and missile sites do. It is our responsibility then to see that the person whose right is invaded is paid the fair market value of his right as soon as the extent of the taking can be determined.

In my opinion, based upon my experience with and responsibility for the defense of all cases brought against the United States alleging inverse condemnation of privately owned water rights, the most unfair thing the Congress could do to the owners of those rights is require the United States to condemn them before its project invades them. We have been sued in only a handful of cases of this nature in the last decade. I think this shows the importance of this proposition. I do not think there are two dozen lawsuits of this nature in the last 10 years compared to thousands and thousands of condemnations, 8,800 last year alone. But in most of these that is, most of these inverse condemnation suits brought under the Tucker Act-if the plaintiffs in their allegations believe that they are telling the truth, it is impossible for them to determine whether the Federal project invaded their right or by how much, until years after the operation is begun.

By what quantity of water will owners of rights 5, 10, 15, 20 miles below a great dam, be deprived of those rights when the dam is closed? To require condemnation would impose the duty to see the unforeseeable.

If the Secretary determined a project might invade owner A's right 20 miles away but only to a slight degree, he might file a condemnation suit today, describe the project, allege a taking, condemn title to the property invaded and estimate its value at $1. The owner, no better able to foresee the consequences of the project, might decide it will not hurt him and accept the dollar as just compensation. A judgment is entered. The case is res judicata.

Five years later owner A's orchard may die. It may be then determined that the ground water table has been raised or lowered 10 feet by the project and the trees destroyed by rot or drought.

Owner A has had his day in court. Except for this bill, and under existing law, his rights would be fully protected. He could bring his Tucker Act suit and show the full extent to which his property was taken. This is not extreme example. It is illustrative of the nature of most of the few inverse condemnation suits we now have. This is what these cases are typically about.

Finally, I would say we cannot foresee how much litigation might be generated by this bill. It would, in my opinion, be substantial. If the committee has any questions on any part of the bill, I will be happy to try to answer them.

Senator Moss. Thank you, Mr. Clark. That is a very extensive statement and it contains a great deal of material that I am sure we will want to question you about.

Since we did not have a reading copy here it is hard to pin it down by simply listening to it and then returning to question. I don't want to foreclose any of my colleagues. For that reason I would like to see the statement as it is reproduced overnight and ask you if you could be in attendance tomorrow at which point I may have some questions I would like to ask you on it.

For example, you talked about Denver's moving under the State law of Colorado to reserve waters in Eagle River as far back as 1921 and said the Supreme Court of Colorado diligently pursued that.

36-961-645

Under this bill what we are really trying to say is, well, you should not have a wild joker in the deck so that the Federal Government in some way might come in any day. Now under our reservation we are going to take some of these lands and, Denver, you are cut off under State law because this water arises on Federal reserve land and we have another use and we are under no obligation to observe the same law that you have been observing.

What we are trying to say in the bill, I think, is that the Federal Government should still have this right if it wants to exercise it. It has a prior right to go and get that water if it has a prior need, but in so doing it must observe the law of Colorado and if it has actually impaired Denver, then Denver must be compensated under the State law.

Isn't that what it comes down to?

Mr. CLARK. Well, I am not sure it does. First I want to point out that the United States has proceeded under the reservation theory while Denver has proceeded under the State law. If Colorado passed a bill that would release all conditional rights, and Denver's 1921 conditional rights which protect it in the Eagle River were liquidated, those rights would no longer be existent.

Now there are many junior appropriations on the Eagle River. The reason Denver had to litigate its due diligence, as I understand it, is that it has to show due diligence each 2 years. There are many people who would like to use that water or claim that they would like to use that water, reserved since 1921 for local projects, and they attack the due diligence of Denver and you have a lawsuit.

Denver has had to maintain its due diligence through these years. If Denver released its conditional right today, then it would have to go in and condemn out all the junior rights that would vest in place of that right that they protected by conditional right since 1921.

Senator Moss. Well, I violated what I said I was not going to do by questioning until I have a chance really to see the statement in writing, and I would like to do that.

