(dissenting).
I am not able to agree that the Federal Power Commission lacks jurisdiction to license the construction of the proposed hydroelectric plant, nor do I think that in doing so it has trenched upon the sovereignty of the State of Oregon. Commission authority is conferred in § 4(e) of the Federal Power Act to license such projects, not only upon navigable streams, but “upon any part of the public lands and reservations of the United States”. And to like effect see § 23(b) of the Act, negativing the right of any person, State, or municipality to undertake such project without Federal license.
The projected power plant would occupy lands of the United States set aside on the west side of the Deschutes River by treaty in 1855 as the Warm Springs Indian Reservation, and lands of the United States abutting the eastern or op*355posite side of the stream. The latter, originally public lands, have from time to time, commencing with the year 1909, been withdrawn from entry or other disposal under the public land laws and reserved for power purposes.1 Thus the stretch of the Deschutes affected, including its bed and banks, is entirely on reserved lands which have been severed from the public domain and appropriated to a public use.
As my associates appear to recognize, the power of Congress over the use or disposition of the lands of the United States is virtually unlimited and may be exercised in such manner as is consistent with its views of public policy. United States v. California, 332 U.S. 19, 27, 67 S.Ct. 1658, 91 L.Ed. 1889; United States v. City and County of San Francisco, 310 U.S. 16, 29, 60 S.Ct. 749, 84 L.Ed. 1050. Hence to substantiate its claim of control over the use of the waters of the Deschutes River on the lands of the United States involved here, the State of Oregon is under the necessity of showing that Congress by express grant has given it such control. The State undertakes to discharge its burden in this respect by appealing to the Acts of Congress of 1866, 1870 and 1877 2; and it is upon the basis of those Acts that the majority of the court has ordered the Commission’s license to be set aside.
In my opinion the reliance is wholly misplaced. As is apparent from their wording, these statutes have reference only to streams and other bodies of water on the public lands, that is, lands subject to entry or other mode of acquisition under the public land laws.3 They have no application to waters on reserved lands. That such is the case has been several times affirmed by this court; and the proposition does not appear to have been authoritatively disputed anywhere until now. Witness the following from United States v. Mclntire, 9 Cir., 101 F. 2d 650, 654: “Appellees seem to contend that Michel Pablo acquired by prior appropriation the rights in question by local statute or custom, and that the Act of July 26, 1866, 43 U.S.C.A. § 661, requires recognition of those rights. That statute, however, applies only to ‘public’ lands. [Citing cases.] Lands which are reserved are severed from the public domain. [Citing cases.] The statute mentioned, therefore, does not, we think, apply here.” Consult, also, Winters v. United States, 9 Cir., 143 F. 740, a case dealing, as here, with waters of a stream bordering on an Indian reservation. At page 747 of 143 F. of the report we said: “The law is well settled that the doctrine of appropriation under said statutes [referring to the Desert Land Act of 1877], * * * applies only to public lands and waters of the United States. [Giving citations.] And it is equally well settled that, when the lands of the government have been legally appropri*356ated or reserved for any purpose, they become severed from the public lands, * * »»4
Moreover, the petitioners have not shown that the United States has consented to State control of the fishing resources in the waters of the Deschutes on lands of the United States reserved for power purposes or reserved for the Warm Springs Indians. The 1855 treaty with the latter contains a proviso to the following effect: “Provided, also, That the exclusive right of taking fish in the streams running through and bordering on said reservation is hereby secured to said Indians; * * 12 Stat. 964. It is thus indisputable that the Indian Tribe, not the State of Oregon, possesses authority, as granted by the treaty, to control fishing resources of the Deschutes bordering on its reservation no less than those in streams entirely within the boundaries of the reservation. As contemplated by § 10 (e) of the Federal Power Act, the Warm Springs Indians have given their approval to the Pelton project, hence have consented to the use of their lands for power purposes and to the consequent interference with their exclusive fishing rights.4 5
Although the subject is hardly more than hinted at in the main opinion, the majority would seem to place some re-fiance on the fact that the site of the “re-regulating” dam to be constructed some three miles below the hydroelectric plant is not shown to embrace federally owned or controlled lands. Accordingly it is desirable that this phase of the matter be given brief attention. As the Commission points out, the original Pel-ton project was to consist of the high dam with the power plant immediately below it. It is this dam and power plant which will necessarily obstruct the seasonal passage of anadromous fish to their spawning grounds upstream, hence the objection interposed by the State and its agencies is to the high dam, not to the re-regulating dam. The latter will provide no power for generation. It was added to the project at the insistence of the State Hydroelectric Commission that the Power Company submit plans for either eliminating or regulating the operational fluctuations of water below the power dam, it being thought by the State Commission that such fluctuations would pose a danger to fishermen or vacationers down stream and would be injurious to fish fife. Inasmuch as the Federal Power Commission’s order respecting the installation of a re-regulating dam apparently conforms in every way to the State’s requirements, there would appear to be no case or controversy here with respect to this portion of its order. Moreover, *357it would be wholly out of keeping with the State’s desires if we were to declare this portion of the order invalid while upholding the balance. Hence the controversy concerns only the matters already discussed, namely the right of the United States to license the construction of the high dam and the power plant.
