City of Tacoma v. Taxpayers of Tacoma, No. 509

CourtUnited States Supreme Court
Writing for the CourtWHITTAKER
Citation78 S.Ct. 1209,2 L.Ed.2d 1345,357 U.S. 320
Decision Date23 June 1958
Docket NumberNo. 509
PartiesCITY OF TACOMA, Petitioner, v. The TAXPAYERS OF TACOMA, and Robert Schoettler, as Director of Fisheries, and John A. Biggs, as Director of Game, of the State of Washington, and the State of Washington

357 U.S. 320
78 S.Ct. 1209
2 L.Ed.2d 1345
CITY OF TACOMA, Petitioner,

v.

The TAXPAYERS OF TACOMA, and Robert Schoettler, as Director of Fisheries, and John A. Biggs, as Director of Game, of the State of Washington, and the State of Washington.

No. 509.
Argued April 30, 1958.
Decided June 23, 1958.

[Syllabus from pages 320-321 intentionally omitted]

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Mr. Northcutt Ely, Washington, D.C., for petitioner.

Page 322

Mr. Oscar H. Davis, Washington, D.C., for the United States and Federal Power Commission as amicus curiae, by leave of Court.

Mr. John S. Lynch, Jr., and E. P. Donnelly, Olympia, Wash., for respondents.

Mr. Justice WHITTAKER delivered the opinion of the Court.

This is the latest episode in litigation beginning in 1948 which has been waged in five tribunals and has produced more than 125 printed pages of administrative and judicial opinions. It concerns the plan of the City of Tacoma, a municipal corporation in the State of Washington, to construct a power project on the Cowlitz River, a navigable water of the United States, in accordance with a

Page 323

license issued by the Federal Power Commission under the Federal Power Act.1 The question presented for decision here is whether under the facts of this case the City of Tacoma has acquired federal eminent domain power and capacity to take, upon the payment of just compensation, a fish hatchery owned and operated by the State of Washington, by virtue of the license issued to the City under the Federal Power Act and more particularly § 21 thereof.2 The project cannot be built without taking the hatchery because it necessarily must be inundated by a reservoir that will be created by one of the project's dams.

The question has arisen under the following circumstances and proceedings. Having earlier filed its declaration of intention to construct the project, 3 the City of Tacoma, a 'municipality'4 in the State of Washington, on December 28, 1948, filed with the Commission, under

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s 4(e) of the Federal Power Act,5 an application6 for a federal license to construct a power project, including two dams (known as Mossyrock and Mayfield) and appurtenant facilities, on the Cowlitz River.7

The Mossyrock development was proposed to be located at Mile 65 and to consist of a concrete dam across the Cowlitz rising 510 feet above bedrock (creating a reservoir covering about 10,000 acres extending 21 miles upstream) and an integral powerhouse containing, initially, three generators each of 75,000-kilowatt capacity and provisions for a fourth generator of like capacity.

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The Mayfield development was proposed to be located at Mile 52 and to consist of a concrete dam across the Cowlitz rising 240 feet above bedrock (creating a reservoir, covering about 2,200 acres extending 13.5 miles upstream to the tailwaters of the Mossyrock Dam, which would inundate the State's fish hatchery) and an integral powerhouse containing, initially, three generators each of 40,000 kilowatt-capacity and provisions for a fourth generator of like capacity. The project—estimated to cost $146,000,000, including $9,465,000 for devices to enable anadromous fish to pass to spawning grounds upstream and their young to pass to the sea, and for new fish hatcheries—would thus have initial capacity to produce 345,000 kilowatts or 474,000 horsepower, and eventually 460,000 kilowatts or 632,000 horsepower, of electrical energy.