I am further persuaded this is a good course because following the Government witnesses we have two very eminent States attorneys general who will come on and I assume will present the position of State water law more fully and will also give me a better basis.

My colleague Frank Church.

Senator CHURCH. I have one question. I think, Mr. Chairman, you have raised the Denver case as an illustration. Just so I will understand your testimony correctly, Mr. Clark, you pointed to Denver as an illustration of a case where a city under State law had reserved water in a given river for future use; did you not?

Mr. CLARK. Yes, sir; I did.

Senator CHURCH. Was your point that if this bill were enacted we would be denying to the Federal Government the right to do this very thing?

Mr. CLARK. The point was that the reservations made heretofore by the United States would be abandoned.

Senator CHURCH. Yes. In other words, if I understood your point, whereas Denver, under State law, could reserve water for future use, this bill would in effect set aside the efficacy of reservations that the Federal Government has made for future use.

Mr. CLARK. Yes, sir; that is right.

Senator CHURCH. So the bill would deny the Federal Government rights which States and cities assert under State law for future planning in the use of the water?

Mr. CLARK. Yes. It would. I assume that some of these Federal reservations contained the element of foresight; that, for instance, the reservation in 1926 of the land within one-quarter mile of springs and water holes, thousands of them on public lands, was so that the public could go on those lands and use the waters. They could graze cattle, for example, under the federally protected right. Assuming there was foresight in those reservations, it is cut off as of the date this bill becomes law. The United States has to exercise foresight from that date on, but at the date of the cutoff there will be a practical invasion of the reserved water rights that are abandoned because there are so many streams that are overappropriated; there are people with appropriations today junior to these reservations that don't get enough water today 9 years out of 10 under their rights and their appropriations will immediately absorb these waters released and the United States would then be at the end of the line if under subsection (3) (e) of section 2 the Congress authorized an appropriation.

Senator CHURCH. Then the United States, if later the Federal Government, for general public purposes, were to divert water on a reservation, it would then have to buy back from private users whatever had been acquired by the private users by virtue of the force of this bill?

Mr. CLARK. That is right.

Senator CHURCH. You think that is wrong because these private users have taken in the first place with due notice of the Federal Government's right under reservations that now exist. Is that the purport of your testimony?

Mr. CLARK. These people have not charged the United States with any invasion of their rights. We have not found legal claims. We have not found claims really except for the general fear that people have visualized or imagined since the Pelton Dam decision.

Senator CHURCH. But in order to understand exactly the rationale behind your position, is it accurate to state that the rationale would be, that inasmuch as these private people downstream, let us, say, from the Federal reservation have taken water with notice of the prior Federal reservation, they should not thereafter, by virtue of the provision of this bill, acquire a right against the Government that the Government would have to pay them for, if the Government later wanted to use that water? Is that the rationale behind your statement? Mr. CLARK. That is partly it, with an additional qualification. If the Congress looks at that situation and knows that there is a good reason for the general welfare to release that water right it could do so. In addition, in establishing its past uses, which it would have to do to have any future use, the United States would have to establish its actual past use and I think that could be an immense and most difficult proposition.

Senator CHURCH. Mr. Chairman, I want to pursue these questions later, but I don't want to hold up the committee. I think, of course, we are embarked here upon a matter of enormous ramifications that has very sweeping effects. We want to be certain that we understand the Government witnesses and all other witnesses who testify on it.

I think that other questions are certainly in order, but I want to comply with your wishes and expedite the committee's hearings, so long as we have a full opportunity to question these Federal witnesses. I think that the statement Mr. Clark has made is one of the most forthright opposition statements I have ever heard made by a Federal witness in the matter of a bill brought before this committee, and, therefore, in justice to our responsibilities, we must give it careful attention.

Senator Moss. Certainly I would agree, and that is the reason I am going to ask that the statement be reproducted overnight and be before us in writing by tomorrow morning and on that basis we would ask Mr. Clark to return so that he may respond to questions. However, if there are questions now, I don't want to cut them off.

