Mr. GRAHAM. Let me say that my testimony is not intended to be qualified testimony in terms of the water laws of the Federal Government or of the State of California. Our interest rather is in the general trend of this legislation and our concern is in that area.

For almost 100 years the National Grange has worked for the conservation of the land and water resources of the Nation. Indeed, for almost half a century it was first the lone and always the predominant voice.

Under its leadership much of the present law had its beginning. Thus we developed our national forests, national parks, and reserves of minerals, forests, and water.

We have witnessed many attempts to raid these reserves. Some legal and some illegal, and have opposed them. The legislation before this committee, regardless of its stated purpose, "to clarify the relationship of the interests of the United States and of the States in the use of the waters of certain streams," unfortunately, in our opinion, clarifies it too much. Under the language of the bill, when the intricate legal questions which this legislation admittedly involves are settled, State laws would remain paramount and the Federal legislation, which has long protected the interests of the "people," would lie prostrate before the idol of "States rights."

Leaving aside the substantial arguments against this legislation contained in the legal memorandum filed by the Department of Justice, the language which says, "the withdrawal or reservation of surveyed or unsurveyed public lands, heretofore or hereafter made, 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" is so all-inclusive of time and area that existing law would be a shambles and the resources and reserves of the Nation would be a wasteland up for grabs.

May I interject to say that we are especially concerned about the right of anyone to acquire water pursuant to State law after the establishment of a reserve or the withdrawal of land. This, if carried to its logical conclusion in other areas of Federal ownership of land and other resources, would make meaningless the contracts that were involved between the Federal Government and the States or the commitments or the ownership claimed by the Federal Government.

Senator Moss. Well, if the Federal Government wished to reserve some lands and some water that was then appropriated, at the time they wanted to make the reserve, they would simply have to file an application with the State agency at that point and it would then be protected by State law as being reserved to the Federal Government.

Mr. GRAHAM. The language of the bill, Mr. Chairman, says that after this was done, after the withdrawal or after the reservation, if someone was to perfect his claim pursuant to State laws, that this would take precedence over the Federal.

Senator Moss. I think that is true if the Federal Government neglected to take this action. The thing is, the Federal Government is given a separate status that should be exercised in an orderly manner just like everyone else within that State where the water rights are recorded.

Go on with

your statement.

Senator BURDICK. Mr. Chairman, at this point you raised an interesting point in my mind. Suppose that a Federal agency made an application for a State water right. What would happen if the State agency denied it?

Mr. GRAHAM. This is the whole point, it seems to me, of the legislation. The Federal Government has no assurance that the State would grant the right. The language of this legislation, as we read it, indicates that land which, if the Supreme Court decision are correct, belongs to the people, belongs to them regardless of whether it is recorded according to State laws or not.

Senator Moss. Well, we are not going to presume that the State capriciously would turn down an application to the Federal Government. If the water existed and was unappropriated, we would presume it would do that for a private individual if he applied for it, and we presume that they are going to act regularly and in an orderly manner if it happens to be the Federal Government.

Mr. GRAHAM. By this same token, what is the reason to presume that the Federal Government would act any differently if the State would make an application?

Senator Moss. Well, all right. If we changed it all around and abolished all the State control of water and said from here on the Federal Government will exercise control, that is another thing, it is true. Here you have the dual sovereignty.

You go ahead. I do not want to interrupt your statement.

Mr. GRAHAM. To us it is important, despite the denials of the sponsors of this legislation, that it is not intended to change the acreage limitations under the Federal reclamation law, that it does not favor private power over public power, that it would not affect the public agency preference under Federal power marketing programs, thẹ fact remains that a lot of competent legal minds hold that the proposed legislation could be so interpreted regardless of the intent of the bill. If it can be so interpreted, we do not believe that we can be so naive as to think that it would not be so interpreted by some people.

This legislation does not only protect public irrigation projects or State interests, it throws the arm of Federal protection around anyone or any group who would acquire water rights pursuant to State laws and places them above the Federal law and national interest.

This it seems is a radical departure from constitutional law and judicial precedents. It is a dangerous and even fatal blow to many of our most treasured heritages and lays our necessary reserves open to speculative exploitation.

I am skipping now to the bottom of page 3 of my prepared state

ment.

