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In the House hearings the Justice Department made the contention that the unconstitutionality grounds are based on the maritime cases that were decided by the Supreme Court but under article III of the Constitution, the Congress is given exclusive jurisdiction over admiralty cases and, consequently, that is not at all in point with the cases involvedl under the various legislative acts that we have discussed here this morning, particularly the Reclamation Act of 1902.
As I pointed out earlier, the Supreme Court has upheld the rights of the States under the Reclamation Act repeatedly.
So it seems to me the height of folly to bring up this constitutional question.
Now, Mr. Chairman, after making those observations, I would like to quote one paragraph from the statement of the Assistant Attorney General before the House committee and ask Mr. Stanley to comment on that.
I am quoting from page 19 of the hearings, part 1, Wednesday, February 22, 1956:
Mr. RANKIN. You have a vast amount of legislation which directs the various parts of the Federal Government to go out and develop certain Federal projects and you appropriate money by the Congress for that purpose, and then you tell these various branches of the Government to comply with the State laws, and many of the State laws are not crafted with the idea of having these large Government projects. Many of them provide that the State engineer shall estabiish regulations and rules for the control and governance of every structure that is built on the stream,
You provide in your legislation that the Secretary of the Interior shall govern the handling of these structures, the release of water, the allocation of the amounts to the various reciamation and irrigation districts, and the other subdivisions that have to handle the water to get into the final use.
Now, in the face of that fact, these various departments have the problem: Who are they going to obey? Are they going to deliver up these structures and have the State engineer decide that water shall be released contrary to the law that Congress has sent down?
Mr. Stanley, as a State engineer, have you run into any such difficulty in the administration of the water of the West?
Mr. STANLEY. No, we have had no difficulty whatever with any Federal department that is building a project in Oregon.
I think that you might be able to remove that objection, Senator Barrett, by amending this bill to provide that the States shall not have the power to pass upon or control the design of a project built by the Federal Government.
I would not object to that at all because we have never made it a practice in Oregon for the State engineer to examine and approve the plans of a Federal project.
Senator WATKINS. You mean even for consumptive use! Even where the project has been built to store water for consumptive use?
Mr. STANLEY. I do not recall that we have ever done it even in that case.
Senator WATKINS. Do you require of every applicant who applies for water in connection with the building of a project that before he gets a certificate to show compliance by furnishing proof that the plans have been approved by the State engineer, that the project was constructed according to those plans and that the water was put to a consumptive use?
Mr. STANLEY. Only certain of the hydroelectric structures. We require no detailed plans and specifications for small canals. We do require them for a dam that will impound more than 9.2 feet of water.
Senator Watkins. The State projects come within that!
Mr. STANLEY. Oh, yes. But we do not require the plans of the Bureau of Reclamation dams or a dam by the Corps of Engineers to be approved by the State.
Senator WATKINS. Even though it is for irrigation purposes?
Senator WATKINS. Then probably your State law does not go that far. In my State it does not make any difference who the applicant is, whether it is the Federal Government or anyone else on the reclamation project, or any type of project that has to do with the consumptive use of water because they have to comply with the State requirement that they shall furnish the plans, have them approved, and then they must finally show that they have put to a beneficial use that water before they get the certificate of appropriation, as it is technically called.
Senator BARRETT. I think that this is true in every State.
Senator WATKINS. Do you not make the Federal Government come in and furnish its proof of beneficial use? Mr. STANLEY. Oh, yes.
Senator Watkins. Then it is just a question of whether your State went as far as it might have gone. It is not the question of whether you had the right to do it but whether you exercised the full power you had ?
Mr. STANLEY. We did not consider it necessary because we figured the Corps of Engineers and the Reclamation Bureau, who have done most of the work in Oregon, have competent engineers and if they decide that the structure is safe and adequate, it is good enough for us.
Senator WATKINS. Then you did not rule on the question of whether you had the power to require or not to require?
Mr. STANLEY. No.
Senator WATKINS. But you did make it a requirement that they had to supply the proof of appropriation and they had to comply?
Mr. STANLEY. They have complied.
Mr. STANLEY. That is right." Oh, we have had a little conflict with the Bureau of Reclamation in the Klamath project, a disagreement.
Senator WATKINS. Over plans!
Mr. STANLEY. Over a great number of years. I can give you a little history on that.
