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That is as much of a right as the right to hold a section of dry land, in my book, maybe a bigger right, more valuable right.
Now, the point that bothers me is this:
If you would agree with my reasoning that that is precisely what took place at that time, then by what stretch of the imagination can can take away those rights from the people who acquired them in the Desert Land Act by the mere subterfuge of creating a reservation out of the very same lands?
Mr. BENNETT. From the point of view of perspective in dealing with this question, Senator, the only answer Î can give you is that the view is definitely held by some that the language of the Desert Land Act did not constitute a grant.
As I understand it, the argument is made that Congress could have granted all rights to the use of water to the State for disposition under its laws.
Senator BARRETT. No question about that.
Senator BARRETT. I did not say grant the water, but what I say is, they gave the right. I do not think you need to use the word "grant” but they gave the right to the people to acquire, did they not?
Mr. BENNETT. The argument is that they did not; that the language of the Desert Land Act was not technically adequate to constitute a grant of rights to the use of water.
Senator BARRETT. Did not give the rights to the States to prescribe the manner in which the water in their States could be appropriated and used—beneficially used on the land.
Mr. BENNETT. The contention is made that what was done in the Desert Land Act was to state that the Federal Government would protect and preserve rights to the use of water of those people who complied with State law, but that until such time as that water was so appropriated under State law, the naked legal title, so far as rights to the use of water are concerned, remained in the United States.
Senator BARRETT. I do not think there is any question about that. I think it only ripens into a right when they comply with State law; there is no question about that. But still, Congress is the only one who has the authority to make such a disposition then, if you do not want to call it a grant, of their privilege.
Having done so, it would seem to me to follow that nobody else other than the Congress could take that privilege away from the people of the country who had the rights granted under the Desert Land Act.
Mr. BENNETT. I think that is quite true.
I Pelton Dam case, did refer to the 1910 act which conferred on the executive departments, authority to withdraw lands from entry under the public land laws for any public purpose.
Senator BARRETT. I know they did, but do you think for one moment that the Congress had it in mind when they passed the 1909, 1910 reservation acts that they were thereby in effect repealing any part of the Desert Land Act?
Mr. BENNETT. The Supreme Court seems to have interpreted it that way
in the Pelton case. Senator BARRETT. I know they did but I still do not agree with the Supreme Court.
I think we have discussed all of the different facets of constitutional law.
Did you mention anything about the liquor cases?
Mr. BENNETT. I mentioned them, Senator. I gave the names of those cases.
Senator BARRETT. I see.
I do not want to reach conclusions because they bear directly on the position of other departments, including the chief law officer of the executive branch.
Senator, in view of the fact that the Department's report will be forthcoming, presumably tomorrow morning, I believe that it might be unnecessary for me to attempt to further explain the bill.
The report itself contains an explanation of the need we see for several amendments, and I believe, now that we know the Department's report will be coming up, that it would be unnecessary for me to go through the bill at this time.
Senator BARRETT. I think, if that is agreeable to Senator Dworshak, it probably would be better until after we have the report and go over the bill section by section and the amendments to it, if you have some suggested amendments.
Does that, then conclude your statement for the time being?
Reading the section of the Desert Land Act, and I am only going to take parts of it, Mr. Bennett, we find
It shall be lawful for any citizen of the United States to file declaration in the land office that he intends to reclaim a tract of desert land not exceeding 1 section by conducting water upon the same within a period of 3 years, provided, however, that the right to the use of water by the person so conducting the same on or to any tract of desert land of 640 acres shall depend uponand then it enumerates appropriation and so on and so forthupon the public lands not navigable and shall remain free for the appropriation use of the public for irrigation, mining, and manufacturing purposes, subject to existing rights.
How can you say that that is not a right when the law says it is?
Mr. BENNETT. That portion of the language is not the portion which the Supreme Court was dealing with in the Pelton case, nor, for that matter, in the California Oregon Power Co. case.
That language is the language which deals specifically with the rights of a desert homestead entry. The subsequent language is the language which is construed as being something less than a grant.
Senator BARRETT. But I am having a little difficulty here understanding what the Congress meant when they said, and I quote now:
And such rights shall not exceed the amount of water actually appropriatedand necessarily used and so on.
Now, they are speaking there about rights, are they not?
Senator BARRETT. And it seems to me that that is what the Congress was giving to the people of this country, citizens, who complied with State laws. They were giving them certain rights.
Mr. BENNETT. I think at that point, Senator, the distinction has to be made between those members of the public who have appropriated the water under State law and have acquired rights which vested under State law, and the question of what, if anything, has been granted to the States as to unappropriated waters.
Senator BARRETT. Well, I grant you that is right, and that is of course the precise question that we are studying here. Thank you, Mr. Bennett.
