This is an original suit in equity, brought by the United States, in which relief by injunction is sought against the defendants, the state of West Virginia, Union Carbide & Carbon Corporation, a New York corporation, and its wholly owned subsidiaries, Electro Metallurgical Company and New-Kanawha Power Company, West Virginia corporations. The questions now presented are raised by separate motions, one by the state of West Virginia, the other by the corporate defendants, to dismiss the bill of complaint on the grounds that it does not state any justicable controversy between the United States and the state of West Virginia, and that it appears upon the face of the bill of complaint that this Court has no original jurisdiction of the suit against the defendants or any of them.
The bill of complaint, filed January 14, 1935, contains allegations which so far as now relevant, may be detailed as follows: The New river flows northwesterly across the state of West Virginia and near the center of the state joins the Gauley river to form the Kanawha river, which flows thence to the state boundary and into the Ohio river. The New and Kanawha rivers are one continuous interstate stream, which throughout its course constitutes navigable waters of the United States. There are many locations for damsites on the rivers; four dams have been constructed on the New river at points in Virginia and West Virginia, and a fifth at Hawks Nest, W. Va., upon which the present litigation centers, is now approaching completion. The United States has constructed ten dams on the Kanawha river for the purpose of improving navigation, and is now engaged in construction work on two additional dams on the Kanawha river immediately below the Hawks Nest project, and has in contemplation the construction of a large reservoir at Bluestone, W. Va., on the New river above the Hawks Nest project, for purposes of flood control, production of power, and in aid of navigation. It is alleged that the New and Kanawha rivers throughout West Virginia constitute a continuous stream which was in its natural condition and still is susceptible of navigation, and is a highway capable of being improved and used for purposes of interstate and foreign commerce; that any obstructions to its navigability will be removed or overcome by improvements initiated by the United States and now in operation or in the course of construction; that the Hawks Nest project will seriously obstruct navigation in the New and Kanawha rivers, by producing fluctuations in the flow of New river; and that, upon the filing by New-Kanawha Power Company of a declaration of intention to construct the dam, pursuant to section 23 of the Federal Water Power Act, chapter 285, 41 Stat. 1063, 1075, §§ 23, 30, 16 U.S.C. §§ 791, 817 (16 USCA §§ 791, 817), the Federal Power Commission determined that the proposed Hawks Nest dam would affect the interests of interstate commerce, and that under the act the dam could not lawfully be built without a license from the Commission.
It is further alleged that the defendant New-Kanawha Power Company has obtained from the Public Service Commission of West Virginia a license or permit to construct the dam at Hawks Nest for power purposes. This permit was later transferred to the defendant Electro Metallurgical Company; and the corporate defendants, acting under the state license, are now engaged in the construction of the dam. It is alleged that its construction is in violation of the Act of Congress of March 3, 1899, c. 425, § 9, 30 Stat. 1121, 1151, 33 U.S.C. § 401 (33 USCA § 401), and the Federal Water Power Act, in that the plans for the project have not received the consent of Congress or the approval of the Chief of Engineers of the United States Army and the Secretary of War, and the defendants have received no license for the project from the Federal Power Commission.