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AGO 1964 No. 88 - March 04, 1964
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John J. O'Connell | 1957-1968 | Attorney General of Washington


CONSTITUTIONAL LAW ‑- INTERSTATE COMPACTS ‑- COLUMBIA RIVER BASIN ‑- CONSENT BY CONGRESS NO LIMITATION ON FUTURE LEGISLATION.

Ratification by all states within the Columbia River Basin of an interstate compact, consented to by the Congress of the United States, will not restrict or impair the powers of Congress relating to the regulation and control of the use of waters of the Columbia River Basin.

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                                                                   March 4, 1964

Honorable Earl Coe
Director, Department of Conservation
335 General Administration Building
Olympia, Washington

                                                                                                                Cite as:  AGO 63-64 No. 88

Dear Sir:

            By letter previously acknowledged you requested the advice of this office on a question which we have paraphrased as follows:

            Would ratification by all states within the Columbia River Basin of an interstate compact consented to by the Congress of the United States, which provides in part that "no waters of the Columbia River system shall be diverted out of the Columbia River Basin for use for any purpose except with the approval of all the member states," prohibit Congress from thereafter authorizing the withdrawal of waters from the Columbia River system for use outside the Columbia River Basin, assuming that in the absence of said compact Congress would have the power to make such authorizations.

            We answer your question in the negative.

                                                                     ANALYSIS

            Article I, § 10, of the United States Constitution provides in part:

            "No state shall, without the consent of congress, . . . enter into any agreement or compact with another state, . . ."

            From this section it is clearly implied that states may enter into compacts or agreements with one another if Congress consents.

            In 1951, the Washington state legislature created the Interstate  [[Orig. Op. Page 2]] Compact Commission.1/   This commission was designated to represent the state of Washington on a joint commission to be composed of commissioners from the seven states which have within their boundaries portions of the Columbia River drainage.2/   The joint commission was organized for the purpose of considering, negotiating, and entering into an interstate compact respecting the division, apportionment and use of the waters of the Columbia River and its tributaries between the states.3/

             One provision of the proposed compact ratified by or recently considered by the legislatures of the seven states provides:4/

            "No waters of the Columbia River system shall be diverted out of the Columbia River Basin for use for any purpose except with approval of all of the member states . . ."

            There can be no question that the use and apportionment of interstate waters are proper subjects of compacts between states.  Indeed, the United States Supreme Court has encouraged the use of the interstate compact to resolve regional water problems.  West Virginia v. Sims, 341 U.S. 22, 71 S.Ct. 557, 95 L.Ed. 713 (1951);Hinderlider v. La Plata River and Cherry Creek Ditch Co., 304 U.S. 92, 58 S.Ct. 803, 82 L.Ed. 1202 (1938); New York v. New Jersey, 256 U.S. 296, 313, 41 S.Ct. 492, 65 L.Ed. 937 (1921).  See, also,Minnesota v. Wisconsin, 252 U.S. 273, 283, 40 S.Ct. 313, 64 L.Ed. 558 (1920); Washington v. Oregon, 214 U.S. 205, 218, 29 S.Ct. 205, 53 L.Ed. 969 (1909); and Delaware River Basin Compact, 75 Stat. 688 (1961).  A compact if agreed to by the states and consented to by Congress, containing a provision as set forth in the preceding paragraph, would constitute, as between the states involved, a valid and enforceable contract binding not only upon the legislatures thereof  [[Orig. Op. Page 3]] (West Virginia v. Sims, supra), but upon its administrative officials(Kansas City v. Fairfax Drainage District, 34 F.2d 357 (10th Cir. 1929), cert. den. 281 U.S. 722 (1930)), its courts (Couch v. State, 140 Tenn. 156, 203 S.W. 831, 833 (1918)), and the citizens of the states involved as well.  Hinderlider v. La Plata River and Cherry Creek Ditch Co., supra.  Further a signatory state cannot thereafter alter, amend or repudiate the compact except in accordance with the provisions thereof.  Green v. Biddle, 21 Wheat. 1 (1823); West Virginia v. Sims, supra.

            Your inquiry relates to the effect of a compact agreed to between the states involved and consented to by Congress which contains a restriction with regard to "out-of-basin" withdrawals, as previously quoted, upon the power of Congress to regulate the use of the waters of the Columbia River system in a manner which might conflict with the terms of the compact.  Stated otherwise, can the power of Congress be reduced or curtailed by an interstate compact consented to by Congress?5/

             The answer to your inquiry is found in the early case of Pennsylvania v. Wheeling and Belmont Bridge Company, 18 How. 421 (1855), which concerned a compact between the states of Virginia and Kentucky, and consented to by Congress, guaranteeing the free navigability of the Ohio River.