, (Mr. Bennett later submitted the following:)
(1) SECTIONS 9 (B) AND 27 OF THE FEDERAL POWER ACT OF 1920
(41 Stat. 1068, 1077)
Each applicant for a license under this chapter shall submit to the commis. sion
(b) Satisfactory evidence that the applicant has complied with the require. ments of the laws of the State or States within which the proposed project is to be located with respect to bed and banks and to the appropriation, diversion, and use of water for power purposes and with respect to the right to engage in the business of developing, transmitting and distributing power, and in any other business necessary to effect the purposes of a license under this chapter. (June 10, 1920, $ 9 (b), 41 State. 1068) SEC. 821. STATE LAWS AND WATER RIGHTS UNAFFECTED Nothing contained in this chapter shall be construed as affecting or intending to affect or in any way to interfere with the laws of the respective States relating to the control, appropriation, use, or distribution of water used in irrigation or for municipal or other uses, or any vested right acquired therein. (June 10, 1920, ch. 285, $ 27, 41 Stat. 1077.)
(2) SECTION 3 OF THE TAYLOR GRAZING ACT OF 1934 (48 Stat. 1270)
Excerpt from United States Code
TITLE 43—PUBLIC LANDS
CHAPTER 1—BUREAU OF LAND MANAGEMENT
CHAPTER 8A-GRAZING LANDS
SEC. 315b. GRAZING PERMITS; FEES; VESTED WATER RIGHTS; PERMITS NOT TO
CREATE RIGHT IN LAND
The Secretary of the Interior is authorized to issue or cause to be issued permits to graze livestock on such grazing districts to such bona fide settlers, residents, and other stockowners as under his rules and regulations are entitled to participate in the use of the range, upon the payment annually of reasonable fees in each case to be fixed or determined from time to time, and in fixing the amount of such fees the Secretary of the Interior shall take into account the extent to which such districts yield public benefits over and above those accruing to the users of the forage resources for livestock purposes. Such fees shall consist of a grazing fee for the use of the range, and a range-improvement fee which, when appropriated by the Congress, shall be available until expended solely for the construction, purchase, or maintenance of range improvements. Grazing permits shall be issued only to citizens of the United States or to those who have filed the necessary declarations of intention to become such, as required by the naturalization laws, and to groups, associations, or corporations authorized to conduct business under the laws of the State in which the grazing district is located. Preference shall be given in the issuance of grazing permits to those within or near a district who are landowners engaged in the livestock business, bona fide occupants or settlers, or owners of water or water rights, as may be necessary to permit the proper use of lands, water or water rights owned, occupied, or leased by them, except that until July 1, 1935, no preference shall be given in the issuance of such permits to any such owner, occupant, or settler, whose rights were acquired between January 1, 1934, and December 31, 1934, both dates inclusive, except that no permittee complying with the rules and regulations laid down by the Secretary of the Interior shall be denied the renewal of such permit, if such denial will impair the value of the grazing unit of the permittee, when such unit is pledged as security for any bona fide loan. Such permits shall be for a period of not more than 10 years, subject to the preference right of the permittees to renewal in the discretion of the Secretary of the Interior, who shall specify from time to time numbers of stock and seasons of use. During periods of range depletion due to severe drought or other natural causes, or in case of a general epidemic of disease, during the life of the permit, the Secretary of the Interior is authorized, in his discretion to remit, reduce, refund in whole or in part, or authorize postponement of payment of grazing fees for such depletion period so long as the emergency exists: Provided further, That nothing in this chapter shall be construed or administered in any way to diminish or impair any right to the possession and use of water for mining, agriculture, manufacturing, or other purposes which has heretofore vested or accrued under existing law validly affecting the public lands or which may be hereafter initiated or acquired and maintained in accordance with such law. So far as consistent with the purposes and provisions of this chapter, grazing privileges recognized and acknowledged shall be adequately safeguarded, but the creation of a grazing district or the issuance of a permit pursuant to the provisions of this chapter shall not create any right, title, interest, or estate in or to the lands. (June 28, 1934, ch. 865, § 3, 48 Stat. 1270, amended Aug. 6, 1947, ch. 507 8 1, 61 Stat. 790.)
(3) SECTIONS C (b) AND 10 OF THE WATER CONSERVATION ACT OF AUGUST 11, 1939,
As AMENDED BY THE ACT OF OCTOBER 14, 1940 (54 STAT. 1121, 1125)
SEC. 5902-1. PREREQUISITES FOR CONSTRUCTION OF PROJECT; DEFINITIONS
(b) No actual construction of the physical features of a project shall be undertaken unless and until (1) the Secretary has found that lands, or interests in lands, deemed necessary for the construction and operation of the major features of the projects have been secured, or sufficient progress made in their procurement to indicate the probability that all these lands or interests in lands can be secured, with titles and at prices satisfactory to him; and (2) the Secretary has found (i) that water rights adequate for the purposes of the project have been acquired with titles and at prices satisfactory to him, or that such water rights have been initiated and in his judgment can be perfected in conformity with State law and any applicable interstate agreements and in a manner satisfactory to him; and (ii) that such water rights can be utilized for the purposes of the project in conformity with State law and any applicable interstate agreements and in a manner satisfactory to him. SEC. 5902-8. AUTHORITY OF SECRETARY OF THE INTERIOR OVER LANDS, CON.
