decisions. I think that such an approach largely begs the question. The issue before this subcommittee, as the group delegated the duty to make recommendations as to how the Congress should exercise the powers of the United States under the Constitution, is primarily one of what the law ought to be rather than what it is. Of course, to understand the need for this legislation, it is necessary to know of the legal background, but that background should not be confused with the answer. Besides, good lawyers differ as to what many of these cases mean, especially some of the rather ancient ones which only within the last decade have been interpreted by the courts as the Justice Department interprets them. And, further, by way of general observation, without in any way derogating the role or good faith of the representatives within the Department of Justice who prepared this report, I do think it is important for us to remember that the Justice Department has established these principles, for which it now argues, not as a judge, not as a policy arm, such as the Congress, but as an advocate for a client. Indeed, many would say that the Justice Department would have been neglectful in its duty if it did not claim for its client, the people of the United States, the greatest extent of rights which could in good conscience be claimed under the particular circumstances at play. Some of the rules now relied upon were developed to salvage very difficult practical situations. There is an old saying that "tough cases make bad law" and I do believe that we should be wary of letting past cases influence us unduly as to what the law should be. We should realize that the Justice Department, under Republican as well as under Democratic administrations, has molded its theories and honed its arguments in defense of positions which appeared at the time to be to the advantage of its client. The courts which adopted those arguments were often faced with an unfortunate situation of wanting to uphold Federal action but were driven to extremes to do so.

Our job is a far different one, for the Congress, in our form of government, represents the client. It is up to us to decide where we think the public interest lies as a prospective matter. We should not be ultimately influenced by particular, specific, past cases. And we should remember that the cheapest, fastest, easiest way to accomplish something is not always the best way. Good government is composed of other factors than expeditiousness alone.

Mr. Chairman, I ask leave to offer various resolutions and other materials I have received in support of S. 1275 and I ask that the record remain open for 15 days after these hearings so that anyone who might wish to do so may submit helpful material for inclusion.

I am looking forward to a productive hearing.

[Attachment 1]

[From the Congressional Record, Apr. 4, 1963]

FEDERAL-STATE WATER RIGHTS-Now Is THE TIME FOR CONGRESSIONAL ACTION Mr. KUCHEL. Mr. President, I introduce, for appropriate reference, on behalf of myself and the Senator from Utah [Mr. Moss], a bill to clarify the relationship of interests of the United States and of the States in the use of the waters of certain streams.

One for the vexing and unsolved problems which directly confronts Western America-indeed, the entire Nation-is the continuing, often embittered, jurisdictional dispute between Federal and State Governments over the waters of many of our country's streams. How can our precious waters best be conserved and developed and controlled and put to maximum beneficial use by our people? One direct and relatively simple means of making the solution far more possible is to eliminate the jurisdictional battle, or, at any rate, some of it, which exists between Washington and our State capitals.

I shall not repeat here a detailed history of all the judicial, executive, and legislative actions by which we have arrived at the present situation. Suffice it to say that the present status of the law in many respects the uncertainty of that status is found objectionable by many responsible individuals and groups. I shall describe that status more fully in a moment.

The overall problem of Federal-State relationships in regard to water has many ramifications. Some espouse a doctrine of paramount Federal rights in almost every respect. It has been suggested for example, that the United States should specify all aspects of water development control and use which it might ever wish to assert and let the State operate on what, if anything, remains. I reject that theory as being in derogation of many proper State and local interests and better abilities to determine local needs. Such a theory is likely to lead to less, not more, beneficial utilization of our water resources.

Contrariwise, it has been suggested by some proponents of State supremacy in regard to water that all Federal water activities be subjected to State control. I also reject this theory. It would unduly impair and cripple the constitutional responsibilities of the Federal Government which, over the years, has constructed important and imposing water projects to serve the people.

I think it is because of such risks to the national interest that some of the past proposed legislation in this field has lacked sufficient support and has failed of enactment. But this does not mean that no legislation is needed, nor does it mean that sound legislation, based on principles of fairness to individuals and recognizing the proper roles of both the State and Federal Government, will not be supported in all significant quarters.

I said that it is not my purpose here to provide a history, but it is necessary to describe briefly the essential nature of those several aspects of the total situation which I feel must be remedied at this time. By this you will see that the bill we proposed is not a panacea for all questions in the complex field of FederalState relationships in regard to water. Rather, it proposes immediate action on only the most pressing issues, upon which I believe men of good will may agree.

