gresses, which some of us tried to use as a basis for legislation in those Congresses but to no avail. S. 1592 states by its own terms that its purpose is threefold: First, to remove clouds on water rights previously vested under the laws of the 17 Western States; Second, to provide for the future acquisition, under State law, of rights to the use of all unappropriated waters; Third, to provide adequate protection for Federal interests in the use and development of such waters. The proposed legislation would attain these purposes by having Congress declare that all unappropriated waters, whether ground or surface, nonnavigable or navigable, are available for appropriation under State laws. Federal agencies and permittees, licensees, and employees of the Federal Government would be required to acquire property rights to the use of water under State law in carrying out Federal water uses. All existing rights of third parties under State or Federal law would be protected, including Indian rights. What is wrong with these basic policy goals? Several other bills of similar purport have been introduced in the Senate. EXECUTIVE BRANCH OPPOSES STATES' USE I do not want the States to hamstring the Federal Government in its constitutional sphere of activities in the conservation and development of our land and water resources. But neither do I want the Federal Government to hamstring our States in their efforts to respond to the needs, present and future, of their citizens, in accord with local conditions and local needs, and in their efforts to use for the highest public good waters within their borders. The executive branch categorically opposes these proposals. But I submit this opposition by one branch of the Government is no reason why the Congress should not face up to the problem and fashion legislation which would end the constant unrest and uncertainty as to water rights between the several States and the Federal Government. This need was well expressed by the Honorable Hatfield Chilson, now an able Federal judge, who is a former Under Secretary of the Interior, the department of the executive branch most directly concerned with water resource development. In an address last fall, Judge Chilson said: To say the least, conflict and controversy are not conducive to that coordination of effort between the States and Federal Government which is so necessary if the Nation is to meet its rapidly expanding water needs. To us in the West it seems only reasonable that the Federal Government should be bound by the same rules of priority of water use as are its citizens. To the extent that Federal needs may be overriding, the necessary water supply may be obtained by the power of eminent domain. In conclusion, I repeat my opinion that a dual system of water rights and water control and use, one set of rules applying to the Federal Government and another set of rules applying to other water users, can only result in confusion and chaos. Future development of the water resources in the West will require more and more the cooperation of the States and the Federal Government. As time goes on, water development becomes more complex and more expensive. If the supply is to keep pace with the demand, it will require the cooperation, coordination, and best efforts of Federal, State, and local governments and public and private institutions and private citizens. So long as the conflict between the Western States and the Federal Government exists over what law and what rules and regulations shall govern the control, use, and distribution of the waters of the Western States, so long will the ill will, mistrust, and fear engendered by this conflict continue to hamstring and hinder the close and harmonious Federal-State relationship in the waterresource field which is so essential for the welfare of the West and the Nation. Mr. President, time is running out. My purpose in addressing the Senate is to voice the urgent need for congressional action. These legislative proposals form the basis on which we can take constructive action. As I say, the principles they set forth are valid. They preserve to every State of these United States its historic-and constitutional-right to use the waters within its borders as its own people determine to be in their own best interests. They also protect the interests of the Federal Government in its constitutional sphere. SWEEPING FEDERAL CLAIMS The situation caused by this Federal action in California presents a challenge which we must meet if acquisitive, power-hungry Federal agencies are to be held within constitutional and reasonable bounds. Now, Mr. President, I turn again to the specific facts of the Government's position in the Fresno case. As a lawyer, I state my complete, unequivocal disagreement with the bizarre contentions advanced by the Justice Department attorneys. The Department's basic contention is that the Treaty of Guadalupe Hidalgo, proclaimed in 1848, somehow, in some way, gives to the Federal Government in 1960 the outright ownership of all the rights to all of the unappropriated waters of the area now comprising California, as well as other great Western States. Indeed, the Department uses language which suggests that even our lands are subject to some kind of evanescent Federal ownership or "paramount rights." The Treaty of Guadalupe Hidalgo is found in 9 Statutes at Large, beginning at page 928. After seeing the Justice Department's brief, I reread this treaty. It is fairly long, comprising some 23 articles. It deals with a wide variety