It should be borne in mind that the licensing or construction of this hydroelectric project will in no way impinge upon vested rights or interfere with the appropriation, diversion, distribution or use of water of the stream for irrigation or other purposes.6 The sole grievance as respects the installation is that it will halt the ascent of anadromous fish (here, salmon and steelhead trout) to their spawning grounds on the upper reaches of the Deschutes. It is agreed on all sides that the height of the power dam is such that resort to fishways would be utterly fruitless. Hence the agencies of the State make no complaint on the score of lack of fishways; they seek, rather, to veto the project outright because of its inevitable blocking of the upstream passage of the fish. As my associates are obliged to concede, the Commission has gone to great lengths toward meeting State objections by requiring resort to substitute methods which it believes will be effective. The Power Company is placed under obligation to make extensive contributions, running into many hundreds of thousands of dollars annually, to install facilities for trapping the fish and taking their eggs, and for enlarging the capacity of existing hatcheries, including the Metolius hatchery. As stated in its opinion, the Commission found “no substantial evidence to show that the facilities proposed for eonserv-ing the fish will not maintain existing runs. Moreover, there are indications that the runs can be increased.”7
But these considerations apart, the First Iowa case 328 U.S. 152, 66 S.Ct. 906, makes it crystal clear that state laws or objections cannot stand as a legal bar to federal authorization of a power project which is within federal competence and which, in the judgment of the Commission, will be in the public interest and will meet the standards specified in the Federal Power Act for comprehensive power development.
. The majority do not discuss these withdrawals, so whether or not they regard them as for any reason ineffective is not ascertainable from their opinion. It is, I think, unquestionable that the power delegated by Congress to the states to control waters of streams on public lands may be recaptured by the Federal government by changing the status of the land to reserved lands. Such withdrawals would be completely effective except to the extent that they impinge upon or interfere with intervening vested rights acquired by persons pursuant to state laws. No such impingement or interference exists or is claimed to exist here.
The intent of Congress to effect withdrawals for power purposes is evidenced by § 24 of the Federal Power Act, reading in pertinent part as follows: “Any lands of the United States included in any proposed project under the provisions of this Part shall from the date of filing of application therefor be reserved from entry, location, or other disposal under the laws of the United States until otherwise directed by the Commission or by Congress.”
. The Acts of 1866 and 1870 are codified together in 43 U.S.C.A. § 661; the Desert Land Act of 1877 is found in 43 U.S. C.A. § 321.
. Kinney’s authoritative work on Irrigation, § 124, states: “The term ‘public lands’ only embodies such lands as are subject to the sale or other disposition by the United States under general laws. It is a well-settled principle that land once reserved by the government or appropriated for any special purpose ceases to bo a part of the public lands, * *
. See also discussion of the limited effect of these statutes in United States v. Walker River Irr. Dist., 9 Cir., 104 F.2d 334, at pages 336 and 337. Among the many authorities there cited and analyzed was United States v. Rio Grande Dam & Irrigation Co., 174 U.S. 690, 19 S.Ct. 770, 43 L.Ed. 1136. In its opinion in that case the Supreme Court, among other things, considered the several congressional acts in question saying, 174 U.S. at page 703, 19 S.Ct. at page 775: “Although this power of changing the common-law rule as to streams within its dominion undoubtedly belongs to each state, yet two limitations must be recognized: First, that, in the absence of specific authority from congress a state cannot, by its legislation, destroy the right of the United States, as the owner of lands bordering on a stream, to the continued flow of its waters; so far, at least, as may be necessary for the beneficial uses of the government property; second, that it is limited by the superior power of the general government to secure the uninterrupted navigability of all navigable streams within the limits of the United States.”
. The majority opinion in footnote 4 quotes a provision of the Act of Congress of August 14, 1848, establishing the territorial government of Oregon, prohibiting dams in streams unless so constructed as to allow salmon to pass freely. What present significance, if any, my associates assign to this provision is not determinable from their opinion. That it can have none is evident, since, to the extent that such Act or any other Federal statutes enacted prior to the Federal Power Act are inconsistent with provisions of the latter, those prior acts are repealed by § 29 of the Power Act providing “That all Acts or parts of Acts inconsistent with this Act are hereby repealed * *
. Consult § 27 of the Federal Power Act. The purposes of this section are analyzed by the Supreme Court in the First Iowa case cited in the main opinion, 328 U.S. 152, at pages 175 et seq., 6(5 S.Ct. at pages 916, 917.
. The Power Commission found that in recent years the Deschutes has been only a sparse producer of anadromous fish. As a probable reason for the decline in the annual runs as compared with those of earlier generations, it commented on the effect of the increased irrigation diversions from the upper Deschutes and its two principal tributaries, the Crooked and Metolius Rivers, which enter the main stream above the site of the Pelton project. These diversions appear to have almost completely depleted the waters of these streams in the spawning season and to have depleted also the natural food present in them.