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ees of the Government, in the use of water for any purpose in connection with Federal programs, projects, activities, licenses, or permits, shall, as a condition precedent to the use of any such water, acquire rights to the use thereof in conformity with State laws and procedures relating to the control, appropriation, use, or distribution of such water: Provided, That nothing in this act shall be construed to preclude the storage and release of water by the United States solely for the prevention of floods: Provided further, That the United States may acquire such rights, when authorized under Federal law, by purchase, exchange, gift, or condemnation : Provided further, That no right acquired under State law shall be enforceable against the United States if such right would be enforceable against the United States only because of a State law or custom which discrimimates against the United States or denies the United States the opportunity to acquire such righs on terms and conditions at least as favorable as those under which any other entity or person may acquire such rights : And provided further, That nothing in this act shall be construed to permit any person or entity to acquire the right to store or divert waters in any national park or monument unless otherwise authorized by act of Congress.

“WAIVER OF IMMUNITY TO SUIT

“SEC. 7. (a) Consent is hereby given to join the United States as a defendant in any suit relating to the control, appropriation, use, or distribution of water which is to be used for beneficial purposes when (1) the United States is or claims to be the owner of any right to the use of such water or is in the process of acquiring any right to the use thereof by appropriation under State law or otherwise, and (2) the United States is a necessary party to such suit. The United States, when a party to any such suit, (1) shall be deemed to have waived any right to plead that said State laws are inapplicable or that the United States is not amenable thereto by reason of its sovereignty, and (2) shall be subject to the judgments, orders, and decrees of the court having jurisdiction of any such suit in the same manner and to the same extent as a private individual under like circumstances : Provided, That judgment for costs shall not be entered against the United States in any such suit.

“(b) Summons or other process in any such suit may be served on the Attorney General of the United States or his designated representative, or on the United States attorney for the district in which the court having jurisdiction of any such suit is situated.

"(c) In the absence of the service of summons or other process in any such suit, the Attorney General of the United States or his designated representative is authorized, either in person or by writing, to make an appearance or file pleadings in any such suit on behalf of the United States and thereby to subject the United States to the jurisdiction of any such court.

“(d) On petition of the United States any such suit may be removed pursuant to title 28 of the United States Code from a State court to the disrict court of the United States for the district and division within which such action is pending.

“INTERSTATE LITIGATION

"SEC. 8. Nothing in this act shall be construed as authorizing the joinder of the United States in any suit or controversy in the Supreme Court of the United States relating to the rights of States to the use of the water of any interstate stream.

"EQUITABLE APPORTIONMENT AND TREATY OBLIGATIONS "SEC 9. Nothing in this act shall be construed to interfere with the rights of any State to waters apportioned under any interstate compact or judicial decree, or to permit appropriations of water under State law which interfere with the fulfillment of treaty bligations of the United States."

CONGRESS HOLDS WATER RIGHTS DEPEND ON STATE LAW

Congress has repeatedly endeavored to express its intention that Federal programs should not interfere with State law relating to the ownership, control, appropriation, distribution, and use of water. The Congress defined its policy as early as 1866 when it encouraged State control by permitting the acquisition of water rights first on nonnavigable streams and bodies of water, on the public

lands of the 3 Western States and 8 Territories and later when it subordinated navigation west of the 98th meridian to appropriative rights and by subjecting flood-control projects to the policy of protecting present and future beneficial consumptive uses and recently by providing for adjudication of water rights, other than on interstate streams, in State courts. Down through the years the Congress has reaffirmed its position time and again that western water laws are to be observed and followed by the Federal Government. Let me cite these provisions of law :

1. The act of July 26, 1866 (14 Stat. 253); 2. The act of July 9, 1870 (16 Stat. 218) ; 3. The Desert Land Act of March 3, 1877 (19 Stat. 390); 4. Section 8 of the Reclamation Act of 1902 (32 Stat. 390); 5. Sections 9 (b) and 27 of the Federal Power Act of 1920 (41 Stat. 1077) ; 6. Section 3 of the Taylor Grazing Act of 1934 (48 Stat. 1269) ;

7. The Great Plains Water Conservation and Utilization Projects Act of October 14, 1920 (54 Stat. 1119);

8. The Water Conservation Act of 1939 (53 Stat. 1419) ;
9. Section 1 of the Flood Control Act of February 22, 1944 (58 Stat. 887);
10. The National Parks Act of 1946 (60 Stat. 885);

11. Section 208 of the act of July 10, 1952, authorizing suits against the United States in State courts for the adjudication of water rights ;

12. Subsection 3 (e) of the Submerged Lands Act of May 22, 1953 (67 Stat. 31); and finally,

13. The act of July 23, 1955 (being section 4 (b) of Public Law 167—84th Cong.), the act providing for multiple use of the surface of tracts of public land.

