Senator BARRETT. I think you might have been here yesterday when I said that certainly the Congress has the power and the authority to repeal the acts of 1866, 1870, and 1877 if it so desired, but Congress alone, under the Constitution, has that authority and that power and if we want to do that we certainly ought to do it right across the table in an open, aboveboard manner.

But, in the absence of any action by the Congress, it seems to me that clearly for the last 90 years the Supreme Court has affirmed the action taken by the Congress, certainly under the Reclamation Act and, as you are stating here now, under the commerce clause, and there are many, many other cases that might be cited also in respect thereto.

So it does seem to me that the point the witness is bringing out is extremely important if we are going to get right at the basis of this controversy, if there is any controversy.

Senator O'MAHONEY. I think that last statement, Senator, is a pretty good one, "If there is any controversy," the point being that Congress has complete constitutional power to dispose of the property of the United States in the constitutional way of passing legislation. Congress must recognize, and has recognized, that rights in water and in the use of water are property rights. Congress has recognized and has so enacted that certain Western States have the right to dispose of and handle water rights and adjudicate them.

Our position, I think, is that it would be an unconstitutional exercise of Federal executive power to seek by executive act to take away any of these vested interests, whether they are vested interests acquired by individuals under valid law or whether they are interests lying in the State through the enactment of constitutional law.

In other words, neither the Department of Justice nor the Department of Defense nor any other Federal Department can, by the exercise of ipse dixit, set aside these basic rights.

Senator BARRETT. Certainly the Senator is entirely correct, and just to cite, it has occurred to me since I have studied this matter that the people of this country are extremely fortunate that purely by accident and not by design at all was the principle enunciated way back in the middle of the last century before California was admitted in the Union, later affirmed by the State courts, first by the Territorial courts and then by the Congress of the United States, giving these rights to transport water long distances and apply it to the land in contravention to the common-law doctrine. And if that had not been done, we would never have had a West today.

It would have been impossible to have built these great communities over the West if we had not established that kind of law contrary to the riparian doctrine of the common law.

Senator ALLOTT. Mr. Chairman, I would like tomorrow to file a statement of my own position on this matter which I have supported with Senator Barrett, and I am sorry that I cannot be here this afternoon because I have another committee meeting, but I want to follow this because I have a great interest in it.

I am convinced of the justness and rightness of this bill.

Senator BIBLE (presiding). We certainly welcome a statement from you, Senator.

I think this might be a very opportune time to recess until 2 o'clock. (Whereupon, at 12:25 p. m., the subcommittee recessed, to reconvene at 2 p. m., of the same day.)

AFTERNOON SESSION

Senator ANDERSON. The subcommittee will be in order.
We will continue with the statement of Mr. Bennett.

STATEMENT OF ELMER BENNETT, LEGISLATIVE COUNSEL, DEPARTMENT OF THE INTERIOR-Continued

Senator ANDERSON. Mr. Bennett, feel perfectly free in connection with your testimony to support it with such citations or comments as you may wish to make even though they have to be edited at a later time.

Mr. BENNETT. Thank you, Mr. Chairman.

It has been suggested that some comment at this stage might be well in regard to the case of U. S. v. Gerlach Live Stock Co., 339 U. S. 725, and the case of Ickes v. Fox, 300 U. S. 82. I am somewhat reluctant to interpret those cases beyond a certain point because in my judgment both of them point directly at the issue of constitutionality of the type of legislation which this committee has before it at the present time. Also, very material to this question is the case of Butte City Water Co. v. Baker (196 U. S. 119).

In the Gerlach case the issue fundamentally was whether the United States should pay for certain so-called flood rights to the use of water under California riparian law in the course of its construction and operation of the Central Valley project. The project was constructed under the reclamation laws, including section 8 of the Reclamation Act of 1902. The authorizations appeared to lend some weight to the contention that the Federal Government was also acting under its navigation powers inasmuch as navigation was one of the purposes of the project.

The Department of Justice contended that since navigation was one of the purposes of the project, Congress did not intend that any compensation would be given for these flood rights under California State law.

The Supreme Court rejected that contention in the Gerlach case and pointed to section 8 of the 1902 Reclamation Act as being the expression of the will of Congress that the reclamation project was to be constructed in accordance with the State law and that there was therefore a mandate to the Federal agency to pay for those rights which were recognized under the State law.

