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Light & Power Co. v. United States, 256 U. S. 113, 121; Oklahoma v. Texas, 258 U. S. 574, 586; Brewer-Elliott Oi & Gas Co. v. United States, supra, p. 86."

With this test of navigability established, the question whether a particular stream is navigable becomes one of fact. Not only the evidentiary facts, but the ultimate fact of navigability is one which, in dealing with applications for license, the Federal Power Commission is required by this Act to determine. It has long been settled that the Attorneys General will render opinions only on questions of law, and it would not be in accordance with precedents to submit to the Attorney General a statement of the evidence and ask for his opinion as to the navigability of a particular stream.

III

The next questions submitted are whether in considering applications for licenses the Commission must confine its attention to the interests of interstate and foreign commerce, or whether it may consider, in deciding whether to grant a license, æsthetic, recreational, scenic, and other like features of the situation.

There is nothing in section 23 of the Federal Water Power Act or any other provision of the law that authorizes the Commission to deny or grant a license in a case like that under consideration because of æsthetic, recreational, scenic, or like considerations. To construe the statute to allow the Commission to take such matters into consideration. would raise very grave doubt as to its validity. Where, as in the case of Cumberland Falls, no part of the public domain and no national reservations are involved, the power of the Federal Government rests wholly on the Commerce Clause and the consequent power to control and improve navigation on streams suitable for interstate and foreign

commerce.

A similar question was considered by Attorney General Wickersham in an opinion rendered to the Secretary of War on April 6, 1909 (27 Op. 284), on a question arising on an application under section 10 of the Act of 1899 for permission to erect a dolphin off the coast of Santa Barbara, Cali

fornia, which was opposed on the ground that oil would be spilled, which would result in great injury to the bathing resort on the beach at Santa Barbara. In that opinion he said:

"With respect, therefore, to your further inquiry as to whether or not, in passing upon the placing of obstructions in the navigable waters of the United States, the Secretary of War and the Chief of Engineers may, in the application of authority which is conferred in the enactment above cited, consider questions relating to other interests than those having to do with the navigation of the waters in which the obstruction is placed, I must express the opinion that no such consideration should be entertained, and that the mere fact that the placing of a structure in navigable waters might occasion an incidental injury to a bathing beach or the impairment of bathing facilities, or other reasons of similar character not having direct relation to the navigable capacity of the waters or their use to the prosecution of interstate and foreign commerce, should not operate to prevent the approval of a plan otherwise proper and which would otherwise meet with the approval of the Chief of Engineers and the Secretary of War."

The United States has no power to prevent the erection of a dam at Cumberland Falls unless the effect of the dam would be to impair substantially the navigable capacity of the lower reaches of the river. It could not prevent the erection of the dam because it would interfere with the scenic or recreational facilities at that point, and Congress has not by the terms of this Act attempted to confer upon the Commission the power to refuse a license because of such considerations.

I am of the opinion that in entertaining this application for license under the provisions of section 23 of the Act above quoted the Commission must look only to the effect of construction upon interstate and foreign commerce.

IV

The last questions submitted are whether the Federal Power Commission has jurisdiction to grant a license purporting to protect the licensee against interference by the

authorities of the State government, and, in that connection, whether the steps taken by the State of Kentucky looking toward the acquisition by the State for park purposes of an area including Cumberland Falls operate to terminate the authority of the Commission relative to the proposed project.

It appears that on March 10, 1930, the Legislature of Kentucky passed a statute authorizing the Kentucky State Park Commission to acquire, through the exercise of the power of eminent domain, lands and waters having scenic beauty or material or recreational utility or other features for park purposes, and on the same date passed another statute accepting an offer of a donation of $230,000 for the acquisition for park purposes of some 2,200 acres, including the site of Cumberland Falls, and directing the Kentucky State Park Commission to purchase, within the limits of $230,000, the site of Cumberland Falls and adjacent lands or, failing purchase within three months from the passage of the Act, to institute proceedings to acquire the property by the exercise of the power of eminent domain. I am advised that the purchase has not been made, but have no information as to whether the condemnation proceedings have been instituted or whether the sum offered to be donated is sufficient to acquire the property and, if not, whether any provision for additional funds has been made by the State of Kentucky.