You will remember that the National Grange had some experience in this matter in recent years and we lost a building in Washington. I notice today they are starting to tear the roof off of that original building and destroy it. We never questioned the right of the Federal Government to so act. After working 5 years perhaps I am a little more suspicious but I have seen in areas where the Federal Government is getting ready to appropriate power for the use of the Government some pretty unusual procedures followed by the people who owned this property of trying to prove an increment of value far beyond that which was justified by sales in the surrounding areas.

Be

cause of some experience of this kind I am suspicious of any kind of a proposal that would permit the development of claims against the Government which seem to be unjustified.

Now it seems to us that one of the major problems that is involved here is this definition of navigational rights. I am now laying aside my prepared statement.

If the longstanding contention that navigational rights belong to the Federal Government is true, then are we going to change this program of navigational rights-this position-or do we really need to redefine what is navigable streams? If the definition were clarified in the case of water which has arisen in these mountains which is, obviously, not navigable, dropping some 40 percent on the grade-if that is clarified, than the obvious requirement that the Federal Government be forced to pay for the rights that would have been developed would come into play and the ordinary procedures of acquiring land of eminent domain would also require that the Federal Government pay for the loss of the owners of these rights.

In other words, what I am trying to say is that there are ways of approaching this without this all-inclusive and widely embracing type of statement at the beginning of this legislation which would solve the issues and do it without quite so much threat to what seems to us to be the legitimate interests of the people of the United States in terms of national forest and these related activities of the Federal Government.

Now if Congress could quickly determine the right of the Federal Government in cases of argument between them and the State, then it seems to me it is a reasonable question to ask why Congress could not also determine in this same period of time the question of the legitimate needs of State or local areas that are in dispute. It seems to me also a little bit unrealistic to talk about the protection of the State laws according to the Federal Government when the argument is that the Federal Government is all powerful at the same time. That is exercising extremely great power.

We have difficulty in understanding why it is to be believed that the State is more beneficent than the Federal Government or vice versa. We think there are some arguments to be entertained both ways. Frankly, I am one of these people, and I think the National Grange shares this opinion. The belief of this open warfare or open hunting season on the Federal Government that seems to be in vogue today is a very easy thing to do, of course, but I do not think it necessarily has added a great deal to the dignity or the respect of the Federal Government.

Frankly, I have a great deal of respect for the people who make the laws of this Nation and who sit in the Senate and in the Congress, and I am not nearly as afraid of the Federal Government as some people are. I recognize there are some bureaucratic decisions that can be made that sometimes are very exasperating but I do not think they are confined to the Federal Government; they have been in State governments also. This is the kind of an oversimplication which seems to us to not add too much to the ultimate solution of the problems which are very complexing and which you gentlemen recognize as very serious to spend the amount of time that you are spending on it.

Senator Moss. Thank you very much for your statement.

Let me add that I have no fears at all about the Federal Government. I think it is a government of the people fully as much as any State government and in some respects at times seems more responsive than some State governments seem to be, but I do not think that is the point here.

I do not think that the purpose of this legislation derives from any distrust of the motives of the Federal Government as such. This is an attempt to work out a solution to a problem that has grown by reason of some court decisions where it is uncertain as to how water rights are to be acquired, protected, and utilized. We get this withdrawal idea that leaves an indefinite power, as it were, in the Federal Government and this is to try to make definite so we have certainty and know how to operate with water rights.

I appreciate your point of view and I appreciate your concern with the problem, the concern of the Grange. We will consider your statement very carefully as we wrestle with this problem and try to come up with a bill, if we can, which will accomplish the objectives I think that all of us have in mind and not do violence certainly to the rights of the Federal Government or the people in any respect.

Mr. GRAHAM. I think this is correct. We have no fear of the judgment of the committee or of the Senate on this when this is finally thrashed out; we have respect for both. However, the bill as it was presented is the bill that we are testifying on and we are hoping that it does not come out of the committee like it went in. I am pretty sure there will be testimony, and it probably won't.

This is a problem which seems to us to require rifle rather than shotgun treatment, and we simply are expressing some concern that it does not get lost in this general approach from the point that the specifics are clarified. The original purpose of the bill is not accomplished when making it so general that we have added confusion to another type of confusion by a general type of legislation.