The case of Ickes versus Fox was entirely different in its nature. That case dealt with the contention of irrigation water users in the State of Washington that in his operation of the reclamation project the Secretary of the Interior was interfering with vested water rights which had been acquired and perfected under State law. There were many other issues also involved, such as the nature and extent of the contract relationship between the water users and the United States. Nevertheless, the Court held that the United States was not an indispensable party and therefore it was not necessary that the United States be joined as a party. There was no waiver of sovereign immunity, so of course if the United States had succeeded in its contention that it was an indispensable party, the case would have been dismissed. The Court based its ruling on the proposition that under section 8 of the Reclamation Act of 1902, the reclamation program

was to be operated and maintained in accordance with the water laws of the reclamation States and that under the laws of the State of Washington the water rights of these water users who were being serviced through these reclamation projects were property rights which they owned. Therefore, by virtue of the mandate of Congress, they had acquired a property right which the Secretary of the Interior, as custodian of the structures, was not permitted to abrogate in any way. Hence, the Court said, the action could be maintained against the Secretary of the Interior without having the United States as a party to the action, and the water users were entitled to have the Secretary of the Interior, under the reclamation laws, conduct himself in such fashion as not to abrogate their rights under State law.

Senator BARRETT. As I remember that case, the Secretary made some contention there about his complete authority over not only the facilities, the structures themselves, but the water also. The Court said no, you do have control over the dam and all of the physical properties, but the water rights are established under State law. So they reaffirmed in substance the old principle that we have been talking about here since 1877. Is that not right?

Mr. BENNETT. That would be my interpretation. As a matter of fact, the Court specifically pointed to section 8 of the Reclamation Act of 1902 and said that by virtue of that section the Congress had made the water laws of the State of Washington applicable, and that under the water laws of the State of Washington these water users acquired a property right to the use of the water which the Secretary of the Interior was not authorized to abrogate.

Senator BARRETT. In how many cases has the Supreme Court upheld section 8 of the Reclamation Act, would you say?

I know there is a good number of them.

Mr. BENNETT. I think the two most material decisions are Ickes versus Fox and the Gerlach case. There are some lower court decisions. It is somewhat inaccurate to say that those decisions squarely held section 8 of the 1902 act to be constitutional. But the result would have been different if it were unconstitutional.

Senator BARRETT. I know.

Mr. BENNETT. However, if section 8 were unconstitutional, then the decision of the Court would have to be contrary to the decision that it rendered.

Senator BARRETT. The Wyoming case was one of course where they could have said no, the United States controls this water, and it is not up to the State if they wanted to assert themselves. I think perhaps you can say that the Supreme Court in its decisions in some cases negated the proposition that the States did not have any rights, anyway. They upheld the States to that extent anyway. I am sure that those two cases are sufficient. They have not been overruled. No court has attempted to question the validity of those two decisions, have they?

Mr. BENNETT. Not to my knowledge.

Senator BARRETT. There is one other thing that I think would be very interesting, Mr. Chairman, if Mr. Bennett would discuss it in connection with this matter. We were talking this morning about the property clause and the commerce clause of the Constitution.

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Some contention was made over on the House side by a representative from the Justice Department with reference to the Maritime law and the Admiralty decision there. I have forgotten the names of the cases. We had the same point up here a year or so ago when we had this submerged matter up. You will recollect that at that time we tried to write some legislation with reference to giving some of the court in Texas jurisdiction.

Senator ANDERSON. You mean the continental shelf legislation? Senator BARRETT. Yes. We could not get around that Admiralty clause of the Constitution. I believe that was the Knickerbocker Ice Company v. Stewart, wasn't it? Also, if you could discuss very briefly the effect of some of the decisions with reference to interstate commerce. I believe there was a case in Ohio which came up on the interstate shipment of prison-made goods in contravention of the law of the State of Ohio, in which the court said that the State could prosecute in that case.

Furthermore, I believe there have been some liquor cases where they have State laws which prohibit shipment of liquor in interstate commerce. If you would be kind enough to give us a résumé of those decisions and the effect that they have by analogy to this particular one here, that would be helpful.

