ciple of dual sovereignty and in the principle of Federal control and Federal responsibilities for certain kinds of resources that don't know anything about State boundaries.

The statements that have been made so far have indicated to me that the committee certainly does not want to hear a lot of technical arguments. You have heard about all the cases that have been decided and what they did say or what they did not say, ad nauseam, and I don't want to add to that.

I think Mr. Goldberg's statement of all the technical statements involved in that proposed legislation is very adequate. I would not go so far as he would go on some of these proposals but I think that analysis is the kind of scholarly analysis one could be very proud of.

As I say, I would like to be very brief. The complexities of this bill are, if anything, greater than they were in the Senator's previous bill, S. 2636, introduced before the meeting of the conference of prosecutors that met in Los Angeles a year ago today at which I had read a paper. If I may I would like to ask the Chairman if this paper could be used to shorten the time which I am spending here. Senator ANDERSON. Federal background?

Mr. CLARK. Yes. This was a very brief paper given at the conference and many of the people who appeared before this committee were also speakers at that conference. The whole procedure appears in the Western Water Law Symposium.

Senator ANDERSON. I ask that this be put in the record.

Senator Moss. It may go in at this point since Mr. Clark is going to refer to parts of it.

(The paper referred to follows:)

THE LEGAL BACKGROUND OF FEDERAL-STATE WATER RIGHTS CONFLICTS

(By Robert Emmet Clark, professor of law, the University of New Mexico) (Presented before the Western Water Law Symposium of the 14th Annual Spring Conference of the National District Attorneys' Association, March 11, 1963, Los Angeles, Calif.)

Although I am happy to be here and thus allow New Mexico and my university to be represented on your program, I am not sure why I was asked to come as I am certain that all of the later speakers will give you more of the legal background-and perhaps the foreground too-than I will. In looking over the program list of California and Washington lawyers, it appears that I won't add much balance to the discussion that may follow today.

But, under the innocuous title of "Legal Background," maybe I can anticipate some of this discussion-and perhaps no one will expect me to worry about the balance anyway. According to the titles on the program, it appears that the discussion will very quickly get around to Federal encroachment or the trend to centralism or just condemnation of the monster, big Government. There seems to be no reason why I should join in the chorus and nobody has asked me to.

However, before you hear the opening statement of Mr. Horton and the closing arguments of Messrs. Banks and Enerson (with representatives from the Department of Justice, the U.S. Senate and Mr. Goldberg taking their chances in between), I should like to put in a few thoughts for your consideration.

When Senator Kuchel introduced his S. 2636 in the previous Congress (which he hoped would be the legislative solution to the Federal-State problems we will hear about today), he put much emphasis on the matter of compensation for claims to water rights. He said, "Once the principle of compensability is established, 90 percent of the conflict disappears." He may be right. If he is, I will be disillusioned by the knowledge that the real nature of this cry over States' rights and State water law is really just a question of money.

The immediate "legal background" of the controversy over Federal and State water rights is found in a few decisions of the Federal courts over the past 7 or 8 years. But these decisions-and the noise and smoke that followed them-only point to the long evolution in the functioning of the concept of constitutional government called federalism." Unfortunately, this immediate "legal background" has given fresh impetus to distortion of the concept that has often gone beyond reasoned exploration of the dimensions of our system of dual sovereignty. Recent developments have also encouraged pursuit of new illusions of certainty, rigidity even, and what sometimes looks to me like hope for the triumph of a kind of constitutional rigor mortis in our system of government. Those who want constitutional government to be a certificate of the past only, rather than a "continuously operative charter" for the future also, are consistent, at any rate, in their views on certainty and death.

3

The adoption of the resolution at your last summer conference urging Federal water rights legislation, and the previous discussion at your March 1962 meeting by Mr. Dickenson,* indicate that large numbers of you (and not your Western contingent alone) have general knowledge of the controversy that became popular after the 1955 Pelton Dam decision brought out old Federal skeletons.

