Grand River Dam Authority v. Going

• Decision Date: 22 September 1939
• Docket Number: No. 211.,211.
• Citation: 29 F. Supp. 316
• Parties: GRAND RIVER DAM AUTHORITY v. GOING et al.
• Court: U.S. District Court — Northern District of Oklahoma

29 F. Supp. 316

GRAND RIVER DAM AUTHORITY v. GOING et al.

No. 211.

District Court, N. D. Oklahoma.

September 22, 1939.

COPYRIGHT MATERIAL OMITTED

R. L. Davidson, of Tulsa, Okl., general counsel, Q. B. Boydstun, of Vinita, Okl., associate counsel, and Gayle M. Pickens, of Miami, Okl., for petitioners.

Duff & Manatt, of Tulsa, Okl., and Harve N. Langley, of Pryor, Okl., for defendants.

FRANKLIN E. KENNAMER, District Judge.

This is an action at law for the condemnation of lands described in the petition. Petitioner alleges that (a) it is a public corporation existing under the laws of the State of Oklahoma, Article 4, Chapter 70, Oklahoma Session Laws of 1935, as amended by Article 2, Chapter 70, Oklahoma Session Laws of 1937, 82 Okl.St.Ann. § 861 et seq.; (b) it possesses powers of government for the public benefit and is authorized and empowered, among other things, to control, store and preserve the waters of the Grand River and its tributaries; (c) it has heretofore determined to construct on Grand River, near Pensacola, in Mayes County, Oklahoma, a dam and hydro-electric power plant for the purpose, among others, of impounding and storing the waters of Grand River and developing and generating through the use of such waters electric power and energy for sale and distribution, and has entered into contracts for the construction and equipment of said dam and hydro-electric power plant to be completed not later than December 31, 1939; (d) Grand River in Oklahoma is a tributary of the Arkansas River, a navigable water of the United States; (e) on December 15, 1937, it filed with the Federal Power Commission its declaration of intention (with supplement thereto filed January 3, 1938) to construct a dam and hydro-electric power plant in and across the said Grand River, near the Town of Pensacola, in Mayes County, Oklahoma, "for the purpose of flood control and development of hydro-electric power" and upon a hearing thereof before the Federal Power Commission on February 11, 1938, the Power Commission, hereinafter referred to as "Commission", determined that the petitioner is a public corporation, created under the laws of Oklahoma for the purpose of constructing and operating said Project, and that the construction and operation of said Project "as proposed by the petitioner will affect navigable stages of the Arkansas River a navigable water of the United States, to which said Grand River is a tributary, and will affect the interests of inter-state commerce." Attached to the petition as Exhibit "A" is the finding of the Commission under date of February 11, 1938, as follows:

"Upon declaration of intention filed December 15, 1937, and supplement thereto filed January 3, 1938, by Grand River Dam Authority, of Vinita, Oklahoma, pursuant to Section 23(b) of the Federal Power Act, 16 U.S.C.A. § 817 announcing declarant's intention to construct a dam and hydro-electric plant in and across Grand River near the Town of Pensacola, in Mayes County, Oklahoma, for the purpose of flood control and development of hydroelectric power;

"After investigation of such proposed construction and hearing held upon said declaration, it appearing to the Commission that:

"(a) The declarant is a public corporation created, organized and existing under the laws of the State of Oklahoma for the purpose of constructing and operating the said project;

"(b) Said project will consist of a dam approximately 147 feet in height above the bed rock, creating a reservoir in said river with storage capacity of approximately 2,000,000 acre-feet, and the installed generating capacity will be approximately 60,000 kilowatts;

"(c) The construction and operation of said project as proposed by the declarant will affect navigable stages of the Arkansas River, a navigable water of the United States, to which said Grand River is a tributary "The Commission therefore finds that:

"The construction and operation of said project in the manner proposed by the declarant will affect the interests of interstate commerce."

Petitioner also alleges that it is necessary to condemn the land described therein for reservoir purposes extending approximately 55 miles up stream from the dam, and that was the finding of the Commission under date of July 12, 1939, shown by Exhibit "B" to plaintiff's petition. There is neither allegation nor evidence that the Grand River is or ever was a navigable stream. The plaintiff made application to the Commission for a license to construct a dam on the Grand River and the license was issued under date of July 12, 1939, and accepted by the petitioner, as shown by Exhibits "B" and "C" to the petition.

