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The title of the case is United States of America v. State of Utah, 283 U.S. 64, 75 Law Ed. 844. Attention is called to the statement of Chief Justice Hughes who delivered the opinion as that statement is found at the top of page 847 of 75 Law Ed., or the bottom of page 71 of 283 U.S. In stating the claims of the United States, Chief Justice Hughes stated the same as follows: "The complaint alleges that by the Gudalupe-Hidalgo Treaty of February 2, 1848, the United States acquired from the Republic of Mexico the title to all the lands riparian to these rivers, together with the riverbeds, within the State of Utah, and that the United States remains the owner of these lands, with certain stated exceptions of lands granted by it."

The case also involved the question as to whether or not at the points involved the rivers, to wit, the Green, Colorado, and San Juan Rivers, were navigable, but the United States did assert title to the beds of the rivers.

Will you please thank Senator Anderson for me for the opportunity of appearing before the committee?

Sincerely yours,

HARRY W. HORTON.

The CHAIRMAN. Don't you think it is a little different for the U.S. Government to be claiming something for the Indians, who are their wards, than claiming it for themselves?

Mr. HORTON. No, I don't think so, because, of course, the right that the United States gave to the Indians had to be a right that the United States had, and if the United States did not have the right, they couldn't urge it in behalf of the Indians.

So I think as a proposition of law, the fact that they claim it for the Indians or the fact that they claim it for somebody else is of no moment, unless it was something that historically went back to a title that had to do with a treaty between the Indians and the United States that preceded States rights. There, of course, there would be some merit to the proposition, possibly.

I have one more proposition I would like to touch on in conclusion, and that is the contention made before this committee by representatives of the Department of Justice that Congress is powerless to pass legislation to permit the States to carry on certain functions within their boundaries having to do with the question of water.

That contention is made on the basis that the United States cannot delegate to a State the administration of constitutional powers and privileges of the United States. The expression on that is typified by Mr. Rankin's testimony both before the congressional committee and the Senate committee on the Barrett bill. He was quite explicit there, and I thought Mr. Warner yesterday was equally frank, though maybe he did not go as far in his expressions.

But I think he indicated it is the position that there are limitations on what Congress can do in that regard. That bugaboo, if I may so designate it, that Congress cannot legislate on this subject because it would violate constitutional privileges of the United States, I think, is wrong from two standpoints.

In the first place, if Congress has the will to see that certain things are carried out, and they think that that is what should be done, then I think the question of whether or not it is unconstitutional should be left to the court.

In the second place, I think that the concept that Congress cannot tell the departments of the United States how they may, and, in turn, how they may not, carry out the constitutional powers and privileges of the United States is not a good concept. I do not think that that is right.

In other words, if it is right, then I take it that there is nobody in connection with the Federal Government that can tell the agencies what to do, outside of the Department of Justice. In other words, they would run the whole Government.

I think that, in and of itself, illustrates the fact that the power lies in Congress to indicate how these constitutional powers should be exercised.

The CHAIRMAN. As I remember it, and I do not say I remember correctly, in that commerce clause or near it in the Constitution, there is one about the coinage of money and regulating the value thereof. It says Congress shall do it.

Do you think, then, that if I introduce a bill that says, "However, the States of New Mexico, California, Wyoming, and Montana, plus the new State Hawaii, shall also be privileged to coin money and regulate the value of it," that they would hold that was legal?

Mr. HORTON. No, I do not think they would, because I think there is a specific holding in the Constitution on that proposition with respect to the fact that States may not do it. But in those instances where there is nothing in the Constitution that says that States may not be extended the power and privilege of doing this and that, I do not think there is anything in the Constitution that prevents it. At least I would feel that way until the U.S. Supreme Court told me to the contrary.

