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any time find the engineers made a bad guess. When the court disagrees with the engineers, under this bill injunctive relief would be available until the operation accords with the court's concept of sound engineering. This is not speculation; it is fact; it is a synopsis of what actually happened in Dugan v. Rank.

Even when surface waters are taken and the problem of identification of the owners of the affected rights and the scope of the taking is relatively, but no absolutely, easy, it has long been recognized that requiring resort to judicial proceedings in eminent domain, as opposed to inverse condemnation, is highly impractical. Writing back in 1911, Samuel Wiel said:

[W]here the stream system is of considerable size and the number of riparian proprietors who would be affected by a diversion of water is large, the proceedings to condemn their respective rights and compensate each for his injury or loss of the flow of the stream would be of such magnitude and so expensive as to practically bar the appropriator from attempting it.

Wiel then goes on to explain that the situation is analytically the same as to appropriators and as to ground water.

Of course, when ground waters are involved, the situation is much more complex. In a ground water area supplied by several streams, and this is typical of California, there is always a question of causation: Is the taking due to A's operations on stream X or B's operations on stream Y? What is the quantum of the taking? Above all, how far does the taking extend? In free ground-water basins the ground-water table shifts constantly, and the effect of the operation is not only difficult to predict, it may be detectable only under circumstances which first became apparent many years after the operation has begun.

In other words, while a statute requiring all water rights to be identified and taken in advance by judicial proceedings in advance of operation might only be awkward and expensive as applied to surface waters, the operation of higher laws, the laws of nature, make it grotesque as applied to ground water.

Passage of a statute such as S. 1275 would threaten a flood of injunction suits. Although it would be practically impossible to obey the statute, failure to obey it would be a ground for injunction, simply because a taking without judicial proceedings would be unauthorized. This, too, is not an idle assertion; it is what happened in Dugan v. Rank, supra. The operation of Friant Dam began in 1941. The suit began in 1947, and as the mode of operation was altered with development of the project, plaintiffs as far as 9 miles south of the San Joaquin River joined in 1952 to require the release of water into the river simply to keep up the level of water in their wells. The water, of course, was urgently needed for the Central Valley project. The plaintiffs were not suffering a loss of water supply; they were suffering an impairment of convenience and pumping. They stoutly resisted all suggestions that they seek a remedy by way of damages. The result was 16 years of stultifying litigation.

This type of practical problem was foreseen at the time the original State water plan was presented to the legislature. In 1928 a committee of 10 lawyers was organized in California to consider major legal aspects of the plan. This committee recommended a constitu

tional amendment which would have revised the State law of eminent domain to provide, in part:

3. The conversion of injunction suits against projects into condemnation suits * * *.

12. A taking by the project agency without first making compensation * * *. I have an error in the statement here, the superscript reference (25) is left out.

The proposed constitutional amendment was not adopted, but the courts have been alert to hold that the right to compensation in advance Even in California, where, unlike the Federal Constitution, the State constitution requires that compensation be paid before the taking, the courts have been alert to hold that the right to compensation in advance of the taking may be waived, precluded by attachment of a public use or subject to an estoppel. These holdings are required by the need to transact public water business in an orderly manner; otherwise, there would be injunction suits breaking out like measles all over the body politic.

We would like to note three further points that come up on inverse condemnation.

(1) If it is felt that the Court of Claims is a remote jurisdiction unfamiliar to lawyers and unsympathetic to plaintiffs, it would seem to be easier to enlarge the monetary jurisdiction of the district courts under 28 U.S.C. 1346 (a) (2) than to tinker with the mode of acquiring water rights.

(2) The fear that the statute of limitations may run "before the water right owner knows, or can prove, that there has been a seizure," seems to be based on speculation rather than authority. Actually, the Supreme Court has been rather generous in applying the 6-year statute of limitations under the Tucker Act; the time runs not from the taking, but from the time the "consequences of [the taking] have so manifested themselves that a final account may be struck."

I should have also added in the statement a reference to Schroeder v. City of New York, 371 U.S. 208 (1962), which holds that the statute of limitations does not begin to run against a known plaintiff who can be given actual notice until such notice has been given. The case involves the taking or a sort of water right. Now notice that was a damage action, the statute on the damage action does not run. The suit started as an injunction suit, but under the principle relating to inverse condemnation, as I described above, the court treated it as a damage action.

