119-101. 25 The Deschutes River is nonnavigable and part of the Columbia River Basin. It is, indeed, a direct tributary of the Columbia. Control of this tributary might be important to an effective flood-control program for the Columbia. If so, this dam could find constitutional sanction under the Commerce Clause. See Oklahoma v. Atkinson Co., 313 U. S. 508, 525. That constitutional power over the Deschutes would not be lost through nonuse or through intervening legislation. In case the constitutional power were exercised, private rights would give way. Oregon could demand compensation for the loss of any water-power rights it possessed. See Federal Power Commission v. Niagara Mohawk Power Corp., 347 U. S. 239, 254-255. But Oregon could not assert its regulatory powers to defeat the federal program, for the Supremacy Clause would prevent her.

No effort has been made to bring this case under the Commerce Clause. The findings are inadequate for that purpose. The case turns on the authority of the United States as a proprietor.

gable streams of the West dependent on state law. It claimed that it owned all the unappropriated water in the basin of the North Platte River. The argument was made not only under the Reclamation Act of 1902, 32 Stat. 388, but also under the Desert Land Act of 1877, 19 Stat. 377, the Act involved here. We reserved decision as to whether under some circumstances the United States might be the owner of unappropriated water rights. But we held that under those Acts the United States took its water rights like other landowners, viz, pursuant to the state law governing appropriation.

Unless we are to depart from that ruling, we must accept Oregon's claim here. Oregon's position has for its support two other decisions of this Court, both construing the Desert Land Act. The first of these is California Oregon Power Co. v. Cement Co., 295 U. S. 142, which construed the provision of the Desert Land Act, crucial here, which reads:

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

The Court interpreted that provision as follows:

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

26

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

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

Those cases should control here. The Desert Land Act applies to "public lands"; and the Federal Power Act, 41 Stat. 1603, as amended, 16 U. S. C. § 791a et seq., grants the Commission authority to issue licenses for power development "upon any part of the public lands and reservations of the United States.' § 4 (e). The definition of those terms in the Act says nothing about water rights.”

26 If this were a navigable stream, the authority of the United States in_the_water power would be complete without reference to state law. United States v. Chandler-Dunbar Co., 229 U. S. 53; United States v. Chicago, M., St. P. & P. R. Co., 312 U. S. 592; United States v. Commodore Park, Inc., 324 U. S. 386. In that case, the Act authorizes the Commission to proceed, irrespective of the approval of the State where the dam is located. First Iowa Coop. v. Power Commission, 328 U. S. 152. But the present project, dealing as it does with nonnavigable waters, is dependent on the state law of water rights for its execution. In the First Iowa Coop. case, we recognized the room left for that degree of control by the States in this situation:

"In the Federal Power Act there is a separation of those subjects which remain under the jurisdiction of the States from those subjects which the Constitution delegates to the United States and over which Congress vests the Federal Power Commission with authority to act. To the extent of this separation, the Act establishes a dual system of control. The duality of control consists merely of the division of the common enterprise between two cooperating agencies of government, each with final authority in its own jurisdiction. The duality does not require two agencies to share in the final decision of the same issue. Id., 167-168.

27 Those terms are defined as follows in § 3:

"(1) 'public lands' means such lands and interest in lands owned by the United States as are subject to private appropriation and disposal under public land laws. It shall not include 'reservations', as herinafter defined:

"(2) 'reservations' means national forests, tribal lands embraced within Indian reservations, military reservations, and other lands and interests in lands owned by the United States, and withdrawn, reserved, or withheld from private appropriation and disposal under the public land laws; also lands and interests in lands acquired and held for any public purposes; but shall not include national monuments or national parks;

And, as I have pointed out, it has been the long-term policy of Congress to separate western land from water rights.

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

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

The

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

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

Senator WATKINS. Would you give us something about your background before you proceed with the discussion?

Mr. STANLEY. Well, I worked in the State engineer's office for about 15 years, from 1926 to 1941, as assistant State engineer.

Then, since that time, I have been with the Corps of Engineers of the United States Army in Alaska, Iceland, and also served a couple of years in Afghanistan. I came back and took the office of State engineer about a year and a half ago.

Senator WATKINS. Are you an engineer by profession?

Mr. STANLEY. Yes; I am a member of the American Society of Civil Engineers.

I want to keep my remarks clear of the merits of any particular power project.

While the Pelton decision has been very distasteful to Oregon and we think it has been a bad mistake, I think there is no reason to raise the issue of the Pelton decision at this time.

A large part of the economy of Oregon and of the other Western States is and has been based upon the beneficial use of water. Ever since the Desert Land Act of 1877, these Western States have felt secure in their control of the rights to use water within their boundaries.

The Congress has expressed itself many times since 1877, always upholding the principle that Federal departments and agencies should make their appropriations of water in accordance with State laws.

75335-564

In making its decision in the Pelton case, Federal Power Commission v. Oregon, (349 U. S. 435), the Supreme Court placed a new and startling interpretation on the Desert Land Act. It held that the severance of waters from the public domain did not apply to reserve lands of the United States.

All down through the years Oregon has been issuing permits to appropriate waters on the reserve lands. Even Federal departments have recognized the laws of Oregon in making appropriations of water on reserve lands.

As pointed out by Senator Barrett, a large portion of our land area in most of the Western States is Federal land in reservations of one type or another.

A remark was made here concerning the compliance with State laws by various departments, and we had a situation come up in Oregon that is a little disturbing just a few months ago after the Pelton decision, in which a representative of the United States Indian Service wrote a letter and said:

Henceforth, in view of the Pelton decision, the Indian Service is no longer interested in compliance with the laws of Oregon.

Senator WATKINS. Prior to that time, had they been complying with the law of Oregon?

Mr. STANLEY. Yes.

Senator WATKINS. I think that is true in my State, too. I think we had a case in Utah that involved Indian lands and Indian water rights, and I think that case went to the Supreme Court, if I remember correctly. I will check on it.

Mr. STANLEY. The headwaters of nearly all of our streams where the reservoir sites are located on are on reserved lands. If the Government controls the waters upon these lands, Oregon does not have much left.

The State, by legislative action, has withdrawn certain streams from all appropriation in order to preserve a valuable fish propagation and recreational area from power development. There are power site reserves along these streams; the very same reserves as they had along the Deschutes River, in other words.

Unless the Congress comes to our rescue, our legislative acts are nullified.

The Federal Power Commission can license power projects on these streams over the protest of the State.

Oregon, last year, created a water resources board to study the State's water resources and plan the integrated and coordinated uses of such resources in the best interests of all our people.

Unless the Congress comes to our rescue, the efforts of this board will be largely nullified as the Federal Power Commission in licensing projects can ignore our plans.

Recently this question has been discussed with the State engineer of California and the attorney general of California and that State, I think, will probably have Mr. Banks here, who is the State engineer, sometime during this hearing. California has spent millions of dollars in the development of a water development plan, a water plan for that State.

Mr. Gatchel, counsel for the Federal Power Commission, in Portland, Oreg., 2 or 3 months ago admitted that if the Pelton decision