It is unnecessary, for the purposes of this case, to explore the origin or limits of such power to reserve water against subsequent appropriators. The authorities cited above sufficiently sustain the validity of such a reservation to preserve the Indians' rights here under consideration. United States intended to reserve mainstream water for the reasonable future needs of the following Indian Reservations: Chemehuevi, Cocopah, Yuma, Colorado River and Fort Mohave. As to each it is apparent that it was intended that the Indians would settle on the Reservation land and develop an agricultural economy. The land, however, is too arid to support such an economy without irrigation from the Colorado River. It would be unconscionable for the United States to have coerced or induced Indians onto a Reservation without providing the water necessary to make the lands habitable. I refuse to accept this possibility as to any of the mainstream Indian Reservations since there is no evidence as to any of them that such was the case. As the Court of Appeals stated in the Walker River case, at page 339: "It would be irrational to assume that the intent was merely to set aside the arid soil without reserving the means of rendering it productive.” Also, wherever I have found an intent to reserve water, I have inferred, absent evidence to the contrary, that the reservation was not limited to the needs of the population then resident upon the land, nor to the acreage being irrigated when the Reservation was created. I have concluded that enough water was reserved to satisfy the future expanding agricultural and related water needs of each Indian Reservation. Invariably the United States intended that the Indian tribes settled on a Reservation would remain there for generations, and the possibility that other Indians would be settled on the Reservation could not be excluded. Certainly the possibility of expanding populations, expanding agricultural development, and hence expanding water needs must have been apparent at the time each Reservation was created. It is unreasonable to attribute to the United States an intention or an expectation that the Indians would remain stagnant or die out when they were settled on a Reservation. Since the Indians could remain on these Reservations and develop their society and economy only if water from the Colorado River was available to meet their future needs, I have found that the United States, when it reserved water, reserved it for all of such needs. * * * * * It is necessary to adjudicate the water rights of the Lake Mead National Recreation Area for the same reason that the rights of the mainstream Indian Reservations must be adjudicated. I conclude that the United States had the power to reserve water in the Colorado River for use in the Lake Mead National Recreation Area for the same reasons that it could reserve such water for Indian Reservations. Although the authorities discussed above which establish the reservation theory all involved Indian Reservations, the principles seem equally applicable to lands used by the United States for its other purposes. If the United States can set aside public land for an Indian Reservation and, at the same time, reserve water for the future requirements of that land, I can see no reason why the United States cannot equally reserve water for public land which it sets aside as a National Recreation Area. Cf. F.P.C. v. Oregon, 349 U.S. 435 (1955). Certainly none of the parties has suggested a tenable distinction between the two situations. In determining whether the United States intended to reserve water for the future reasonable needs of the Lake Mead National Recreation Area, I have followed the course outlined in regard to Indian Reservations. Since the purposes of the Recreation Area could not be fully carried out without the use of water from the mainstream of the Colorado River, I have found that the United States intended to reserve such water for use within the Recreation Area. Furthermore, having found that the United States intended to reserve water for the Area, I have assumed, since there is no evidence to the contrary, that the reservation was for reasonable future requirements. As in the case of Indian Reservations, it is not likely that the United States intended that any future development of the Area would have to depend on appropriative rights to water obtained under state law. I have not set maximum limits on the amount of mainstream water that the Lake Mead National Recreation Area can consume as I did in the case of the Indian Reservations. First, it would be very difficult to predict accurately 81 the future requirements of the Area. Indeed, even to attempt such a prediction would require more evidence than the parties have introduced in this litigation. Second, there is no need whatsoever to predict future needs or to put an outside limit on the amount of water that can be diverted from the mainstream. The present consumption of water diverted from the mainstream on the Lake Mead National Recreation Area is less than 300 acre-feet per annum. Furthermore, from all that appears, its future requirements, whatever they may precisely be, will be of the same general order of magnitude as present uses. Unlike the mainstream Indian Reservations, the potential future uses of the Recreation Area do not cast a cloud on the continuing availability of any appreciable amount of water. This being the case, I have concluded that it would be unwise to attempt to limit the Area to a specific quantity of mainstream water for its future needs. Although the United States undoubtedly has the power to take property, including water rights, in order to fulfill its treaty obligations, there is no indication that it has chosen to do so in