reservoir. The Hawthorne decision appears to immunize the United States from the effect of these regulations. The United States can, if it sees fit, take all of the water out of the basin and leave the other property owners not only without any water but also without any remedy.

The Department of Justice has urged this same reserved lands doctrine in the famous Fallbrook case in California. The stream involved in that case has its origin in the coastal range of mountains north of San Diego, and its entire course lies within the State of California. However, much of the land in the mountain watershed is U.S. forest reserve land. The Justice Department accordingly contends that the United States owns practically all water in the stream and may use it as it pleases regardless of rights already vested under State law. The implications of this contention are obvious.

Because of the far-reaching consequences of the "reservation" doctrine announced in the Pelton Dam case, various efforts have been made to obtain congressional nullification of the reservation rule. One of these efforts was embodied in what has become known as the Barrett bill, S. 863, introduced in the 84th Congress by Senator Barrett, of Wyoming. That bill contained very broad provisions which would have subjected the Federal Government to State water laws in every aspect of its activity. That proposal went much too far, in my opinion, in the direction of placing all Federal water projects under the absolute control of the State governments.

In 1959, however, there was a proposal which would have had the very salutary effect of revoking the reservation doctrine arising out of the Pelton Dam case and leaving all of the broader problems for further consideration. This was the so-called Federal agencies bill which had the approval of the U.S. Departments of Justice, Interior, Defense, and Agriculture, as well as the Bureau of the Budget. This measure is reproduced at pages 21 and 22 of the February 15, 1961, committee print of this committee's seventh annual conference with the directors of the National Reclamation Association. The proposed bill reads as follows:

"SECTION 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.

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

"(a) 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, to the extent that such provisions are otherwise applicable. "(b) Permitting appropriations of water under State law which interfere with the provisions of international treaties of the United States.

"(c) Affecting, impairing, diminishing, subordinating, or enlarging (1) the rights of the United States or any State to waters under any interstate compact or existing judicial decree; (2) the obligations of the United States to Indians or Indian tribes, or any right owned or held by or for Indians or Indian tribes; (3) any water right heretofore acquired by others than the United States under Federal or State law; (4) 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 (5) any right of the United States to use water herafter 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."

You will notice that this original text does not include the provisions referring to the statehood acts which apparently caused difficulty in respect to a modified version of the bill embodied in S. 851 of the 86th Congress. (See the comment of your chairman, Senator Anderson, at p. 17 of the February 15 committee print).

So far as I am aware, there was no opposition to the principle embodied in this original Federal agencies bill. Some people were unhappy because it did not go far enough, but I now of no one who opposed what it did do. It would have canceled the unfortunate effect of the Pelton Dam decision by providing that no reservation or withdrawal of public land could affect any right to the use of water acquired pursuant to State law, either before or after the establishment of the reservation or withdrawal. There were appropriate qualifications to protect vested rights, Indian claims and treaty obligations. I am deeply disappointed that the bill was not passed.

The adoption of the Federal agencies bill is still urgently needed and I strongly recommend to this committee that the bill be given early and favorable consideration. It is not, so far as I know, a partisan issue. The bill has the endorsement of many interested groups, including the National Reclamation Association, which as recently as last November endorsed the principle of this bill in Resolution No. 2 adopted at the association's 1960 annual meeting in Bakersfield, Calif. I respectfully urge that the Federal agencies bill be introduced and passed in its original form without delay. This will dispose of the "reserved lands" doctrine which is so troublesome. It will leave the broader problems for later study.

And I hasten to add that there are many "broad problems" which do require prompt attention and careful study. Spurred by its success in the Pelton Dam case, the U.S. Department of Justice has in the last 2 or 3 years been very active in urging another theory which goes far beyond the "reservation" theory. It now contends that the United States actually owns all of the water in several of the public land States, and that it has given only a conditional, revocable, and temporary approval to the use of some of the water for beneficial purposes by those who appropriate it to beneficial use under local customs and laws. This theory, which may be called the Government "ownership" theory, has found its expression in briefs of the Department of Justice of the United States in several cases.

