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Senator DWORSHAK. That is all.
Mr. RODERICK. Mr. Chairman, I do not know whether at this time
Senator BARRETT. I would like to ask a question.
That last statement that you read was in addition to the prepared statement?
Mr. RODERICK. Yes.
Mr. Chairman, before any questions from the committee, may I say that the Defense Department position is rather a simple one in a complex field. As an alternate for Secretary Wilson on the President's Advisory Committee for Water Resources, I was a party to the wholehearted acceptance of the recognition of water rights as property rights. Our only concern is one of precaution.
We wish to know, this is what I meant to say, we wish to know, as each member of this committee I am sure does, that there is no doubt that the defense mission of every commander in the field is protected.
Senator BARRETT. As I understand your statement, Mr. Roderick, it is that after you served on this commission for 2 years and studied this whole matter, you came to the firm conclusion that under the laws of the Congress enacted in 1866, 1870, and 1877, that the States do have the right to make appropriations to citizens for property rights for the use of the waters of their States?
Mr. RODERICK. Yes, sir; that is right in our report as such.
Mr. RODERICK. That is part of our position which I was a party to, although I was not a member to it.
Senator BARRETT. If the Attorney General has a position contrary, would you change your position?
Mr. RODERICK. Senator, I do not know whether I am qualified to answer. Senator BARRETT. Let me tell you what the Assistant Attorney Gen
You are acquainted with Mr. J. Lee Rankin, the Assistant Attorney General ?
Mr. RODERICK. Yes.
Senator BARRETT. Let me read you the testimony he gave over in the House. I am reading now from page 50, volume 1, of the hearings in the House.
Mr. Aspinall, the Congressman from Colorado, asked this question and I will not go through the whole matter but I will confine it to this very point.
Mr. ASPINALL. It is a property right, but it is not the original property right. The original property right must first be in the entity that has control over it. Did not the Blue River case in Colorado turn on this very point—that the Department of Justice asserted that it still had the property right in the water?
Mr. RANKIN. That was asserted, but it was never tried out.
Mr. RANKIN. In the unappropriated water, not in any appropriated water. And the reason we arrive at that position is that we have tried to search and find any place that the Federal Government had ever conveyed away this property right, which is the right to the use of the water.
He takes a contrary position to you.
Mr. RODERICK. Senator, I believe that the difference between this document which I was a party to, although Mr. Wilson was the official member and I was an alternate, is a document of policy rather than legality. Even if this might not be legal in Justice's opinion or some other legal men, and I am not qualified to say, this is still a matter of policy with this committee rather than that “is it legal or not."
Senator BARRETT. I am glad to hear you say that.
What you are saying is, that regardless of Mr. Rankin's opinion that in your judgment some legislation should be enacted. Is that precisely what you are saying?
Mr. RODERICK. That is the recommendation of this policy committee.
Senator BARRETT. That is what we are trying to do in this bill. We are trying to write language that will carry out that policy in spite of the position of the Attorney General.
Mr. RODERICK. Senator, I believe that with the precaution of the Defense Department—maybe it is too precautionary; I am not qualified to say, but I do not believe it is—we are in agreement.
I think we are talking about very much the same thing with our precaution taken care of. I think it is that simple.
Senator BARRETT. I agree that, perhaps, there is some degree of unanimity of opinion between us in. that regard. That is precisely what we are trying to do and the Attorney General is opposed to it and you are in favor of it.
And I am glad to hear you take the position in that regard.
If not, we want to thank you, Mr. Secretary, for the statement you have made.
Senator DWORSHAK. Mr. Chairman, was the colonel to testify? Mr. RODERICK. Did you still want to hear some of these cases about which we wanted precaution?
Senator WATKINS. Yes.
(The following supplemental report was received from the Department of the Army :)
DEPARTMENT OF THE ARMY,
April 12, 1956.