of subjects. First of all, it is a treaty of peace. It provides for the cessation of hostilities between the United States and Mexico. Among its numerous provisions are those for the withdrawal of the U.S. troops from Mexico, the return of custom houses and receipts, the treatment of prisoners of war in the event of any new outbreak of fighting, and the granting of American citizenship to Mexican citizens who elected to remain in the territory ceded to the United States. I was particularly interested in reading the provision of article V, describing the new boundary between the United States and Mexico. This article provides that the boundary is to run northward, along the western line of New Mexico, until it intersects the first branch of the River Gila (or if it should not intersect any branch of that river, then to the point on the said line nearest to such branch). I cite this particular provision, Mr. President, only to show that neither the Government of the United States nor the Government of Mexico knew precisely what lands and waters were being ceded. Certainly no water rights questions as between the States and their citizens, on the one hand, and the Federal Government, on the other, were in any remote contemplation of the chief clerk of the State Department, who was the U.S. representative, and the Mexican officials, who together drafted the treaty. California, as a State, was not even born until 2 years thereafter. ACTION BY CONGRESS ESSENTIAL Mr. President, if Federal claims to all of the water rights of all California in 1960 can conceivably be based on this treaty of peace of 112 years ago, which I deny, then the Government is leaning on a slender reed. It emphasizes, as few things could emphasize, the need for clear legislative action to preserve the freedom, and initiative, of the States to use and develop their water resources for the good of the people of the State, as I believe the American Constitution intended. When the Treaty of Guadalupe Hidalgo was referred to the Senate in the 30th Congress, some changes were made. 71868 0-61-2 Among them was a recognition by the United States of Mexican land grants and authorization for acknowledgment of titles and rights stemming from these land grants before American tribunals. These were, of course, private water and land rights. The point I make here is that this peace treaty with Mexico did not attempt nor intend to adjudicate water rights, as the Department of Justice unhappily now contends. In what appears to be an alternative basis for claiming ownership of the water in the San Joaquin, the Department of Justice takes the position that the closing of the Friant Dam in 1941 resulted in an appropriation by the Federal Government of all unappropriated waters and all rights to the use of all waters at the damsite. I quote from the Gov-. ernment's return brief: The correctness of the position of the United States of America that at least since the closure of Friant Dam it has owned the fee simple title to the rights to the use of all of the waters of the San Joaquin River at Friant Dam relied upon in the case of Rank against Krug, as above noted, is inescapable in the light of the Supreme Court's décision in United States v. Gerlach Live Stock Company. To me, the correctness of the Government's position is not inescapable. It is the other way around. The incorrectness of its position is inescapable. I shall show the fallacy of the Justice De partment's contention. First I point out that the Rank case to which reference is made was a predecessor action to the instant case brought by the city of Fresno. The Rank case was a class suit initiated in 1939 in the State courts of California which the Federal Government caused to be transferred in 1947 from the State court to the U.S. District Court for the Southern District of California, Northern Division. Plaintiffs were private individuals seeking to establish a common right to the use of the San Joaquin River waters. Federal District Judge Peirson Hall, held-and I quote from the headnote to the case reported in volume 142 of the Federal Supplement beginning at page 1: Where city and United States had both filed applications to appropriate surplus waters in certain stream, and United States had constructed dam and impounded water without having first obtained permit, as required by State law, to which United States were subject by reclamation laws, even if United States should ultimately obtain necessary permit, permit would be subject to provisions of California Watershed and County of Origin Statutes, and Government would have obligation to abide thereby, regardless of whether any conditions were placed in permit. The Federal Government appealed this judgment of the U.S. District Court and the appeal is now pending in the ninth circuit. In its pleadings on the appeal, the Department of Justice takes the same position of Federal ownership and Federal paramount rights as that which plagued us throughout the tidelands controversy and has plagued us through so much of our history as a State. UNITED STATES MUST COMPLY WITH STATE LAW To advert again to the pleading in the Fresno case from which I quoted above: By its own admission, the Government's position rests upon the Gerlach case, decided in 1950, which is founded in 339 U.S. Reports, beginning at page 725. The Gerlach Live Stock Co. was owner of grasslands along the river below the Friant Dam. Their entire operation was dependent upon water from the San Joaquin, and the building of the dam made their grasslands