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OUllG2 ~ ~ , I I " 'I [I ij 1 'I " , ,I . I I \ I I 1957J 225 THE PELTON DECISION Act of 1877, publici juris, and as such subject to the "plenary control" of the designated states,20 In his view the state unquestionably had the requisite power and authority to regulate anadromous fish in such waters. And, while the commission had "the right to grant its pennis- sive license to the construction of the proposed dam," he said, it had exceeded its jurisdiction in attempting to empower the licensee "to use the waters of the Deschutes River either at the site of the power dam or elsewhere, contrary to Oregon state law,"21 Me Justice Douglas, dissenting in the United States Supreme Court, pointed out that the Federal licensee acquires whatever rights it has from the United States, and "the United States cannot give what it does not have."22 He demonstrated that the Federal government itself must comply with state law in the acquisition of water rights on non- navigable streams in the western states, and, since "the United States could not appropriate the water rights in defiance of Oregon law, ' . , it should have no greater authority when it makes a grant to a private power group,"23 Basically, the decision stands for these propositions: (1) the Fed- eral government has plenary power over its own property; (2) the long line of Congressional legislation and court decisions under which the western states have erected their own systems of water rights ap- plicable to public lands has no bearing on "reservations" as contrasted to "public lands"; and, accordingly, (3) as to "reserved lands," the United States has given to the Federal Power Commission full author- ity, without reference to state power, to license the building of dams and reservoirs on nonnavigable streams. Brushed aside as of small con- sequence are the provisions of the Federal Power Act itself which, to the uninitiated, seem to require prior compliance with state laws, Thus, the Supreme Court, making an analogy with the First Iowa case, supra, states that, as, in that case, the commerce power obviated compliance with state law, so here the power over the government's own property accomplishes the same result. While the First Iowa decision is open to considerable doubt as an application of Congressional intent under the Federal Power Act, there is at least the tangible power to deal with commerce between the states. But, in the Pelton situation, the court, rejecting its own repeated decisions, endows the United States with 20 Ibid., quoting from California Oregon Power Co. v, Beaver Portland Cement Co" discussed on pp, 241-43 infra, 21211 F.2d at 354. (Emphasis as in original.) 22349 V,S, at 453, The split of the court was seven to one, with recently ap- pointed Justice Harlan not taking part. Thus the Federal judges who gave active consideration to the case, were divided eight to three in sustaining the license; western judges divided three (Mr. Justice Douglas and Judges Stephens and Orr) to two (ML Chief Justice Warren and Judge Healy) in favor of Oregon. 23349 V,S. at 457.