Mr. BENNETT. I am most reluctant to do that because of the position taken by the Justice Department report.

Senator BARRETT. I don't want to embarrass you if you do not feel like it, but it would be helpful to the committee.

I

Mr. BENNETT. I suggest that the committee read four cases. think they are all very material. I will give the names of the cases. Then the committee may reach its own conclusion. One of them is Whitfield v. Ohio (297 U. S. 43). The second one is In re Rahrer (140 U. S. 545). The third one is Clark Distilling Company v. Western Maryland Railroad Company (242 U. S. 311). The fourth one is Kentucky Whip and Collar Co. v. Illinois Central Railroad Co. (299 U. S. 334).

Senator ANDERSON. Kentucky Whip and Collar Co. is not exactly a recent case, I take it.

Mr. BENNETT. No; it isn't. Those cases all had to do with congressional statutes which in one form or another rendered State laws applicable to subject matter which, in the absence of congressional action, would have been within the exclusive jurisdiction of the Federal Government.

In other words, in the absence of congressional action, the State laws could not have been made applicable to the subject matter.

Senator BARRETT. The same principle would apply to this particular piece of legislation we have here.

Mr. BENNETT. I will leave that to the committee's judgment.

Of course I think there are two cases dealing with maritime jurisdiction which reach a contrary conclusion. One of them is the case you mentioned, Senator Barrett. Knickerbocker Ice Company v. Stewart (253 U. S. 149). What happened in the Knickerbocker case is that the Federal Government attempted to save to maritime employees their rights and privileges under State workmen's compensation laws. The Supreme Court struck that down on the basis that this was a field of jurisdiction which not only was exclusive jurisdiction, so far as the

Federal Government was concerned, but it was an area in which the Federal Government had a constitutional obligation to provide uniformity of legislation through the entire 48 States.

The other case dealing with the subject of maritime rights also dealt with a more limited attempt by the Congress to render State workmen's compensation laws applicable to maritime employees. That case was Washington v. Dawson & Company (264 U. S. 219).

The latter decision was rendered in 1924. The decision in the Knickerbocker case was 1920. You had here the quite common situation of an earlier statute having been held unconstitutional. Then Congress endeavors by limiting the scope and extent of the original statute to satisfy constitutional prohibitions.

Senator BARRETT. Both refer to the admiralty clause of the Constitution.

Mr. BENNETT. That is right. I was coming to that. The Court in its 5-to-4 decision in the Knickerbocker case pointed with some emphasis to the exclusive admiralty jurisdiction of the Federal courts under Article 3 of the Constitution. I think that perhaps is material to the purpose of the committee also.

I would like to go back again to the question of the ownership of the public lands by the Federal Government in the Western States as a legal problem in relation to rights to the use of water.

As this hearing has emphasized, the extensive ownership of public lands in the Western States is of such a character that if the water rights were kept as part and parcel of the ownership of land, there would be little or nothing available in terms of water rights for nonFederal owners. You will recall that I stressed the importance of legal rights to the use of water not only in terms of how you use it on the land or where you intend to put it to use, but also your right to require others to allow that water to come to your point of diversion. If all water rights remained appurtenant to or as part and parcel of, the ownership of public lands, then manifestly the non-Federal owner would be in very poor position so far as a secure right to require the delivery of the water to his point of diversion is concerned. That is the fundamental problem that the Desert Land Act of 1877, the act of 1866 and the act of 1870 were dealing with.

The Desert Land Act itself refers to surplus water of lakes, rivers, and other sources of water supply upon the public lands and not navigable. As you can see, the Desert Land Act does not purport to deal with the question of the exercise of constitutional jurisdiction over navigation under the commerce clause. It was limited in its scope to nonnavigable waters and those rights to the use of water which otherwise would be appurtenant to the ownership of the public lands. In the Desert Land Act, according to the Supreme Court in the California Oregon Power Co. case, cited above, Congress effectively severed rights to the use of water from the ownership of the public lands and reserved the waters for appropriation.

The situation thereafter was that no patents to public lands in the West carried with them the right to the use of water. That had to be acquired in some other way. In the California Oregon Power Co. case

Senator O'MAHONEY. The Desert Land Act?

Mr. BENNETT. So the Supreme Court said in the California Oregon Power Co. case.