Hearings, Reports and Prints of the Senate Committee on Interior and Insular Affairs

sec. 666 (a) (1958)), grants the consent of Congress to joinder of the United States in water rights litigation where the United States is an indispensable party, but subsection (c) of section 208 excludes interstate suits in the original jurisdiction of the Supreme Court.

On the other hand, section 14 of the Colorado River Storage Project Act of April 11, 1956 (70 Stat. 110; 43 U.S.C. sec. 620 (m) (1958)), specifically grants consent to joinder of the United States in original actions involving the "law of the river" on the Colorado. It is desirable to make the consent provision appearing in the 1952 act of general application.

In conclusion, I suggest that the real underlying necessity is in the field of the hydrologist and the economist, not that of the lawyer or legislator.

First, the dependable supply must be determined before any new project is authorized. Second, the wisest future use of that supply, whether for agriculture or industry or municipal supply, ought to be determined before new projects are authorized.

But, if we are to discuss legislation that deals with the mechanics of the jurisdictional problem, rather than with prevention of the shortages that generate the problem, the most workable solution that has yet appeared in print is the bill drafted by the Interior, Justice, and Defense Departments and submitted to Congress as H.R. 4567I should add S. 851, also-in the 86th Congress. It deals solely with the reservation problem, highlighted by the Pelton Dam case. ought to be enacted.

The CHAIRMAN. Excuse me right there.

S. 851 was the so-called O'Mahoney bill of the 86th Congress?
Mr. ELY. Yes.

The CHAIRMAN. And it might have been enacted, except that Senator O'Mahoney added another paragraph that worried Justice and thereby defeated any possibility of enacting it. Would you think we would do well to go ahead and enact the original legislation,

then?

Mr. ELY. I would be glad to see it enacted either with or without the added expression to which you refer.

The CHAIRMAN. I was only trying to get to this: That many witnesses have worried about this situation. We did find some language that quite apparently would have resulted in legislation had it passed the Congress. I assume the President would have signed it, since it was generated, at least, in his own Department.

It struck me at the time it would have been better to solve that much of the problem and then maybe try to amend it later on by the section Senator O'Mahoney had in mind, than to let the whole thing die.

Mr. ELY. I think you are unquestionably right.

The other points which I have discussed can be properly considered later, perhaps during interim hearings of this committee between sessions. To that end, and in order to put specific language before you, I am annexing a copy of H.R. 4567 (S. 851), of the 86th Congress with amendments to carry out the recommendations I have made today.

If I may turn briefly to that draft, which is annexed to my statement, I will summarize it. Its text is as follows:

A BILL* To provide that withdrawals or reservations of public land shall not affect certain water rights

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That

(1) The withdrawal or reservation of surveyed or unsurveyed public lands, heretofore or hereafter established, 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, [nor shall it affect the right of any State to exercise jurisdiction over water rights conferred by the Act admitting such State into the Union or such State's constitution, as accepted and ratified by such Act of admission].1

(2) The provisions of section 1(b) of the Flood Control Act of 1944 (Act of of December 22, 1944, 58 Stat. 888-89, as amended, 33 U.S.C. 701-1 (1952)) shall apply to all works hereafter constructed by or under the authority of the United States west of the ninety-eighth meridian.2

(3) Any right to the consumptive use of water claimed by the United States under the laws of any State shall be initiated and perfected in accordance with the procedure established by the laws of that State.3

(4) No vested right to the beneficial consumptive use of any waters, navigable or nonnavigable, which is recognized by the laws of the State in which such use is made, shall be taken by or under authority of the United States without compensation; and where such rights are acquired otherwise than by agreement with the owner, they shall be taken by proceedings in eminent domain in the manner provided in section 21 of the Federal Power Act, and not otherwise.5

SEC. 2. Nothing in this Act shall be construed as

(1) modifying or repealing any provision of any existing Act of Congress requiring that rights of the United States to the use of water be acquired pursuant to State law;

(2) permitting appropriations of water under State law which interfere with the provisions of international treaties of the United States; or

(3) affecting, impairing, diminishing, subordinating or enlarging (a) the rights of the United States or any State to waters under any interstate compact or existing judicial decree, (b) the obligations of the United States to Indians or Indian tribes, or any right owned or held by or for Indians or Indian tribes, (c) any water right heretofore acquired by others than the United States under Federal or State law, (d) any right to any quantity of water used for governmental purposes or programs [of the United States]* at any time from January 1, 1940, to the effective date of this Act; or (e) any right of the United States to use water which is hereafter lawfully initiated in the exercise of the express or necessarily implied authority of any present or future Act of Congress or State law when such right is initiated prior to the acquisition by others of any right to use water pursuant to State law.