Senator Moss. Thank you very much, Mr. Graham. We appreciate your statement. Your full statement will be made part of the record. (The statement referred to follows):

STATEMENT OF HARRY L. GRAHAM, LEGISLATIVE ASSISTANT, NATIONAL GRANGE My name is Harry L. Graham, legislative assistant to the master of the National Grange.

For almost 100 years the National Grange has worked for the conservation of the land and water resources of the Nation. Indeed, for almost half a century it was first the lone and always the predominant voice.

Under its leadership much of the present law had its beginning. Thus we developed our national forests, national parks, and reserves of minerals, forests, and water.

We have witnessed many attempts to raid these reserves, some legal and some illegal, and have opposed them. The legislation before this committee, regardless of its stated purpose "to clarify the relationship of the interests of the United States and of the States in the use of the waters of certain streams" unfortunately clarifies it too much. Under the language of the bill, when the intricate legal questions which this legislation admittedly involves are settled, State laws would remain paramount and the Federal legislation which has long protected the interests of the "people" would lie prostrate before the idol of "State rights."

Leaving aside the substantial arguments against this legislation contained in the legal memorandum filed by the Department of Justice, the language which says, "the withdrawal or reservation of surveyed or unsurveyed public lands, heretofore or hereafter made, shall not affect any right to the use of water ac

quired pursuant to State law either before or after the establishment of such withdrawal or reservation" is so all-inclusive of time and area that existing law would be a shambles and the resources and reserves of the Nation would be a wasteland up for grabs.

Despite the denials of the sponsors of this legislation that it is not intended to change the acreage limitations under the Federal reclamation law, that it does not favor private power over public power, that it would not affect the public agency preference under Federal power marketing programs, the fact remains that a lot of competent legal minds hold that the proposed legislation could be so interpreted regardless of the intent of the bill.

Is there anyone among us who is so naive that he does not believe that with the money involved someone won't make this interpretation?

This legislation does not only protect public irrigation projects or State interests, it throws the arm of Federal protection around anyone or any group who would acquire water rights pursuant to State laws and places them above the Federal law and national interests.

This is not only a radical departure from constitutional law and judicial precedents, it is a dangerous and even fatal blow to many of our most treasured heritages and lays our necessary reserves open to speculative exploitation. In order to do this, the people of the United States are asked to freely relinquish proprietory rights which the Supreme Court has said are theirs. Even the States under this law would be powerless to protect themselves from anyone who obtained these rights pursuant to the State laws.

If water rights are no more difficult to claim than mineral rights in some Western States, it becomes almost a "finders keepers, losers weepers" situation. The obvious result would be chaos.

Future Federal development of water resources would then be dependent on the ability fo the Federal Government to cut through the tangle of divergent and sometimes opposing State laws, taking unpredictable amounts of time and requiring an astronomical expenditure of public funds to buy back that which the courts have held already belongs to the people.

To repeal the navigational rights held by the Federal Government would be unthinkable.

The second clause of paragraph (4) of section I would change for the worse the law and practices of eminent domain. The suggestions would not grant one who claimed to be aggrieved any protection not already provided by law. You will remember that the National Grange had some experience in this matter in recent years. While we did not like the action of the GSA we did not contest their right to so act.

Indeed, several years' experience as a condemnation appraiser who saw many obvious attempts to claim an unjustified increment in the value of property convinces me that the present procedures give the maximum protection to both the Government and the owner. If it does not, then this law can be clarified without throwing the baby out with the bath.

Furthermore, if it is possible to separate "water rights" from the reserve or withdrawn land, then can it not also be possible to separate oil and mineral rights, as well as timber and grazing rights from the land? Where would this procedure end except with the exploitation of all these rights? Can we maintain a Federal park system, a forest system, or any other such system with this law?

As another point, we would propose that there is nothing about a State law that makes it automatically better than a Federal law. Indeed, a pretty good case could be made of the opposite point of view.

There is little to suggest that rights of people are more secure under State law than Federal law as the present debate in the Senate indicates all too well. The proper division of the powers of the State and Federal Governments does not mean that there are or should be great voids where there is no clear-cut ultimate authority. The concept that the State has rights in this field which are paramount over the national interests is a dangerous precedent to establish by law.

What we need, if anything, is the clarification of condemnation procedures, the expediting of claims, and the preservation of the right of those whose property is taken to a just and reasonable compensation. This would clarify the law and could very well serve the national interests.