Now this measure will reject the Federal reservation theory. It says in its opening provision:

The withdrawal or reservation of surveyed or unsurveyed public lands, heretofore or hereafter made, shall not affect any right to the use of water acquired pursuant to State law either before or after the establishment of such withdrawal or reservation.

We think it is a matter of urgent importance that Congress now speak those 40 words just quoted.

First, the reservation theory is unsound in concept. It confuses jurisdiction with proprietary ownership. When the western territories were acquired and before they were incorporated in States, the Federal Government had jurisdiction-that is the authority to make laws and it had proprietary ownership of all the lands not then in private ownership. Realistically the United States did not have proprietary ownership of unappropriated water appurtenant to the federally owned lands because no one should own unappropriated water.

Second, the reservation theory is unsound in result. The result, of course, is more important than concept. We don't come to Congress with a request to rewrite a theory; the result of the reservation theory is satisfactory to no one.

No one knows, no one can find out how much water is appurtenant to the various Federal reservations which the United States has withdrawn from the public domain. We have asked the Department of Justice attorneys and they cannot tell us; they don't know either.

The national forests, all withdrawn public lands, are the source of most of the runoff in large parts of the West. I think the figures are about 75 percent of the State of California. There are more in the State of Idaho and other Western States.

If, as I would contend, any water right appurtenant to a national forest is limited to the small quantities required for forest services purposes, no one cares very much. We want the forest ranger to be secure in his domestic supply and we take a liberal view of the requirements of the horse trough. It would be much tidier if the United States made appropriations for those needs like everyone else, but that is not what deeply concerns us.

The water appurtenant to the national forest at an outside extreme may be all the water the United States can use in the national forest. It could be in addition all the water that the Government can use at any location.

"Appurtenant," it is said, relates to needs, but the needs are appraised at the time the United States asserts its claim. Claims tomorrow may be far larger than claims today. The isolated desert or mountain vastness of 1964 may be the populous and teaming launching pad for a round trip to Jupiter by 1974.

Next, the reservation theory is utterly unrealistic and, in practice, unworkable. It has created some of the weirdest water rights known to man.

Let me describe one or two of them for you quickly. The water rights of the United States for the Havasu Lake National Wildlife Refuge and the Imperial National Wildlife Refuge both on the Colorado River, both partly in Arizona and partly in California. The

first is a diversion right to 41,834 acre-feet per year with priority dates of 1941 and 1949.

The second is a diversion right to 28,000 acre-feet per year with a priority date of 1941.

Now, when determined by the special master in the case of Arizona v. California, the location of the boundary between Arizona and California was uncertain. No one yet had fixed the respective acreages of those refuges in Arizona and California. However, the Supreme Court approved this part of the special master's recommendation. So the parties to Arizona v. California solemnly stipulated that this may be incorporated in the decree.

The priority dates are the dates of Executive orders creating or expanding the wildlife refuges, which are bird marshes on the main river. The quantities of water were derived from studies from the Federal wildlife planners who hastily swung into action. The Executive orders merely said, "Let this land be withdrawn for a refuge." Neither order said, "Let there be 41,834 acre-feet of water every year to keep and maintain a marsh."

They said nothing about water, which is the basic trouble with the reservation theory. The basic trouble is with the whole riparian doctrine, of which the reservation theory is a spurious offshoot.

Priority dates of 1941 and 1949 on the Colorado River are excellent water rights in Arizona and for the Arizona portions of these refuges. But in California a 1941 priority date from the Colorado River is not likely to supply enough water to quench the thirst of a horned toad. California water rights from the Colorado to that date include 5,362,000 acre-feet plus a few Indian reservations. That is more water than California hoped to get even if it prevailed on every legal issue in the Supreme Court case.

So what we are about to witness when the decree is enforced is the spectacle of dividing the waters of the Colorado River, piling them up on the left bank, leaving the right bank dry.

Now, Moses did something like this with the Red Sea and I think Cecil B. DeMille did too, but the Supreme Court is breaking new ground here. Ducks which land on the California side of those marshes are going to inundate themselves in clouds of dust and then wash it off on the Arizona side.

