Rather, it is a case in which the Supreme Court has held State law inapplicable because Congress, in valid exercise of its constitutional powers, has provided its own procedures for licensing projects under the circumstances there prevailing.

That is why I asked you if you thought that merely adding "including reserved lands" would cure it all.

Mr. STANLEY. I believe, Senator, that the problem is deeper than that. But I was trying to make this as simple as I could to correct something that is staring us in the face.

The CHAIRMAN. It may be that your solution is enough.

It is an interesting one. I want to read just a few words from what he says about the First Iowa case:

You are correct in your suggestion I do not agree with the statement on page 100 of the proposed report of the Senate Select Committee on Water Resources in First Iowa Corporation v. Federal Power Commission, the Supreme Court held a private utility licensed under the Federal Power Act could violate the laws of Iowa.

On the contrary, the holding in the First Iowa case was simply that where Congress, in valid exercise of its powers under the commerce laws of the Constitution and in the interest of securing a comprehensive development of water resources, has provided a procedure to the Federal Power Commission for the licensing of power projects on navigable waters, there is no room or need for conflicting State controls.

That I think was the whole question that the Supreme Court dealt with. They felt that if the Congress has laid down a procedure there is not room for another jurisdiction to come in and say it can exercise some powers as well.

I think that is partly involved in the Pelton Dam case as well. I always apologize on these matters because I am not a lawyer and I have always recognized that I speak more freely on legal points, not being a lawyer, than I would if I had legal restraint.

Mr. STANLEY. May I comment on that?

The CHAIRMAN. Surely, I want you to comment. That is why I read it to you.

Mr. STANLEY. We have no such thing as "riparian rights" in Oregon. The Supreme Court has said in the interpretation of the Desert Land Act-I am speaking of the U.S. Supreme Court-that the State has authority to determine what doctrine shall be used in determining the water rights.

Oregon has abrogated the riparian doctrine.

What sort of right can the Federal Government claim on a stream, be it navigable or nonnavigable, by reason of ownership of the riparian lands and what would happen to us if they turned on us tomorrow and created some more of these reserves on lands that are not now in reserve status?

They can do it. By doing so they would then lay claim to riparian rights, to the use of that water.

The CHAIRMAN. I only wanted to quote these so that when you got back home and thought more about it and read some more testimony you could send some more comments because we are going to try our very best to study carefully this problem and to come up with some sort of solution that is reasonable and sensible.

I was quite encouraged toward the end of your paper, the second to the last paragraph where you say:

The so-called administration bill drafted by Interior in collaboration with the Department of Justice as a substitute for S. 863 of the 84th Congress will help.

It was my thought, when we first went through the substitute bill, that it would help.

Of course, you will recognize there are many other Senators who said we would not take that at all, it is not nearly enough, and it not have been.

may

Mr. STANLEY. It will help in this matter. It will help to remove the fears of those who now hold the rights vested under State laws because this bill would recognize that those rights are valid.

The CHAIRMAN. I think it would be well to put into the record the recommended bill that you refer to so that others picking up the record might understand what it was.

Mr. STANLEY. Is it H.R. 4567 of the last session?

The CHAIRMAN. I do not know. The Attorney General sent us a suggested bill on July 22, 1959. The first section reads:

The withdrawal or reservation of surveyed or unsurveyed 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.

Mr. STANLEY. That, I think, will help some. It will help to remove the fears of people who hold rights now, that they might be deprived of those rights by Federal claims.

But if you could fix that just a little bit-I have some language here that I would substitute in lieu of that which would read:

The Federal Government shall not be deemed to have acquired or reserved any water rights as a result of the reservation or withdrawal of public land, whether made heretofore or hereafter, nor shall such withdrawal or reservation be deemed to exempt any water from the provisions of the Desert Land Act, act of March 3, 1877.

I think if we had that we would have something.

The CHAIRMAN. I will put this in the record and put the language you suggest in the record.

Therefore, we will have a chance to take a look at it all.

Mr. STANLEY. Thank you.

(The proposed legislation recommended by the Department of the Interior in 1958 is 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 hereafter 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.

The CHAIRMAN. Are there any questions?

Thank you very much.

Senator METCALF. Mr. Chairman, I just want to say that I thought Mr. Stanley made an excellent summary of the question and has made a helpful statement in making suggestions or amendments. I compliment him on the succinct job done.

The CHAIRMAN. I thought I said that. If I did not, I want to say that, too.

I think it is a fine job. Thank you very much, Mr. Stanley. Mr. STANLEY. Thank you very much, Mr. Chairman, for giving me this opportunity.

The CHAIRMAN. Mr. Rising, you have testified many, many times before this committee, when I have been present, and we are glad to welcome you back.

STATEMENT OF E. W. RISING, MONTANA STATE WATER

CONSERVATION BOARD

Mr. RISING. Mr. Chairman, my name is E. W. Rising. I am appearing today as the representative of the State Water Conservation Board of Montana. Hon. Donald G. Nutter, Governor of Montana, is chairman of our State water conservation board.

I desire to make a brief statement in support of the enactment of a Federal law, which would

clearly and unequivocally recognizing the title of the States to waters therein and requiring all Federal agencies and officers to proceed in conformity with State water laws in all matters having to do with appropriation, adjudication, use, ownership and distribution of water and water rights in such States.

The need for such legislative action is well illustrated by the fact that since January 29, 1959, 19 State legislatures passed resolutions memorializing the President and Congress to enact legislation to protect water rights from Federal presumption.

Historically, the responsibility for allocating water between competitive uses and users-farmers, industries, municipalities, and others-as been a responsibility performed by State governments and/or regulated by State law.

