United States Chapman v. Federal Power Commission/Dissent Douglas
Mr. Justice DOUGLAS, with whom the CHIEF JUSTICE and Mr. Justice BLACK concur, dissenting.
Roanoke Rapids is a power site belonging to the Federal Government and now surrendered to private power interests under circumstances that demand a dissent.
Roanoke Rapids is a part of the public domain.
(1) The Roanoke is a navigable stream over which Congress has complete control for purposes of navigation, flood control, watershed development, and the generation of electric power. United States v. Appalachian Power Co., 311 U.S. 377, 426, 61 S.Ct. 291, 308, 85 L.Ed. 243; State of Oklahoma v. Guy F. Atkinson Co., 313 U.S. 508, 525, 61 S.Ct. 1050, 1059, 85 L.Ed. 1487.
(2) The water power inherent in the flow of a navigable stream belongs to the Federal Government. United States v. Appalachian Power Co., supra, 311 U.S. at page 424, 61 S.Ct. at page 307, 85 L.Ed. 243.
(3) The dam sites on this navigable stream are public property. The technical title to the bed of the stream may be in private hands. But those private interests have no compensable interest as against the control of the Federal Government. United States v. Chicago, M., St. P. & P.R. Co., 312 U.S. 592, 596-597, 313 U.S. 543, 61 S.Ct. 772, 85 L.Ed. 1064; United States v. Commodore Park, 324 U.S. 386, 390, 65 S.Ct. 803, 89 L.Ed. 1017.
This is familiar law that emphasizes the public nature of the project which the Court now allows to be used for the aggrandizement of private power interests. This project is as much in the public domain as any of our national forests or national parks. It deals with assets belonging to all the people.
These facts must be kept in mind in reading § 10 of the Flood Control Act of 1944, 58 Stat. 887, 891.  From that starting point I think it only fair to conclude (1) that if Congress undertook to remove this project from the public domain, it would make its purpose plain; and (2) that when Congress approved the project it meant to reserve it for the public good, not to make it available to private interests to exploit for their own profit.
Section 10 'adopted and authorized' the development of the Roanoke River Basin 'in the interest of the national security and with a view toward providing an adequate reservoir of useful and worthy public works for the post-war construction program.' The words 'public works' certainly connote public not private construction.
Section 10 further provided that the projects which are 'adopted and authorized' are 'to be prosecuted under the direction of the Secretary of War and supervision of the Chief of Engineers'. That language also suggests public projects, not private undertakings.
Section 10 also provided that these projects 'shall be initiated as expeditiously and prosecuted as vigorously as may be consistent with budgetary requirements'. Plainly Congress was concerned with the 'budgetary requirements' of the Federal Government, not with the budgetary requirements of private power companies. Section 10, after approving the general plan for the comprehensive development of the Roanoke River Basin, authorizes the construction of the Buggs Island Reservoir on the Roanoke River and the Philpott Reservoir on the Smith River.
This Act, passed before the end of World War II, was designed to serve a post-war need. It was drawn so as to provide a backlog of public works projects which would take up the slack of unemployment expected at the war's end. Congressman Whittington, in charge of the bill in the House, made the following significant statement concerning this objective, 90 Cong.Rec. 4122:
'We recall the depression following World War No. 1. We are apprehensive of another debacle following the present war. It is difficult to arm. It is more difficult to disarm. Post-war unemployment will be a major national problem. While we are defending our freedom and our way of life, we must not fail to take stock of the problem of unemployment which we must face when the war is over.
'We must profit by the experience of 1920. We must profit by the experience of 1930. A reservoir of projects must be adopted. Backlogs should be provided and they should be real backlogs. Many wasteful and extravagant activities to provide employment were adopted in 1933. Haste and speed were imperative. There was hunger in the land. Unemployment was widespread. There must be no repetition of waste and extravagance. There are Federal activities and there are public works that will promote the general welfare.'
This statement highlights the meaning of 'public works' as used in § 10; it discloses an important reason for lodging the program with public officials; it emphasizes the occasion for referring to the budgetary requirements of the Federal Government and the importance of linking flood control with post-war unemployment problems.
The argument that when Congress by § 10 of the Act 'adopted and authorized' the 'following works of improvement', it 'adopted and authorized' only the Buggs Island and Philpott reservoirs involves an invented distinction between 'works of improvement' and 'general plans for development'-a distinction without any rational basis. The 'works of improvement' which are 'adopted and authorized' by § 10 are 38 in number. Some of these are described in the sub-headings as 'projects' that are 'authorized,' some as 'plans of improvement' that are 'approved' and 'authorized,' some as 'general plans' for the comprehensive development of river basins that are 'approved' together with the 'construction' of specific projects that are 'authorized.' This makes plain that 'works of improvement' which are 'adopted and authorized' by § 10 include a variety of undertakings, not merely works of construction which are first steps in general comprehensive plans being adopted and authorized.
From this it seems almost too plain for argument that Congress, in approving the plan for the development of the Roanoke River Basin, was setting it aside for federal development, the several public works projects under the plan to be authorized as, if, and when conditions warranted them and budgetary requirements permitted.  In this setting 'approval' by Congress meant a dedication of the projects for public development. 
