Mr. MASON. Again in the Commission's reports on those bills I do not recall that we discussed those issues. I do not think we would because interpretation of a State's act of admission is outside of the Federal Power Commission's area, so that this is the first time I had heard that.

I have no comment to offer.

In connection with the question by Senator Hickey, I have a one-page statement here that puts down rather briefly, with citations of cases, a possible enactment to require compensation for State water rights in connection with Federal flood control and navigation projects.

If it will be of any value, I will be glad to submit it for the record. It will give you the cases and citations and will explain with some background what is behind our suggestion.

The CHAIRMAN. We shall be glad to enter that in the record.

(The statement referred to follows:)

"By the exercise of the dominant power of the Federal Government with respect to navigational servitude, Congress may assert its privilege to appropriate, without compensation, those conflicting private property rights which are not protected by the fifth amendment. United States v. Twin City Power Co. (350 U.S. 222, 224–225). Compare, United States v. Virginia Electric Co. (365 U.S. 624). However, Congress did not assert that privilege in the Federal Power Act. Water rights, like other property rights taken by the licensee, are compensable under the Federal Power Act. Federal Power Commission v. Niagara Mohawk Power Corp. (347 U.S. 239, 251). See also, United States v. Gerlach Live Stock Co. (339 U.S. 725). Compare, United States v. Grand River Dam Authority (363 U.S. 229). The right to acquire or condemn property rights necessary for a licensed project and, of course, upon the payment of just compensation for them, is granted by section 21 of the Federal Power Act (16 U.S.C. 814). Federal Power Commission v. Tuscarora Indian Nation (362 U.S. 99, 113). See also, City of Tacoma v. Taxpayers (357 U.S. 320).

"Consequently, if Congress so desires it could solve the problem by enacting a simple bill merely stating that private property rights subject to the navigational servitude, including water rights, which are in conflict with any development hereafter authorized by Congress shall not be acquired without payment of just compensation therefor, unless the legislation authorizing such development expressly provides for the taking of such conflicting private property without compensation."

The CHAIRMAN. Does that complete your statement, Mr. Mason? Mr. MASON. I want to add one thought here. This statement refers to those water rights that are not protected by the fifth amendment. If they were protected by the fifth amendment, we would not need this.

The CHAIRMAN. Thank you very much, and thank you for your many courtesies to this committee.

Senator Moss. Thank you, Mr. Mason.

Are there other questions at this time?

Senator ANDERSON. I submit at this time a letter from the Governor of New Mexico in relation to this bill. I find myself a little bit in contradiction with some of the things he says in the letter, but nonetheless, I would like to put it in the record.

If there is no objection from the Senator from California I would like to put in the record a statement which I have received from his State in opposition to the bill. My friendship for the Senator from California is valued, so I will not put it in if he objects to it.

Senator KUCHEL. To the contrary, I think it should be put in. If it is to be put in at this particular point in the record, permit me, Mr. Chairman, to observe that a part of the wording in the letter of opposition deals with this problem of unjust enrichment and acreage limitation. So I simply repeat here what I stated earlier, this bill has nothing to do with that subject.

In order to allay even the most outlandish and unreasonable apprehension on that score, I would wish to write in a specific statement in this bill to demonstrate that.

Senator Moss. Those statements may be placed in the record. (The documents referred to follow :)

STATE OF NEW MEXICO,
OFFICE OF THE GOVERNOR,
Santa Fe, February 14, 1964.

Hon. CLINTON P. ANDERSON,

U.S. Senate, New Senate Office Building,
Washington, D.C.

DEAR SENATOR ANDERSON: I am advised that the Irrigation and Reclamation Subcommittee of the Senate Interior and Insular Affairs Committee will hold hearings on S. 1275 (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) on March 10 and 11.

It is my view that the decision of the U.S. Supreme Court in Arizona v. California et al., makes it imperative that legislation such as S. 1275 be enacted. In this decision the Supreme Court held that in withdrawing public lands for such purposes as national recreation areas, national parks, and national forests the United States intended to reserve water sufficient for the future requirements of these Federal establishments. In New Mexico the greatest impact of this part of the Court's decision would result from its application to the national forests.

The decision gives the Forest Service the right to take at any time whatever quantity of water may be necessary for the purposes of the forest to the detriment of, and without compensation to, those who put the waters arising on the forests to beneficial use after the time the forest was created.