The questions presented by your inquiry, raised by the facts of this case, are whether the granting of a license by the Commission on the application of the Cumberland Hydro-Electric Power Company would operate to defeat the State's proposal to acquire the property through the exercise of the power of eminent domain, and whether, on the other hand, the action by the State of Kentucky diminishes the power of the Commission to proceed and act upon the application and grant it if the other facts justify it.

The effect of the license, as between the licensee and others than the United States, would ordinarily be a judicial question and one not for the Commission or me to determine, but the Commission has to pass on the form and conditions of the license, and in so far as the form of it is to be determined by its effect, it is appropriate to consider its possible effect.

I think it is clear that the granting of a license by the Commission to the Cumberland Hydro-Electric Power Company to construct a dam near Cumberland Falls would not operate to interfere in any way with the State's power to acquire the property by proceedings under the power of eminent domain for recreational or park purposes. No finding has been made by the Commission under section 21 of the Federal Water Power Act that the construction of the proposed dam would improve or develop navigation on the lower stretches of the Cumberland River, and so the licensee could hardly claim to be an agency chosen by the Government to erect works to improve navigation. As to what the effect of a license might be in protecting the licensee from interference by the State, in the case of a structure erected pursuant to such a finding of the Commission for the purpose of improving navigation, it is not necessary here to consider. On the facts of this case a license could not, under the terms of the Act, be made to operate in any way to prevent the acquisition by the State of Kentucky for park or other purposes, under its power of eminent domain, of the site of the proposed dam and the adjacent lands, either before or after the erection of the dam. Where, as in this case, the license may be granted for the erection of a dam on the nonnavigable portions of a stream on the ground that such structure, if built and operated in a specified way, would not substantially injure navigation on the lower reaches of the stream, and that is all that is involved, the license amounts to nothing more than evidence of the fact that so far as the United States is interested or concerned there is no objection to the proposed construction. The license should not purport to render the licensee immune from the exercise by the State of its lawful power and, so far as the conditions of the license are concerned, the State should be left free to do as it likes about the acquisition of the property for park or other purposes.

On the other hand, it is clear that the statutes which have been recently passed by the Legislature of Kentucky, above referred to, do not supersede or terminate the authority or duty of the Commission with respect to the application for a license. If the action by the State of Kentucky looking to the acquisition of this property for a park

had proceeded to a point where the early acquisition of the property by the State was a certainty, no doubt the Commission might refrain from further proceedings on the application upon the ground that further action would be futile. Under such conditions I can not imagine that the applicant would press its application. The information so far submitted does not make it certain that the State will ever acquire the property. The mere fact that such an acquisition is a possibility or probability is not sufficient to justify the Commission in refusing to perform the duties imposed by this statute.

In the absence of the actual acquisition by the State, or of facts showing that such acquisition is a certainty in the near future, it is the duty of the Commission to pass on the application and grant or deny it as the facts may require. Otherwise, the State might withhold action indefinitely in the matter of the acquisition of the property, and the Commission would be withholding action indefinitely on the application for a license, and the applicant, not being able to proceed without a license, would be deprived indefinitely of the use of its property.

Respectfully,

To the PRESIDENT.

WILLIAM D. MITCHELL.

AGRICULTURAL MARKETING ACT

The Agricultural Marketing Act (46 Stat. 11), extends to the Terri. tories of Alaska, Hawaii and Porto Rico, but does not extend to the Philippine Islands.

Associations dealing solely in intrastate as distinguished from interstate commerce are not 'cooperative associations" within the definition in the first sentence of section 15(a) of the Agricultural Marketing Act but the Federal Farm Board is authorized to loan money to them in case the conditions specified in the second sentence of that section exist.

The proposed organization of agricultural producers referred to herein, which is to be formed under the general incorporation laws of a State and whose membership will consist of cooperative associations instead of individual producers, is a cooperative association, qualified under the Capper-Volstead Act (42 Stat. 388), and therefore is a cooperative association within the meaning of the Agricultural Marketing Act, supra.

The Federal Farm Board is without authority to make loans for the sole purpose of refinancing mortgages on existing facilities.

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