5

Here are the facts and holding in the Pelton Dam case: The FPC issued a license, over the protests of the State of Oregon, to the Portland General Electric Co. to build a dam on the Deschutes River in Oregon. The site was located where at one end the dam would rest on Indian land. Title to the land on the other side was reserved to the United States for power purposes. The Power Commission granted the license. The State of Oregon objected that it had the sole power to control the use of the stream which is nonnavigable and located entirely in Oregon. The State also contended that the dam would impair the river's capacity to hold anadromous fish and would reduce the usefulness of an upstream fish hatchery. The State of Oregon's Hydroelectric and Fish Commission had previously denied a request for a State permit to the same applicant and apparently for the reasons just stated.

The FPC had examined the measures to protect the fish in the stream and ordered improvements that cost the applicant a substantial sum in capital invesments. The licensee also was required to build small regulating dams below the main one. The State of Oregon appealed to the Ninth Circuit Court which set aside the license. One judge dissented.

6

The court of appeals discussed primarily the question of whether the United States had relinquished control of water rights in nonnavigable western streams, a question not previously answered although often discussed.

The Supreme Court held that the FPC could license a private hydroelectric power project on a nonnavigable river in Oregon without regard to the law of that State. The court held that because one end of the dam would be on Indian lands and the other on reserved lands, as distinguished from the public domain, the State of Oregon could not use its control over fish to bar the project. Another important case should be mentioned here. In the Hawthorne Naval Reservation ground water case the U.S. district court held that in maintaining a national defense reservation-a valid Federal purpose under the war and property clauses of the Constitution-the United States had the right to withdraw ground water located under reserved land without complying wih Nevada State law. This decision was affirmed on other grounds by the court of appeals.'

If I were to read to you a list of the scholarly articles on these cases and this subject and I would leave out the propaganda and tirades on the subject I have also read-it would take me longer than my allotted 25 minutes. The

1 Federal Power Commission v. Oregon, 349 U.S. 435, 75 S.C. 832, 99 L. Ed. 1215 (1955); Nevada v. U.S., 165 Fed. Supp. 600 (D. Nev. 1958), affirmed on other grounds, 279 Fed. 2d 699 (9th Cir. 1960); U.S. v. Fallbrook Pub. Util. Dist., 165 Fed. Supp. 806 (S.D. Cal. 1958). See also First Iowa Coop. v. Federal Power Commission, 328 U.S. 152 (1946); Ivanhoe Irrig. Dist. v. McCracken, 357 U.S. 275 (1958).

2 Engelbert, "Federalism and Water Resources Development," 22 Law & Contemp. Prob. 325 (1957).

3 Yakus v. United States, 321 U.S. 414 (1944).

4 Dickenson, "The Crisis in Federal-State Relationships in Water Rights," paper given Mar. 8, 1962, New Orleans, La. (mimeographed). The resolution, adopted Aug. 18, 1962,

at Philadelphia, contains this statement: "Whereas the decision of the U.S. Supreme Court Federal Power Commission v. Oregon (1955), 435, has further unsettled the law relating to the use of water ***" [Emphasis supplied.]

5 Note 1 supra; Corker, "Water Rights and Federalism-The Western Water Rights Settlement Bill of 1957," 45 Calif. Law Rev. 604 (1957).

6211 Fed. 2d 347 (9th Cir. 1954), cert. granted 75 S.C. 112.

7 Note 1 supra.

subject has been worked over diligently by lawyers, law teachers, legislators, and staff members for legislators. The legislative draftsmen in Congress have had a long period of more than frustrating employment trying to prepare a StateFederal water rights bill that will be acceptable to all. I lost track of the count after six or eight bills had been introduced, including the first of the Barrett bills. A later speaker on this program can probably give you the current tally on the bills up to S. 2636 introduced by Senator Kuchel in September 1961.

Some of you may have followed the various legislative proposals introduced in Congress since 1955. All are aimed at limiting the real and conjured implications of the Pelton Dam, Hawthorne, and some other decisions. But on the assumption that what you may have heard was somewhat one sided and, assuming further that you may hear a similar discussion today, I shall try to summarize the important dimensions of the "Legal Background." My aim is to point out that there are two sides to the controversy and also that the problems are not as simple as some excellent legislative draftsmen would like them to appear. This goal will require me to comment on the concept and function of federalism and the law of water.