As you know, a large proportion of the water that we use in New Mexico arises on the national forests and most of our streams are now fully appropriated. Much of this water was put to use downstream long before the law authorizing the creation of national forests became effective. (The act of March 3, 1891; U.S. Stats. at Large, 51st Cong. 2d sess., ch. 561, vol. 26.) But many

water rights in New Mexico were initiated under territorial or State law after public lands were withdrawn for forest purposes and these rights could be adversely affected if the Forest Service exercised the right conferred by the Supreme Court.

The act of June 4, 1897 (U.S. Stat. L., 55th Cong., 1st sess., ch. 2, vol. 30) provides that "no public forest reservation shall be established except to improve and protect the forest within the reservation, or for the purpose of securing favorable conditions of water flows, and to furnish a continuous supply of timber for the use of necessities of the citizens, of the United States;" and that, "all waters on such reservations may be used for domestic, mining, milling, or irrigation purposes, under the law of the State wherein such national forests are situated, or under the laws of the United States and the rules and regulations established thereunder." [Emphasis supplied.]

The reservation of an indefinite amount of the water running off the national forests for an indefinite time would discourage the people from developing and using these waters. The above-quoted language suggests to me that the Congress wanted to encourage the use of waters arising in the forests and did not intend to reserve any except the amounts being used when the forests were established. To the best of my knowledge the Forest Service has never appropriated water for forest purposes to the detriment of any water right in New Mexico initiated before or after the creation of a national forest on the watershed involved. The Forest Service has always followed the procedures required by State law in the appropriation and use of water in New Mexico. I am confident that the officials of the Forest Service have no desire now to exercise the right described by the Supreme Court to the injury of any water user in New Mexico.

However, unless and until the Congress makes it clear that it did not intend that the establishment of a national forest would reserve water for the purposes of the forest, the Forest Service must either exercise its rights under the "reservation theory" announced by the Supreme Court, without regard to the injury to water users, or forego the development and use of water for the purposes of the forest. Neither of these alternatives is desirable or in the interests of the State or Federal Governments, and the dilemma can be avoided by the enactment of S. 1275, or similar legislation.

I would appreciate it if you will have this letter made a part of the record of the hearings on S. 1275.

Sincerely,

JACK M. CAMPBELL, Governor.

STATEMENT OF PAUL S. TAYLOR, BERKELEY, CALIF.

My name is Paul S. Taylor and I reside in Berkeley, Calif. Between 1943 and 1952 I served as consultant on western water development in the Department of the Interior, and since then have published a half dozen articles in law journals on the excess land provisions of Federal reclamation law. In 1958 I appeared personally before this Committee on Interior and Insular Affairs to give testimony on S. 1425, S. 2541 and S. 3448. The present statement is submitted on my individual initiative and responsibility, in opposition to S. 1275 introduced by Senator Thomas H. Kuchel.

It is curious that a proposal to require Federal recognition of State water rights should be advanced at this time, by a friend of western water development. A similar idea was advanced by friends of western development long ago, then abandoned in the face of realities that are no less real today.

The movement of western citizens for western water development that began in the nineties and culminated in the Federal Reclamation Act of 1902 started with a proposal pointing in the same general direction as the Kuchel bill, S. 1275. The very first convention resolved in 1891 at Salt Lake City that the role of the United States in the West should be diminished and that of the several Western States enhanced. This appears to be the aim of S. 1275. The resolution of September 17 of that year proposed that the Federal Government should grant to the States "all lands now a part of the public domain within such States and territories *** for the purpose of developing irrigation, to render the lands now arid, fertile and capable of supporting a population."

Soon these western supporters of western development abandoned that approach, as they realized the effective way to advance western water development was to enlarge the role of the U.S. Government, not to diminish it.

The participation of the U.S. Government in western water development is recognized today by everyone in the West as highly necessary, for financial reasons if no other. Even those who oppose Federal antimonopoly policy (the 160acre water limitation) desire the help of Federal money and profess gratitude for it. S. 1275 is now hailed as a bill for "Removing objections to *** Federal projects." Have we before the Congress, in S. 1275, one more attempt to preserve the flow of Federal money to the West while obstructing the Federal policy of distributing waters widely-of insuring, in the words of the U.S. Supreme Court, that "benefits may be distributed in accordance with the greatest good to the greatest number of individuals"? (Ivanhoe v. McCracken, 357 U.S. at 297.)