The defendants have moved to dismiss the petition on 16 separate grounds, which may be summarized as follows: (a) that under the Federal Power Act the Commission had no power to grant a license to the petitioner to construct a dam on the Grand River because the Grand River is not a navigable stream; (b) that Congress had no power under the National Constitution to delegate to the Commission authority to issue a license to petitioner; and (c) that if Congress had constitutional authority and did grant power to the Commission to issue a license, the license is void because defendants had no notice of the hearing of the application to the Commission for the license and therefore the license was issued without due process of law.

Section 1 of the Act of the Oklahoma Legislature approved April 26, 1935, as amended by the Act approved January 28, 1937 (see Okl.1935 Session Laws, page 350, and 1937 Session Laws, page 481, 82 Okl. St.Ann. § 861), is as follows:

"Article 4, of Chapter 70, Oklahoma Session Laws of 1935, is hereby amended to read as follows:

"`Section 1. There is hereby created within the State of Oklahoma a conservation and reclamation district to be known as `Grand River Dam Authority' (hereafter called the District), and consisting of that part of the State of Oklahoma which is included within the boundaries of the Counties of Adair, Cherokee, Craig, Delaware, Mayes, Muskogee, Nowata, Ottawa, Tulsa, Wagoner, Sequoyah, McIntosh, Creek, and Okmulgee. Such District shall be, and is hereby declared to be a governmental agency, body politic and corporate, with powers of government and with the authority to exercise the rights, privileges, and functions hereinafter specified, including the control, storing, preservation and distribution of the waters of the Grand River and its tributaries for irrigation, power and other useful purposes, the reclamation and irrigation of arid, semi-arid, and other lands needing irrigation, and the conservation and development of the forests, water and hydroelectric power of the State of Oklahoma.

"`Nothing in this Act or in any other Act or law contained, however, shall be construed as authorizing the District to levy or collect taxes or assessments, or to create any indebtedness payable out of taxes or assessments, or in any manner to pledge the credit of the State of Oklahoma, or any subdivision thereof.'

"Approved Jan. 28, 1937."

Section 2 of the 1935 Oklahoma Legislative Act, 82 Okl.St.Ann. § 862, is as follows:

"The District shall have and is hereby authorized to exercise the following powers, rights and privileges:

"(a) To control, store and preserve, within the boundaries of the District, the water of the Grand River and its tributaries for any useful purpose, and to use, distribute and sell the same within the boundaries of the District;

"(b) To develop and generate water power and electric energy within the boundaries of the District;

"(c) To prevent or aid in the prevention of damage to person or property from the waters of the Grand River and its tributaries;

"(d) * * *;

"(e) To acquire by purchase, lease, gift, or in any other manner, and to maintain, use and operate any and all property of any kind, real, personal, or mixed, or any interest therein, within or without the boundaries of the District, necessary or convenient to the exercise of the powers, rights, privileges, and functions conferred upon it by this Act;

"(f) To acquire by condemnation any and all property of any kind, real, personal, or mixed, or any interest therein within or without the boundaries of the District necessary or convenient to the exercise of the powers, rights, privileges and functions conferred upon it by this Act, in the manner provided by general law with respect to condemnation;

Paragraphs (g), (h) and (i) here omitted.

"(j) To sue and be sued in its corporate name;

"(k) To adopt, use and alter a corporate seal;

Paragraphs (1), (m), and (n) here omitted.

"(o) To borrow money for its corporate purposes and, without limitation of the generality of the foregoing to borrow money and accept grants from the United States of America, or from any corporation or agency created or designated by the United States of America, and, in connection with any such loan or grant, to enter into such agreements as the United States of America or such corporation or agency may require."

There is nothing in the Oklahoma Legislative Act indicating that it was the purpose and intent thereby to obstruct or improve navigable waters within the State of Oklahoma. The plaintiff has no stockholders except the State of Oklahoma. It is purely a state governmental agency and the question evidently arose in the minds of the state authorities as to whether or not the state has the power to construct a dam on the Grand River without the consent of the Federal Government because the Grand River is a direct tributary of the Arkansas River, a navigable stream from the point the Grand River empties into it. This brings us to the questions in the case.

First. As there is no diversity of citizenship the jurisdiction of this court turns on the question as to whether or not this suit arises under the Constitution or laws of the United States, which must be determined from the petition regardless of the questions that may...