WATERS RISING ON FEDERAL LANDS

The spark which ignited the present apprehension among many of us is the Pelton Dam decision by the U.S. Supreme Court in 1955 (Federal Power Commission v. Oregon, 349 U.S. 435). That decision, as is asserted by agents of the United States, and as is feared by various individuals and States, has far-reaching implications for States, such as mine, which have significant water resources arising on reserved or withdrawn lands belonging to the United States.

By the Desert Land Act, March 3, 1877 (19 Stat. 377), the Congress provided, inter alia, that after certain appropriations of water for desertland

"All surplus water over and above such actual appropriation and use, together with the water of all lakes, rivers, and other sources of water supply upon the public lands and not navigable, shall remain and be held free for the appropriation and use of the public."

Based on this and other provisions of Federal law, it has been generally assumed that the mere fact that nonnavigable water arises upon any U.S.-retained lands would not affect the rights to the control and use of that water acquired by persons or by State and local governmental entities, so long as such rights are otherwise in accord with State law. In other words, it was assumed Congress said that regardless of what power the Federal Government may have over water arising upon "the public lands and not navigable" such water was free for use by anyone under State law.

Many relied upon such an interpretation, and it was even expressed in California Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142, 163-4 (1935) as follows:

"Following the act of 1877, if not before, all nonnavigable waters then a part of the public domain became publici juris, subject to the plenary control of the designated States, *** with the right in each to determine for itself to what extent the rule of appropriation or the common-law rule in respect of riparian rights should obtain."

But, the Pelton Dam decision, to the contrary, defined the term "public lands" in the Desert Land Act to mean only those lands "unqualifiedly subject to sale and disposition" and said Congress did not mean to permit appropriation of water arising on lands withdrawn or reserved from entry for private acquisition. This would apply to vast acreages of watershed in many States as, for example, in my State of California where a great percentage of the total area of the State falls into this category of federally owned and withdrawn or reserved lands.

Without the Desert Land Act being applicable to withdrawn or reserved lands, it would necessarily follow that it is at least unclear as to whether any Statebased right, accruing after the withdrawal or reservation, to the use of water arising on such lands could be valid as against a Federal undertaking to control or use such water. It has been said, in Winters v. United States, 207 U.S. 564, 577 (1908):

"The power of the Government to reserve the waters and exempt them from appropriation under the State laws is not denied, and could not be."

The resulting assertions and fears are that the United States has, in effect, a priority of appropriation of all the previously unappropriated water arising upon the reserved or withdrawn Federal lands, said priority arising no later than at

the date of the relevant withdrawal or reservation. This theory has cast grave uncertainty on the reliability of individual and non-Federal public appropriations of water made after such withdrawals or reservations. In most of the relevant situations, the pertinent withdrawals or reservations were effected before the non-Federal appropriations upon which those of the West have proceeded to rely in developing water resources. Many of these reservations, as for forests, came around the turn of the century and there was also a general withdrawal of all Federal lands in 1934.

This is not a problem of interest to my State only, but let me give a concrete example of the need for congressional action on this subject. Not the least of the water development projects depending upon water affected by this situation is California's State water plan, now coming into fruition. If the just described fears as to the validity of the appropriation of water upon which this plan depends, water arising upon earlier withdrawn or reserved Federal lands, are not set at rest then the success of the plan is in danger. It is feared, also, that the interest charges to the people of California upon the bonds financing the plan could be significantly higher to offset the risk to the State's asserted rights possible by reason of Federal claims to control and use the water.

I agree with the Senator from Utah [Mr. Moss] that there is no basis in the actual holdings of pertinent court decisions to compel a conclusion that such infirmities as have been raised do exist under a proper interpretation of present law. Therefore, the California project and other private and non-Federal public interests similarly affected should not be open to doubt.

The fact is, however, that assertions are made by agents of the United States, as in the U.S. answering brief, pages 64–65, August 14, 1961, Arizona v. California, U.S. Supreme Court original No. 8, which give rise to apprehension that the described infirmities might become law. There the Federal Government contended:

"The rights of the United States to use the waters on the public domain, being property rights, may be acquired by others only as authorized by Congress (citations). As observed above, the Desert Land Act is such an authorization with respect to nonnavigable waters on the public lands in certain States. But this act is not applicable with respect to waters upon reserved lands (citing Pelton Dam case). Nor is there any other Federal statute which has transferred these proprietary rights from the United States."