This is probably one reason why the Supreme Court has retained jurisdiction in this case.

Now we are not against wildlife refuges, we are not against Federal projects, we are not against Federal planning. These refuges on the Colorado would be in a lot sounder shape if the United States had been farsighted enough to acquire a water right for them by some other means than the reservation theory.

The reservation theory means whatever the Department of Justice can come up with when litigation arises.

Now, how would it have worked if Senate bill 1275 had been law? The United States might have appropriated water under State law. Had it done so in our State, it would have taken the matter up with the State water rights board. Federal agencies have done this from time to time, particularly the Bureau of Reclamation and the Department of Agriculture, although it seems to occasion an internal Federal row between any such agency and the U.S. Department of Justice.

Or pursuant to Federal law the United States might have acquired a water right. This means an act of Congress, general or special, but so does Federal acquisition of land. If it were necessary to take someone else's water right, there would of course be the necessity of paying for it, but that is how it ought to be.

The Federal Government's assertion that there is no property right in a navigable stream, and almost all streams today are deemed to be navigable, chills me to the marrow of my bones.

I thing section 1, paragraph 4, of Senate bill 1275 is designed to end that assertion.

Now what about regional planning? The question has arisen because the original version of the Pacific Southwest water plan announced last August proposed to move 1.2 million acre-feet from the northwestern part of California to Arizona. There were some pros and cons to that proposal which I don't want to go into now.

Would Senate bill 1275 interfere with that kind of a proposal? The answer is an unequivocal "No." If water is ever moved from the Eel River in California to the Gila Basin in Arizona or from Mississippi to the Columbia or vice versa, it will take an act of Congress and at least a couple dozen bulldozers to do it, but it will not necessitate a constitutional amendment and I don't see any reason why it should.

Whether we are right or wrong, Senate bill 1275 would leave the law in that subject exactly where it stands today. Any particular interstate movement of water would doubtless provoke strongly held views on both sides, but so does 1275. I am happy to report that most of the views of western water lawyers are strongly in favor of its passage.

In the State of California every agency, both public and private, with the exception of the State Department of Water Resources, is in favor of the passage of this measure, and as I have indicated so is the Western Association of the State Attorneys General.

Now yesterday a number of fears were expressed about Senate bill 1275. Many of them were like the fear that this measure will somehow alter the 160-acre limitation. I think it is very clear that 1275 had nothing at all to do with this.

Let me give you an example of why some of these problems are imaginary. During the trial of Arizona v. California the United States came forward with formidable sounding claims for various national monuments. The very pleaded statements made the Federal claim seem very large.

California pressed, and the United States resisted, interrogatories designed to discover just how much water the United States claimed. After months of travail, we learned that this was a problem only because the lawyers made it so.

Now I am going to insert in the record a copy of California's interrogatory H-4 to the United States relating to claims for the Bureau of Land Management and the Forest Service and the National Park Service and the U.S. answer. This is just illustrative of how precise claims can be if required.

By examining the Government's data you will learn that rabbits require twenty-five hundredths of a gallon of water per day, small animals and birds require one-tenth of a gallon per day.

The Government made the calculations and then carefully inventoried its wildlife. The claim for a Gila monster as we learned

was one-tenth of a gallon per day times the 12 Gila monsters which constitute the total population of these creatures inhabiting Federal real estate in the lower basin.

Some of our lawyers suspected the claim was overstated. A Gila monster cannot drink more than a half pint of water a day. However, we grew dizzy computing how many centuries it might take for the 12 Gila monsters to consume an acre-foot so we let the matter pass.

The Government can provide a game refuge for its Gila monsters and if it does so they are going to drink all the water they feel like drinking any time they are lucky enough to find it. We could not stop them if we wanted to.

So these, Mr. Chairman, are problems because Government lawyers make them so. The vice of the reservation theory is no one knows how much water the Government claims. No one can find out until the Government consents to be sued and is forced to answer interrogatories as they were in Arizona v. California.