The present controversy has roots far back in the history of this Nation and in the remarkable compromises that created it. Notice that I do no say alliance or confederation. I say Nation. This larger community in which we enjoy interstate favors, and in which we hope to make interstate contributions, is the United States. To some its Government is an impersonal, far away taxgatherer, policymaker and oppressor. To others, it is a common unit of national service. This has been historically true with respect to the county governments and other local and urban units that were the first to plan and build community water projects which they did long before the States themselves became interested. We all know that underrepresented urban areas have long felt that the Federal Government represented their views more effectively on many subjects including water resources development. Reapportionment may aid the States in obtaining urban support for State water projects which are now receiving Federal assistance at the local government unit level.R

11

Whether your view is urban or rural or something else, you are aware that the United States has large and grave responsibilities in the field of water resources even though there is no express provision in the Constitution covering the subject. The Treaty Power," the War Power,10 the General Welfare Clause," the Commerce Clause," and the Power To Dispose of Public Property 13 have long been applied in water resources matters. And for many years before the Pelton Dam decision careful students of water law were saying that the question of ownership of unappropriated waters on Federal lands was not entirely settled." Yet we have heard contrary statements recently. Perhaps there is something wrong with our reading of history. It has been said that "Americans are a people not notably endowed with the historic sense. They are given to enthusiasm, and that is good, because enthusiasm moves mountains." 15 This statement certainly could be applied to California and what has happened in the West in connection with the colossal problems of water and land use. Enthusiasm led to the first major use of water in California by largely nonresident trespassers on land that belonged, through bloodshed and purchase, to all of the people of the

8 Fox, "River Basins and the States," paper presented before Ninth National Watershed Congress.

9 Art. II, sec. 2. See Sanitary District v. United States, 266 U.S. 405 (1926); Missouri v. Holland, 252 U.S. 416 (1920).

10 Art. I, sec. 8. Ashwander v. Tenn. Valley Authority, 297 U.S. 288 (1936).

11 Art. I, sec. 8. See United States v. Gerlach Live Stock Co., 339 U.S. 725 (1950); Ivanhoe Irrig. Dist. v. McCracken, 357 U.S. 275 (1958).

12 Art. I, sec. 8, cl. 3. Gibbons v. Ogden, 9 Wheat. (22 U.S.) 1 (1824); United States V. Appalachian Electric Power Co., 311 U.S. 377 (1940); United States v. Grand River Dam Authority, 363 U.S. 229 (1960).

13 Art. IV, sec. 3. United States v. Rio Grande Dam and Irr. Co., 174 U.S. 690 (1899); Federal Power Commission v. Oregon, 349 U.S. 435 (1955).

14 See Hutchins, "Selected Problems in Water Rights," p. 420; the Indian cases strengthened their skepticism also. Winters v. United States, 207 U.S. 564 (1908); United States v. Conrad Inv. Co., 156 Fed. 123 (Mont. 1907), affirmed 161 Fed. 829 (1908): United States v. Walker River Irrig. Dist., 104 Fed. 2d 334 (9th Cir. 1939). Moreover, the exact nature of any water rights derived from the Federal Government remained uncertain. See Sato, "Water Resources Allocation," vol. 1, p. V-8: "Although Lux v. Haggin, 69 Cal. 255, 4 Pac. 919 (1886), has given serious consideration to water rights derivative from the Federal Government, the court is not clear as to whether those rights flow as a matter of State determination or of Federal law. ***" (mimeographed). 15 Jaffe, book review of Bernstein, "Regulating Business by Independent Commission," 65 Yale L. J. 1068 (1956).

16

United States. Mountains were moved to get the gold out of them. Of course since those days we have been less inclined to call these miners trespassers as Colonel Mason did in 1849 and President Lincoln and the courts did. In our best pragmatic, as well as sentimental, tradition we first made the miners into squatters, or quasi-trespassers, and then we proceeded to recognize some of their claims. More recently on television all have become heroes in the building of the Nation. But as I have said, we are not a people with a notable historic

sense.