The Commission ordered a public hearing to determine whether the license should issue, and gave notice of the hearing to the Governor of the State of Washington. In response, the Attorney General of the State filed an intervening petition, in the names of the State's Directors of Fisheries and of Game, alleging in substance that the State's Departments of Fisheries and of Game are subdivisions of the sovereign State, and that the respective Directors are charged with the duty of enforcing its laws concerning the conservation of fish and game; that the dams and fish-handling facilities proposed by the City would destroy fishery resources of the State; that construction of proposed dams would violate R.C.W. 90.28.060, requiring the State's permission to construct any dam for the storage of 10 acre-feet or more of water, and R.C.W. 75.20.010, prohibiting the construction of any dam higher than 25 feet across any river tributary to the Columbia, downstream from the McNary Dam, within the migratory range of anadromous fish; and '(t)hat the reservoirs which would be created by the pro-

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posed dams would inundate a valuable and irreplaceable fish hatchery owned by the State of Washington, as well as * * * productive spawning areas.' The City's answer admitted that the State's fish hatchery would be inundated by the Mayfield Reservoir. The State's Attorney General also appointed a Special Assistant Attorney General to represent all persons of the State whose views were in conflict with the State's official position.

Upon the issues thus framed a hearing, consuming 24 days, was conducted by a Commission examiner, throughout which the Attorney General of the State, by his designated assistant, actively participated in opposition to the application, and the Special Assistant Attorney General, appointed for the purpose stated, also participated in the proceedings before the Commission. Thereafter the Commission, on November 28, 1951, rendered its opinion,8 findings,9 and order granting the license.10 In the Matter of City of

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Tacoma, Washington, 92 P.U.R.(n.s.) 79. The State petitioned for a rehearing which was denied.

Pursuant to § 313 of the Act, 16 U.S.C. § 825l, 16 U.S.C.A. § 825l, the State, in its proper name and also on behalf of its Direc-

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tors of Fisheries and of Game, petitioned for review of the Commission's order by the Court of Appeals for the Ninth Circuit. The City intervened. The State there challenged the Commission's authority to issue the license principally upon the grounds that the City had not complied with applicable state laws nor obtained state permits and approvals required by state statutes;11 that 'Tacoma, as a creature of the State of Washington, cannot act in opposition to the policy of the State or in derogation of its laws' (emphasis added); and that the evidence was not sufficient to sustain the Commission's findings and order. The Court of Appeals, holding that 'state laws cannot prevent the Federal Power Commission from issuing a license or bar the licensee from acting under the license to build a dam on a navigable stream since the stream is under the dominion of the United States' and that there was ample evidence to sustain the Commission's findings and its order, affirmed. State of Washington, Department of Game v. Federal Power Comm., 9 Cir., 207 F.2d 391, 396. (Emphasis added.) The State then petitioned this Court for a writ of certiorari which was denied. 347 U.S. 936, 74 S.Ct. 626, 98 L.Ed. 1087.

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While the petition for review was pending in the Ninth Circuit, the City, on February 3, 1952, commenced an action in the Superior Court of Pierce County, Washington, against the taxpayers of Tacoma and the State's Directors of Fisheries and of Game, seeking a judgment declaring valid a large issue of revenue bonds, authorized by the City's ordinance (No. 14386) of January 9, 1952, to be issued and sold by Tacoma to finance the construction of the Cowlitz project—a proceeding specifically authorized by R.C.W. 7.25.010 through 7.25.040. As required by those statutes the court named representative taxpayers of Tacoma as class defendants and also appointed their counsel who demurred to the City's complaint. The State's Directors of Fisheries and of Game, acting through an Assistant Attorney General of the State, filed an answer and also a cross-complaint (reasserting substantially the same objections that they and the State had made before the Commission, and that had been made in, and rejected by, the Court of Appeals on their petition for review) to which the City demurred. The judge of the Superior Court sustained the Taxpayers' demurrer and dismissed the suit.12 Tacoma appealed to the Supreme Court of Washington. That court, three justices dissenting, reversed the judgment and remanded the cause with instructions to overrule the Taxpayers' demurrer and to proceed further consistently with the court's opinion. City of Tacoma v. Taxpayers of Tacoma, 43 Wash.2d 468, 262 P.2d 214. 13

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Following that opinion the City, on June 21, 1955, accepted bids for a block of its revenue bonds totaling $15,000,000, and on the next day it awarded contracts for construction of the Mayfield Dam aggregating $16,120,870. Two days later, June 24, 1955, the Directors 'acting for and on behalf of the State' moved in the Superior Court for, and obtained, ex parte, an order enjoining the City, pending determination of the suit, from proceeding to construct the Cowlitz project or to sell any of its revenue bonds. That order was modified on June 30, 1955, to permit such construction work as would not in any manner interfere with the bed or waters of the Cowlitz River. Promptly thereafter the City began construction of the project, within the limits of the injunction, and had expended about $7,000,000 thereon to the time the work was completely enjoined as later stated.