a dry waste. The company brought an action for damages in the U.S. Court of Claims, asserting that under California law, they were entitled to compensation as riparian owners. The Federal Government contended that the damage was not compensable on the ground that the project was an exercise of the commerce power of the Constitution for the control of navigation. The Court of Claims awarded damages to the livestock company, and the Government obtained certiorari in the Supreme Court. Incidentally, it is of interest to note that an amicus curiae brief was filed by the then attorney general of Nevada in the case on behalf of the State of Nevada by our distinguished colleague, now the senior Senator from Nevada, ALAN BIBLE, an excellent lawyer, and my good friend. The Supreme Court, in affirming the awards of the court of claims, pointed out that Friant Dam was a Bureau of Reclamation project, and subject to the provisions of the reclamation law of 1902. The Court states: We cannot disagree with claimants' contention that in undertaking these Friant projects and implementing the work as carried forward by the Reclamation Bureau, Congress proceeded on the basis of full recognition of water rights having valid existence under State law. By its command that the provisions of the reclamation law should govern the construction, operation, and maintenance of the several construction projects, Congress directed the Secretary of the Interior to proceed in conformity with State laws, giving full recognition to every right vested under these laws. I emphasize, Mr. President, that the Supreme Court of the United States found that, in authorizing construction and operation of Friant Dam, involving the waters we are talking about here, Congress directed the Secretary of the Interior to proceed in conformity with State laws, that is, the law of California, giving full recognition to every right vested under those California laws. CALIFORNIA HAS JURISDICTION In view of this unequivocal ruling by the highest court in our land on the very issue of the rights of the State of California in the waters of the San Joaquin, I cannot see how the Department of Justice now may claim that our State water board has no jurisdiction and that the State has no rights in this vital California stream. Later on, in a separate opinion, concurring in part, but dissenting as to the allowing of interest, Justice Douglas cited in full the text of section 8 of the reclamation law of 1902. This section is pertinent to my present discussion. Let me read its text. I quote: That nothing in this Act shall be construed as affecting or intended to affect or to in any way interfere with the laws of any State or Territory relating to the control, appropriation, use, or distribution of water used in irrigation, or any vested right acquired thereunder, and the Secretary of the Interior, in carrying out the provisions of this Act, shall proceed in conformity with such laws, and nothing herein shall in any way affect any right of any State or of the Federal Government or of any landowner, appropriator, or user of water in, to, or from any interstate stream or the waters thereof: Provided, That the right to the use of water acquired under the provisions of this Act shall be appurtenant to the land irrigated, and beneficial use shall be the basis, the measure, and the limit of the right. Justice Douglas, in connection with his discussion of this section requiring compliance with State laws in reclamation projects, such as the Friant Dam, touched on the history of the Reclamation Act. He pointed out that when the act was recommended in 1901, President Theodore Roosevelt was careful to suggest that there should be protection for vested rights and respect for laws of the State in which the reclamation project would be constructed. There were statements to the same effect by the managers of the legislation in both houses of the Congress. The Department of Justice is wrong in its philosophy. It is wrong in its law. I am hopeful that the courts will set it straight on both counts. But I reiterate that Congress has a fundamental responsibility to solve this situation once and for all. I speak here for California, where my beloved father was born, where I was born, the State which I love, which will always be my home. But I speak also for Western America, fast growing and fast developing, destined to play an ever-increasing role in the future of the Nation. And it is on both counts that I earnestly invite my brethren in the Senate-and in the House of Representatives to help remove a frightening hazard to my State, perhaps to theirs as well. to use the waters within our own boundaries as we believe will best serve the future of our own people. The CHAIRMAN. Thank you, Senator Kuchel. I want to commend you for a very fair, objective, and comprehensive statement. As Senator Kuchel indicated, he and I do not completely agree there is a "dark and ugly cloud" hanging over prospective State water resource development, but we both agree that it is highly desirable that our committee explore this field. That is the purpose of this hearing. Our purpose is not to attack the Federal Government, nor is it to defend the Federal Government. I do hope that witnesses will bear in mind that we are seeking information, and that if, after the hearing, they decide there is additional material on this question that they wished they had presented, I know that all the members of this committee would like to have such material made available to them. We will