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Mr. RODERICK. In our opinion, there exists a lack of uniformity of approach by the various States to the problems of water rights. I think that was mentioned here the first day.
Statutes vary greatly as between the States. The instant bill, therefore, in the event of enactment at this time, might seriously complicate our national defense. In subjecting the operation of a military reservation to State water laws, State approval would be required before taking any military action, such as movement of troops, or any other action which would alter defense needs for water. Obviously, such a situation could cause serious delay in the procurement of essential water rights, or even completely deny such rights.
Senator BARRETT. I do not like to be continually interrupting but, my goodness, I do not see how we can sit and let statements like that go by.
Senator WATKINS. I want to say with regard to that statement:
Obviously, such a situation could cause serious delay in the procurement of essential water rights, or even completely deny such rights.
you have already indicated that the right to the use of water is a property right?
Mr. RODERICK. Yes, sir.
Senator WATKINS. You do not own all the land out there but you are never handicapped when it comes to national defense. You can go and take over within a very few hours' notice. If you cannot get people to voluntarily agree to it, all you need to do is step into a Federal court and you have the orders and you settle the differences afterward and all the legal points. I have been through that.
You never stopped a minute on land, why should you be stopped on water? It is a right the same as the ownership of land is a right. There is not the slightest chance that you will be delayed and you have not been delayed.
You have taken over hundreds of thousands of acres in the West in the last 2 years.
Senator BARRETT. They can prepare an order of taking within 10 minutes and you can file the order immediately. You can settle the damages afterward.
Senator WATKINS. It is all provided for and there is not the slightest doubt about that. You can go in any time in the case of war and go into New York City and take over the place if you want to, or any other place. There is nothing to handicap you at all any more than you would be handicapped with any other property right.
The water and the land usually go together. You can take the land and you can take the water. You can take the water just as quickly as you can take the land. But you cannot come in with any paramount doctrine like they did in the Santa Margarita. It is contrary to the right to own property.
We thought we had that all kicked out when the young man who announced the doctrine backed down on it and the Attorney General's office backed down here before the Judiciary Committee a number of years ago.
I think you folks down there have the wrong idea about this, that you would be handicapped. I would be interested in seeing what kind of case you would be handicapped in.
Mr. RODERICK. There is no question about the defense mission being handicapped in any way in time of war. I have no case to present.
Senator WATKINS. I have never seen them handicapped and I have helped them get it, not as an attorney for the Government but as a citizen when I stepped in an dhelped them arrange it.
I have handled a lot of arrangements for water development and I know how quickly they can move under the general powers during wartime or any other time. The Government can step in and get it so quickly that the other fellow hardly knows what has happened.
Mr. RODERICK. I certainly would not wish to give any understanding that we are dissatisfied in the way the thing has worked in the West. It is purely a case of precaution, as I explained in my statement.
Senator Watkins. Why do you say then: Obviously, such a situation could cause serious delay in the procurement of essential water rights, or even completely deny such rights.
You would not get them for nothing, if that is what you mean.
Mr. RODERICK. And if you asked me personally, I think that is the only way it should be.
Senator WATKINS. You pay rent for the battlefields on other nations where you fight and you cannot deny the citizens of this country equal treatment where you take the property away from them. Mr. RODERICK. That is right.
Finally, there is no assurance that future changes in State laws or procedures would not further complicate the ability of the Department to carry out its defense mission. For these reasons it is impossible to determine at this time the precise scope and effect of S. 863, amendments.
That is on the defense mission.
Senator WATKINS. Would you restrict that to the States outside the 17 Western States where we have the doctrine of appropriation ? Because that has been studied for nearly a hundred years.
Mr. RODERICK. I am referring, Mr. Chairman, to the President's Advisory Committee's suggestion that a study be made to find out what the effect of all these things is.
Senator WATKINS. You can go on studying them but in the meantime, we expect to go on using the water.
Mr. RODERICK. I would expect that to be so.
Senator BARRETT. I wonder if Secretary Roderick knows that there have been many, many studies made by the Western States on this particular matter?
All of the Western States, the engineers and attorneys general, met in Denver in 1943 and went over this whole matter at that time and made a comprehensive study and a complete record, and the report is just as applicable today as it was then. The issues were precisely the same then as they are now and the facts were the same then as they are now. Furthermore, the situation has not changed materially in
Ön 14 occasions the Congress has repeated its position on the matter. The law is well settled in the West. The people are united on the matter. If you would ask them to make a study and ask them to
come in and report when they were through with the study, you might be surprised to learn that they could make the study and make their report in 15 minutes. I grant that the West will stand on its historic position that States rights on the control, appropriation, and use of their waters must be respected.
Mr. RODERICK. Senator Barrett, may I ask this: Would that study also that quickly determine what the effect would be on the defense mission?
Senator BARRETT. Why, of course.
Mr. RODERICK. That is what I am referring to.
Senator BARRETT. Why, of course. Defense has never been interfered with, Mr. Roderick, in any way, shape, or form by the people of the West, and it never will be. They have proven that in every
There are all kinds of provisions for the defense of America and nobody questions it at all.
Senator WATKINS. The proof of the matter is the way it has been operating over two world wars.
Mr. RODERICK. That is right, and I would like to reiterate that our position is only one of precaution; it is not one of antagonism at all. I would like that to be clear.
Senator WATKINS. You can understand that after we have studied this water problem out there for better than 100 years, you are sort of waving the red flag when you say to study this problem again. Mr. RODERICK. Certainly we did not want to wave a red flag except as to what effect it might have on modern defense programs.
Senator WATKINS. If you have a modern defense program, you can submit the proposals if you think there is anything needed by way of a change in the water laws and let us know about them. But you must have some ideas you were going to point out.