Back in 1905, the Bureau made a filing in the office of the State engineer for all of the waters of the Klamath River and its tributaries and named the tributaries. They took everything in this filing
All down through the years they have claimed that by reason of that filing, they had control of these waters and that they were no longer subject to appropriation under State law, but since some of the recent Supreme Court decisions they have retreated from that viewpoint and have come to the view that they are only entitled to the water necessary for their project, which is not all of the water by any means.
Senator WATKINS. In other words, they had to comply with the law that anyone else had to comply with. Just because it was the Federal
Government, they could not get control of all that water by one filing.
Mr. STANLEY. That is right.
Senator Watkins. They receded then from the position of claiming all the water?
Mr. STANLEY. Yes, they have.
Senator WATKINS. Have they made final proof of the use of that water?
Mr. STANLEY. No, they have not and they will not have to make any final proof as such because that right was vested by an appropriation in 1905 and the water code of Oregon was enacted in 1909. Anything that was appropriated prior to 1909 became a vested right and it is only subject to determination after adjudication.
Senator WATKINS. IIas the United States appeared in those cases and submitted to adjudication?
Mr. STANLEY. It has in the case of the Klamath and, so far as I recall, that was the only one.
Senator WATKINS. When did that happen?
Mr. STANLEY. That was the earliest large reclamation project in Oregon and our adjudication procedure did not come in until 1909. All of the rights that have been acquired in Oregon by the Bureau since 1909 have been under State engineer permits.
Senator Watkins. But the United States did appear in that adjudication and had the rights determined?
Mr. STANLEY. Yes, it did.
Senator WATKINS. That is very interesting because we have had that kind of controversy here recently.
Mr. STANLEY. That is in the case of Lost River, which is a tributary of the Klamath, and the United States was a party to.
Senator WATKINS. As I recall, we had a rider in the appropriation bill that required the United States to submit to the jurisdiction of the Supreme Court in adjudication of those matters.
Nr. STANLEY. Yes. Senator WATKINS. But prior to that, there was some question whether the United States would appear or not appear.
I remember I conducted the hearing with Senator McCarran when the matter was referred to the Judiciary Committee and we were requiring the United States to comply with the State law and give the United States permission to appear and permission to sue the United States so that the rights, including the rights of the United States, could be held in trust for the water users under a reclamation project.
Mr. STANLEY. That was my understanding.
Senator BARRETT. Mr. Chairman, before we adjourn here today, I have just had presented to me a few moments ago a report from the Justice Department signed by William P. Rogers, Deputy Attorney General. It is 7 pages of single-spaced typewritten report.
I have examined the report rather hurriedly and I note that the Justice Department has taken the position that this legislation is very objectionable to the United States Government; that it is unconsitutional; that there is no good reason why the legislation should be enacted and, furthermore, the only inference I can draw from this report is that they believe the Federal Government should control the water, unappropriated waters, at least in the Western States and certainly on the reserved lands rather than the States themselves according to the intent of the Congress since 1866.
Now, the reason that I object to this report so strenuously, Mr. Chairman, is the fact that there is a chief legal officer of the United States Government making bare assertions of every kind, nature and description without documenting it with a single case.
I think it is an affront to the United States Senate that the Justice Department would come up here and submit a report to this committee making contention after contention and not documenting by giving us the cases that supposedly support these various contentions.
I doubt if we have any authority to reject this report and send it back but they have many lawyers down in the Justice Department, and certainly they could take the time out to document these charges and give us the citations, and then we can look them up.
I have taken time out to study a good many cases but I have not been able to find a case yet that substantiated the position taken by the Justice Department.
Now, if you want to say that under admiralty law, under article III of the Constitution, that the Congress cannot delegate to the State any authority over the Maritime Administration, certainly I will agree with that, but that has nothing whatsoever to do with the water laws in the West where the Congress has the power to act and has acted in no uncertain terms. (The report referred to follows:)
DEPARTMENT OF JUSTICE,
Washington D. C., March 19, 1956. Hon. JAMES E. MURRAY, Chuirman, Committee on Interior and Insular Affairs,
United States Senate, Washington, D. C. MY DEAR MR. CHAIRMAN: This is in response to your request dated March 5, 1956, for the views of the Department of Justice concerning the amendment to be proposed by Senator Barrett to the bill s. 863. Under the proposed amendment, the bill would be entitled "A bill to recognize and confirm the authority of arid and semiarid States relating to the control, appropriation, use, or distribution of water within their geographic boundaries, and for other purposes."
