Senator SIMPSON. Mr. Chairman, I would like to make a request. I have to appear before the Agriculture Committee on the beef import tomorrow at 10 a.m. I have here our attorney general from Wyoming, John Raper. I wonder if those gentlemen would be permitted to testify at the outset rather than have to wait while the local boys are questioned at some length?

Senator Moss. Indeed. I intend to call on both Attorney General Mosk and Attorney General Raper in the morning and perhaps at that point, they having in effect stated the position of the States which is in controversy with the Federal position, we may then ask Mr. Clark and Mr. Barry to come forward and perhaps we can question them from the bench at that time.

Senator SIMPSON. Thank you.

Senator CHURCH. Mr. Chairman, Congressman Harding, of Idaho, has come into the room and I think he has a statement which he would like to make, or submit. Could we accommodate him? called you earlier, Congressman.

Senator Moss. We could. We We are glad to have you here now.

STATEMENT OF HON. RALPH R. HARDING, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF IDAHO

Congressman HARDING. Mr. Chairman, we have been busy with the farm bill over in my committee, but I would just like to ask unanimous consent to submit a statement for the record. As you know, there is nothing more important in my district of Idaho than water, and water rights, and I want to compliment you and your colleagues for introducing this fine bill and for holding hearings on it, and I want to submit a statement in support of it.

Senator Moss. That has already been placed in the record as though it was delivered in full, Congressman Harding. I ordered that that be done earlier.

Thank you very much for your attendance.

Senator Anderson.

Senator ANDERSON. Mr. Chairman, I have generally been a bad boy in opposing this type of legislation. As you know, I had something to say about the Barrett bill once or twice. It accidentally got out of the committee one time but, thank God, it never got beyond that. I thank the Congressman.

At a subsequent time I enjoyed the appearance of Mr. Rankin, who was Mr. Eisenhower's representative and who did a fine job of analyzing the Barrett bill in the hope of keeping it in the committee so it did not get out. I probably will have something to say on this bill. Unfortunately, this morning I have been in a meeting to place an electronic laboratory in Boston or some other seaport and

Senator KUCHEL. How about New Mexico?

Senator ANDERSON. We could not quite sell it; maybe California. Tomorrow I may be at the same meeting and Senator Simpson is going to beef imports, I remember that. I will try to be here at 9 o'clock. I have had a bad week. If I do not make it, I would like to ask permission to submit a statement which will be somewhat-I don't know how the testimony has been this time, I do not know what Mr. Clark's testimony was, but heretofore the Department of Justice has been against this.

Senator KUCHEL. I regret that is the system.

Senator, do not close your eyes to this. Keep an open mind, listen tomorrow to the attorney general of California. With that fine sense of justice and of the public interest that you have motivating your actions, do not say "No" now.

Senator ANDERSON. I will hold off a while before I say "No," but I appreciate that last suggestion by the Senator from California.

Senator Moss. Certainly you will have permission to file the statement, Senator, if you want to do it tomorrow.

We are now recessed until 9 o'clock tomorrow morning.

(Whereupon, at 11:50 a.m., the committee was recessed, to be reconvened at 9 a.m., Wednesday, March 11, 1964.)

FEDERAL-STATE WATER RIGHTS

WEDNESDAY, MARCH 11, 1964

U.S. SENATE,

SUBCOMMITTEE ON IRRIGATION AND RECLAMATION

OF THE COMMITTEE ON INTERIOR AND INSULAR AFFAIRS,

Washington, D.C. The subcommittee met, pursuant to call, at 9 a.m., in room 3110, New Senate Office Building, Senator Frank E. Moss (chairman of the subcommittee) presiding.

Present: Senators Frank E. Moss (Utah), Clinton P. Anderson (New Mexico), Frank Church (Idaho), Thomas H. Kuchel (California), Gordon Allott (Colorado), Len B. Jordan (Idaho), and Milward L. Simpson (Wyoming).

Also present: Stewart French, committee counsel; Roy M. Whitacre, professional staff member, and Richard D. Andrews, minority counsel. Senator Moss. The subcommittee will come to order.