17

18

We can divide American history since 1789 into three periods " that are relevant to land and water problems. The first period was concerned with the sale of public lands for the purpose of raising revenue for the General Government. This period ended in the 1840's or 1850's after the Mexican War, or perhaps some would draw the line in 1862 with the enactment of the first homestead law.1 The second period was characterized by exploitation and by the efforts of the Federal Government to put public lands into private hands and to encourage settlement in the semiarid regions and to produce food for the expanding population of which a substantial part were immigrants. This second period extended into the 20th century, into Theodore Roosevelt's administration or up to the First World War, or perhaps to 1920 when the Federal Power Act 1o was passed. We now live in a third period, a time of reappraisal, of better husbandry, of population consciousness and a time when we have taken a longer view of the future and our supply of natural resources.

The first period is significant here only insofar as we remind ourselves that the commerce clause was first examined and applied to navigation during that period.20 Fortunately for us, the judiciary has not adopted a rigor mortis attitude toward commerce and river basin development since that time.

The second period is the source of the present controversy over Federal and State water rights. During this period the Western doctrine of prior appropriation evolved. This was a simple variant of the law of capture, the principle of first use, first right, and it developed on the vast tracts of semiarid land owned by the Federal Government. Meanwhile, in the Eastern or humid States, there were no comparably large areas of Federal ownership with scant supplies of moisture. In those States the common law and real property law shaped and protected the rights of riparian owners. These rights continued to be subject to some changes by the State legislatures in the form of the Mill Act" and through the exercise of the State's police power. The evolutionary development in the West began with the California miners, the Mormon pioneers in Utah in 1847 22 and the earlier settlers along the Middle Rio Grande who had built the first community acequia near Espanola, N. Mex., in 1598. These formative years of water law growth were not doctrinal or theoretical. As most prosecutors will admit, a man with a shovel in one hand and a rifle in the other is not a very theoretical fellow.

Water law grew up as a pragmatic patchwork of custom, lower Federal and State court decisions, State, territorial and Federal legislation and a U.S. policy that some have called surrender 2 but we could all agree was one of seeming acquiescence. An important and often overlooked feature of this development is that the claims and disputes were almost entirely between individuals. Water law as a part of private real property law gave almost full attention to claims made vis-a-vis individuals even across State lines. The doctrine of equitable

16 1 Wiel, "Water Rights in the Western States," 836-843 (3d ed. 1911); U.S. v. Parrott, Fed. Cas. No. 15, 998 (1858). After judgment was rendered for the United States, President Lincoln signed a writ closing the mines in question and ordering the militia to remove the miners from public property. Martz, Cases on Natural Resources, p. 4 (1951).

17 Martz, supra, note 16. My classification is less precise than Martz' but is based on his. 18 12 Stat. 392, act of May 20, 1862, C. 75, sec. 1.

19 41 Stat. 1063 (1920); earlier the Reclamation Act of 1902, 32 Stat. 388, 43 U.S.C. 391, and President Taft's proclamation in 1909 withdrawing old lands from entry (43 U.S.C. 141-142) had expressed the conservation and reclamation philosophy. There had been still earlier moves in the same direction in 1891 under the Timber Withdrawal Act and in 1906 the legislation authorizing national monuments, 34 Stat. 225, 16 U.S.C. 431. 20 See note 12, supra.

21 Gould, Waters, sec. 253, 579-623. These acts allowed riparian proprietors on payment of damages caused by flooding to erect dams for the purpose of creating water supplies and power for their mills even though the result was to submerge lands of other riparians.

22 See 1 Kinney, sec. 243, 244 (2d ed. 1912). The Mormons granted control of streams to individuals.

23 Martz, "The Role of the Federal Government in State Water Law," 5 Kansas Law Rev. 626 (1957): "From 1866 to 1920 the United States surrendered most of its power and discretion over nonnavigable waters to the States ***."