Mr. RODERICK. We have some cases here that show some of these day-to-day problems.
Senator WATKINS. We would be glad to hear of them.
Mr. RODERICK. The only thing is that there are some and that is the only reason why we put up the red flag.
Until the pertinent laws of the various States lying West of the 98th meridian have been studied to determine their effect upon military operations, the Department of Defense is in no position to comment in detail on S. 863, amendments. Such a study or examination must consider underground water problems as well as surface water problems. It should include the Eastern States where the use, control, and distribution of water is of growing concern.
We believe that the importance of the bill to the development of the Nation, as well as the need for flexibility in military operations essential to the security of the Nation, justify caution in the consideration of this problem.
In view of the existing situation, the Department of Defense recommends that a study be made by the Federal Government in collaboration with State and local entities to determine the relationships between property rights to water, and the social and economic development of the Nation and the area, as well as the principles and criteria which should be incorporated into Federal, State, and local laws regarding water rights. This is also a recommendation of the Presidential Advisory Committee on Water Resources Policy.
Meanwhile, we shall be glad to work with this committee, with representatives of the various States and other interested agencies, in order to solve individual problems in the light of their special circumstances. This we would do without prejudice to any broader policy that might be developed ultimately.
Because of our sincere belief in the need for a detailed study of this entire problem, the Department of Defense, in the national interest, recommends against enactment of S. 863, amendments, at this time, and I stress at this time.
Mr. Chairman, before any further questions are asked, I would just like to add that the Defense Department position is rather a simple one, I think, in a rather complex fleld and as an alternate to Mr. Wilson on this Resources Committee of the President's, we came up with a wholehearted acceptance of the recognition of water rights as property rights.
There is no question in our mind. Our only concern is one of precaution and we would like to assure you that it is only the defense mission we are looking at, and that we are not doing anything at this time.
Senator WATKINS. Had you had any trouble whatsoever in the past ?
Mr. RODERICK. Very, very minor troubles.
Mr. RODERICK. Some of them were procedures, some of them are day-to-day State problems.
Senator WATKINS. As a matter of fact, is it not true that the first time the Defense Department has been alerted to this matter has been recently when the Justice Department suddenly made public its position?
Mr. RODERICK. I do not know; that probably brought about some alertness.
Senator WATKINS. In other words, they have advised you people to be very cautious?
Mr. RODERICK. At least the Defense Department's thinking, and it is a proper position, is taking precaution; and I think they should. I think you all agree that they should.
Senator WATKINS. I noticed the Attorney General's office advises the Government but they have not always been right. We are hoping that we can get them reformed on this matter.
Mr. RODERICK. As I said at the beginning, I am not a lawyer and I do not feel qualified to enlarge on the legal side, and I am only thinking of the precautionary side.
Senator WATKINS. Any questions?
Senator DWORSHAK. Mr. Secretary, recognizing that the Western States contain so much public domain, do you contend that there is any essential difference between the application of the water laws in the West as contrasted with the States in the East where there is no public domain?
Mr. RODERICK. I do not know that I am qualified to answer that, Senator.
Senator DWORSHAK. These views in this statement, are they predicated on any contention of that kind ?
Mr. RODERICK. No; I am sure it had no predication on that.
Senator DWORSHAK. You do not feel that the States in the West having this public domain, like my State of Idaho, which has 65 percent of its area owned by the Federal Government, should be subjected to any different treatment than the States in the East which have no public domain ?
Mr. RODERICK. Senator, I am sure that that had no basis for this position at all.
Senator DWORSHAK. I followed your statement with much interest and I am just wondering whether you think, in order to promote and safeguard our national defense, it is necessary to set up any arrogant doctrine or procedure which would deprive the Western States of their constitutional rights insofar as water is concerned?
Mr. RODERICK. Certainly we had nothing like that in mind.
Senator DWORSHAK. You feel that there has been complete cooperation and a desire on the part of the Western States to participate to the fullest extent in the national defense program.
Mr. RODERICK. To my best knowledge, Senator, I think that they have cooperated at all times.
Senator DWORSHAK. Well, it seemed to be a slight intimation : carried by some of your comments that there may have been some
reluctance in the past, or that you may encounter some indisposition on the part of these States in the West in the future, to cooperate fully and that there may develop some roadblocks which might interfere with defense planning?
Mr. RODERICK. Senator Dworshak, we do not think that will happen but we are throwing up the precaution that if we could, we would like some assurance that that would not be a situation that we would face, We actually do not think serious roadblocks will develop.
Senator DWORSHAK. You necessarily must have had some experience in the past which would justify the anticipation that you would not have the fullest cooperation of the States insofar as making water available for any defense programs?
Mr. RODERICK. We actually think, Senator, that the States have cooperated and will continue to cooperate. We have no indication that they will not.
I am just pointing out this caution, and that is to be sure while we are reviewing this that the defense mission is continued to be protected.
Senator DWORSHAK. If you have not had any experiences in the past—that is, the Defense Department—which might justify this conclusion, I cannot understand why you feel it is essential at this time.
Mr. RODERICK. We have a few cases which I would like Colonel Robertson from the Marine Corps, who is here this morning, to explain. These will indicate our reason for bringing up caution. This is not in the way of an antagonistic position, this is just the reason for our precaution on this.
Senator DWORSHAK. Mr. Secretary, I certainly do not construe your remarks as reflecting any antagonism, but at the same time, it seems rather inconsistent that you would even indicate in any way or insinuate that there may be some lack of cooperation on the part of the State governments in the West. .
Mr. RODERICK. Senator, I do not think it is a lack of cooperation; it is a point where, certain conditions existing, there could be delays. It is not a lack of cooperation.