If that view is not taken, they why did Congress call these projects 'public works'? If these projects were destined for development by private power interests, why did Congress place their construction under the Secretary of War and the Chief of Engineers? If Congress left this part of the public domain for exploitation by private power groups, why did it gear them to the employment requirements of the post-war period and the budget requirements of the Federal Government? Approval of the projects by Congress under these various terms and conditions can only mean one thing-that Congress gave its sanction to their development as public projects.
To be sure, Congress in the Federal Power Act left part of the public domain to be exploited by private interests, if the Federal Power Commission so orders. But the action relative to the Roanoke River Basin was action by Congress without reference to the Federal Power Commission. Its action was not made dependent on the approval of the Federal Power Commission. The Act in no way links the Roanoke River Basin program to the Commission. To the contrary, the Congress undertook to authorize specific projects under the plan, plainly suggesting that these were public projects whose authorization was in no way dependent on Commission action.
The true character of this raid on the public domain is seen when Roanoke Rapids is viewed in relation to the other projects in the comprehensive plan. Roanoke Rapids is the farthest downstream of the 11 units in the plan. Upstream from Roanoke Rapids is Buggs Island (now under construction with federal funds) with an ultimate installed capacity of 204,000 kw. and a controlled reservoir capacity of over 2,500,000 acre-feet. Roanoke Rapids is indeed the powerhouse of the Buggs Island Reservoir. That reservoir increases the dependable capacity of Roanoke Rapids from 4 hours during the peak month of December to 288 hours in the same peak month. Buggs Island contributes 70,000,000 kw.-hr. to the Roanoke Rapids project. This is on-peak energy, firm energy made dependable by the storage in the Buggs Island Reservoir. There is evidence that this energy will have a value in excess of $700,000 a year. 
That $700,000 of value is created by the taxpayers of this country. Though it derives from the investment of federal funds, it will now be appropriated by private power groups for their own benefit. The master plan now becomes clear: the Federal Government will put up the auxiliary units-the unprofitable ones; and the private power interests will take the plums-the choice ones.
There is not a word in the Act which allows such an unconscionable appropriation of the public domain by private interests. To infer that Congress sanctioned such a scheme is to assume it was utterly reckless with the public domain. I would assume that Congress was a faithful trustee, that what is approved as 'public works' projects it dedicated to the good of all the people.
^1 Section 10 of the Flood Control Act of 1944 reads in pertinent part as follows: 'That the following works of improvement for the benefit of navigation and the control of destructive flood waters and other purposes are hereby adopted and authorized in the interest of the national security and with a view toward providing an adequate reservoir of useful and worthy public works for the post-war construction program, to be prosecuted under the direction of the Secretary of War and supervision of the Chief of Engineers in accordance with the plans in the respective reports hereinafter designated and subject to the conditions set forth therein: Provided, That the necessary plans, specifications, and preliminary work may be prosecuted on any project authorized in this Act to be constructed by the War Department during the war, with funds from appropriations heretofore or hereafter made for flood control, so as to be ready for rapid inauguration of a post-war program of construction: Provided further, That when the existing critical situation with respect to materials, equipment, and manpower no longer exists, and in any event not later than immediately following the cessation of hostilities in the present war, the projects herein shall be initiated as expeditiously and prosecuted as vigorously as may be consistent with budgetary requirements: And provided further, That penstocks and other similar facilities adapted to possible future use in the development of hydroelectric power shall be installed in any dam authorized in this Act for construction by the War Department when approved by the Secretary of War on the recommendation of the Chief of Engineers and the Federal Power Commission.
'Roanoke River Basin
'The general plan for the comprehensive development of the Roanoke River Basin for flood control and other purposes recommended by the Chief of Engineers in House Document Numbered 650, Seventy-eighth Congress, second session, is approved and the construction of the Buggs Island Reservoir on the Roanoke River in Virginia and North Carolina, and the Philpott Reservoir on the Smith River in Virginia, are hereby authorized substantially in accordance with the recommendations of the Chief of Engineers in that report at an estimated cost of $36,140,000.'
^2 Congressman Curtis, one of the House conferees, explained the same language in § 9 of the Act whereby Congress 'approved' comprehensive plans for the development of the Missouri River Basin (90 Cong.Rec. 9284):
'It means that Congress has approved the general plans of the engineers, and it means that these plans are authorized by law and are, therefore, eligible for future appropriations. Without such an authorization, no appropriation can be had.'
^3 The interpretation placed on the Act by the Army Corps of Engineers are entitled to no weight. The Corps of Engineers is not an administrative agency charged with the responsibility of deciding issues of policy. Its powers are limited to the making of investigations and the preparation and submission of recommendations and reports based on engineering considerations. See, for example, § 1(a) of the Act of December 22, 1944, 58 Stat. 887, adopting and authorizing the Roanoke River Basin plan, 33 U.S.C. § 701-1(a), 33 U.S.C.A. § 701-1(a). Congress alone makes policy decisions affecting the public domain.
^4 Even the evidence submitted by the private power company applicant belies the Commission's figure of $250,000 (see 87 P.U.R.N.S., 469, 477-478) and places the value in excess of $700,000. The Commission's figure of $250,000 is indubitably a plain error.