1 Bracketed matter amendment proposed by U.S. witnesses in those hearings.

2 Sec. 1(b) of the Flood Control Act of 1944 subordinates uses of water for navigation to uses for irrigation and domestic purposes, in areas west of the 98th meridian. It does not affect the authority of the United States or its licensees to construct works, and does not touch conflicts between navigation or power functions and other nonconsumptive functions such as preservation of fish and wildlife.

3 This is derived from secs. 7 and 8 of the Reclamation Act of 1902. The proposed language applies only where the United States claims an appropriative right under State law, but in such a case requires the United States to conform to the administrative procedure established by the State for the establishment of such a right. It negatives the asserted "right of self-help."

4 This language does not deny the supremacy of the Federal commerce power, but does recognize the existence and compensable character of rights generated under State law which may be taken in the exercise of the plenary Federal commerce power.

5 This language requires the exercise of the power of condemnation in affirmative judicial proceedings for that purpose, in contrast with the asserted right of "inverse condemnation," i.e.. a taking without prior judicial process, remitting the claimant to suing for compensation.

Bracketed matter indicates amendment proposed by U.S. witnesses.

*Amendments proposed to H.R. 4567 (S. 851), 86th Cong., 1st sess., accompanying statement of Northcutt Ely before the House Committee on Interior and Insular Affairs, July 22, 1959, and Senate Committee on Interior and Insular Affairs, June 16, 1961.

SEC. 3. Section 208 of the Act of July 10, 1952 (66 Stat. 560, 43 U.S.C. § 666 (1958)) is amended by deleting therefrom the following language' contained in subsection (c): “Nothing in this Act shall be construed as authorizing the joinder of the United States in any suit or controversy in the Supreme Court of the United States involving the right of States to the use of the water of any interstate stream.".

The CHAIRMAN. Let me say right there, Mr. Ely, that I think this is a valuable service to us. If we are ever going to get down to a real threshing out of this problem, we will have to have something before us on which we can work. And without attempting to set forth that I endorse a single thing you have put into your bill, I do think it is valuable to have something to look at, and I hope that other witnesses and other interested parties may also make suggestions to us, so that at some subsequent date if we get down to the actual considerations of language, we have some suggestions to work on.

As I have tried to say earlier, these hearings for these 2 days were somewhat exploratory in nature, to see in what directions we should apply our energies. And this is a useful help to us.

Mr. ELY. Thank you.

I have attempted to reduce this draft of the bill to the bare essentials, and many might criticize it as being too skeletonized, but I simply want to size up the five or six points which I think deserve legisÎative consideration.

The first paragraph of section 1 is the language of the agency bill, the O'Mahoney bill, or S. 4567, 86th Congress, and deals only with the Pelton Dam situation. It reads:

At that point I would be happy to see those four lines enacted.

The next three lines were those which I understand were added by Senator O'Mahoney. They read as follows:

nor shall it affect the right of any State to exercise jurisdiction over water rights conferred by the Act admitting such State into the Union or such State's constitution, as accepted and ratified by such Act of admission.

I have no objection to that language being added, but I should be happy to see the first section enacted with or without the addition of that language.

I suggest, as paragraph (2) of section 1, adding:

(2) The provisions of section 1(b) of the Flood Control Act of 1944 (Act of December 22, 1944, 58 Stat. 888-89, as amended, 33 U.S.C. 701-1 (1952)) shall apply to all works hereafter constructed by or under the authority of the United States west of the ninety-eighth meridian.

I pause there a moment.

The CHAIRMAN. Is that language which was suggested by the Department?

Mr. ELY. No. This language italicized, and particularly what I have just read, is new. It is my own suggestion.

7 Sec. 208 (a) of the act of July 10, 1952, grants the consent of Congress to joinder of the United States in water rights litigation where the United States is an indispensable party, but subsec. (c) of sec. 208 excludes interstate suits in the original jurisdiction of the Supreme Court. On the other hand, sec. 14 of the Colorado River Storage Project Act of Apr. 11, 1956, 70 Stat. 110, 43 U.S.C., sec. 620 (m) (1958), specifically grants consent to joinder of the United States in original actions involving the "law of the river" on the Colorado. The proposed amendment makes the consent provisions of sec. 208 (a) of the act of July 10, 1952, of general application.