On July 27, 1955, Tacoma amended its complaint merely to assert the intervening facts that the Commis-

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sion, upon application of the City which was opposed by the State, had, on the basis of delays entailed by this litigation, entered an order on February 24, 1954, amending Articles 28 and 33 of the City's license by extending the time for commencing and for completing the project to December 31, 1955, and December 31, 1958, respectively, and that the City had amended its pertinent ordinance (No. 14386) accordingly and in other minor respects. On August 8, 1955, on motion made by the...

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  • California Trout v. F.E.R.C., No. 07-73664.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • July 20, 2009
    ...under which, and the courts in which, judicial review of [the Commission's] orders may be had." City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320, 336, 78 S.Ct. 1209, 2 L.Ed.2d 1345 (1958). Section 313 of the Act provides that only "parties" to Commission proceedings may seek administrati......
  • U.S. v. State of Wash., No. 96-35082
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 25, 1998
    ...their "common public rights as citizens" in litigation to which their sovereign is a party. City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320, 341, 78 S.Ct. 1209, 2 L.Ed.2d 1345 (1958). A similar issue arose in Fishing Vessel, 443 U.S. at 692 n. 32, 99 S.Ct. 3055, where the Court conclude......
  • Orr v. U.S. EPA, 1:19-cv-226-MOC-WCM
    • United States
    • United States District Courts. 4th Circuit. Western District of North Carolina
    • May 15, 2020
    ...to a final EPA order under FIFRA, including "all issues inhering" in such a challenge) (citing City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320, 336 (1958)). C. Plaintiff's Request for this Court to Order EPA to Modify Manufacturer Product Labels or Require EPA to Make a Posting to Its E......
  • Karuk Tribe of Northern California v. California Regional Water Quality Control Bd., North Coast Region, No. A124351.
    • United States
    • California Court of Appeals
    • March 30, 2010
    ...the Federal Power Commission. First Iowa Hydro-Electric Cooperative v. Federal Power Comm'n . . . ." (City of Tacoma v. Taxpayers (1958) 357 U.S. 320, 334 [2 L.Ed.2d 1345, 78 S.Ct. 1209], fn. omitted, citations omited.) First Iowa is central to understanding the scope of federal preemption.......
  • Request a trial to view additional results
287 cases
  • California Trout v. F.E.R.C., No. 07-73664.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • July 20, 2009
    ...under which, and the courts in which, judicial review of [the Commission's] orders may be had." City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320, 336, 78 S.Ct. 1209, 2 L.Ed.2d 1345 (1958). Section 313 of the Act provides that only "parties" to Commission proceedings may seek administrati......
  • U.S. v. State of Wash., No. 96-35082
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 25, 1998
    ...their "common public rights as citizens" in litigation to which their sovereign is a party. City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320, 341, 78 S.Ct. 1209, 2 L.Ed.2d 1345 (1958). A similar issue arose in Fishing Vessel, 443 U.S. at 692 n. 32, 99 S.Ct. 3055, where the Court conclude......
  • Orr v. U.S. EPA, 1:19-cv-226-MOC-WCM
    • United States
    • United States District Courts. 4th Circuit. Western District of North Carolina
    • May 15, 2020
    ...to a final EPA order under FIFRA, including "all issues inhering" in such a challenge) (citing City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320, 336 (1958)). C. Plaintiff's Request for this Court to Order EPA to Modify Manufacturer Product Labels or Require EPA to Make a Posting to Its E......
  • Karuk Tribe of Northern California v. California Regional Water Quality Control Bd., North Coast Region, No. A124351.
    • United States
    • California Court of Appeals
    • March 30, 2010
    ...the Federal Power Commission. First Iowa Hydro-Electric Cooperative v. Federal Power Comm'n . . . ." (City of Tacoma v. Taxpayers (1958) 357 U.S. 320, 334 [2 L.Ed.2d 1345, 78 S.Ct. 1209], fn. omitted, citations omited.) First Iowa is central to understanding the scope of federal preemption.......
  • Request a trial to view additional results

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