We have before us the problem of time, the same one we had yesterday. I would like to move along as promptly as we can.

We do have a number of out-of-city witnesses, some that have come very long distances. We want to accommodate those people who have come a long ways and who may not have planned to stay any longer than today since the hearings were announced for only 2 days. We will try to press on rapidly, much as we did yesterday.

I had asked the two Government witnesses, Mr. Clark and Mr. Barry, to come back today, but on viewing this long witness list, we may not be able to take up that questioning.

Therefore, I would excuse them today and simply suggest that at a later time the committee will sit and we will then have time perhaps for the questioning that we undoubtedly will want to make of these witnesses.

They, of course, are perfectly welcome to stay and may very well want to listen to the testimony of the attorneys general who are going to be on before us today and other witnesses, but it does look doubtful that we would get to that questioning period that we had anticipated today. We just have too many people to hear and too much to get into this record first.

You are free to leave if you care to do so. You are welcome to stay if you can do that.

We are going to call first on Attorney General Mosk, of California. I think Senator Kuchel would like to introduce the attorney general. Senator KUCHEL. Yes, indeed, I would.

Mr. Chairman, I am delighted to be able to introduce a friend and a constituent of mine. The attorney general of California has been active in the public service in my State in varied capacities for most

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of his adult life. He served as a legal assistant to the Governor of California many years ago when I was in the legislature.

He had a long career on the bench and he comes today as the chief legal officer for the State of California intensely interested in a solution to a problem which has vexed the people of our State and the West for a long period of time.

I am particularly delighted to be here this morning to introduce you, Stanley, and to present you to the members of the committee for what I know will be a great bit of professional assistance to us in finding the truth and proceeding, I hope, to pass constructive legislation.

STATEMENT OF HON. STANLEY MOSK, ATTORNEY GENERAL OF CALIFORNIA, REPRESENTING THE ASSOCIATION OF WESTERN ATTORNEYS GENERAL

Mr. Mosк. Thank you very much, Senator Kuchel.

Senator Moss and members of the committee, at my right is Assistant Attorney General Charles Corker of the State of California who will be glad to help answer any questions after I make a brief presentation. I believe copies of my statement have been given to the committee and I am going to shorten my testimony accordingly in the interest of conserving time, Senator Moss.

Senator Moss. You may do so. The entire statement will be in the record and then you may highlight such parts of it as you would like to have.

Mr. Mosк. Very well.

(The statement referred to follows:)

STATEMENT OF STANLEY MOSK, ATTORNEY GENERAL OF CALIFORNIA

My statement in support of S. 1275 will emphasize two things. First, I wish to point up the importance of section 1, paragraph 1, which rejects the so-called reservation theory of Federal water rights. Second, I wish to make clear that the bill will not in any manner interfere with any legitimate interest or activity of the Federal Government, nor would it impede regional planning of water resource development. With both of those general concepts I am basically sympathetic.

In emphasizing the necessity that Congress reject the reservation theory, I do not suggest that other portions of the bill are unimportant. On May 3, I wrote to the members of the California congressional delegation urging them to support S. 1275, directing attention to each of its major purposes. I have appended that letter to this statement in order to make clear why each purpose of the bill is important. However, no purpose approaches in importance the rejection by Congress of the reservation theory.

Let me begin by describing the reservation theory which S. 1275 would reject. The reservation theory is in two parts. First is the claim that the United States owned all the land and water in the Western States when the territories were acquired from France, Spain, and Mexico.1 The Federal Government con

1 Mr. Justice Douglas in his opinion for the Supreme Court in Nebraska v. Wyoming (325 U.S. 589, 611 (1945)), summarized the U.S. contention this way: "The United States claims that it owns all the unappropriated water in the river. It argues that it owned the then unappropriated water at the time it acquired water rights by appropriation for the North Platte project and the Kendrick project. Its basic rights are therefore said to derive not from appropriation but from its underlying ownership which entitles it to an apportionment in this suit free from State control. The argument is that the United States acquired the original ownership of all rights in the water as well as the lands in the North Platte Basin by cessions from France, Spain, and Mexico in 1803, 1819, and 1848, and by agreement with Texas in 1850. It says it still owns those rights in water to whatever extent it has not disposed of them. * *