It is my understanding that each of the flood control acts since 1944 has carried this sort of language, but relating to the projects authorized by that act.

It seems to me this principle has been well accepted and established by now, and might very well be made of general application once for all, instead of applying only to specific projects in each act.

The CHAIRMAN. You say "hereafter constructed." So that if the Congress continued to put this language in each bill, as it came along, it would have the same effect as this, and this would be a short and simple way of doing it?

Mr. ELY. Exactly so.

This is restricted to projects hereafter constructed, in order to minimize opposition to it. If I were writing with a free hand, I would have it applicable to all projects heretofore or hereafter constructed west of the 98th meridian. I think the principle is right, and ought to apply to all of them. I do not know of any in which it would occasion conflict. This is all new

This, in explanation, is derived from sections 7 and 8 of the Reclamation Act of 1902. It applies only where the United States claims an appropriative right under State law. It does not deny to the United States the power to acquire rights otherwise, but says that when it does claim under State law it shall conform to the administrative procedure established by the State for the establishment of such right. It negates the asserted right of self-right.

My recollection is that in at least one California case, the Santa Margarita case, the United States, while asserting a right under State law, denied that it had to go through the procedure established by State statutes for hearings before the water rights board; and that a simple filing by the United States with the State complied, so far as the United States had to.

Senator KUCHEL. Mr. Ely, that would not affect the factual situation we had in the Hawthorne case, would it?

Mr. ELY. No. The United States there did not claim under State law.

Senator KUCHEL. They began doing so until the decision came down and then changed and abandoned that tack.

Mr. ELY. That is right, Senator Kuchel.

I would add this language, as a new paragraph in section 1:

Two points are made by this proposed amendment. One is to recognize the right to compensation of rights in waters, whether navigable or nonnavigable, if they are recognized by the State. This is substantially the point made by Mr. Mason of the Federal Power Commission yesterday, and I thought it was one of the most constructive statements that has appeared in any hearings on this subject. He

indicated, and I think he is right, that the recognition of the compensability of rights taken by the United States or its licensees would remove a very high percentage of the area of friction that your committee is considering.

Indeed, 95 percent of the problem before you is a simple problem of compensability. Your committee is dealing with plenary powers of Congress, under the property clause and the commerce clause. Nobody denies the right of the United States to build works or to take property, real estate, water rights, or whatever, in aid of such constitutionally authorized projects. The only question is whether it is going to take them with compensation or without.

Once the principle of compensability is established, 95 percent of the area of conflict that you have listened to disappears. Compensability does not, in most instances, add any appreciable cost to the Federal project. By "appreciable," I mean in terms of percentage.

On the Central Valley project, for example, my recollection is that out of a total cost of some $500 million, at the time I saw these figures, only about $5 million had been spent for the acquisition of water rights; and in the Gerlach case the matter of a few hundred thousand dollars was involved.

Compensability removes most of the problem before you.

The CHAIRMAN. I realize I ought to know, but does this have any bearing whatever on the amount of water that California is now using which may be more than the amount that was allocated under the Colorado River compact?

Mr. ELY. No, I assure you it does not. Those water rights are not for sale. Compensability is not involved.

The CHAIRMAN. No. What I am trying to say is this: Suppose that California was going to get 412-million acre-feet some day but is using 52-million acre-feet now. I am not saying it is. Suppose such a situation existed. And then because of development upstream also authorized by the original act, California had to reduce its usage of Colorado River water. Would it be entitled to compensation for those areas that had been using the extra water?

Mr. ELY. I did not have the Colorado situation in mind when writing this, but it happens that in the special master's report filed December 5 he makes the point that in his view Congress in the Boulder Canyon Project Act intended to leave intact and operative what he calls present perfected rights under State law, that is, appropriative rights to the extent that water had been in fact applied to use by the date the Project Act became effective, June 25, 1929.

He specifically leaves open the question of compensability for appropriative rights not then fully exercised, that is, which may be for a quantity greater than that in fact put to use by 1929. The question of existence of an appropriative right in a navigable stream, which at one time was closely litigated in that case, he apparently concedes. That is, the appropriative right does exist, but in his view its enforcibility survives the Project Act only to the extent that it had been perfected by the date of that act; and whether or not it has been taken, to the extent that the unused margin of the right existed in 1929, and whether that margin is compensable, he specifically leaves open.

The CHAIRMAN. In the special master's report, when he is dealing with the situation that exists between New Mexico and Arizona on the Gila, he refers to "an equitable apportionment," and he discusses New

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