DESERT ACT OF 1877 PAVED WAY FOR STATE CONTROLS

Until very recently it was generally believed that the Desert Land Act of 1877 effectively severed the usufructuary rights to water from the Federal ownership of all public lands so as to render the water subject to appropriation under State law. California Oregon Power Co. v. Beaver Portland Cement Co. (295 U. S. 142) : see Nebraska v. Wyoming (325 U. S. 589, 611 et seq.). The sweeping opinion in the former case seemed to provide ample justification for such a belief. The Supreme Court said in the case California Oregon Power Co. v. Beaver Portland Cement Co. (295 U. S., at 162–163):

"As the owner of the public domain, the Government possessed the power to dispose of land and water thereon together, or to dispose of them separately ***. The fair construction of the provision now under review is that Congress intended to establish the rule that for the future the land should be patented separately; and all nonnavigable waters thereon should be reserved for the use of the public under the laws of the States and Territories named. The words that the water of all sources of water supply upon the public lands and not navigable 'shall remain and be held free for the appropriation and use of the public' are not susceptible of any other construction. The only exception made is that in favor of existing rights; and the only rule spoken of is that of appropriation. ***. What we hold is that following the act of 1877, if not before, all nonnavigable waters then a part of the public domain became publici juris, subject to the plenary control of the designated States * * *”

THE RECENT OREGON CASE

In the case of Federal Power Commission V. Oregon (docket 367), decided on June 6 last, the Supreme Court injected great doubt and uncertainy into the validity of many water law princples accepted generally in the public land States. The applicant in that case did not acquire water rights for power generation under the laws of Oregon, notwithstanding the provisions of section 9 (b) and 27 of the Federal Water Power Act of 1920, as amended. The proposed dam would abut an Indian reservation created in 1855 on one side and a power site reserve, established in 1909, on the other. The Court sustained the granting of the license, notwithstanding the failure to comply with State law, on the ground, among others, that the Desert Land Act of 1877 does not apply “to the use of waters on reservations of the United States.” It appears clear that the court used the term "reservations” to include all public lands withdrawn or reserved from sale or disposition under the public land laws, such as national forests.

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JUSTICE DOUGLAS DISSENTS

Justice Douglas, in a dissenting opinion filed on June 6, 1955, in the case of F. P. C. v. Oregon above referred to, said:

"The argument pressed on us by the United States is akin to the one urged in Nebraska v. Wyoming (325 U. S. 589, 611 et seq.). In that case, the United States struggled to be rid of the rule of law that made its water rights on nonnavigable streams of the West dependent on State law. It claimed that it owned all the unappropriated water in the basin of the North Platte River. The argument was made not only under the Reclamation Act of 1902 (32 Stat. 388), but also under the Desert Land Act of 1877 (19 Stat. 377), the act involved here. We reserved decision as to whether under some circumstances the United States might be the owner of unappropriated water rights. But we held that under those acts the United States took its water rights like other landowners, viz, pursuant to State law governing appropriation.

“Unless we are to depart from that ruling, we must accept Oregon's claim here."

Justice Douglas cited two cases supporting his position, Power Company v. Cement Company above mentioned and also the case of Ickes v. Fox (300 U. S. 82), arising in the State of Washington, in which case the Secretary of the Interior contended that because the Government diverted, stored, and distributed the water it thereby acquired ownership of that water. The Supreme Court rejected this contention. Appropriations, under the Reclamation Act, it said, were made not for the Government but for the use of the landowners, and by the terms of that law, as well as Washington law and of the contract, the water rights became the property of the landowners, wholly distinct from the property of the Government in the irrigation works.

Justice Douglas concluded his opinion with this powerful and impelling statement:

“The Desert Land Act applies to 'public land’; and the Federal Power Act (41 Stat. 1063, as amended, 16 U. S. C. 791a et seq.), grants the Commission authority to issue licenses for power development ‘upon any part of the public lands and reservations of the United States.' * * * The definition of those terms in the act says nothing about water rights. And, as I have pointed out, it has been the long-term policy of Congress to separate western land from water rights.