One recent example appears in a brief filed last year by the United States in the Superior Court of the State of California in Fresno County in an action involving the San Joaquin River. This case is The City of Fresno v. The State Water Rights Board, an appeal by the city of Fresno from a decision of the California State Water Rights Board determining certain applications for the use of water on the San Joaquin River. The United States is involved in the proceeding because the Bureau of Reclamation has built the Friant Dam on the San Joaquin River as part of the facilities of the Central Valley project. The Department of Justice asserts that the court has no jurisdiction of the matter because there is no "unappropriated water" in the stream. The reason there is no unappropriated water, according to the brief, is that when the United States completed Friant Dam the United States by that act alone took all of the unappropriated water and thereby automatically canceled the conditional permission which oCngress had given to others to take the water under local customs and laws.

This Government brief states at page 14 that ever since the Treaty of Guadalupe Hidalgo in 1848 the United States has owned all of the water in the area, including California, acquired from the Mexican Government pursuant to that treaty. According to the brief, the ownership of this water by the United States has never been divested, not even by the Desert Land Act or any of the other early statutes which have always been understood to give the general public the right to acquire use of such waters under State laws. At page 18 the brief states:

"The title of the United States to the right to use navigable waters and such nonna vigable water as has not been appropriated remains undisturbed by these statutes."

The brief generously admits that as to nonnavigable waters those statutes gave a conditional and revocable permission whereby the public might acquire appropriative rights under State law, but, says the Department of Justice, this permission was revoked in this case by the simple act of building the dam and taking the water. This, according to the Department of Justice, left no water in the river over which the California State Water Rights Board could exercise jurisdiction. Therefore, says the Government, the State board was just wasting its time to consider the matter.

The territory embraced by the Treaty of Guadalupe Hidalgo includes not only all of California but all of Nevada, Utah, and Arizona, almost half of New Mexico, a quarter of Colorado, and about an eighth of Wyoming. Thus it is clear that this assertion by the Department of Justice of complete ownership— not merely control, but ownership by the United States of all of the water in the area covered by this treaty except water already put to beneficial use from nonnavigable streams, is a matter of the utmost importance and concern not merely to California but to a very large part of the rest of Western America. Whether the Department of Justice makes a similar claim with respect to western lands acquired by other treaties or purchases I do not know, but the claim with respect to the former Mexican territory acquired under the Treaty of

Guadalupe Hidalgo is in itself enough to cause great concern to all of us in the Western States.

The senior Senator from California, the Honorable Thomas Kuchel, called this problem to the attention of the Senate of the United States on May 26, 1960. In an address on the floor of the Senate Senator Kuchel said: "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."

The Senator went on to urge, however, that instead of waiting for the question to plod its way through the judicial machinery, the Congress should take up the question and act upon it and act promptly. He said: "Congress has a fundamental responsibility to solve this situation once and for all."

I commend Senator Kuchel for calling this matter to the attention of the Congress, and I hope that his request for congressional action will produce results.

If it does not, the situation which is brought about by the mere assertion on the part of the Department of Justice of this "ownership" theory may well create extreme difficulties for all States and local agencies seeking to develop and finance water projects. How can anyone be justified in investing money in a water project proposing to use water which, under the claims of the Department of Justice, can be appropriated by the United States by the mere act of taking it? What useful function can be served by State water rights boards if the United States is completely immune from their action, and, as demonstrated in the Hawthorne case, will not even consent to have the legality of its actions tested by its own Federal courts?

But this is still not the end of the story. As one might suppose, this trend toward federalism, buttressed by the established "reservation" theory and the new "ownership" theory, has already produced a suggestion for the establishment of a system of Federal administration of water rights. This suggestion comes from a study made under the auspices of the Committee of the House of Representatives on Interior and Insular Affairs. In Committee Print No. 19, published on March 1, 1960, there is a discussion of this subject and a draft of proposed legislation by Mr. T. Richard Witmer, a member of the staff of the committee. Mr. Witmer is a good lawyer for whom I have great respect, and his discussion is a learned and scholarly review of the decisions of our courts and the enactments of Congress upon the subject of the relationship of State and Federal Governments in connection with the ownership and administration of water rights. He came to the conclusion that the interest of the Federal Government is so great and so important in this area that a system of Federal administration of water rights on a national scale is needed. He also concluded that section 8-the now almost sacred "State water law" section-of the Reclamation Act should be repealed.