United States Senate. DEAR MR. CHAIRMAN : During my testimony before the Irrigation and Reclamation Subcommittee of the Senate Committee on Interior and Insular Affairs on March 21, 1956, on S. 863, 84th Congress, a bill to govern the control, appropriation, use and distribution of water, it was requested that the Department of Defense submit any amendments to the bill which might make the bill acceptable to the Department. Also, Senator Barrett inquired as to whether it was not a fact that the Department would not be in any different situation with reference to the problems testified to under the proposed bill, than it is under existing law.
After careful study, the Department of Defense is unable to suggest any perfecting amendments which would overcome the objections of the Attorney General to the constitutional aspects of this bill and, at the same time, achieve the objectives of the sponsors of S. 863.
In response to Senator Barrett's inquiry, the Department of Defense believes that it is not now in the same position because (a) the Department is not now legally bound to comply with State laws; (b) some problems might arise under
existing laws which have not as yet arisen; and (c) there are undoubtedly many problems, some of which may now be foreseeable and others which may not be, which might arise as existing State laws are modified or new State laws enacted, to all of which modifications or additions the Department, under S. 863, would be legally bound to conform.
The Bureau of the Budget has advised that it has no objection to the submission of this report. Sincerely yours,
GEORGE H. RODERICK,
Assistant Secretary of the Army (CMA). Mr. RODERICK. Colonel Robertson? Senator WATKINS. Will you identify yourself, please?
STATEMENT OF COL. E. B. ROBERTSON, HEAD, OPERATIONS BRANCH,
MARINE CORPS Colonel ROBERTSON. I am Col. E. B. Robertson, head of the operations branch of the Marine Corps.
I will give a few examples of the problems which we have had and which we think we would continue to have under this bill.
These examples are given as within the framework of property rights. We recognize that. We are talking of problems after we thought we had bought rights.
Senator WATKINS. Just for the record, will you give me something about your background and your qualifications? We have your official position but we want to have your training.
Colonel ROBERTSON. I am a civil engineer by education, sir. I have been involved in the operation of the Marine Corps posts and stations for over 10 years and in direct charge of the physical operation of those posts for over 5 years. Senator WATKINS. You may proceed.
Colonel ROBERTSON. In this particular case, we bought 135,000 acres of land and have fee simple title and we bought the riparian, appropriative, and prescriptive water rights.
Senator WATKINS. That is the Santa Margarita matter?
Colonel ROBERTSON. Yes. We used that place to train Marines, to store ammunition and for the Naval Hospital, and exclusive jurisdiction has been granted.
Over the years we have been having a controversy there and here are some of the contentions.
I am trying to emphasize that the thing we are interested in is the internal administration of our own property rights. We feel that the Defense Department, having an enclave of this kind with thousands of Marines, that we should have some freedom of movement within that enclave.
Here are some of the contentions of the State. I might add that I can document if need be to show each of these cases and indicate who said it and under what circumstances.
The State maintains that the military use of water is not a proper riparian use. Senator WATKINS. The State of California ? Colonel ROBERTSON. Yes.
The result of that policy in our case would be that the military service could no longer utilize its riparian right to water but, for military purposes, would have to seek an appropriative' rightIt
would have to apply for some of the water because, under their contention, we could not use it for a military purpose.
Then we get to the next contention, that the State water code does not give priority to or even mention military use. It must follow then that application to appropriate under this policy would put all military applications at the foot of the list.
Senator WATKINS. Just a moment.
Colonel ROBERTSON. Yes, sir; I must say I am not a lawyer but I have read the book and it says the first priority is domestic use and the next is municipal and the next is agricultural, I believe, and the next is industrial. The military use does not appear.
Senator WATKINS. Well, it does not appear by specifying that particular division, but do they not actually come within the consumptive use purposes of the law?
Colonel ROBERTSON. We feel so, but I am giving the committee the contentions of the State.
Senator WATKINS. In other words, the Marines use water the same as any other inhabitant of California would use it?
