41 The electric plant will have a capacity of 2,190,000 kilowatts, the largest hydroelectric plant in the United States, and will produce annually some 13,000,000,000 kilowatt hours of energy. To accomplish this result a large storage reservoir is essential for the efficient use of the available water supply.
42 The legislative history of the Niagara River Hydroelectric Power Project, 85th Congress, First Session, 1957, Vol. 2, U.S. Congressional and Administrative News, page 1585 et seq., shows that in the hearing before both Houses of Congress, the redevelopment plan contemplated 'a pump-storage plant at the top of Niagara escarpment 0.8 mile east of Lewiston, where water would be pumped during the night hours to a reservoir with surface area of 850 acres * * *.' While this acreage is less than that now sought to be taken, it may be assumed that Congress had general knowledge of the terrain and the pertinent area and that appellant's Reservation was in the vicinity and likely to be taken in part for the purposes of the project.
43 The direction to the Federal Power Commission was specific, namely, 'to issue a license to the Power Authority of the State of New York for the construction and operation of a power project with capacity to utilize all of the United States share of the water of the Niagara Power permitted to be used by International agreement.' The licensee by virtue of section 814 becomes vested with the governmental power of eminent domain. The exercise of the right is thus the act of an agency of the sovereign. But just as the grant is given by Congress it should be exercised in the manner prescribed by Congress which is either in the district court where the property is located or in the state courts. The appellees, although they started their condemnation proceedings in the State court, chose to abandon that method and proceeded under New York Public Authorities Law (specifically passed in 1958) and the New York Condemnation Law, McKinney's Consol. Laws, c. 73 giving the Power Authority the right to proceed by appropriation under section 30 of the New York Highway Law. If Congress had intended this procedure to be followed, section 814 instead of providing 'in the State courts' would have to read 'or in such manner as may be prescribed by the legislature of the state in which the property is located.' The specific 1958 legislation dealing with the Niagara River project enables the Power Authority to move in, appropriate the land and remove the owner before he has had a chance to have a judicial hearing. If Congress wishes this to be the method of eviction it should at least so declare in specific terms.
44 The final question is, what relief should be granted? The construction workers are on the borders of the Reservation ready to install power lines and cover the land with fill for the reservoir dikes. Nevertheless, aggressive construction activity should not be sufficient to nullify the protective policy of the Government towards the Indians or the laws calculated to enforce that policy. The Congressional concern, exhibited as recently as 1950, to except the two elements most carefully guarded by the Government, namely, tax exemption and alienation, from transfer to the civil jurisdictional powers of the State of New York is ample evidence that 'guardianship' still exists. If the Indians are no longer to be the wards of the United States such a change should be by Congressional enactment and not by court decision.
45 The court below dismissed the complaint thus preventing any relief by way of declaration of rights. This portion of the judgment should be reversed. Since the complaint seeks a declaration of rights we hold that the Power Authority of the State of New York as a licensee of the Federal Power Commission directed to issue a license pursuant to Public Law 85-159 (Act of August 21, 1957, 71 Stat. 401) is authorized to exercise the right of eminent domain according to the procedures specified in section 814 of the Federal Power Act (16 U.S.C.A. 814).
46 Pending the final determination of this action or any proceeding seeking to acquire the property in question, appellees are stayed from entering upon or damaging lands within the Tuscarora Reservation except that appellees shall have the right to conduct, and continue with, such activities on said property as have been excluded from the stays heretofore entered as amended from time to time.
47 The proceedings taken to appropriate the property in question by the filing of maps, notices or other documents pursuant to the Highway Law and the Public Authorities Law of the State of New York are vacated and annulled.
48 The District Court, in the event that the Power Authority desires to exercise its right of eminent domain in that court, is requested to expedite all proceedings as much as possible.
49 Insofar as the judgment appealed from dismisses the complaint and denies a stay it is reversed.
50 Insofar as the decision below holds that the Power Authority has the right to exercise eminent domain it is affirmed.
51 The cross-appeal with reference to the affidavit of Henry S. Manley is affirmed. It is sufficient that the material therein contained be received within the limitations fixed by the court below.
52 The judgment should be modified in accordance with this opinion. No costs.
53 On Petition by Appellant for Rehearing; and Motion by Appellees for Clarification or Modification of the Stay Provisions of this court's Judgment of July 24, 1958.
54 PER CURIAM.
55 The petition for rehearing is denied, and it is ordered that the mandate shall be issued six days after the date hereof.
56 Upon issuance of the mandate, the stay granted in the opinion of this court 'pending final determination of this action' will cease. Consequently after issuance of the mandate the answer to each of the three questions raised in the motion for clarification is 'No.'
57 SWAN, Circuit Judge (dissenting).
58 I disagree with the majority opinion only in its holding that condemnation by appropriation pursuant to the state statutes is not permissible under 21 of the Federal Power Act and the license issued by the Commission. In my opinion the judgment should be affirmed. The reasons which have led me to this conclusion have not been persuasive to my brothers, and I refrain from stating them here in order to avoid delaying the decision of the court.
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