Again, if there is a real danger of this surreptitious taking, it would seem easier to meet it by amending the statutes of limitations on actions against the United States-28 U.S.C. 2401, 2501. Note also if the section were law, it would have the effect of cutting off the right to damages from the United States, because, under conventional doctrines, the United States is not liable for unauthorized takings by its agents.

(3) Another effect of S. 1275 is that it might have the effect of depriving the State, as a licensee under the Federal Power Act, of the power it has under State law to acquire property by inverse condemnation. There is an opinion, I have given the reference in the notes, that the New York Power Authority, a Federal power licensee, was limited to taking property by judicial proceedings as

prescribed by section 21 of the Federal Power Act, and could not utilize the New York statutory procedure "to appropriate the land and remove the owner before he has a chance to have a judicial hearing." I do not cite this opinion as authoritative, because the judgment enjoining the New York Power Authority was vacated, and the action was ordered dismissed as moot by the New York Supreme Court. But it is illustrative of how a State agency operating under Federal authority may, by this sort of legislation, have its State authority abridged.

After preparing this portion of the statement I set about reviewing section 21 of the Federal Power Act and subsection 1(4) of S. 1275 just to see where this led. I find that the Federal Power Act provides that any licensee may-and I emphasize the word "may" acquire property necessary for the project by exercising the power of eminent domain in the State or Federal courts. It was held in the Tuscarora cases (257 F. 2d 885; 362 U.S. 608), which are the cases I cited before, that since they might acquire property by judicial proceedings that meant they must acquire property by judicial proceeding.

S. 1275 goes further than section 21 of the Federal Power Act. It says such rights shall be taken by proceedings in eminent domain. So what was merely a grant of authority in the Federal Power Act becomes under S. 1275 a restriction on the exercise of the authority. It is clear that the word "proceedings" as used in S. 1275 is intended to mean judicial proceedings and not the administrative proceedings for taking in advance of compensation that seem to have been provided in New York.

For example, Senator Jordan says that the bill "would prohibit the seizure of water without first initiating court proceedings." I am referring to Congressional Record 29425. Senator Kuchel says that the Government "should initiate judicial proceedings." That is on 109 Congressional Record 5378. So it seems to us that the result of the Tuscarora cases which were debatable under the Federal Power Act would be unavoidable under section 1(4) of S. 1275, and that we would indeed lose the authority to acquire property by inverse condemnation which we have under State law simply because we are a Federal power licensee.

Now the first portion of section 1(4) covers quite a different subject, and that is the rights which shall be compensable. It is said that the first portion of section 1(4) is intended to provide that the United States will not assert its rights to take waters of navigable streams for purposes of navigation without compensation, i.e., to repeal the rule of United States v. Chandler-Dunbar Co., 229 U.S. 53 (1913). Actually the section goes much further and would appear to render the United States liable for taking every strange form of property right which a State may contrive to embarrass the Federal Govern

ment.

I do not use that language, gentlemen, as just a rhetorical flourish. This is exactly what happened in the Ivanhoe case, and I know that because I tried that case.

The United States under this bill could be rendered liable for the frustration of every hope or expectation which a State chooses to call property. This would mean that to apply the acreage limitation, the

United States, under the first Ivanhoe opinion, would have had to pay excess landholders for the evanescent "rights" which the California court found they were deprived of without due process.

The bill canot be limited to allowing a State to create compensable rights only in waters actually used, for such a limitation would eliminate substantial riparian rights in California. It is an axiom of California law that a riparian right is "a parcel" of the riparian land and that "use does not create" the riparian right "and disuse cannot destroy or suspend it." Since compensation cannot be limited to waters actually used, it would follow that the bill would authorize a State to fix its own charge on unappropriated waters and although it might not be able to prevent their export, it would be able to make the cost of export prohibitive.

For example, it has been suggested that as an instance of actual damage, Senator Moss, who has been described as "speaking from the Federal point of view" might have cited the damage to the Oregon fishery alleged in Pelton. California, of course, could not tolerate any rule which allows fish to be preferred to people. If the goal of the bill is to assume an additional, but definable, liability it would be better for the bill to provide that the United States shall pay for those rights established pursuant to State law that are property within the meaning of the fifth amendment to the Federal Constitution.