TRACTS, WATER RIGHTS, ETC. (a) In connection with any project constructed pursuant to the provisions of sections 590y to 5907–10 of this title, the Secretary shall have the same authority, with regard to the utilization of lands owned by the United States, other than lands acquired under section 5902–3 of this title as he has in connection with projects undertaken pursuant to the Federal reclamation laws, Act of June 17, 1902 (32 Stat. 388), and Acts amendatory thereof or supplementary thereto.
(b) In connection with the construction or operation and maintenance of a project undertaken pursuant to the authority of sections 590y to 5907–10 of this title, the Secretary shall have with respect to construction and supply contracts, and with respect to the acquisition, exchange, and disposition of lands, interest in lands, water rights, and other property and the relocation thereof, the same authority, including authority to acquire lands and interests in land and water rights with titles and at prices satisfactory ot him, which he has in connection with projects under the Federal reclamation laws. (Aug. 11, 1939, ch. 717, § 10, as aded Oct. 14, 1940, ch. 861, 54 Stat. 1125.)
(4) SECTION 1 OF THE FLOOD CONTROL ACT OF DECEMBER 22, 1944 (58 STAT. 887).
TITLE 33—NAVIGATION AND NAVIGABLE WATERS, FLOOD CONTROL SEC. 701-1. SAME; DECLARATION OF POLICY
In connection with the exercise of jurisdiction over the rivers of the Nation through the construction of works of improvement, for navigation or flood control, as herein authorized, it is declared to be the policy of the Congress to recognize the interests and rights of the States in determining the development of the watersheds within their borders and likewise their interests and rights in water utilization and control, as herein authorized to preserve and protect to the fullest possible extent established and potential uses, for all purposes, of the waters of the Nation's rivers; to facilitate the consideration of projects on a basis of comprehensive and coordinated development; and to limit the authorization and construction of navigation works to those in which a substantial benefit to navigation will be realized therefrom and which can be operated consistently with appropriate and economic use of the waters of such rivers by other
In conformity with this policy: (a) Plans, proposals, and reports of Chief of Engincers, submitted to Congress
Plans, proposals or reports of the Chief of Engineers, Department of the Army, for any works of improvement for navigation or flood control not heretofore or herein authorized, shall be submitted to the Congress only upon compliance with the provisions of this paragraph. Investigations which form the basis of any such plans, proposals, or reports shall be conducted in such a manner as to give to the affected State or States, during the course of the investigations, information developed by the investigations and also opportunity for consultation resariling plans and proposals, and, to the extent deemed practicable by the Chief of Engineers, opportunity to cooperate in the investigations. If such investigations in whole or part are concerned with the use or control of waters arising west of the ninety-seventh medidian, the Chief of Engineers shall give to the Secretary of the Interior, during the course of the investigations, information developed by the investigations and also opportunity for consultation regarding plans and proposals, and to the extent deemed practicable by the Chief of Engineers, opportunity to cooperate in the investigations. The relations of the Chief of Engineers with any State under this paragraph shall be with the Governor of the State or such official or agency of the State as the Governor may designate. The term “affected State or States" shall include those in which the works or any part thereof are proposed to be located; those which in whole or part are both within the drainage basin involved and situated in a State lying wholly or in part west of the ninety-eighth meridian ; and such of those which are east of the ninety-eighth meridian as, in the judgment of the Chief of Engineers, will be substantially affected. Such plans, proposals, or reports and related investigations shall be made to the end, among other things, of facilitating the coordination of plans for the construction and operation of the proposed works with other plans involving the waters which would be used or controlled by such proposed works. Each report submitting any such plans or proposals to the Congress shall set out therein, among other things, the relationship between the plans for construction and operation of the proposed works and the plans, if any, submitted by the affected States and by the Secretary of the Interior. The Chief of Engineers shall transmit a copy of his proposed report to each affected State, and, in case the plans or proposals covered by the report are concerned with the use or control of waters which rise in whole or in part west of the ninety-seventh meridian, to the Secretary of the Interior. Within ninety days from the date of receipt of said proposed report, the written views nd recommendations of each affected State and of the Secretary of the Interior may be submitted to the Chief of Engineers. The Secretary of the Army shall transmit to the Congress, with such comments and recommendations as he deems appropriate, the proposed report together with the submitted views and recommendations of affected States and of the Secretary of the Interior. The Secretary of the Army may prepare and make said transmittal any time following said ninety-day period. The letter of transmittal and its attachments shall be printed as a House or Senate document.