We have seen in the tidelands controversy that unsettling assertions made by counsel cannot be ignored for they may ultimately become case decisional law and require legislative rectification.

Let us act now to allay the existing fears caused by such assertions. Let us avoid now the possibility of an adverse judicial decision. This we can do by exercising the proper role of Congress in defining its will as custodian of the property of the United States under article IV, section 3, paragraph 2 of the Constitution. The judicial and executive branches, the States and the people, are entitled to statutory recognition of previously unquestioned vested rights, which will permit continued maximum development of our water resources for the benefit of our people.

CONSUMPTIVE USES PREFERENCE

I move now to a second issue of this total question of Federal power over interests in water, an issue as to which I also feel Congress should act at this time. The West is an arid region where water, the lifeblood of any society, is particularly dear because of its increasing scarcity. There the consumptive uses made of it take on a very special significance. Most Western States' laws say that among competing uses, consumptive uses are considered more important than nonconsumptive.

propose that Congress recognize this situtaion by a general provision of law relating to all works hereafter constructed by or under the authority of the United States with respect to waters lying wholly or partly west of the 98th meridian. Such a salutary provision now exists as to federally constructed projects in the sphere of flood control and navigation generally in the West. This is by virtue of subsection 1(b) of the Flood Control Act of 1944 (58 Stat. 88890), said subsection sometimes being known as the O'Mahoney-Millikin amendment. Such provision says, in essence, that uses for nonconsumptive purposes as, for example, by diversion or other control for navigation, shall be subordinate to beneficial consumptive uses, present or future, such as for domestic, municipal, stock water, irrigation, mining, or industrial purposes, as to waters arising in States lying in whole or in part west of the 98th meridian.

The Congress has been writing such a provision into irrigation and reclamation bills on a project-by-project basis. I propose we make it general law as to all Federal projects affecting waters of the West. By doing this, I do not propose to affect the authority of the United States or its licensees to construct works, nor do I mean to touch conflicts between navigation or power functions and other nonconsumptive functions such as preservation of fish and wildlife. I do feel we should enunciate a general congressional policy that consumptive uses are preferred to nonconsumptive uses in the West. This would assure our Western States that the Congress, too, acknowledges the wisdom of the preference which they have found most suitable to their situation. It would remove a potential area of Federal-State conflict.

FEDERAL RIGHTS UNDER STATE PROCEDURE

A third form of congressional action which I suggest, and which would also make general an existing beneficial provision of law now applicable in one area of Federal water activity, would be to extend one rule derived from the Reclamation Act of 1902 (32 Stat. 388) to any right, under State law, claimed by the United States to the beneficial diversion, storage, distribution, or consumptive use of water. Our bill would provide that whenever the Federal Government claims such a right under the laws of any State, it must play the game by the rules, and initiate and perfect such right in accord with the procedure established by the laws of that State. The United States, it seems clear to me, should follow the same steps required of others, if it wishes to compete for rights established under State appropriation procedures.

Such a provision would not deny the Central Government any power it now has to acquire water rights other than by State law. It would apply only when the United States claims an appropriative right under State law. If that is the basis of its claim, rather than, for example, when proceeding by condemnation, should not the Federal Government conform to the administrative procedure of the State for its establishment of such a right? We would then avoid such a regrettable situation as arose in United States v. Fallbrook Public Utility District (165 F. Supp. 806 (S.D. Cal. 1958)), protracted litigation which I am now informed may be susceptible of satisfactory solution. In that case, the judge describes the U.S. contention on this point as follows (p. 829):

"That California's statutory application and permit procedures for the acquisition of an appropriative water right are police regulations which are inapplicable to the United States, with the result that, even if all other water users must comply with such procedures in order to acquire a valid appropriative right, the United States can obtain the right merely by taking and using the water."

I am told that the Justice Department may now be adopting, in that case, a position consistent with the principle I am here proposing. In any event, the approval of our legislation would bring to an end this kind of dispute.

COMPENSABILITY AND ORDERLY PROCEDURE

Finally, Mr. President, there is a fourth matter requiring the Congress immediate attention. What I propose here is only that which the Bill of Rights indicates justice requires. The fifth amendment provides, among other things, that:

"No person shall *** be deprived of * * * property, without due process of law."