“The final resort of the Commission is to the act of June 25, 1910 (36 Stat. 847), providing:

“ 'That the President may, at any time in his discretion, temporarily withdraw from settlement, location, sale, or entry any of the public lands of the United States, including the district of Alaska and reserve the same for waterpower sites, irrigation, classification of lands, or other public purposes to be specified in the orders of withdrawals, and such withdrawals or reservations shall remain in force until revoked by him or by an act of Congress.'

“It was under this act that some of the lands here involved were reserved for a power site. But the act of June 25, 1910, by its very terms, did no more than withdraw these public lands ‘from settlement, location, sale, or entry. The act did not purport to touch or change in any way the provision of the Desert Land Act that pertains to water rights. If the words of the 1910 act are to control, water rights remained undisturbed. The lands remained 'public lands,' save only that settlers could not locate on them. I assume that the United States could have recalled its grant of jurisdiction over water rights, sav. ing, of course, all vested rights. But the United States has not expressly done so; and we should not construe any law as achieving that result unless the purpose of Congress is clear.

“The reason is that the rule adopted by the Court profoundly affects the economy of many States, 10 of whom are here in protest. In the West, the United States owns a vast amount of land, in some States over 50 percent of all the land. If by mere Executive action the Federal lands may be reserved and all the water rights appurtenant to them returned to the United States, vast dislocations in the economies of the Western States may follow. For the right of withdrawal of public lands granted by the 1910 act is not only for 'waterpower sites' but for a host of public projects/irrigation, classifications of lands, or other public purposes.' Federal officials have long sought that authority. It has been consistently denied them. We should deny it again. Certainly the United States could not appropriate the water rights in defiance of Oregon law, if it built the dam. It should have no greater authority when it makes a grant to a private power group.”

WHERE DO WE GO FROM HERE?

The possible ramifications of this new decision are practically unlimited. Millions of acres of public lands have been withdrawn: or reserved since 1877. Many of these are prime watershed areas.

MANY QUESTIONS ARISE A good many questions aris as a result of confusion created by the recent Supreme Court decision in the Oregon case.

(a) Are State law appropriations made on such lands since their withdrawal totally invalid? Or only invalid against Federal uses on such lands?

(b) Are the Federal rights riparian in character and limited to the watershed of the stream? Or are they applicable to any beneficial use on Federal lands? Cf. Winters v. U. 8. (207 U. S: 564).

(c) Are such Federal rights subject to the doctrine of equitable apportionment among States? Or are they a first charge against the stream capable of destroying appropriative rights acquired under State law? Cf. Hinderlider v. La Plata (304 U. S. 92). See Petition of Intervention of the United States, Arizona v. California, pending in the Supreme Court.

(d) Are rights of the United States to use water for irrigation on reclamation projects carved from Federal reservations or withdrawals superior to those for use on privately owned lands? Or does section 8 of the 1902 Reclamation Act constitute a specific modification of the Supreme Court's interpretation of the Desert Land Act?

(e) Are Federal rights to use water for the generation of power on Federal reservations as a part of the reclamation project valid without reference to the doctrine of priority?

(f) Are nonirrigation uses on reclamation projects carved from Federal withdrawals superior to irrigation uses since section 8 of the 1902 act refers specifically to State laws relating to “water used in irrigation"?

These questions are not intended to exhaust the possibilities. They merely illustrate the confusion and uncertainty which could result if Congress does not act to clarify the appropriability of water under State law.

CONGRESS MUST REAFFIRM HISTORIC POSITION

It could take 30 years of litigation to know the full import of this decision. Only Congress can prevent such a cloud on the future development of the West.

As I have pointed out, back of this bitter struggle over western water rights is a long history of efforts by Congress to protect western water laws and prevent administrative supersedures of those laws. This history commences with the discovery of gold in California. The public lands on which gold was found wereu nsurveyed and not open by Federal law to occupation and settlement. Miners and settlers nevertheless rushed into these areas and, lacking regulatory Federal laws, they framed in every district rules of government whereby peace and order were reasonably well maintained. These rules, customs, or laws of the miners as they have been variously called, recognized that discovery and appropriation should be the foundation of a possessor's mineral and water rights. They secured to all persons, with practicable limitations, an absolute equality of right and privilege.

Gold mining, in most cases, could not be undertaken without without water, so it was necessary to bring water from streams and lakes to the mining localities. Under the rules of the miners, the first appropriator of water, to be conveyed to these localities for mining or other beneficial purposes, was recognized as having, to the extent of actual beneficial use, prior or better right. So-called common-law doctrines respecting the rights of riparian owners could not be applied. Nature and necessity dictated otherwise.