The third subsection of the bill is, at best, elusive. Mr. Andrews says that at first reading he misinterpreted it. As explained by him and now by Senator Kuchel, it is permissive, merely means that ifand I emphasize "if"-the United States claims under State law it must follow State procedures, and is intended to solve the problem of the "notorious" Fallbrook case. (Paradoxically, it would not solve the Fallbrook case to the extent that United States claims as a riparian or as an appropriator of ground water under the State law, for there is no State procedural requirement applicable in such situations. California Water Code, secs. 101, 1200.)

Somewhat contrary to Senator Kuchel, Senator Jordan says:

S. 1275 would assure that in those instances when the United States claims a water right in its proprietary, as contrasted to its soverign capacity, it must satisfy the same laws and procedures that would be applicable to you or me in acquiring a similar proprietary interest in water.

So in contrast to Senator Kuchel, Senator Jordan ascribes a mandatory effect to section 1(3). He also speaks in terms which themselves need definition, for the proprietary-governmental distinction has no application to the United States.

The Supreme Court has said:

The Federal Government is one of delegated powers, and from that it necessarily follows that any constitutional exercise of its delegated powers is governmental.

Quite recently, following out the same feeling, the Supreme Court has said:

[O]ur decisions have made it clear that the Federal Government performs no "proprietary" functions.

Whatever it means, the section suggests the question of what the United States or its licensees can do if the State law forbids or attaches onerous conditions to the federally authorized project. The answer

under the bill would seem to be to bring a condemnation suit against the State to condemn the unappropriated water. In fact, what would be condemned is not property in any meaningful sense, but the State's police power. Query who would be edified by such a rigmarole except the lawyers paid to engage in it.

Finally, the second subsection of the bill is said to be to declare a preference for consumptive uses over nonconsumptive uses in the arid West. It would accomplish this by reference to the Flood Control Act of 1944. But that act does not subordinate nonconsumptive to consumptive uses; it merely subordinates navigation uses to certain other uses (58 Stat. 889). Therefore, S. 1275 shoots wide of the declared purposes of its proponents.

Part of the argument in favor of the bill is that since the decision in California-Oregon Power Co. v. Beaver Portland Cement Co. (295 U.S. 142 (1935)), there has been justified reliance on the severance of water from land in the public domain. However, the rule of that case was expressly limited to "nonnavigable waters" and so excludes "waters of the tributary streams which unite into a navigable water course." The bill, however, does not limit the relinquishment of rights in section 1(1) to rights in nonnavigable streams and sections 1(2) and 1(4) make clear that the bill was not intended to do so. It, therefore, would expand the operation of the acts of 1866, 1870, and 1877, and particularly the latter, to all streams, navigable or not, and instead of merely relieving against venial errors, create new private rights which will have to be extinguished at public expense.

Thank you.

Senator Moss. Thank you, Mr. Goldberg, for a very excellent statement. It is a legal brief and has been well done.

Mr. GOLDBERG. Thank you, sir.

Senator Moss. I notice with pride that I have been quoted two or three times in here. I hope I have been quoted on the right side of this matter.

I do appreciate your statement and there may be some questions we might have from the bench. Do you have questions Senator Kuchel? Senator KUCHEL. Yes, sir.

What I am going to try to do, Mr. Goldberg, is to see whether or not you and I can agree on some facts and then see where we can agree on what policy ought to be adopted in the national interest. First of all, it is not the intention of the authors of this legislation to affect in any fashion the acreage limitation provision of Federal reclamation law. It is not the intention of the authors of this legislation in any way to impede or to curtail or to eliminate any right of inverse condemnation. It is not the intention of the authors of this legislation, I will say to Mr. Goldberg, to provide a means by which a person could attempt to frustrate any public project by attempting to obtain injunctive relief to prevent it from being built.

What basically the authors of this legislation have as their goal in my judgment is to permit the beneficial use of waters arising on Federal properties not necessary for the Federal Government but these for the people.

I am going to read a statement from a Supreme Court decision. California-Oregon Power Company v. Beaver Portland Cement Company (295 U.S. 142, 163, and 164, 1935).

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