This should mean that one shall be compensated by the Federal Government for the value of property of which he is deprived by his Government's water project activity, in precisely the same fashion as when the Government takes his property for a post office site. It also should mean that, in following due process, the Government should initiate judicial proceedings before implementing its plan to acquire or impair said property and in such proceedings there should be fixed the extent of compensation. Those constitutional provisions are clear and fair, but unhappily, they have not always been followed in water rights matters.

First, there has developed, under case law, the theory of a navigational servitude which is to the effect that all navigable waterways, broadly defined to include most of our major streams and their tributaries, are subject to preeminent Federal control under the commerce clause of the Constitution (United States v. Twin City Power Co., 350 U.S. 222 (1956)). I do not quarrel with that power of control, but I do differ with some extensions of the navigation servitude argu36-961-64-3

ment where they result in vested water rights being noncompensable when the servitude destroys their value. This argument was made by the United States but rejected in a reclamation project case because there the court found a congressional intent in the Reclamation Act to compensate deprived owners of water rights, regardless of what the power might be to do otherwise (United States v. Gerlach Live Stock Co., 339 U.S. 725 (1950)).

It has also been held that section 27 of the Federal Power Act (41 Stat. 1063) requires compensation by a Federal licensee acting under that act if said licensee interferes with water rights vested under State law (Federal Power Commission v. Niagara Mohawk Power Corp. (347 U.S. 239); Henry Ford & Son, Inc. v. Little Falls Fibre Co., 280 U.S. 369 (1930)).

It has, however, been held that when the United States wreaks similar damage under navigation and flood control projects it need not pay compensation (United States v. Willow River Power Co., 324 U.S. 499 (1945)). The result is that the Federal Government may proceed with impunity in impairing vested water rights in the course of nonreclamation or nonpower oriented projects on broadly defined navigable waters, even though such rights would be compensable by State-law standards (United States v. Twin City Power Co., supra, pp. 227-228).

I propose we change this situation by providing that when either the United States, or any entity acting under its authority takes in any degree, in the course of any project in regard to navigable or nonnavigable waters, a stateprotected water right, just compensation must be paid. It is only fair that the public, generally, through the Federal Treasury, rather than just the aggrieved water rights owner, bear the cost of the particular project, presumably constructed in the interest of all the people. So it is with post office sites, so it should be with water projects. There is no reason for a difference between the incidence of any Federal power over our waters and any other Federal power under the Constitution.

But that is only half of this particular problem. Unfortunately, even in instances where compensation by the United States is already required, as for example, in regard to the same reclamation project involved in the Gerlach case, the Justice Department has claimed the right to seize the affected water unilaterally, as by closure of a river, and put the deprived owners of affected vested water rights to the remedy of a suit in the court of claims. This is known as forcing resort to proceedings in inverse condemnation. As a lawyer, I judge this to be a deplorable tactic. The bill we introduce today should prevent such tactics in the future.

Compensation and orderly procedure should remove a great percentage of the friction in disputes between the Federal Government and those holding water rights recognized under State law. Yet the constitutional powers of the Federal Government would not be impaired. The relative cost of acquiring such rights would be small compared to the total cost of such projects, though just compensation is immensely important to the individuals and non-Federal public agencies involved.

I believe this bill goes a long way toward solving many of the existing or potential problems in the matter of Federal-State water rights. This bill is adapted from my S. 2636, 87th Congress, which, in turn, resulted from the very beneficial exploratory hearings on this subject held by the Senate Interior Committee in 1961. When I introduced that bill I said that I was introducing it for study as an initial step toward solving some of the many problems in this complex field. The verbiage of the pending bill is the result of extensive study and recommendations by many eminent water lawyers. It carries the endorsement of the Western Water Law Symposium conferees at the recent meeting of the National District Attorney's Association. I hope it will be uniformly supported by all those interested in this important field, even though it does not purport to solve all problems in this field.

Section 1 carries the thrust of the bill and, I believe, accomplishes all four of the proposals I have discussed here today. Paragraph 1 repeals, in effect, the definition of "public lands" which was enunciated in the Pelton Dam decision. It protects water rights assumed to be validly based on State appropriation and riparian doctrines in accord with the Desert Land Act and the interpretation in the Beaver Portland Cement Co. case.

Paragraph 2 enunciates the policy of preference for consumptive uses as against nonconsumptive uses, west of the 98th meridian.