Recent acts of some of the departments of the executive branch of the Federal Government and decisions of the judicial branch of the Federal Government in the "Pelton Dam, Hawthorne" and other cases have raised serious doubts relative to the supremacy of State water laws. These acts and decisions affect the "use of water" in connection with existing natural resources development in Montana and will retard the future development of natural resources of the State. The present uncertainty jeopardizes long-established rights and relationships. By a process of gradual attrition, the security of the rights of millions of people and thousands of businesses and communities, in the continued use of water, has been subordinated.

Montana is, and always will be, a natural resource State, with a high percentage of its income arising from its agriculture, mining, lumbering, manufacturing and production of power. Water is basic in the development and use of these resources. Montana has an abundant water supply of excellent quality and originating from snowmelt in the high mountain ranges of the State. Two great river systems, the Missouri, with its principal tributary in the Yellowstone, and

the Columbia have their headwaters in Montana. These river systems and many minor streams throughout the State have adequate flows to meet the demands of industries for both water and power.

While only a little over 1 million kilowatts of hydropower has been developed in Montana, more than 6 million additional kilowatts can be developed as needed. Water supplies under the provisions of State water laws have also been provided for the irrigation of 2 million acres of fine agricultural land which produces alfalfa and other winter feed for the State's large cattle and sheep industries.

Montana's mineral production is of vast importance in the economy of the State and includes copper, lead, zinc, gold, silver, petroleum and phosphate. Huge mineral reserves have provided the incentive for the construction of smelters, oil refineries, copper and aluminum plants, sugar processing plants and manufacturing plants for a large variety of agricultural and mineral products.

In all of the developments mentioned, an adequate and sure supply of water is a basic requirement. Until recently, as heretofore stated, the right to divert and use the water needed in Montana by its agriculture, mining, lumbering and manufacturing developments was thought to be definitely assured under acts of Congress and the provisions of Montana water laws.

Montana still have large bodies of land available for agricultural, municipal, and industrial purposes.

To promote investments in projects and facilities for natural resource development, it is essential that Montana continue to have unrestricted use of the water in its streams, lakes, and underground reservoirs. After Montana has made use of water needed for beneficial and consumptive purposes, there will be large quantities of water leaving the State through the two large river systems, the Missouri and the Columbia. It is estimated that the average amount of water now flowing from the State is approximately 42 million acre-feet per year.

Security of the right to use of water, obtained under provisions of State water laws, is essential in development of Montana's agricultural resources and its mineral reserves, as well as securing investments needed to establish mills, plants, and factories to process the products of agriculture, mines and forests.

We therefore urge this committee to promptly recommend the legislation it finds necessary to remove the clouds that now exist relative to water rights obtained under provisions of water laws of the 17 Western States, and which will assure the supremacy of State water laws for the future.

I think you, Mr. Chairman, for the opportunity to present our views on the matter before the committee, and assure you our support in the enactment of such legislation as you recommend to clear up the present uncertainty relative to the use of water under rights obtained under State water laws.

The CHAIRMAN. Thank you, Mr. Rising.

Are there any questions?

Senator METCALF. Mr. Chairman, I want to say that Mr. Rising has been an old friend of mine and has appeared many times not only for the State of Montana, but for all the West.

I want to especially welcome him to this committee.

Mr. RISING. Thank you, Mr. Chairman, and thank you, Senator Metcalf.

The CHAIRMAN. I think Senator Hickey and I would also like to add you have been a fine friend of the West and we are glad to see you here today.

Mr. RISING. Thank you again, sir.
The CHAIRMAN. Mr. Mason.

STATEMENT OF JOHN C. MASON, GENERAL COUNSEL, FEDERAL POWER COMMISSION

Mr. MASON. My name is John C. Mason. I am, at the present time, General Counsel of the Federal Power Commission.

Just as a matter of background I have been an attorney for the Federal Power Commission since 1941, and up until 1956 I was primarily engaged in hydroelectric licensing work.

I happened to be staff counsel on the Pelton case at the time it was before the Commission. I was on the brief in that case in both the circuit court and Supreme Court and also have some familiarity from my experience over the years with the First Iowa case.

I also have with me Mr. Joseph B. Hobbs, who is an attorney, who has also worked on licensing matters over a long period of years, not only since 1941 with the commission, but with the Secretary of the Interior back in the days of PWA when the Federal Government was loaning money and building projects.

So both of us come here with long experience in the water field and we are coming here in the spirit of trying to be helpful.

We recognize what the problems are here and we have been living with them a long time and we would like to see them settled as well as anybody else.

The CHAIRMAN. Did you agree with the interpretation of the decision in the First Iowa case that a utility could, with impunity, violate the laws of the State of Iowa?

Mr. MASON. No, sir. Mr. Hobbs and I were commenting a moment ago when you read both the holding as to what the Pelton case stood for and what the First Iowa case stood for from the letter of Mr. Rankin.

We certainly are in complete agreement with that statement of what each case holds.

I could not state it any better. I think both of those are excellent statements of what those cases stand for.

To answer the question directly, certainly I do not think the First Iowa case stands for the proposition that the licensee can violate willy-nilly State law.

The CHAIRMAN. We had a hearing on the so-called Barrett bill several years ago in which Mr. Rankin came up to advise the Senate Committee on Interior and Insular Affairs as to his understanding of some of these Supreme Court decisions and his understanding of the law and what the Department of Justice was trying to do. In some ways it was rather a strange proceeding because he represented the then administration which was Republican, and almost his only defender here in the committee was the junior Senator from New Mexico who happens to be a Democrat. He and I got along pretty