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Act, the Tidelands Act while we were working on it. I think we were only trying to make sure that we did not reach over into some field other than the one that was supposed to be covered.

You went rather rapidly by this Pelton case and I assume you will come back to it?

Mr. BENNETT. Yes, sir.

Senator ANDERSON. I was trying to get into the record something that was written by one of the scholarly lawyers on this committee when he said that the Oregon case appears to have been concerned only with the rights of the Federal Power Commission, acting under the Federal Power Act, to issue a license for the use of water for production of power.

This is very different there than the use of water for domestic and irrigration uses. Nothing in the Oregon case can be cited as any authority for any agency of the Government to take water for consumptive uses without complying with the States concerned.

I find a good deal in this act in which they say over and over again that they are not trying to take water; that the use of water does not conflict with the vested rights of others.

Mr. BENNETT. I think later on, when I discuss that case, we will see that the precise facts of the case did not involve interference with vested rights, either under Federal or State law.

Senator ANDERSON. I wanted you to be sure and bring that out. Mr. BENNETT. I think the question really lies in the implication from the middle portion of the opinion dealing with the interpretation of the Desert Land Act. I presume the Court was interpreting the Desert Land Act for all purposes, whether it is consumptive use of water or otherwise, and that is where the questions have arisen.

There are those who say, "Well, we do not think the Court meant this," or "We do not think they meant that," but, of course, questions of that type usually mean 30 years of litigation before you know all the answers. I think that is a rather brief statement now, and later I shall try to portray what the case itself did, and then also what the most serious question probably is.

I am not going to attempt to get into all the questions which the interpretation of the Desert Land Act in the Pelton Dam opinion migh involve.

After those three acts, we had the development of the Federal activities on the public lands. Prior to 1877, there was fundamentally a wide-open public domain with the Federal Government conducting no activities of any substantial nature, except possibly activities of the Army in trying to protect the early settlers from the Indians.

That is about all that can be said at that point. But times and philosophies necessarily change as new developments come along.

Take, for example, the Reclamation Act of 1902 (32 Stat. 388). President Theodore Roosevelt, when he sent his message to Congress proposing the initiation of the program, stated that by that time most of the relatively uncomplicated water diversions had been initiated in the Western States, and that it would require a great deal of complicated engineering and financial resources to put the available land and water resources together to further develop those Western States. That was, perhaps, the first big step in Federal activity in this waterresource field. In the Reclamation Act of 1902 we have probably what

is the most specific injunction to Federal officials of any outstanding law regarding compliance with State law.

I might say at this point, Mr. Chairman, that it seemed to me that it might be very well to have the pertinent provisions of the 13 various statutes dealing with this field that Senator Barrett referred to yesterday in the record at some point or another. We would be very happy to have those put together so that you could print them readily. Senator ANDERSON. From the standpoint, of volume, how long would that be?

Mr. BENNETT. Most of them are very short sections.
Senator ANDERSON. They have already been submitted?

Mr. BENNETT. Yes.

Senator WATKINS. And when you submit them, I suggest that you have extra copies so each member of the committee can have them. Mr. BENNETT. I believe we can do that.

Senator ANDERSON. You do not need to do that for every member. Senator WATKINS. Some of the members would want to read them. I note, Mr. Chairman, that even though you are not a lawyer, you have acquired a lot of information.

Senator ANDERSON. You pick that up from this group by association.

Senator WATKINS. I intended to ask you 1 day when you were admitted to the bar after hearing you ask questions of a witness.

Mr. BENNETT. The question of conflict between Federal activities and State laws relating to water is hardly a new one, as I think every member of this committee knows. I believe it comes up at least once a year in one form or another, at times a serious form and at other times it is a zealous desire to put in a saving clause, as in Public Law 167, 83d Congress, which would insure that the status quo of water rights in the West vested under State law would be preserved, as against some specific Federal activity contemplated under whatever bill might be under study.

The source of conflict from a legal point of view is twofold. As I mentioned before, you have the question of the ownership of the public lands in the West and whatever rights to the use of water might be incident to the ownership of those lands.

The second question is the one of constitutional jurisdiction under the various powers enumerated in article I of the Constitution.