25

apportionment, which is a doctrine of public law between States, had not yet been devised. There were few explicit public law aspects of water law until after 1889 when Elwood Mead in Wyoming prepared the first public control statute that was soon followed in various and misbegotten forms in nearly every Western State." Mead's Wyoming statute made way for the climate of thought that produced the Federal Power Act and of our own period of reappraisal and better husbandry. Throughout this second period the full reach of Federal authority remained obscure even after United States v. Rio Grande Dam & Irrigation Co. was decided in 1899 and in which the Supreme Court said: "Although this power of changing the common law rule as to streams within its dominion undoubtedly belongs to each State, yet two limitations must be recognized: First, that in the absence of specific authority from Congress a State cannot by its legislation destroy a right of the United States, as the owner of lands bordering on a stream, to the continued flow of its waters; so far at least as may be necessary for the beneficial uses of the government property." During this second period divergent theories developed with respect to the disposition of waters on Federal lands and in the Territories, as these lands became parts of new States. Disputes had been settled in California in the lower courts long before Lux v. Haggin 26 in 1866 fixed the destiny of California water law. The so-called California doctrine adumbrated in that case recognized both riparian and appropriative rights. The basis for recognizing the riparian rights is worth reexamining. The California court recognized both sovereign and proprietary rights in the Federal Government with respect to the Western public domain. The creation of a State-passed sovereignty to the new State. With respect to the proprietary rights, i.e., the riparian rights on such lands after statehood, it is hard to discern from Lux v. Haggin whether these rights passed as a matter of Federal law, or were actually created anew through the common law's reception into the jurisdiction." In either case derivation of title could be traced back to the United States. Appropriative rights on the public domain were recognized in 1866 2 when Congress advanced the trespasser's appropriative claims by recognizing the priority previously accepted by custom. Oregon later developed a doctrine that agreed in part with California law. Oregon recognized the proprietary interests of the Federal Government in waters on the public land over which there was a reserved power of disposition. Oregon held that these rights continued after the formation of the new States. But in 1908 Oregon held that the Desert Land Act of 1877 separated water from land of the Federal Government and that a Federal land patent did not convey a water right. The 1877 legislation " was viewed as an adoption of and preference for a uniform prior appropriation system in the future. The conflict here with the California conclusion is obvious.

29

Another view of the transition to statehood in several States, and the effect on water law, is called the Colorado doctrine under which no proprietary interests were recognized and thus no riparian rights existed." Prior appropriation rights were acquired through State law entirely. By this view there was agreement with Oregon that prior appropriation was the accepted uniform rule. The new State could determine its own system of water law and no consent from the Federal Government was necessary. The new States, however, held that the Federal Government had consented to such systems in the legislation of 1866 and later legislation."

All of this might be called the metaphysical side of the "Legal Background" of the Pelton Dam and Hawthorne cases. You can see from this discussion that several questions were raised and remain unanswered today because they were not all put to rest in 1935 in California-Oregon Power Co. v. Beaver Portland Cement Co. when the Court said:

33

24 See Water Resources Law, "Report of the President's Commission. 1950," vol. 3, p. 711, app. B. "Summaries of the Water Law Doctrines of the 17 Western States."

25 174 U.S. 690. 704, 19 S. Ct. 770, 43 L. Ed. 1136 (1899).

26 69 Cal. 255. 4 Pac. 919, 10 Pac. 674 (1886).

27 See Sato, "Water Resources Allocation." vol. 1, p. V-8, note 14 supra. See note, "Federal-State Conflicts Over the Control of Western Waters," 60 Col. Law Rev. 967 (1960). 28 Act of 1866. 14 Stat. 253, 43 U.S.C. 661 (1952).

Hough v. Porter, 98 Pac. 1083, 1091-1092 (1909).

30 Desert Land Act, 19 Stat. 377 (1877), 43 U.S.C. 321 (1952).

1 See Bannister. "The Question of the Federal Disposition of State Waters in the Priority States," 28 Harv. Law Rev. 270 (1915).

33 See Farm. Inv. Co. v. Carpenter, 9 Wyo. 110, 61 Pac. 258 (1900).

83 295 U.S. 142 (1935).