The Court held that the case was controlled by section 8 of the Reclamation Act of 1902, which directs the United States to acquire water rights for Federal reclamation projects under State law. Hence, the Court avoided passing on the U.S. claim.

tinues to own both the land and the water. The United States parts with its title to lands when it issues patents under the homestead laws, the Desert Land Act, and various other Federal statutes. The United States parts with the waters when, pursuant to various Federal statutes beginning with the act of 1866, appropriators of water acquire a water right under State laws or customs.2

The second part of the reservation theory is that when the United States withdraws or reserves lands from the public domain for various Federal purposessuch as national forests, national parks, national monuments, defense establishments-the withdrawn or reserved lands are removed from operation of the Federal statutes which permit appropriation of the unappropriated water. The claimed effect of the withdrawal or reservation of a national forest is that the water right appurtenant to the forest land withdrawn continues in Federal ownership. Appropriations of water under State law initiated after creation of the national forest are asserted to be invalid as against the Federal water right appurtenant to the Federal lands incorporated in the national forest. This bill would reject the Federal reservation theory. It says in its opening provision:

"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."

It is a matter of urgent importance that Congress now speak those 40 words just quoted. I shall state why.

First, the reservation theory is unsound in concept. It confuses jurisdiction with proprietary ownership. When the western territories were acquired, and before they were incorporated in States, the Federal Government had jurisdiction-the authority to make laws-and it had proprietary ownership of all the lands not then in private ownership. Realistically the United States did not have proprietary ownership of unappropriated water appurtenant to the federally owned lands because no one should own unappropriated water.

The heart of the reservation theory is the concept of ownership of a water right based on ownership of land adjacent to a stream. That concept was and is unsuited to the arid West. In the West, there is usually not enough water to supply the needs of all riparian land adjacent to a western stream. Often the available water is needed far more acutely in locations distant from the stream to which a riparian right does not extend. No one can say how much water attaches to a riparian right, and riparian law does not protect established water uses against the demands of new projects.

3

It is true that a few western courts, including those of California, upheld riparian rights. However, I am convinced they would not have done so if 19th century foresight had been equal to 20th century hindsight. Nearly all changes in the laws of Western States have moved in a single direction-restriction or elimination of the riparian right. In California, riparian rights were limited in 1928 by constitutional amendment.*

Second, the reservation theory is unsound in result. Result is more important than concept. We do not come to Congress with a request to rewrite a theory. The result of the reservation theory is satisfactory to no one. No one knows and no one can find out how much water is appurtenant to the various Federal reservations which the United States has withdrawn from the public domain. We have asked Department of Justice attorneys and they cannot tell us. They don't know either.

The national forests, all withdrawn public lands, are the source of most of the runoff in large parts of the West. If, as I would contend, any water right appurtenant to a national forest is limited to the small quantities required for Forest Service purposes, no one cares very much. We want the forest ranger to be secure in his domestic supply, and we take a liberal view of the requirements of the horse trough. It would be much tidier if the United States made appropriations for those needs like everyone else. But that is not what so deeply con

cerns us.

2 Act of July 26, 1866, Rev. Stat. § 2399 (1875), 30 U.S.C. § 51 (1958); Act of July 9, 1870, Rev. Stat. §§ 2339, 2340 (1875), 43 U.S.C. § 661 (1958); Desert Land Act of March 3, 1877, 19 Stat. 377, 43 U.S.C. § 321 (1958).

3 Lux v. Haggin (69 Cal. 255, 4 Pac. 919, 10 Pac. 674 (1886)) (4-3 decision).

4 The history of the California constitutional amendment is related in United States v. Gerlach Live Stock Co. (339 U.S. 725, 742-55 (1950)).