Yesterday, however, the reservation theory became a great big formidable problem and it is going to remain so until Senate bill 1275 is passed.

I think this is good legislation from the Federal point of view, from the States point of view, and from the point of view of all the people of the United States.

Senator Moss. Thank you, General Mosk, for your comments which summarize the statement that has been placed in the record.

As president of the attorneys generaÎ now, you are speaking also for that organization?

Mr. Mosk. The Association of Western Attorneys General.

Senator Moss. Has the full organization taken up this problem? Mr. Mosk. Yes, it has, and General Dunbar of Colorado will report on the action taken by the national association.

Senator Moss. Thank you very much.

Senator Kuchel?

Senator KUCHEL. Well, that is an excellent statement, General. Are you going to be here the rest of the morning?

Mr. Mosk. Yes.

Senator KUCHEL. Then I would like in the interest of time to have the other witnesses come forward and then I think maybe we ought to try to sharpen specifically what the objections are. You have been able in my judgment to demonstrate the fallacy of those objections. I have no questions now.

Senator Moss. Senator Jordan?

Senator JORDAN. A very fine statement, General Mosk. I concur with Senator Kuchel that it would be well to hear the rest of the presentation and then have a kind of forum discussion of the points. Senator Moss. Thank you.

Senator Simpson, do you have any questions or comment at this point?

Senator SIMPSON. No.

Senator Moss. Thank you, General Mosk. California interrogatory H-4 will be made part of the official file on this hearing. Senator SIMPSON. Mr. Chairman, just one thought.

I often wondered, General, how we spend $26,800 annually on the research project to determine the jaw apparatus of passive eating

birds and I dare say it is because they want them to take water out of some of that territory in the Arizona v. California case, the sponsors of the measure.

Senator Moss. Senator Simpson, would you care to introduce our next witness who is the Honorable John Raper, the attorney general of Wyoming?

STATEMENT OF HON. MILWARD L. SIMPSON, A U.S. SENATOR FROM THE STATE OF WYOMING

Senator SIMPSON. I certainly would, Mr. Chairman.

I want to thank you for the privilege of being here and to sit with your subcommittee on this report of the bill which is endorsed by the State of Wyoming.

I want to say, Mr. Chairman and members of the committee, this bill has a particular significance to the people of my State of Wyoming because Wyoming has on its borders the tributary waters of the Missouri and Colorado of which we will hear more about from Mr. Raper.

I want to say to you, Mr. Chairman and members of the committee, General Raper has a very illustrative career and is one of the great men of Wyoming. He was colonel of the 300th Armored Field Battalion in the Korean conflict, and you may remember that division received a Presidential citation because it was able to protect the regular Army left flank in Korea and prevent it from total collapse. He is a graduate of the University of Wyoming Law School. He is the product of all 16 grades in Wyoming. He was formerly for 8 years U.S. District Commissioner for the District of Wyoming and presently attorney general for the State of Wyoming.

Mr. Astor, who accompanies the attorney general, is a member of our national resources board and for many years has been a member of that board. It was my privilege as Governor to have appointed him. Then Mr. Eugene Van Camp, State commissioner.

I don't know in what order they will appear, but it gives me great pleasure to introduce to you Attorney General Raper, of Wyoming. STATEMENT OF HON. JOHN RAPER, ATTORNEY GENERAL OF WYOMING; ACCOMPANIED BY CHARLES ASTOR, MEMBER OF NATIONAL RESOURCES BOARD; AND EUGENE VAN CAMP, STATE COMMISSIONER OF WYOMING

Mr. RAPER. Thank you very much, Senator Simpson. You are most generous.

Senator Moss. Gentlemen, we are happy to have you with us. You may proceed.

Mr. RAPER. Members of the committee, let me say first of all that we appear here in support of Senate 1275 and we concur in the remarks of Senator Kuchel, of California, at the time this bill was introduced. We also concur in the remarks made by Senator Moss yesterday in this regard.

We see no need, as far as Wyoming is concerned, to go into the background of this bill and the various arguments on one side or the other because I imagine that they will probably be aired pretty thoroughly before this committee is through.