Senator HICKEY. In your opinion, that question has never been answered?

Mr. WARNER. I think not.

Senator HICKEY. That is, by a court of competent jurisdiction. Mr. WARNER. I think it has never been so answered, at least with respect to this particular context.

Senator HICKEY. I have just one more question. Recognizing this background, and coming back to my interrogation with regard to the O'Mahoney-Milliken amendment to the Flood Control Act of 1944, it occurs to me that this very right of control or divestiture of rights by the Government and making such rights subject to the State laws was recognized in the opening paragraph of the Flood Control Act of 1944. This is the language that was used:

It is hereby declared to be the policy of the Congress to recognize the interest and rights of the States in determining the development of watersheds within the borders.

I think you discussed a portion of it which is designated as "B,” the use of water for navigation.

What is your opinion with regard to what I have just called your attention to?

Mr. WARNER. I think it is a very laudable policy.

Senator HICKEY. Isn't it a recognition of the rights of States to control the water within their borders, if they have been properly divested?

Mr. WARNER. If we had this question present directly in litigation, I think the Justice Department would very definitely take the position that this language is not in effect a grant by the Congress of the United States of any property rights which it may have had at the time the act was passed.

Senator HICKEY. Could it not well be stated on the other side that this is an expression of the understanding of Congress as to what rights exist?

Mr. WARNER. All I can say is what I think we as lawyers within the Department would say in response to such a contention. I think the Department of Justice would argue against it. I think, myself, that the language is not capable of the interpretation you are giving it. But here please recognize that I am expressing only my own

views.

Senator HICKEY. I appreciate that. I have one other question. Do you have any idea when the concept propounded in the First Iowa case, and in the Pelton Dam case, and in the subsequent cases, when it first became the philosophy of the Department of Justice?

Mr. WARNER. You are referring to the concept of original ownership?

Senator HICKEY. Yes.

Mr. WARNER. It goes back at least before 1900. In the references that we have made here this morning, the doctrine really was first and best recognized by the California Supreme Court, as far back as 1884.

Senator METCALF. If the Senator will yield, may I read another excerpt from the Rankin letter?

The claim of ownership by the United States of such unappropriated waters is based on original ownership by the United States in this area of the whole public domain. It is supported by a long line of decisions by the Supreme

Court of the United States. One of the earliest cases was Winters against the United States, 207 U.S. 564, decided in 1908. Its validity was most recently recognized in 363 U.S. 229.

So you date back this original ownership to the Winters case, at least, in 1908.

Mr. WARNER. Yes, and back to 1877, when Congress saw fit to pass the Desert Land Act. That authorized the appropriation.

Senator HICKEY. Isn't it a fact that throughout the years in contracts entered into by various agencies of the Government from time to time, that in those contracts or agreements between the Government and municipalities, between the Government and individuals, between the Government and districts, that they have had written into those contracts on some occasions an expression that they recognized the right of the State to control the waters in a particular area? Mr. WARNER. I do not know of such contracts.

Senator HICKEY. You do not know about those? Maybe I can locate some and present them to you.

I believe that is all.

Senator METCALF. I think, Senator Hickey, you have gone over some of the material that I wanted to inquire about to close this up. In view of this claim of original ownership and the fact that there has been divestiture on the part of the United States by such things as enabling acts, the Desert Land Act that you mentioned, and many other acts, it is your opinion, I take it, from your answers and responses to Senator Hickey, that in order to clarify what we believe to be the congressional intent in the Flood Control Act that was cited, we will have to pass additional legislation to clarify this position of the States.

Mr. WARNER. I certainly think that additional legislation would be necessary to clarify some of the contentions that are presently made as to existing law.

Senator METCALF. But there would be no constitutional prohibition against enactment of such legislation. It would be just another in a long line of acts of Congress granting various powers and divesting itself of some of the property rights of the Federal Government; is that correct?

Mr. WARNER. I think there is no constitutional objection to divestment of the Government's property at all. Of course, every piece of legislation has to be squared with the Constitution in its own framework.

Senator METCALF. Would there be a constitutional objection to requiring, as Senator Carroll suggested, that the Federal Government and its various agencies, in its desire to appropriate water on reserved land, would have to comply with the laws of the States?

Mr. WARNER. I have my own views on that. I don't think we have at this time a departmental position as to whether this presents a constitutional problem or not. I think that perhaps the safest thing, the appropriate thing, in connection with that question would be to refer to previous testimony by representatives of the Justice Department on that particular question. I think it is a question as to which you can't say yes or no and be sure that you are going to come out right. Again, it would depend in large measure on just what the law purported to require and how it did affect the Government's use of properties which

it may presently own, or how it may attempt to affect the Government's

use.

Senator METCALF. Do you have any further comments, Mr. Clark? Mr. CLARK. No, sir; I have no comments.

Senator METCALF. In view of the request of Senator Carroll, Senator Kuchel, and Senator Miller, I hope you will be available this afternoon so you can be recalled to answer further questions.

This morning after the hearing convened, the committee received a letter addressed to the chairman from the General Counsel of the Department of Defense. Without objection this will be inserted in the record at the place where the other material was put into the record. At this time the committee will be in recess until 2 o'clock, when the first witness will be Mr. Barry, Solicitor of the Department of Interior. (Whereupon at 12:40 p.m. the committee recessed to reconvene at 2 p.m. the same day).

AFTERNOON SESSION

The committee reconvened at 2 p.m., upon the expiration of the

recess.

Senator METCALF (presiding). The committee will be in order.

I had asked Mr. Clark to be present for further interrogation, but I understand that he has other appointments this afternoon, so he may be excused. We will try to recall him for further interrogation sometime tomorrow. We will let you know.

Mr. CLARK. Thank you very much, sir.

