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<br />001161
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<br />224
<br />
<br />OREGON LAW REVIEW
<br />
<br />[Vol. 36
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<br />central Oregon and flows northerly through that state to its confluence
<br />with the Columbia about fifteen miles upstream from the city known
<br />as The Dalles, The Pelton dam site is located just below the mouths of
<br />the Metolius and Crooked rivers, two major tributaries of the De-
<br />schutes, It is apparently generally recognized that the river, because of
<br />an average fall of 17.6 feet per mile in its lower 130 miles, is incapable
<br />of sustaining na,'igation. The damsite is within this area, There is also
<br />no real possibility of irrigation in this stretch since the river courses
<br />through a narrow canyon,
<br />Though the commission has not expressly conceded that the river is
<br />nonnavigable, its claim of jurisdiction is based, as seen, on other con-
<br />side'rations, Thus, as a practical matter, both the Court of Appeals and
<br />the Supreme Court have treated the Deschutes as a nonnavigable river.,a
<br />The commission, acting on the recommendations of the examiner,
<br />granted the license." The Court of Appeals for the Ninth Circuit re-
<br />versed, holding that the commission could not issue the license over the
<br />objection of the state of Oregon.'5 The Supreme Court, in Federal
<br />Power Commission v. Oregon, reversed the Court of Appeals, holding
<br />that the license should issue.'6 The basis of the Supreme Court's de-
<br />cision was the plenary authority over lands of the United States which
<br />Congress may exercise under the ConstitutionP Thus, following the
<br />reasoning in First Iozva Hydro-Electric Cooperative v. Federal Power
<br />C ommission'8 (of which more later), the court ruled that noncompli-
<br />ance with state law is no bar to commission action. There the decision
<br />had been based on the applicability of the commerce clause to navigable
<br />streams. In the P e!ton case, similar reasoning applied to the property
<br />clause. The invalidity of this reasoning will be explored in this article.
<br />Judge Stephens, writing for the majority in the Court of Appeals,
<br />held that, subject to certain limitations, the "sovereignty of the State
<br />of Oregon extends over the control of the waters located within the
<br />state as definitely as over the lands within its borders. "10 Conceding that
<br />the Federal government at one time had general control over the waters
<br />and the land, he reviewed the course of Federal legislation and con-
<br />cluded that nonnavigable waters became, at least after the Desert Land
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<br />1;1 "Navigable waters" are defined in tbe Federal Power Act. 41 STAT. 1063
<br />(1920),16 USe. see. 796(8) (1952).
<br />14 In the Matter of Portland Gen, Elec. Co" 10 F,P,e. 445,92 P,U.R. (n.s,) 247
<br />(1951),
<br />15 Oregon v. Federal Power Comm'n, 211 F.2d 347 (9th Cir. 1954),
<br />16349 U.S. 435 (1955), cited note 7 supra,
<br />11 "The Congress shall have Power to dispose of and make all needful Rules
<br />and Regulations respecting the Territory or other Property belonging to the
<br />United States," U.S. CONST, art. IV, sec. 3, cl. 2,
<br />18323 U.S, 152 (1946).
<br />'" 211 F.2d at 353.
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