A bill modeled upon Mr. Witmer's draft has been introduced in this session of the Congress (H.R. 5078). If this proposal should be adopted we would have a dual system of water right administration, and any person who wished to appropriate water from navigable streams would be required not only to obtain the consent of his State government but also the consent of a Federal bureau. Such a dual system of water rights administration would obviously impose great expense and other additional burdens upon those who wish to use unappropriated waters for beneficial purposes. It would also create continuing confusion and conflict between agencies with overlapping jurisdictions.

I hope that this proposal is not adopted. However, Mr. Witmer's paper does very effectively point up the need for a comprehensive review and clarification of the respective functions of the States and the Federal Government in the administration of the development and use of the water resources of the country.

Because of the extreme importance of these problems and their far-reaching implications I believe that your committee will perform a great service if you will provide the means for a comprehensive study of the entire matter by the Federal Government and the affected State governments. This can be done either by establishing a commission or by creating a special committee of the Congress to cooperate with the State governments in such a study. You might well call upon the Council of State Governments to appoint a representative committee to work with the Federal commission or committee in this study project. A long-range and properly coordinated analysis by the States and the Federal Government should produce satisfactory solutions. The answers to the many problems involved cannot be found quickly or easily. The Federal Gov

ernment and the respective States have important interests to protect and significant responsibilities to perform. It would be much better for them to work together toward a mutually satisfactory relationship than for them to stand apart from each other and attempt to solve the problems in the courts or in political debates.

In summary, therefore, I urge (1) prompt enactment of the proposal to revoke the "reserved lands" doctrine growing out of the Pelton Dam case, and (2) prompt establishment of a program for a comprehensive study of the entire problem by the Federal Government and the States in an effort to reach mutually acceptable principles for the coordination of activities and the delineation of responsibilities in the field of water resource development.

The foregoing comments represent only my own individual views. I do not purport to speak for others.

STATEMENT OF J. H. MOEUR, ARIZONA DIRECTOR OF THE NATIONAL RECLAMATION ASSOCIATION

I regret that it will not be possible for me to be present in person at the hearings before the Senate Committee on Interior and Insular Affairs on that most important subject: "Federal-State Water Rights," but I request that this statement be included in the printed hearings.

Resolutions No. 1 and No. 2 of the National Reclamation Association, adopted by that organization at its Bakersfield convention, call attention to the need for action in connection with the problems arising in the field of Federal-State water rights. As the distinguished chairman of the Senate Committee on Interior and Insular Affairs has pointed out, these problems have been with us for many years. Our legislative committee, successive presidents of our association, and officials of the executive branch of the Federal Government have worked at these problems with the Interior and Insular Affairs Committees of both Houses, in an effort to bring about solutions. They have worked without success to date; but that does not mean that progress has not been made. To the contrary, I believe that the hearings that have been held on a variety of bills over the years in this general field have been useful in achieving a better understanding of the difficulties and dangers of legislating in this field. I hope, also, that they have resulted in teaching us all that solutions can best be found through the media of skilled analysis and moderation in statement. This is one field of effort certainly in which heat will not generate light.

I do not urge approval by the Senate Committee on Interior and Insular Affairs at this time of any particular proposed legislation having to do with Federal-State water rights. On the contrary, I urge that the committee take no action on the subject at this time oher than affording opportunity for interested persons and organizations to present views. The reason for this is that I believe that action by the Congress at this time would be premature and, possibly even harmful.

One of the great water law suits of our time, the Arizona v. California case, at the initiation of which I had the honor of being chief of counsel for the State of Arizona, will be argued before the Court itself late this fall. It will probably be decided early next year. It deals with a number of vital questions in the field of Federal-State water rights. Surely we ought to wait until the last word on that case has been spoken by the Supreme Court of the United States before we take any legislative action in a field in which the Supreme Court is being asked to rule on a number of questions that are of interest to all the Western States. We shall not know the exact nature of the questions with which it may become necessary to deal through congressional action, until we see what disposition is made by the Court of the questions affecting FederalState water rights now lying before it.