The proposed legislation would be cited as the Water Rights Settlement Act of 1956. After a detailed recital indicating that the security of prior rights to the use of water acquired under State law for beneficial purposes is threatened by the exercise by the Federal Government of its rights to the use of water in those States lying wholly or in part west of the 98th meridian, the purpose of the proposed legislation is stated in the last sentence of section 2 as follows: "Because of the fact that previous acts of Congress has been and may be interpreted with respect to these States so as to cast clouds on such prior rights and to interfere with the future orderly development of water resources in accordance with the foregoing declaration, it is the purpose of this act: (1) to remove any such clouds; (2) to provide for the future acquisition of unappropriated waters, navigable and nonnavigable, in compliance with State laws; and (3) to provide adequate protections of the Federal interests to the end that the Federal Government may perform its functions in a manner consistent with the foregoing purposes."
This Department questions the validity of the assumption underlying the statement of policy that Federal activities in the Western States involving rights
to the use of water threaten the security of prior rights acquired under State law or cause undue interference with such rights or with the orderly acquisition of such rights in the future. If there are instances in which either public or nonpublic investments in water resource developments have been jeopardized by the National Government in the exercise of its powers and authority under the Constitution, they are indeed rare.
Passing over without further comment the statement of policy considerations, it appears that the effect of the legislation would be to subordinate substantially all Federal rights to the use of water in the West to the laws of the States and the rights of those claiming under State laws and to completely subject the National Government in this field to control and regulation by the States. That this effect is inconsistent with, and, in the present form of the bill, at best renders uncertain of accomplishment, the declared purpose “(3) to provide adequate protections of the Federal interests to the end that the Federal Gorernment may perform its functions in a manner consistent with the foregoing purposes” is apparent from the following considerations.
Section 5 of the proposed legislation would provide that: “In the use of water for any purpose in connection with Federal programs, projects, or activities no Federal agency or employee of the Government shall interfere with the exercise of any right to the use of water for beneficial purposes heretofore acquired under and recognized by State custom or law except when expressly authorized by law and upon payment of just compensation therefor: The full impact of this provision is difficult of comprehension. Questions of construction would be innumerable. It is conceivable that rights “heretofore" acquired under and recognized by State custom or law without recognition of prior vested rights of the Federal Government not based upon State law would be held superior to the Federal rights. There are presently pen ling in the courts numerous cases involving that precise situation. A conceivable construction of section 5 is that it constitutes a relinquishment by the United States of America of its vested rights to the use of water in every instance when an appropriator under the laws of the State, asserting a right acquired prior to the date of the approval of the legislation, claims adversely to the rights of the United States irrespective of relative priority. Under such a construction, the executive branch of the Federal Government would be precluded from fulfilling its responsibilities in connection with the development of water resources and the use of those resources if for no other reason than that the costs would be in many instances prohibitive. Beyond the question of the extent to which section 5 might conceivably be construed as subordinating reserved or other presently vested rights of the Federal Government not based upon State law to rights asserted under such laws, other impediments to performance by the Federal Government of its functions in water resource development are suggested. For example, the injunction against interference by Federal agencies or employees with the exercise of any right to the use of water heretofore acquired under and recognized by State custom or law might be construed as requiring water deliveries from the Colorado River for the satisfaction of all rights to waters of that river heretofore acquired under State law without regard to the feasibility of such deliveries unless express authorization for the taking of such rights by the Federal Government can be found in legislation. There is wide conflict between such possible construction of section 5 of the proposed legislation and the claims asserted by the several States included in the lower basin of this river in litigation now pending in the Supreme Court of the United States. A similar impact upon administration by the Federal Government of other great reclamation projects in the West is conceivable.
The devastating effects of the provisions of section 6 of the proposed legislation upon the performance by the Federal Government of its functions in water resource development and in the exercise of its rights to the use of water are even more readily apparent. These provisions, subject to existing rights under State law, purport to reserve for appropriation and use of the public pursuant to State law all navigable and nonnavigable waters, and would require all Federal agencies and all permittees, licensees, and employees of the Federal Government, as a condition precedent to the use of water for any purpose in connection with Federal programs, projects, activities, licenses, or permits, to acquire the right to such use in conformity with State laws and procedures. The only exception to such requirement of conformity with State law relates to the storage and release of water solely for the prevention of floods.
The impracticability, if not the impossibility, of full compliance by the Federal Government with State laws in connection with interstate stream develop