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WSP07268
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Last modified
1/26/2010 2:26:33 PM
Creation date
10/12/2006 2:13:29 AM
Metadata
Fields
Template:
Water Supply Protection
File Number
8402.400.10
Description
Platte River Basin-River Basin Basic Hydrology-Transmountain Diversions/Imports-Blue/South Platte
Basin
South Platte
Water Division
1
Date
4/1/1957
Author
James Munro
Title
Oregon Law Review-The Pelton Decision-A New Riparianism
Water Supply Pro - Doc Type
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<br />001177 <br /> <br />240 <br /> <br />[Vo1.36 <br /> <br />OREGON LA/V REVIEW <br /> <br />doing demonstrated with painful clarity the enormity of the majority <br />ruling: <br /> <br />. . , a real problem in administration is presented to the Power Commission when <br />a State does intervene and claims that the applicant has not complied with its <br />lawful requirements, For, before the Commission can meet the duty placed on it <br />by section 9(b), it must ascertain the scope and meaning of the State law, Suppose <br />the State law is not clear or is susceptible of different constructions and has <br />received no construction by the only authoritative source for the interpretation <br />of State laws, namely, the highest court of the State, Must the Federal Power <br />Commission give an independent interpretation of the laws of the State 1 , , . Are the <br />lawyers of the Commission,.. to construe", the laws of New Jersey and Okla- <br />homa and Arizona and Illinois when the courts of those States have not spoken 169 <br /> <br />, <br /> <br />., <br /> <br />So the First Iowa decision disposed of section 9(b) as an operative <br />requirement so far as applications for licenses on navigable rivers were <br />concerned; no great intellectual exercise was called forth to postulate <br />a similar result for nonnavigable streams where the applicant desired <br />to locate its dam on Federal land abutting the watercourse,69a <br />In a tribunal that is never far from the dust of the political arena- <br />and it has never been, right from the beginning-it would be overly <br />captious not to concede it some latitude in the way of a priori decisions, <br />But is it of the same degree to predicate an overriding Federal power <br />where navigation is concerned as it is where all that is present is the <br />mere ownership of a point of land on a nonnavigable stream subject <br />to appropriative rights conceded to be valid and to have been so recog- <br />nized for nearly a hundred years? If the needs of comprehensive river <br />planning demand such a result, it is respectfully submitted that the <br />court might stay its hand until something like a Congressional mandate <br />has made its appearance, <br /> <br />THE CALIFORNIA-OREGON DECISION; A CONTROVERSY ENDED <br /> <br />Heretofore it has been intimated that the California doctrine looked <br /> <br />to Federal sources for water rights; the Colorado doctrine, on the <br /> <br />I contrary, asserted an underlying system of appropriation as a con- <br /> <br />comitant of state sovereignty, as a necessary corollary to the admission <br /> <br />of new states to the Union "on an equal footing," It has been seen that, <br /> <br />in the disposal of the public domain, Congress, prodded, no doubt, by <br /> <br />eloquent solons from the new country, first recognized and later en- <br /> <br />couraged the appropriative system; and, while it did so with respect <br /> <br />60 I d, at 185. <br />69a Somewhat ironically, the court in the First I01.Ua decision was at some pains. <br />to emphasize that section 27 (the general saving clause) was inserted in the act to <br />make sure that there could be no interference with state laws pertaining to the <br />"control, appropriation, use or distribution of water in irrigation or for municipal <br />or othe.r uses of the same nature. It therefore has primary, if not exclusive, refer- <br />ence to such proprietary right." First Iowa Hydro-Elec, Cooperative v, Federal <br />Power Comm'n, 328 D,S. 152, 175-76 (1946). <br />
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