            In 1847, the legislature of the State of Virginia authorized the erection of a bridge across the Ohio River at Wheeling.  Shortly after the bridge was constructed, Pennsylvania brought an original action in the United States Supreme Court to abate the bridge as a public nuisance.  The court agreed with Pennsylvania and ordered abatement thereof unless substantial alterations to the structure were made.  (See, Wheeling v. Belmont Bridge Co., 13 How. 518 (1852).)

            Less than a year later and before any alteration of the bridge took  [[Orig. Op. Page 4]] place, Congress enacted a statute which read in part:6/

            "That the bridges across the Ohio River, at Wheeling, in the State of Virginia and at Bridgeport, in the State of Ohio . . . are hereby declared to be lawful structures in their present positions and elevations . . ."

            The bridge continued in operation without alteration until it blew down in 1854; whereupon the bridge company, relying on the Congressional enactment of 1852, undertook to rebuild the structure at its original position and elevation.  In this condition the bridge would in fact be an impediment to navigation on the Ohio River.

            Pennsylvania again sued the bridge company, this time to stop construction.

            Complainant contended in the second proceeding that the act of Congress of 1852 was void because it was inconsistent with the compact between Kentucky and Virginia assented to by Congress prior to enactment of the 1852 statute.

            In rejecting the contention of the state of Pennsylvania, the court wrote:7/

            ". . . The question here is, whether or not the compact can operate as a restriction upon the power of congress under the constitution to regulate commerce among the several states?  Clearly not.  Otherwise congress and two states would possess the power to modify and alter the constitution itself.

            "This is so plain that it is unnecessary to pursue the argument further . . ."

            It is clear therefore that Congress may regulate within its constitutional area of jurisdiction despite conflicts that may occur with  [[Orig. Op. Page 5]] provisions of compacts between states previously consented to by Congress relating to regulation in the same area.

            As stated in King, Interstate Water Compacts, Water Resources and the Law, 363 (1958), even though Congress consents to an interstate compact, "[T]he constitutional reservoir of congressional power remains unchanged."  See, also,Zimmermann and Wendell, Law and Use of Interstate Compacts, 26 (1961).8/

             It is our opinion and you are therefore advised that an interstate compact consented to by Congress which would provide that "no waters of the Columbia River system shall be diverted out of the Columbia River Basin for use for any purpose except with approval of all the member states . . ." would not restrict or impair the powers of Congress relating to the regulation and control of the use of waters of the Columbia River Basin, including any power the federal government may have relating to the authorization of "out-of-basin" withdrawals.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

CHARLES B. ROE, JR.
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/See, chapter 43.57 RCW.

2/These seven states are Idaho, Montana, Nevada, Oregon, Utah, Washington, and Wyoming.

3/See, RCW 43.57.010.

4/Article VII B, Senate Bill No. 10, First Extraordinary Session, 38th Legislature, State of Washington.

5/Although the United States Supreme Court has indicated that consent of Congress is not required for all interstate compacts, Virginia v. Tennessee, 148 U.S. 503, 518, 13 S.Ct. 728, 37 L.Ed. 537 (1893); Dunbar, Interstate Compacts and Congressional Consent, 36 Va. L. Rev. 753 (1950), it is clear that federal consent would be required in a proposal such as the proposed Columbia River Interstate Compact.  See, King,Interstate Water Compacts, Water Resources and the Law 359 (1958).

6/Act of Congress, August 31, 1852.

7/See, Pennsylvania v. Wheeling and Belmont Bridge Co., 18 How. 433 (1855).

8/Our conclusion is in accord with the established rule that Congress may abrogate a treaty with a foreign nation at will by enacting legislation inconsistent with the terms of an existing treaty.  Chae Chan Ping v. United States, 130 U.S. 581, 9 S.Ct. 623, 32 L.Ed. 1068 (1889).  See, also, Annotations in 4 A.L.R. 1377, 1385, 134 A.L.R. 882, 885; and Federal Indian Law 24 (1958).  The latter authority indicates that the rule which applies to treaties with foreign nations also applies to treaties with Indian tribes.

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