I would like to say this: That I think that there is a field for the United States and the States to get together on this question of building dams, structures, powerplants, on interstate streams. I think that men of good will can get together and work out something there that would be a workable proposition and still protect the States' rights. It has been my experience over the last number of years that where there is a will to make these matters work, that we have been able to make these laws giving States control over water and water affairs, we have been able to make them work very well.

The instances in which they cease working is where these contentions are made by the Department of Justice that the acts of Congress are not applicable and are either unconstitutional or, for some technical reason with respect to their language, cannot be applied, witness the reserve land situation in the Pelton case, and witness the proposition now in the Arizona case where they contend that the word "now" means that Congress did not have any idea of extending these rights retroactively or recognizing them retroactively.

I do not know whether what I have had to say will be of any help to the committee. I do feel that a careful drafting of a bill can accomplish a great deal to settle the situation. I know that there are lawyers that are competent to get together and do something worthwhile on it. Thank you.

The CHAIRMAN. Did you read Mr. Warner's testimony? You said he made some statements about the fact that Congress could not do certain things.

Mr. HORTON. I referred to the testimony of Mr. Rankin.

The CHAIRMAN. And you also said Mr. Warner.

Mr. HORTON. I said Mr. Warner's statement of yesterday.

The CHAIRMAN. Senator Kuchel said:

Suppose the Congress were to adopt legislation providing that the rights to the use of water in the States ceded to this country under the treaty should be vested in the States

and Mr. Warner said:

I think Congress could do that.

Mr. HORTON. But read the rest of what he had to say yesterday relative to the constitutional powers. I think you will find that in substance and in the ultimate he said he thought there were some constitutional restrictions on what Congress could do.

The CHAIRMAN. Are there any other questions?

Mr. HORTON. Thank you very much for the opportunity to appear. The CHAIRMAN. Thank you, Mr. Horton.

As previously agreed upon, as many as possible of the written statements submitted to the committee will appear in the record at the conclusion of the oral presentations.

The committee will recess at this time.

(Whereupon, at 3 p.m., the committee was recessed.)

SECTION II-WRITTEN STATEMENTS SUBMITTED

(The following letters, statements, and materials were submitted to the committee in connection with the hearing and by direction of the chairman are included in the printed record:)

STATE OF CALIFORNIA,

GOVERNOR'S OFFICE, Sacramento, June 11, 1961.

Hon. CLINTON P. ANDERSON,

U.S. Senator,

Senate Office Building,

Washington, D.C.

DEAR CLINT: Thank you for your letter of May 16, inviting me to attend or send a representative to attend the hearing on Federal-State water rights to be held on Jun 15 by the Senate Interior and Insular Affairs Committee.

As pointed out in the Kerr report (S. Rept. 29, 87th Cong., 1st sess., p. 67), "The problem of Federal-State water rights is one that calls for broad objective inquiry, and for statesmanship of the highest caliber on the part of both the Congress and the States in its solution." The first thing to recognize, in attempting to live up to these high demands is, as far as California is concerned, that the State and the United States are partners, not competitors, and that the activities of the two levels of Government are intended to be mutually complementary rather than mutually exclusive.

Next, I think, we must recognize that such a high degree of intergovernmental cooperation is more likely to be reached by a process of agreement and joint good will rather than by arguments over the ownership of unappropriated waters (cf. S. Rept. 29, supra at 65). Ownership is unimportant because what the United States needs, it can acquire (Ivanhoe Irr. Dist. v. McCracken, 357 U.S. 275, 291 (1958)). Water stored or power generated in one State may, as our Nation becomes more cohesive, be of interest to several States. It seems unlikely that when a project is thus in the national interest, either the Congress or the other affected States would be content to have it impeded by local laws (Arizona v. California, 283, U.S. 423, 451-452 (1931)).

I recognize the apprehension that has resulted from the implications that have been drawn from various judicial opinions and Federal departmental positions. Certainly there is no reason why those who have rights under State law validly vested by use should not be paid due compensation when such rights are infringed. Further, it might be administratively convenient to have a catalog of Federal claims to water. Study along these specific lines might be more rewarding than have been the previous efforts that attempted to cover the whole problem of Federal-State relations under the one catchall designation of water rights.