For example, consider the commerce clause. I would like to deal with that and its bearing on the West rather briefly, because congressional policy since the Flood Control Act of 1944, after the great interest shown in the subject by Senator O'Mahoney at that time, seems well establshed (58 Stat. 887).

As you know, the courts have held in the Chandler-Dunbar case, and in the recent Twin City Power case, that when Congress exercises powers over navigation, there is what the courts refer to as a navigation servitude, which, in effect, means that whatever private ownership there may be of rights to the use of navigable waters, they nevertheless are subject to the right of the public in general to use the stream for navigation. (U.S. v. Chandler-Dunbar Co., 229 U. S. 53; U. S. v. Twin City Power Co. (decided January 23, 1956), 350 U. S. 222.)

On that basis, then, the Federal Government has the apparent plenary power to regulate the construction of any dam or structures

which would interfere or affect the use of a navigable stream for navigation purposes. That also has been construed, apparently, in such cases as United States versus Rio Grande Irrigation Co. as extending beyond the navigable reaches of a stream to include nonnavigable reaches where the structure would have an effect on navigation in the nevigable reaches of the stream. (U. S. v. Rio Grande Irrigation Co., 174 U. S. 690.)

In the West, of course, consumptive uses are of primary importance so far as public policy is concerned.

I believe that the representative of the Justice Department, when he appeared before the House committee, indicated that he, too, recognized that consumptive uses, from a public policy point of view, at least, are of first importance.

In view of the shortage of water in the Western States and the fact that many streams are overappropriated, that appears very obvious. Congress recognized that in an amendment to the 1944 Flood Control Act, which carries Senator O'Mahoney's name and that of Senator Millikin (section 1 (b), act of December 22, 1944 (58 Stat. 887).)

Senator ANDERSON. The Senator from Colorado.
Mr. BENNETT. That is correct.

That provision states that, in the operation and maintenance of Federal navigation and flood control projects, the use of water arising west of the 98th meridian for navigation shall not interfere with the use of that water for certain beneficial consumptive uses in the Western States.

That provision in the 1944 Flood Control Act has been by reference reenacted by every rivers and harbors act and every flood control act passed by the Congress since 1944.

In other words, the navigation functions of the Federal Government have been subject to a priority of consumptive uses in the 17 Western States, so far as new projects are concerned, ever since 1944.

Senator OʻMAHONEY. May I interrupt you, Mr. Bennett?
Mr. BENNETT. Yes.

Senator O'MAHONEY. Mr. Nelson has just handed me Public Law 534 of the 78th Congress, which is the Flood Control Act of 1944 to which you refer.

Mr. BENNETT. Section 1 (b).

Senator O'MAHONEY. The amendment to which you refer and which has been known as the O'Mahoney-Millikin amendment, reads as follows:

The use for navigation in connection with the operation and maintenance of such works herein authorized for construction of waters arising in States lying wholly or in part west of the 98th meridian shall be only such use as does not conflict with any beneficial consumptive use present and future in States lying wholly or partly west of the 98th meridian of such waters for domestic, municipal, stock water, irrigation, mining, or industrial purposes.

What we were seeking to do was to maintain the priority of these last-named uses over the navigation use, the point being that the use of the water or the streams for navigation was a servitude only, which did not displace the prior law.

Mr. BENNETT. That provision, of course, does, as Senator O'Mahoney pointed out, establish a priority of uses over navigation. The Chandler Dunbar case and the recent Twin City Power case (cited above) both dealt with the obligation of the Federal Govern

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ment, where it engages in a flood control or navigation project, to pay for power-site values which are recognized under State law.

In both cases, the holding was that, unless Congress says otherwise, there is no obligation on the part of the Federal Government, in the exercise of its control over navigable waters, to pay for water rights and power-site values which might be recognized under State law.

In the case of licensees from the Federal Government, under the Federal Power Act, the Supreme Court has held that Congress, in section 27 of that act, has given Federal recognition to those rights to the use of water under State law, and where they have been vested under State law, they must be paid for. (Federal Power Commission v. Niagara-Mohawk Power Corp., 347 U. S. 239.)