order to operate the two wildlife refuges currently diverting water from the Colorado River. The Executive Orders creating these refuges simply reserve public lands owned by the United States for use as a wildlife refuge. Nothing in these orders purports to authorize the Secretary of the Interior to utilize water from the Colorado River previously appropriated by others. Rather, the intention of the United States, as expressed in the Executive Orders, was to reserve enough of the unappropriated water available in the River to satisfy the reasonable requirements of the Refuges. I have previously concluded that the United States had the power to reserve unappropriated water in the Colorado River for the future requirements of Indian Reservations and a National Recreation Area and I can perceive no material distinction between them and wildlife refuges. Furthermore, it is abundantly clear that the Havasu Lake National Wildlife Refuge and the Imperial National Wildlife Refuge could not successfully be operated without diverting water from the Colorado River. Thus I find that the United States intended to reserve water from the mainstream for the reasonable future needs of these Refuges. The United States suggests that it will need to divert no more than 41,839 acre-feet of water per annum and consumptively use no more than 37,339 acrefeet per annum for the Havasu Refuge. The United States also suggests it will need to divert no more than 28,000 acre-feet per annum and consumptively use no more than 23,000 acre-feet per annum for the Imperial Refuge. I find that diversions and consumptive use in these amounts are reasonably necessary for the operation of the Refuges and that the necessary water was reserved by the United States for the Refuges when they were created. Thus I hold that the United States may divert and consume the stated quantities of water from the Colorado River as against all appropriations made subsequent to the dates that the water was reserved. If the United States requires water appropriated by others before these Refuges were created, it will have to take the necessary steps to acquire it. Since lands within the proposed Cibola Valley Waterfowl Management Area have not as yet been withdrawn for this purpose, the United States has not reserved water for use on this management area. Under the proposed definition of perfected rights a question arises with respect to water reserved from the mainstream for use on federal establishments in the Lower Basin. I have held that the United States has the power to reserve water for the reasonable future needs of federal establishments and that certain statutes, executive orders and other orders of withdrawal were intended to exercise this power. The water rights created by such a federal reservation do not depend upon state law or upon the actual diversion and beneficial use of a specific quantity of water. On the contrary, they are superior to subsequent appropriations under state law, although the subsequent appropriator may be first to divert and use the water. See pages 257 et seq., supra. The question that arises is whether a reservation of water by the United States before June 25, 1929, is accorded the protection given by Section 6 to present 81 U.S. Ex. 2802. perfected rights, even though, as of that date, the rights were not acquired under state law and all the water reserved had not been put to beneficial use. I have concluded that they are so protected. Although not acquired in conformity with state law, these rights are protected by Section 6, since their creation and existence are valid independent of state law. Moreover, they receive this protection although none or only part of the reserved water had been put to use as of June 25, 1929. The fundamental nature of a reserved water right is that it is fully vested at the time of its creation; nothing further need be done to perfect it. It differs radically from appropriative rights under state law, which may be initiated by a filing but which must be perfected by actual diversion and beneficial use of water within a reasonable time after the filing. Thus a reserved water right created before June 25, 1929, is, by its very nature, "perfected" as of that date. Furthermore, failure to include reserved water rights within the protection of Section 6 could have the effect of divesting them. For example, I have concluded that the United States reserved the right to divert annually a maximum of 11,340 acre-feet of mainstream water for the Chemehuevi Indian Reservation, with a priority of February 2, 1907. The Reservation was not consuming all of this water in 1929. If the right is not considered a present perfected right under Section 6, then present perfected rights acquired under California law would have seniority, even though initiated after 1907. Thus, in certain times of shortage, water would be supplied in satisfaction of the California rights and the Reservation would not receive the full amount of its reserved water, despite its needs. To hold that Congress did not include reserved water within the protection of Section 6 would require a holding that Congress, without saying so expressly, and without ever considering the matter,3 intended to nullify, in times of shortage, the very purpose of the reservation. The cases cited at pp. 258-259, supra, demonstrate that reservation of water was made by the United States to assure an adequate supply of water for the future needs of the federal establishments, in order that they could fulfill their purposes. It would frustrate this intent to deny the United States the use of this reserved water in times of shortage. I do not believe that Congress, when directing that the dam be operated in "satisfaction of present perfected rights", intended