The committee will note that S. 1275 includes no mention of acreage limitation, and no mention of antimonopoly policy of water distribution. I find no mention of either in Senator Kuchel's statement in the Congressional Record on February 28, 1964, pages 3805-3807. Should the committee conclude that S. 1275 has nothing to do with Federal policy, but only with protection of property rights in water grounded in State law against injury inflicted by the Federal Government? Such a conclusion, in my opinion, would be both shortsighted and untrue. Omission of any mention of acreage limitation in S. 1275 should not be interpreted to mean that the bill overlooks acreage limitation as an expression of antimonopoly policy.

State water right law can determine the distribution-and the extent of the monopolization-of waters within a State, without even mentioning acreage limitation, but merely the law of "property rights," with which the statement inserted in the Record by Senator Kuchel on February 28 (p. 3806, col. 1) says that S. 1275 is "mainly" concerned.

The use of States rights against Federal policy was well known to the original Conservationists. Gifford Pinchot said: "The most specious and least expected argument of the power people was the old States rights argument, dead as Hector since the Civil War. They hang on the fact that water rights belonged to the States, which was true enough, and they have clung to it ever since. The special interests find it far easier to control a State legislature than the Congress of the United States." (Breaking New Ground, p. 339.)

Founders of reclamation were not misled into a false belief that the State governments were better protectors of public policy than the States. They knew the record. When the American Federation of Labor endorsed Federal reclamation in 1901 its resolution recited “that we are unalterably opposed to the cession, by sale or otherwise, of such lands to corporations or speculators, or to the several State governments, and equally to the donation of the proceeds to the States, every such course having heretofore resulted in sales to monopolists, with consequent grave injuries to the rights of actual settlers and producers."

From the record of California an example or two may be cited. As recently as 1957 the California Supreme Court, ostensibly concerned with protection of State property rights in water, found that acreage limitation was prohibited by State law. (Ivanhoe Irr. Dist. v. All Parties, 47 Cal. 2d 597.) It required a decision of the U.S. Supreme Court to sustain acreage limitation.

Long before, the Supreme Court of the same State of California had also wrestled with State water rights, in the famous case of Lux v. Haggin (69 Cal. 255) in 1886. The court decided, after long deliberation, to support riparian water rights. It spoke of its search for a public water policy to "secure the greatest good to the greatest number," and gave warning of "a monopoly of all the waters of the State by comparatively few individuals * * * controlling aggregated capital, who could either apply the water to purposes useful to themselves, or sell it to those from whom they had taken it away, as well as to others." Notwithstanding the court's awareness of the desirability of distributing the use of waters widely, and avoiding monopoly, its decision was made in terms of property rights, and the effect was a concentration of ownership and control of the flow of the Kern River, a water monopoly without parallel in the country.

The concern of S. 1275 is with property rights in water, State property rights, and their protection against Federal intrusion, without compensation, or it is so stated. The fact of the matter is, that the record of the Federal Government for providing compensation for water rights taken in pursuance of a Federal project is very good, and has been noted specifically and with evident approval, by the U.S. Supreme Court. (United States v. Gerlach, 339 U.S. 725, 734, 735.) Is there any valid ground for believing that an individual's rights, property or other, are likely to be protected better by a State than by the Government of the United States? The entire record of Federal reclamation for two generations is the enhancement of individual water rights, under a Federal statute that already requires the Secretary of Interior to respect State water rights. (43 U.S.C. 391, sec. 8.)

Suspicion that policy is in jeopardy from S. 1275 is strengthened by the willingness of the author to set aside the rule, in respect to reserved or withdrawn Federal lands, that water is appurtenant to land. (Congressional Record, Feb. 28, 1964, p. 3806, col. 1.)

The founders of reclamation regarded "appurtenance" as one of the most essential rules to provide protection against monopoly and speculation, and Federal reclamation law requires "appurtenance." The father of reclamation, George H. Maxwell, told the irrigation Congress in 1903: "Speculation and monopoly in these lands or in the water must be rigidly guarded against *** The ownership of land and water must be united. Speculation in water as a commodity must be made impossible." S. 1275 proposes a separation of ownership, at least in certain important situations, of water from land, by disclaiming "appurtenance."