Senator ALLOTT. Mr. Chairman, may I ask a question on that? Is it possible that we could get this statement reproduced by late this afternoon so that it would be available to us overnight? I think most of us have an engagement tonight which is well known and has been outstanding for a long time, but at least we might have a chance to look at this before tomorrow morning.

Senator Moss. Yes; we will ask the staff to begin at once. We can cut stencils and mimeograph it and also supply the statement to the reporter and it will be done for the record. I was thinking within the matter of 2 or 3 hours; in fact, we could probably have it reproduced so it would be available to us.

Senator Kuchel.

Senator KUCHEL. I want to congratulate Mr. Clark on his fine presentation, but I do think that it would be better procedure for the benefit of those of us in support of the bill, if you were to supply written statements.

For example, when you used this example of the Denver situation, we could go into that specifically and find out what Federal legislation there is now in effect in regard to such matters arising and then determine by questioning what the public interest today should be. So I simply thank you, and I will defer any questions until later on. Senator Moss. Senator Jordan.

Senator JORDAN. I would like to reserve my questions until I have a chance to see the statement that the Justice Department has submitted here. Would it be unreasonable to request, Mr. Chairman, that members of the executive branch provide us with copies of their statement so that we could better follow them if they read them into the record?

Senator Moss. Well, that is of course the usual practice and ordinarily it is done. This hearing was in doubt for some time as to whether the Federal witnesses would be able to testify at this time or be put off until a later date. I assume that is the reason it was not reproduced and in our hands earlier.

Mr. CLARK. Yes, sir. I am sorry about that. I will have my copy retyped. Now it has handwritten notes on it and marginal notations I made last night, but I can have it retyped and up here by 3 o'clock this afternoon at the latest. I assume that would accommodate the committee and the reporter.

Senator Moss. It would do. If you would send it up here at the very earliest time so that we can reproduce it and get it in the hands

of all the committee members this afternoon, I would appreciate that, Mr. Clark.

I do congratulate you on a fine statement, one that raises a lot of problems and a lot of questions that I am sure we want to dig into. Next will be a statement by Mr. Baker, Assistant Secretary of Agriculture.

STATEMENT OF JOHN A. BAKER, ASSISTANT SECRETARY OF

AGRICULTURE

Mr. BAKER. Mr. Chairman and members of the committee, I am pleased to appear before your committee and present this statement on behalf of the Department of Agriculture as a supplement to the fine statement made by the Assistant Attorney General, Mr. Clark. The Department of Agriculture is in full accord with his statement.

The subject of Federal-State relations in the field of water rights has been before many Congresses in many different forms. The Department of Agriculture fully recognizes the importance of the question of water rights, particularly to the people of the Western States. We believe that it is important that the relationship of the interests of the United States and of the States in the use of certain waters be fully understood. Cordial relationships and proper understanding between the Federal Government and the States in this matter of water rights are highly desirable. However, we believe that the broad outline of these relationships as they presently exist should not be changedthat the paramount national interest in the water resources on public lands should not be surrendered to the several States.

This Department has responsibility for many programs which necessarily deal with the use of water. One example is administration of the national forest system, in which water rights are essential to the administration of these lands and their resources under principles of multiple use and sustained yield. Another example is the concern of the Department, as representatives of farm and rural people, in the multiple-purpose development of our water resources which to this point has included over 200 systems under the rural electrification program which receive their power supply from Federal hydroelectric projects.

You have before you the Department's report on this bill. It sets forth the Department's position recommending against enactment. We believe the primary reasons leading to this recommendation are clear.

Many of the programs of this Department are carried out on a cooperative basis with the States. We are proud of the harmonious relationship that exists between the various States and this Department. Our present and proposed course for handling problems and management of water resources on this cooperative basis has worked out very satisfactorily. We believe that restrictions beyond those already provided by law would seriously inhibit effective multiplepurpose development of our water resources.

Senator Moss. Mr. Barry will be heard from next, the Solicitor of the Department of the Interior.