these consequences, and accordingly, I conclude that water rights reserved before June 25, 1929, for federal establishments are "perfected rights" within the meaning of Section 6. * Set forth below is the report of the Department of Justice in 1956 on the Barrett bill (S. 861, 84th Cong.). The committee is reprinting it because of its pertinency to the States rights doctrine with respect to control and ownership of waters within State boundaries. JUSTICE DEPARTMENT'S REPORT ON BARRETT BILL OF 1956 Hon. JAMES E. MURRAY, DEPARTMENT OF JUSTICE, Washington, D.C., March 19, 1956. Chairman, Committee on Interior and Insular Affairs, MY DEAR MR. CHAIRMAN: This is in response to your request dated March 5, 1956, for the views of the Department of Justice concerning the amendment to be proposed by Senator Barrett to the bill, S. 863. Under the proposed amendment, the bill would be entitled "A bill to recognize and confirm the authority of arid and semiarid States relating to the control, appropriation, use, or distribution of water within their geographic boundaries, and for other purposes.' The proposed legislation would be cited as the "Water Rights Settlement Act of 1956." After a detailed recital indicating that the security of prior rights to the use of water acquired under State law for beneficial purposes is threatened by the exercise by the Federal Government of its rights to the use of water in 99 The legislative history reveals nothing concerning the status of federal water rights as perfected rights. those States lying wholly or in part west of the 98th meridian, the purpose of the proposed legislation is stated in the last sentence of section 2 as follows: "Because of the fact that previous acts of Congress have been and may be interpreted with respect to these States so as to cast clouds on such prior rights and to interfere with the future orderly development of water resources in accordance with the foregoing declaration, it is the purpose of this act: (1) to remove any such clouds; (2) to provide for the future acquisition of unappropriated waters, navigable and nonnavigable, in compliance with State laws; and (3) to provide adequate protections of the Federal interests to the end that the Federal Government may perform its functions in a manner consistent with the foregoing purposes." This Department questions the validity of the assumption underlying the statement of policy that Federal activities in the Western States involving rights to the use of water threaten the security of prior rights acquired under State law or cause undue interference with such rights or with the orderly acquisition of such rights in the future. If there are instances in which either public or nonpublic investments in water resource developments have been jeopardized by the National Government in the exercise of its powers and authority under the Constitution, they are indeed rare. Passing over without further comment the statement of policy considerations, it appears that the effect of the legislation would be to subordinate substantially all Federal rights to the use of water in the West to the laws of the States and the rights of those claiming under State laws and to completely subject the National Government in this field to control and regulation by the States. That this effect is inconsistent with, and, in the present form of the bill, at best renders uncertain of accomplishment, the declared purpose "(3) to provide adequate protections of the Federal interests to the end that the Federal Government may perform its functions in a manner consistent with the foregoing purposes" is apparent from the following considerations. Section 5 of the proposed legislation would provide that: "In the use of water for any purpose in connection with Federal programs, projects, or activities no Federal agency or employee of the Government shall interfere with the exercise of any right to the use of water for beneficial purposes heretofore acquired under and recognized by State custom or law except when expressly authorized by law and upon payment of just compensation therefor: ***" The full impact of this provision is difficult of comprehension. Questions of construction would be innumerable. It is conceivable that rights "heretofore" acquired under and recognized by State custom or law without recognition of prior vested rights of the Federal Government not based upon State law would be held superior to the Federal rights. There are presently pending in the courts numerous cases involving that precise situation. A conceivable construction of section 5 is that it constitutes a relinquishment by the United States of America of its vested rights to the use of water in every instance when an appropriator under the laws of the State, asserting a right acquired prior to the date of approval of the legislation, claims adversely to the rights of the United States irrespective of relative priority. Under such a construction, the executive branch of the Federal Government would be precluded from fulfilling its responsibilities in connection with the development of water resources and the use of those resources if for no other reason than that the costs would be in many instances prohibitive. Beyond the question of the extent to which section 5 might conceivably be construed as subordinating reserved or other presently vested rights of the Federal Government not based upon State law to rights asserted under such laws, other impediments to performance by the Federal Government of its functions in water resource development are suggested. For example, the injunction against interference by Federal agencies or employees with the exercise of any right to the use of water heretofore acquired under and recognized by State custom or