How far can the effects of S. 1275 go? That is not easy to answer, but they can go far. A contract, approved as to form by the Interior Department and now awaiting execution in Sacramento, offers to recognize around 10 acrefeet of water per acre as the water right of Sacramento River diverters in the Glenn-Colusa Irrigation District. This allowance is close to four times the normal water duty on other parts of the Central Valley project. Would S. 1275, requiring recognition of State water rights as property rights, result in making this district a merchant to other water users of any surplus it might not require in any year? It is the Federal Central Valley project that has firmed up the supply of water for these Sacramento River diverters. Why turn a water service entitlement, as is customary, into a property right, and salable like a commodity? And why impair the navigational water authority of the Federal Government? Was S. 1275 drafted with the Sacramento and San Joaquin Rivers in mind? And if so, why?

Doubtless further analysis of S. 1275 would disclose other possibilities, if not probabilities and certainties, of injury to a national public policy favorable

to widespread distribution of water from public projects, the policy in accord with the greatest good to the greatest number of individuals. The above examples will suffice to indicate the grounds on which I apprehend nothing but injury to public policy from S. 1275.

The title of Senator Kuchel's remarks in the Record on February 28, 1964, is interesting, perhaps revealing. It reads: "Removing Objections to Regional Water Planning and Federal Projects." Whose objections? Everybody in California wants Federal money, but there are some who object to Federal policy.

The State of California is an immense beneficiary of Federal reclamation, and its future depends on regional planning and on more Federal water projects. The California State comments on the latest Pacific Southwest water plan, transmitted by Govornor Brown on December 3, 1963, say specifically that "the solution of regional water problems is beyond the financial ability of the individual areas and States and (we) endorse Federal implementation * * *”

And even here, the question of acreage limitation arises once more, the words unspoken, but the ghost unmistakable. One of the State's recommendations is: "14. Federal participation in enlargement of the California aqueduct must be restricted to financing * * *” i.e., no acreage limitations. Are the States really the safest protectors of individual water rights, as S. 1275 appears to imply? The evidence that the State of California, and perhaps other States, is less than stanch as preserver of the antimonopoly conservation policies of Theodore Roosevelt and Gifford Pinchot, should not obscure the fact that even the Federal Government is sometimes weak, too. According to former Senator William F. Knowland's Oakland Tribune of February 16, 1964, it appears that there is some sort of understanding between the Interior Department and the State of California, that the new Udall Pacific Southwest water plan will make use of the State to avoid Federal acreage limitation law. Point 10 is this:

"10. Making the State of Calfornia the 'marketing agency' for many Federal water projects, thus evading the 160-acre limitation which requires 'Federal water' buyers to break up huge farms into 'family farm' plots."

A much better viewpoint on public policy was expressed on February 3, 1964, in New Orleans by U.S. Commissioner of Reclamation Floyd E. Dominy, when he told the Mississippi Valley Association:

"I am proud of what Reclamation has done in its 62 years of history as a builder of the West. I am proud that our basic principles remain essentially unchanged in concept. * ** We are today, as we always have been, fully committed to the conviction that the family farm is a national asset of fundamental importance."

This statement could well serve as the guide to policy and administration of law, for both Federal and State officials, and for executive, legislative, and judicial branches of government. It is law, and should be preserved against corroding encroachments, whether these are proposed vocally and in so many words, or silently and without warning.

Senator Moss. Now, I do thank all of you gentlemen who have come here and testified. I think you made your position very clear. I ask Mr. Clark and Mr. Barry that they return tomorrow. You others are invited if you are able to return but particularly we would like Mr. Clark and Mr. Barry, because I am certain we are going to have additional questions to ask of those two and the others if they are able to attend. This will be all for this morning. Thank you all very much.

Now we have come to 12 o'clock and the word is that there will be objection to our sitting beyond this time. The Senate just convened. We have arrived at the point on the witness list where Attorney General Mosk and Attorney General Raper will be our next witnesses. In order that we may get on as far as possible, without testimony tomorrow, we will convene sharply at 9 o'clock in the morning, which will give us at least 3 hours. If it is necessary, we will try to find some time to go over even beyond tomorrow because we are anxious to develop a full and complete record so that we may wrestle with this problem and do justice to it.