now hear from Senator Allott, of Colorado. STATEMENT OF HON. GORDON ALLOTT, A U.S. SENATOR FROM THE STATE OF COLORADO Senator ALLOTT. Thank you very much, Mr. Chairman. I would like to make just a few informal remarks. First of all, my interest in this is not new. I have pushed for such legislation ever since I have been in the U.S. Senate. I supported Senator Barrett on his bill, S. 863, in the 84th session, and I am prepared to support any like legislation now. I would like, also, to call particular attention, for the benefit of those who are interested in this, to the remarks I made in the Congressional Record of September 8, 1959. I ask consent, Mr. Chairman, that these remarks, together with the attached exhibits, be placed in the record of this hearing. The CHAIRMAN. Without objection your remarks and attached exhibits will appear at the conclusion of your oral presentation. Senator ALLOTT. I particularly want to make this material a part of the record because in my remarks in the Senate I attached certain appendixes as submitted by Senator O'Mahoney at hearings before the House Interior Committee on July 20, 1959. These appendixes, I think, are particularly pertinent and informative in defining the nature of the subject matter which we are discussing here. I also appeared last year, in 1960, before this committee with respect to the same issue, and made a somewhat shorter statement with respect to it. As of the present time, it seems to me that the chief matters we have to consider are these : (1) The claim of the Federal Government to proprietory interest in western waters is founded solely on the assumption that ownership of land by the Federal Government carries with it ownership of water rights, irrespective of State law. This claim is not founded on any act of Congress, nor is the underlying assumption necessary to a proper interpretation of the property clause of the U.S. Constitution. (2) All acts of Congress heretofore providing for recognition of State water laws and affording protection of water rights acquired thereunder, have likewise proceeded upon the same assumption; that is, that the United States must have had some interest in water rights arising solely from ownership of land and, therefore, congressional recognition of State water laws and water rights acquired under such laws was necessary to give them validity. (3) As a result, it has not only been possibly but probably the duty of the agencies of the U.S. Government to take the position that, to the extent that Federal lands have not passed into State or private ownership, to the extent that Federal lands have been withdrawn or reserved, or to the extent that water rights have not vested and accrued under State laws, there is some residue of water rights left in the Federal Government. Of course, with this position, I heartily disagree. (4) Furthermore, any new act of Congress dealing with public lands, with Federal projects or developments or with a Federal agency charged with the preservation, management, or development of natural resources, where such act of Congress does not make the necessary specific and complete reference to the integrity of State water laws, will be subject to the possible construction that State water laws were at least in part superseded by virtue of the supremacy clause of the U.S. Constitution; and, (5) The surest way, I believe, to attack the question of Federal proprietary interest in western waters so as to settle once and for all time this question that has been left unsettled since the discovery of gold in California in 1848, is to deal directly with the problem of whether ownership of land by the Federal Government carries with it ownership of any water rights. Once the Federal Government disclaims any ownership of water rights independently of State law, the "residue" of proprietary water rights of the Federal Government will have vanished unless State law provides otherwise. In conclusion, Mr. Chairman, I have asked Mr. Allen Mitchem, who is a prominent irrigation and water rights lawyer in his own right, and minority counsel for the committee, to prepare a memorandum on State water rights. This he has done and it has been distributed to members of the committee and to others. It is a very scholarly treatise and offers some new ideas, some new concepts and some new approaches to this matter. He also has prepared a bill which is in conformity with the treatise and memorandum he has prepared. I ask unanimous consent that these may be inserted into the record at this point in my remarks. The CHAIRMAN. Would the Senator from Colorado be willing for me to have the study and draft bill prepared by Mr. Mitchem submitted to the Department of Justice for comment. Then we will print the two together, thus giving us a more complete presentation of both sides of the issue. Senator ALLOTT. I will be glad to reserve my request in accordance with the chairman's wishes. The CHAIRMAN. Mr. Mitchem's study will appear in the record at the conclusion of the oral presentation. I would like to get the comments from Justice on it, because the memorandum appears to be quite sharply in conflict with the position that Justice has heretofore maintained. I want the Department to have a chance to consider Mr. Mitchem's contentions and proposals, and to have the benefit of comment on them. Senator ALLOTT. There is no question but what the statement of the chairman is entirely true. (Senator Allott's speech in the Senate on September 8, 1959, is as follows:) 1 See Part III, p. 187. |