law might be construed as requiring water deliveries from the Colorado River for the satisfaction of all rights to waters of that river heretofore acquired under State law without regard to the feasibility of such deliveries unless express authorization for the taking of such rights by the Federal Government can be found in legislation. There is wide conflict between such possible construction of section 5 of the proposed legislation and the claims asserted by the several States included in the lower basin of this river in litigation now pending in the Supreme Court of the United States. A similar impact upon administration by the Federal Government of other great reclamation projects in the West is conceivable. The devastating effects of the provisions of section 6 of the proposed legislation upon the performance by the Federal Government of its functions in water resource development and in the exercise of its rights to the use of water are even more readily apparent. These provisions, subject to existing rights under State law, purport to reserve for appropriation and use of the public pursuant to State law all navigable and nonnavigable waters, and would require all Federal agencies and all permittees, licensees, and employees of the Federal Government, as a condition precedent to the use of water for any purpose in connection with Federal programs, projects, activities, licenses or permits, to acquire the right to such use in conformity with State laws and procedures. The only exception to such requirements of conformity with State law relates to the storage and release of water solely for the prevenion of floods. The impracticability, if not the impossibility, of full compliance by the Federal Government with State laws in connection with interstate stream development is obvious. This applies not only to reclamation projects but as well to the use of water for power development, improvement and control of navigation, flood control beyond the mere storage and release of water, pollution control, and other proper functions of the Federal Government in connection with the water resources of the Nation. That the necessity of complying with the varying and oftentimes conflicting provisions of the laws of the several States affected by any interstate stream project before such project might be undertaken seriously threatens the possibility of additional Federal projects on such streams appears clear. This Department cannot, of course, state with certainty the interpretations which may be placed by the courts upon the proposed legislation. The best that can be done is through an analysis of the legislation to suggest what interpretations are reasonably conceivable. In this connection, it is conceivable that the provision of section 6 reserving for appropriations and use of the public pursuant to State law all navigable and nonnavigable waters might be construed as opening up for appropriation under State law the waters stored in Hoover Dam, Parker Dam, Davis Dam, Friant, Shasta, Grand Coulee, Elephant Butte, Fort Peck, Oahe Garrison Fort Randall and other similar projects without regard to the purpose of the project and without regard to the authorizing legislation existing Federal contracts, or other considerations. Other equally undesirable consequences are perceivable through the interpretations which might be made of section 6. There is nothing in the proposed legislation which saves from the operation of that section present rights of the United States, with the exception of the provision of section 9 relative to the fulfillment of treaty obligations. The language of section 6 seems to require that in the future no Federal right to the use of water which is not already based upon State law may be exercised unless a right to such use is first acquired in conformity with State law relating to the control, appropriation, use, or distribution of such waters. Whether rights to the use of water for many purposes which are recognized as being within the purview of the Federal Government can be acquired in conformity with State laws presents a serious question. The subject bill provides that rights to the use of navigable and nonnavigable waters "for beneficial purposes" shall be acquired under State laws relating to the appropriation, control, use, or distribution of such waters. Use for a beneficial purpose is a prerequisite to acquisition of a water right in those States following the system of prior appropriation. By definition what constitutes a beneficial purpose in a particular State would depend upon the law of that State. Many Federal uses are not recognized as being for beneficial purposes under present laws of all the Western States and many are not so recognized under present laws of any of those States. In this category are navigation; recreation purposes; conservation of fish and wildlife; maintenance of national parks, monuments, and scenic attractions; military purposes; and others. If a right to the use of water for any of such purposes could not be acquired in conformity with State law, the provisions of section 6 of the subject legislation would in effect constitute a prohibition against the continuance of existing and the initiation of future Federal activities within these areas, except as such prohibition may be held violative of constitutional provisions. It could be argued that Federal law recognizing the validity of such purposes in the field of Federal activity would have to be accepted as part of the State law relating to the control, appropriation, use, or distribution of water. Past experience indicates that this view would not be willingly accepted. The last proviso in section 6 does not preserve to the National Government the right to the use of water in the national |