Colonel ROBERTSON. In our controversy, however, the State's attorneys have taken the position I am outlining, not my position, it is the position they have taken.
Senator WATKINS. With respect to riparian rights?
Colonel ROBERTSON. Also, to military use not having priority over these other uses.
Senator BARRETT. Is not this the question which was settled by legislation ? Senator WATKINS. I do not know whether it was settled.
We passed a bill authorizing the Santa Margarita project and I thought we all came to some sort of understanding.
Senator BARRETT. I thought we did.
Colonel ROBERTSON. The bill was passed and it required a report of the committees of the House on progress. We have reported progress and I could, if desired, submit a copy of that report for the record.
In short, the local people out there, by public statements in the press, said the bill was unacceptable to them and they have done nothing. There are also provisions in the bill that have to be met and they have not been met and nothing has happened.
Senator WATKINS. You bought property for military use ?
Senator WATKINS. The United States did. With that property you thought you had certain water rights?
Colonel ROBERTSON. Yes, sir.
Senator WATKINS. In that position, you probably are the same as any other purchaser of property?
Colonel ROBERTSON. That is right.
Senator WATKINS. You would have to submit to the law. If you want to condemn property and take it over for the purpose of military use, of course you have supreme power to do that, but you elected to go on in this situation by buying the property and what you thought you had with it, certain water rights?
Colonel ROBERTSON. Technically, it was a condemnation. It was a negotiated settlement but the condemnation proceedings were fol
lowed. We did condemn these water rights. We did condemn the land to which they were appurtenant.
Senator Watkins. It is a question of what you actually got under your condemnation?
Colonel ROBERTSON. The State is contending that under their law we cannot do these things that I am trying to outline.
Senator WATKINS. Well, I am not entirely acquainted with the case but I have heard some phases of the case discussed by attorneys who represented the United States in that matter.
Senator BARRETT. I wonder if we could pinpoint the matter at issue between the Defense Department and the State of California.
If someone else, if some individual or some corporation, had acquired by purchase the same rights that the Defense Department acquired through negotiation and condemnation, would they not be in precisely the same position before the State authorities in California as the Defense Department was?
Mr. RODERICK. It would depend on what their use was.
Colonel ROBERTSON. This problem was brought before the judge and he ruled that the military use was a proper riparian use. The State, of course, appealed from that ruling. The judge said:
It is beyond my comprehension that the State law means that the Marine has to carry a shovel to get a drink of water. We have to recognize that it is a military function that is going on there and they cannot literally comply with laws that were built around agricultural problems, principally.
That is what we are saying. We are saying that we bought this right and we have it to apply to military use and in the internal administration of those water rights for military purposes, that we cannot comply with these State laws that were directed to specific agricultural problems and did not take into account military problems.
Now this bill, as I understand it, would say that in the future period at Camp Pendleton, you will have to bow to these State contentions, which will give us great problems.
Senator BARRETT. The difficulty you had was not under this bill, it was under the law that existed since 1877, at least since 1902?
Colonel ROBERTSON. I am not a lawyer, sir, but as I understand it, the bill that was proposed would subject us to all State law.
Senator BARRETT. The trouble you came into came under the old law.
The difficulty you had in California did not come under a bill that was not passed, did it?
Colonel ROBERTSOX. No, sir.
What I am trying to say to the Senator is this: that our trouble came about and in the course of that trouble the State says, “Our law should be applied," and that is exactly what this bill is saying.
In the application of the law, they contend these things.
Senator BARRETT. There is no change, then, between the existing laws and this bill in that respect, is there?
Colonel ROBERTSOx. To the extent, that State law would be applied by this bill.
It has been the contention of the Government attorneys that State law cannot apply. It is a military function inside the military enclave, and the property rights having already been established.
Mr. RODERICK. Senator Barrett, I believe that is exactly the point about the studies. If there would be some uniformity about the studies as was mentioned here Monday, that would clear that up.