For 18 years, from 1848 to 1866, these local regulations and customs as enforced and molded by the State courts and implemented by State legislation, constituted the law governing all property in minerals and water on the public lands. The system was basically good and Congress recognized that fact. Its recognition in législative form became the act of July 26, 1866, declaring that mineral lands of the public domain were free and open to exploration and occupation, and providing that water rights which had vested and accrued by priority of possession under local customs, laws and decisions should be federally recognized and protected. Mr. Justice Field correctly construed the intention of Congress in enacting this law, holding that it was to secure existing and future possessory rights by a patent from the Federal Government. Jennison v. Kirk (98 U. S. 453, 459).

The possessory rights vested by the 1866 act were further extended and protected by Congress in the act of July 9, 1870. Mr. Justice Sutherland stated that the effect of these two acts was not limited to rights acquired before 1866. "They reach into the future as well,” he said, “and approve and confirm the policy of appropriation for a beneficial use, as recognized by local rules and customs, and the legislation and judicial decisions of the arid-land States, as the test and measure of private rights in and to the nonnavigable waters of the public domain." (See sec. 17, 16 Stat. 217.) California Oreyon Power Co. v. Beaver Portland Cement Co. (295 U. S. 142).

In the Desert Land Act of March 3, 1877, which was applicable to 11 States and potential States, Congress specified that all surplus nonnavigable waters, over and above bona fide prior appropriations, should remain free for the appropriation and use of the public for irrigation, mining, and manufacturing purposes. Mr. Justice Sutherland said that if the language of this act was to be given its natural meaning, and the Supreme Court at that time saw no reason why it should not be given that meaning, it effected a severance of all nonnavigable waters upon the public domain, not theretofore appropriated, from the land itself, and made such waters available for appropriation under State laws. California Oregon Power Co. v. Beaver Portland Cement Co. (supra, p. 158).

Do not get the impression, however, that the Supreme Court went along willingly in all instances with congressional intent. Navigability in law does not always mean navigability in fact. The decision on this point presents a problem which can send the Court off on unforeseen tangents. Some of these excursions continue to be matters of great concern to the reclamation States. The first such excursion, of importance here, was the result of a complaint filed by the Attorney General in 1897 against the Rio Grande Irrigation Co. to restrain it from constructing a dam across the Rio Grande River at Elephant Butte, New Mexico. The Attorney General persuaded the Supreme Court that the contemplated construction would seriously impair the navigable capacity of the river. The Rio Grande, within the boundaries of New Mexico, obviously was not river which in its ordinary condition carried trade and travel, and the Supreme Court acknowledged that fact. Nevertheless, on the theory that depletion of flow might affect navigable capacity elsewhere, it said the 1866 law, as amended, formed no basis for inferring that Congress intended to release its control over the upper Rio Grande River. Further, it said that section 10 of the act of September 19, 1890, prohibited obstructions to navigable capacity “not affirmatively authorized by law.” This decision impelled Justice Sutherland to say at a later date that, subject to the technicality noted, the Supreme Court still recognized and assented to the appropriation of water, under the congressional acts of 1866 and 1877, in contravention of the riparian law rule. If these acts of Congress did not constitute an entire abandonment of the common law rule of running waters insofar as the public lands, and subsequent grantees thereof, were concerned, they foreshadowed, according to Justice Sutherland, the more positive declarations of the Desert Land Act of 1877. I have already noted his statement that he saw no reason why that act did not effect a severance of all nonnavigable waters upon the public domain, not therefore appropriated, from the land itself. However, the act did not, according to Justice Sutherland, bind or purport to bind the States to any particular policy. “It simply recognizes and gives sanction,” he said, "insofar as the United States and its future grantees are concerned, to the State and local doctrine of appropriation, and seeks to remove what otherwise might be an impediment to its full and successful operation.” Power Co. v. Cement Co. (supra, pp. 158-159); U. S. v. Rio Grande Irrigation Co. (174 U. S. 690, 703).

As I have pointed out, when a Secretary of the Interior wrongfully sought to diminish water rights which had vested under a doctrine of prior appropriation, Justice Sutherland said that mere ownership of the irrigation works and diversion, storage, and distribution of water did not divest prior acquired water rights. Indeed, even appropriations under the Federal reclamation acts are not made for the United States Government but for the landowners and by that law, as well as applicable State law, the later water rights also become the property of the landowners, wholly distinct from the property of the United States in the irrigation works (Ickes v. Fox (300 U. S. 82)). A similar attempt to claim water rights, by reason of ownership of the project works, was brushed aside by the Supreme Court in Nebraska v. Wyoming in line with the earlier pronouncements

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