I regret that because of our current legislative session neither I nor my representatives will be able to attend the hearing on the 15th. However, we would like to receive a report of the hearing and to be advised if your committee decides to explore the subject further.

Sincerely,

EDMUND G. BROWN, Governor of California. 145

Hon. CLINTON P. ANDERSON,

ATTORNEY GENERAL, STATE OF CALIFORNIA,
Sacramento, Calif., June 6, 1961.

Chairman, U.S. Senate, Committee on Interior and Insular Affairs,
Senate Office Building, Washington, D.C.

DEAR SENATOR ANDERSON: Senator Kuchel has advised me that your committee is to hold a hearing on Federal-State relations in the field of water rights on June 15, directed not toward any particular bill but to explore the problem and to gather information from the groups most directly concerned. He suggests that I contact you and either to appear in person or to submit a written statement of my views.

I regret that my schedule does not permit me to appear in person. I would, therefore, appreciate your treating this letter as my written statement. I shall confine myself to a very few propositions which I believe should be kept paramount in any legislation touching on western water rights.

First, water rights are a species of real property rights. For at least two reasons this fact has much greater significance than its usefulness for classifying books in the law library:

(1) With respect to laws relating to land titles and to laws relating to water rights, certainty has a higher virtue than in any other category of the law. For this reason, as every lawyer has painfully learned, the law of land titles even in the 20th century is freighted with complicated and archaic distinctions for which the only reasons might be sought in feudal England. We have been slow to abandon the ancient laws about land titles, except with the greatest caution, because even the most careful revision carries some risk of causing uncertainty. This need for certainty-the need for the lawyer to be able to ascertain the law precisely-is equally great with respect to land titles and to western water law, the newer branch of the law of real property whose principles originated from custom, usage, and experience in the arid West beginning about 1850.

(2) The law of real property-both land titles and the law of water rightsis fundamentally and primarily the law of 50 American States. No competing and integrated body of Federal law, either of land titles or of water rights, exists. There are, to be sure, numerous Federal statutes relating to water rights, but most of them, beginning with 1866, speak with a common purpose. That purpose is to recognize, to preserve, or to incorporate the laws or customs of the States. In United States v. Fallbrook Utility District (165 F. Supp. 806, 841 (S.D. Cal. 1958)), Judge James M. Carter collected citations to no fewer than 36 acts of Congress which he accurately described as "an almost unbroken line of statutes by which Congress has deferred to State laws concerning water."

If we could conceive that in 1961 Congress should for some reason decide that water rights in the future should be based exclusively on Federal laws and that all constitutional barriers could be ignored, it would take diligent work by a considerable task force laboring for a number of years to write a Federal code to supplant the laws which the States have developed over the past century. The end product would probably resemble the water laws of Arizona, New Mexico, Nevada, Utah, Colorado, Idaho, or Wyoming. I pick these States because they follow the unalloyed doctrine or prior appropriation, without any admixture of riparian principles found in the law of California and other Western States where the early judges felt constrained to follow what they assumed to be the common law of England.

Second, displacement of Federal law by any process less careful than the one I have described would create chaos. If the State law of appropriations were destroyed without a Federal law of appropriations to take its place, the result would be as disastrous to Federal projects throughout the West as it would be to non-Federal projects.

Third, no one has seriously proposed the displacement of State water laws. For example I have given of attempted displacement of all State water law is wholly imaginary. I have used it partly because it typifies a great deal of the Federal versus State water rights debate. The respective protagonists choose up sides behind one or the other of these bold declarations:

"The United States can ***."

"The United States cannot ***"

This misses the point. We would all agree that Congress can, if it chooses, enact a great variety of bad laws which are nevertheless constitutional. This is ordinarily not a cause of worry when there is no slight possibility that Congress

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