(concurring in Judge Weaver’s dissent) — I concur in the dissenting opinion by Judge Weaver and agree with his reasons for favoring reversal of the trial court’s judgment.
In my opinion, there is an additional reason for reversal.
The decretal portion of the judgment (which is quoted in the dissent) authorized WPPSS to construct either of the two proposed hydroelectric projects on the Snake River outside the boundaries of the state of Washington
“ . . . for which it may be granted the required governmental permits, licenses or authority, and its competency to proceed according to law to procure such permits, licenses or authority is hereby established.”
*951Since the Snake River is a navigable stream, this authority relates to the necessary application by WPPSS to the Federal Power Commission for a license to construct one of the two proposed hydroelectric projects pursuant to the provisions of the Federal Power Act.
Section 9(b) of that act requires, as a condition precedent to the issuance of a license, that the commission make a finding that the applicant has complied with the requirements of the laws of the state with respect to the right to engage in the business of developing, transmitting, and distributing electric power and any other business necessary to effectuate the purpose of the license.
The importance of such a finding by the commission is discussed at some length in the dissenting opinion in Beezer v. Seattle, 60 Wn. (2d) 239, 373 P. (2d) 796 (1962). See, particularly, pages 249-253.
See, also, the concurring opinion in Tacoma v. Taxpayers of Tacoma, 60 Wn. (2d) 66, 371 P. (2d) 938 (1962) (beginning at page 73).
Under the opinion of the majority in the present case, it seems to me that the Federal Power Commission (in the event it is inclined to issue to WPPSS a license for either project) will feel compelled to make a finding that WPPSS has established its competency under state law to engage in the business of developing, transmitting, and distributing electric power at either the Nez Perce project or the High Mountain Sheep project.
I think that the majority is in error in its interpretation of the applicable state statutes. In my opinion, since both of these projects are located outside the state of Washington, and since, for the reasons stated by the United States District Court for the District of Oregon in Washington Public Power Supply System v. Pacific Northwest Power Co., 217 F. Supp. 481 (1963), WPPSS has not been given authority by the legislature to construct such project outside the boundaries of the state, this court should reverse the judgment of the trial court.
*952For the reasons stated in Judge Weaver’s opinion (including those stated by the United States District Court for Oregon in the above-cited case), I think that the majority opinion in the present case will cause the Federal Power Commission to make an erroneous finding under § 9 (b) as to WPPSS’ competency to carry out the purposes of a license for a project located outside the state. This error will have serious consequences. Tacoma v. Taxpayers of Tacoma, 357 U. S. 320, 2 L. Ed. (2d) 1345, 78 S. Ct. 1209 (1958), and First Iowa Hydro-Electric Co-op. v. Federal Power Comm., 328 U. S. 152, 90 L. Ed. 1143, 66 S. Ct. 906 (1946). See partial dissent of Mr. Justice Frankfurter in the latter case.
If, on the other hand, the judgment of the trial court is reversed, presumably no such erroneous finding will be made by the Federal Power Commission, and no license will be issued for either project.
I, therefore, join in dissenting to the majority opinion in this case.
December 19, 1963. Petition for rehearing denied.