Surely, also, we ought not, through the hearings beginning on June 15, 1961, to afford to anyone an opportunity to argue, either for or against any particular position on any issue now awaiting decision by the Court; and, even if such an opportunity be extended technically, I believe that neither counsel nor other officials of the several States which are parties to that lawsuit would wish to avail themselves of an opportunity to use another forum in which to disseminate their views in advance of the arguments to be made before the Court.

On June 28 next, the board of directors of the National Reclamation Association and the legislative committee will meet in Denver, Colo. At that time, I shall recommend that the board of directors of the association authorize its

legislative committee to make an exhaustive investigation of the subject of Federal-State water rights, including an analysis of the extent to which it is simplified or, as the case may be, complicated by the decision in Arizona v. California. Such a study should result in a delineation of the problems presented, by reference to actual, rather than hypothetical, cases. It should then determine the extent, if any, by which legislation can solve such problems. Having made that determination, our committee could then work with the Senate and House Committees on Interior and Insular Affairs and, perhaps, with other committees of the Congress, as well as with appropriate agencies and officials in the executive branch, to arrive at the necessary proposed legislation. Should our National Reclamation Association confide such a task to its legislative committee, I am convinced that the committee would undertake it with enthusiasm and that it would have the assistance, in that task, of the legal profession in each of the Western States.

I wish to emphasize that this statement has not been officially approved or even considered by either the legislative committee of the National Reclamation Association, of which I am chairman, or by the board of directors of the association. The thoughts expressed are purely my own and reflect my views and the views of some of my associates here in Arizona. Mr. LaSelle Coles, president of the National Reclamation Association, to whom I submitted the foregoing statement, has advised me, by telegram dated June 9, 1941, that it meets with his approval. This does not, of course, commit the National Reclamation Association.

STATEMENT OF MILO W. HOISVEEN, PRESIDENT OF THE ASSOCIATION OF WESTERN STATES ENGINEERS

My name is Milo W. Hoisveen. I am president of the Association of Western State Engineers of which the membership is composed of the State engineers and State water resource directors of the 17 Western States.

One

The Association of Western State Engineers was organized in 1928. of its purposes, as expressed in our bylaws, is to cooperate in making common cause for the preservation to the States of their inherent right to use, control, and distribute the waters thereof, and to facilitate the adjustment of interstate water problems. While we feel that the Federal Constitution has afforded us this right, we also believe that our record of administering the water law of the various States represented by the members of the association has clearly indicated our ability to handle our intrastate water problems and cooperate with our neighbor States through compacts.

In most instances Federal agencies have recognized the States authority over these waters. This is particularly true as it applies to the three principal Federal construction agencies in the field of water. These agencies are the Corps of Engineers, the U.S. Bureau of Reclamation, and the Soil Conservation Service.

This

The Corps of Engineers requires the local sponsor of a water project to obtain such water rights as deemed necessary as a local assurance. procedure is also typical of the Soil Conservation Service pursuant to their watershed program. In most States the Bureau of Reclamation applies for its water right in a manner identical to that of an individual or corporation or municipality. When granted a right, the Bureau of Reclamation holds it in trust for the subscribers served by them. The Bureau of Reclamation does in most instances anticipate a considerable period of time in which to ripen their right.

The agencies so mentioned have many years of experience in the field of water. It is assumed that they recognize the many advantages of having the States administer their own water as the States over a long period of time have become experienced and proficient in this field. They are best qualified to evaluate the requirements of the residents and project needs within their boundaries. State laws and the rules and regulations governing water can be more readily altered to meet the local requirements than if the control of these waters were centralized. Interagency differences can be more rapidly solved thereby permitting needed development to progress with a minimum amount of controversy. Should the administration of the waters of this Nation be removed from the States and centralized under the Federal Government it would provoke much controversy between Federal agencies if North Dakota's experience can be used