Senator METCALF. The next witness is Frank J. Barry, Solicitor of the Department of the Interior.

We are glad to have you back with us, Mr. Barry. Will you identify the people who are with you.

STATEMENT OF FRANK J. BARRY, SOLICITOR, DEPARTMENT OF THE INTERIOR; ACCOMPANIED BY EDWARD FISHER, DEPUTY SOLICITOR, AND EDWARD WEINBERG, ASSOCIATE SOLICITOR FOR WATER AND POWER

Mr. BARRY. Yes; I would like to introduce Edward Fisher, Deputy Solicitor of the Department of the Interior, and Edward Weinberg, who is Associate Solicitor for water and power in the Department of the Interior.

Senator METCALF. We are glad to have the legal first team with us. Mr. BARRY. I will say I am glad to have them with me. I am new to the Government. I come from a State where we don't have quite as much of a problem with quantities of water that I have found here in this part of the world.

I think possibly that if the Thirteen Colonies had been founded on the western side of the United States that we might have had a different Constitution with perhaps less emphasis on navigation and more emphasis on the need for adaptation of the common law to the law of appropriation of water which prevails in the West.

As to our Department in connection with this particular problem, I do not believe that the conflicts have been destructive of States rights. Such conflicts as have arisen, as exhibited in the Rio Grande case, the Pelton Dam case, and others, except for the Winters case, have been based largely on problems which we do not have in our Department.

This probably is the case because of the responsibilities of the Department of the Interior and the services which it provides pretty much are in accord with the wishes and needs of the States.

Usually the problems that have occurred have been, as was suggested by Assistant Attorney General Clark, the previous witness, what the people of the States have wanted. We have had some rather dry years out West, but I don't believe there exists any immediate danger so far as the services we present, any immediate danger.

I have had to reconsider what would be the purpose of this hearing as I listened this morning to the members of the committee. I think that what I will try to do is discuss what possible alternatives are available to meet the problem. I rather think that some of the cases cited and others have established the law of the United States to be that the Federal Government does have water rights and these rights may in the future come in conflict wth State interest. The purpose of this hearing, as I see it, is to determine what modificatons should be made in laws which do exist to protect the interests of the States and the people in the States.

I think, for example, the Rio Grande case, which has not been more than mentioned here before, and I consider it to be the most dangerous of all of the cases, if any of them are dangerous. It is the Rio Grande case which, if there is a threat to water development by local interests in the West, presents the threat, since it had to do with a nonnavigable stream and only with the navigable capacity of a downstream area. That case could be a menacing case and one which we would have to consider.

That was decided in 1899. Since that time we have had the Winters case, which established the rights of Indians on reservations to water for the reservation. As I understand it, none of the legislation which has been presented to Congress attempts to change the law of the Winters case.

Now, we have several alternative courses of action open to us. One, I think, to leave things as they are.

I believe that those who propose a change have difficulty in pointing to any actual serious consequences of things as they are; that is to say, the Federal Government having such rights as it has in the unappropriated waters of the West, and the States and individuals living in the West having such rights as they have.

Another alternative has been suggested at the opposite extreme, that the United States relinquish all of its water rights in the West. I believe that this is the effect of any requirement that the United States and its agencies come to the State agencies and request permission to use water or to have a right to appropriate water.

I believe that this would involve the surrender by the United States of the valuable water rights that it has.

I do not believe that any extreme solution is necessary.

Some place in between these two extremes Congress will have to find the compromise.

There has been proposed what is referred to as the agency bill. It has not been referred to in these hearings, but in the discussions that we have had in preparing ourselves for this conference with the committee, we discussed it as the agency bill, a bill which in effect states that as long as the United States does not actually commit the

acts of appropriation and take water, that the water is available for appropriation by others.

Now, this does not require the United States to come in and ask for a permit or appropriative right from the States. It does not on the other hand completely put the States under the risk of having valuable resources destroyed by claims that might be made in the future by the United States.

Whether this is to be the policy of this administration and the Department of the Interior, I cannot say.

At this point the time that we have had has not given us the opportunity to discuss fully with the Secretary the implications of any of these alternatives.

I think generally speaking the Department of the Interior has followed the policy of asking for permits from the State agencies and has secured water rights.

I believe that we intend to continue with that policy in the future. I have no further statement to make. I shall be happy to answer any questions.

Senator METCALF. Do you have any questions, Senator Miller? Senator MILLER. No, Mr. Chairman.

Senator METCALF. I cannot let this hearing go any further without reserving the right to discuss at some later date the very specific question of water rights on Indian reservations. Mr. Weinberg and I have differed on that in the Yellowtail case and it may arise again. I don't feel that this broad generalization is the time to go into these things, but I feel in view of the fact that the Department of Justice witness in some of his colloquy, touched on it, and now that you have touched on it, there should be reservation of the fact that that is a very special subject.

Mr. BARRY. I can agree with that, too. The Winters doctrine I believe leaves some very serious questions unanswered.

Senator METCALF. It is bound to come up again on the discussion of authorization of Paradise or Knolls Dam, bills on which have been in previous Congresses and the rights of both the Government and the Indian tribe on the plated Indian reservation and it may come up other times.

As you remember, it did come up in the Yellowtail case in which Congress passed a special act. But this hearing is much broader and much more general than that and I did not want to go into that specialized field.

If there are no questions, we thank you very much, Mr. Barry, for appearing.

Mr. BARRY. I might say we shall be happy to come back if other members of the committee wish to question us.

Senator METCALF. I am sure as this committee goes along and there is other evidence and testimony, that there will be questions arise and I hope you will be available for us.

Mr. BARRY. I heard Mr. Kuchel say he wanted to find out the position of Justice and Interior and he wanted to ask some questions about it. So since he is not here, I assume we will be called back.

Senator METCALF. If you will remain available.