Congress then has its choice, if we are to read the Niagara-Mohawk case as I have indicated, whether it will or it will not recognize vested water rights under State law for the purpose of compensation where the Federal Government acts within the confines of the navigation power under the commerce clause.

I wanted to bring that in sharp focus because there is no doubt, by virtue of the Niagara-Mohawk case, and you will find this principle indicated in the Federal Power Commission report which has been submitted to this committee, that Congress may establish a rule of just compensation for rights which might not be compensable in the absence of Federal recognition.

As I understand it, it is that principle which underlies section 5 of the proposed substitute for S. 863. The purpose seems to be that, where rights have been initiated and vested under State law, and the Federal Government wishes to interfere with those rights, then the owners of those rights should be compensated.

Senator BARRETT. Mr. Chairman, I would like to button that up if I might here.

As I understand your statement now with reference to these Supreme Court cases, particularly the Twin City case arising down in Georgia, and later on the Niagara-Mohawk case, the assumption is that where the rights are vested on a navigable stream in a licensee that because of section 27 of the Federal Power Act, the United States must respect those rights and it can acquire the property, of course, under the theory of navigation servitude, but that nevertheless they must compensate the licensee for the loss of his property right.

In effect, that confirms State law; is that right?

Mr. BENNETT. The section definitely confirms State law insofar as requiring just compensation for rights which have vested under State law prior to the exercise of Federal authority.

Perhaps I should put it this way: The Federal Power Act, in effect, is an exercise of Federal jurisdiction through the commerce clause, on the one hand, and through the property clause, on the other, because it permits the Federal Power Commission to license individuals and companies to develop waterpower on Federal lands, and on navigable streams irrespective of the ownership of the abutting land.

Senator BARRETT. That the State law thereafter enacted governing those property rights must be respected by the Federal Government?

Mr. BENNETT. To the extent that there are rights vested under State law in anyone who might be interfered with by the licensee; that is correct.

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Now, the Pelton case itself deals with the question whether the licensee must comply with State law so far as unappropriated waters are concerned.

Senator BARRETT. Is it not fair to conclude then that under the commerce clause and the property clause of the Constitution, even with reference to these navigable streams that you mentioned, that the United States is able to adequately protect itself?

No. 1, it has under the navigation servitude the right to go in and take it over if there is no intervening license granted under the power act.

But, No. 2, even if that is the case, they can still, under condemnation, go in and get the property.

So there is no question about coordinating Federal and State law under the Constitution in those States.

Mr. BENNETT. I would rephrase it, Senator, but your basic point, I believe, is correct.

The idea is that whatever you enact in this bill or any similar bill, Congress cannot delegate its constitutional powers away so as to deprive the United States of the benefit of the exercise of those constitutional powers.

In other words, Congress may authorize the taking of property where it is necessary and proper in order to carry out laws constituting an exercise of constitutional powers and after Congress directs or authorizes the taking of that property, it would be immaterial whether State law said that you could or could not take it.

In other words, Congress cannot interfere with the basic constitutional right of the Federal Government to exercise its constitutional powers, even when that means that private property must be taken.

The rule there, of course, is that under the fifth amendment, there must be just compensation for vested rights.

Now, the exercise of the commerce clause, as I indicated previously, is not subject to the just-compensation rule in all cases.

Senator BARRETT. Indeed, it is not.

Mr. BENNETT. Therefore, it is up to Congress to determine whether those rights in those cases which have been held not subject to the constitutional requirement of just compensation, shall be paid for Congress can lay down the rule in those cases.

Senator BARRETT. There is not any question about this statement that under the property clause, the Congress of the United States has plenary power to dispose of the property of the United States and, in the case that we are discussing here today, Congress has acted and said, “This is the way we want it handled," and that is precisely what we propose to do in this bill.

That is not a delegation of the authority of the Congress; that is merely a statement by the Congress of what their wishes are with reference to the property of the United States. Is that not right?

Mr. BENNETT. That is clearly the constitutional power which this bill is predicated on.

As you know, the Department of Justice has filed a report indicating doubt as to whether the Congress can require compliance with State laws, either by the Federal Government or anyone else, where that requirement would conflict with basic property claims of the Federal Government, apparently on the ground that such a requirement is a delegation of constitutional power to the States.

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