claiming that when they withdrew the several thousand acres for the use of the Indians that automatically enough water had been withdrawn for the use of the Indians. Well, in the meantime, in that area just the same as in our State of Nevada, and I think nearly all the western arid and semiarid areas, there had been water appropriated and bond issues had been floated and tremendous investments had been used to reclaim these lands. Now, if they won that suit that enough water had been withdrawn for this Indian reservation merely by withdrawing the lands under Government control of the water, then naturally these investments to the extent that the water would be needed on these Indian lands would be worthless. We organized at that time in 1927, the 17 western State engineers, called it the association, I think I am correct, of western State engineers. I acted as president of it for a couple of years and Ed Hyatt, since deceased, acted as president for a year or two, and it has been passed around. That organization brought about the movement of the attorney generals at that time of the Western States to enter this suit as friends of the court, and I do not recall the exact results but the whole thing blew up. Now, we have another attempt. The Navy, in my State, in the Fallon area, is developing water and I hope and I know the State engineer of Nevada will go into that particular case, ignoring entirely the State water law. I want to call attention to the different arid and semiarid areas in the areas of heavy rainfall. In the semiarid and arid areas, the trick is to get the water out of the stream and on the land. Therefore, it costs money to do that and it is a permanent investment until it is repaid-that is, permanent until the time it is repaid whether it is Government money or private money. In the areas of larger rainfall, heavy rainfall, the trick is to get the water off the lands and back into the stream. It has been called flood control and the Government has invested large sums and is doing that with no repayment. But the water right is not important in the heavy rainfall areas, at least it is not considered so up to this time. My own opinion is that they will more and more realize the necessity of some investments to use this water in the 2 or 3 weeks or month of dry weather generally in the summer in the irrigation period, and they will make money by doing that. It is gradually being recognized, but up until the last few years it has never been recognized that irrigation is necessary. Now, the thing then that I note in these remarks, the most outstanding example, is from the Office of the Assistant Secretary of Defense, which shows an utter ignorance and lack of understanding of the appropriation of water. It goes on to say as follows: Thus, the application of State law to the use and distribution of water on Federal property lying within a State would be required, resulting in the exercise of control by State administrative officers over the day-to-day use of water on Federal reservations. Then we have the purpose of this bill in another paragraph, as follows: The purpose of this bill is to provide for the control, appropriation, use, and distribution of water in the States lying wholly, or in part west of the 98th meridian. Section 2 of the bills expresses an intention to remove any doubts as to the intent of previous legislation which could be construed to preempt the security of prior rights under State law; to provide for future acquisition of unappropriated waters, navigable and nonnavigable, in compliance with State laws, and to provide adequate protection of the Federal interests to the end that the Federal Government may perform its functions in a manner consistent with the foregoing purposes. Now, Mr. Chairman, all Federal Departments have up until now complied with the State law. The Navy did comply with the State law, has complied with the State law at the naval storage base at Hawthorne and in all other areas, as far as I know. Now, it does not mean at all that they are restricted. What it means is that they file in accordance with State law and a priority is established as of the date of filing. That means, then, that if the water is short in the area and there is an adjudication of the water, then their priority of filing comes under that adjudication and if they should find that they did not have enough water under their priority, then the condemnation proceedings and the acquisition of any amount of the remaining water rights in the area is open to any section of the Government under eminent domain. Senator BARRETT. Will the Senator yield? Senator MALONE. Yes. Senator BARRETT. Is it not a fact that the Navy Department filed its applications a good many years prior to the decision in the Pelton case and was in position to make final proof and get its certificate from the State engineer at the time of the decision of the Supreme Court in the Pelton case last June, but that immediately after the decision was rendered the Navy withdrew all of its applications for permit under State law of Nevada? Senator MALONE. Senator, I think that is true but our State enginer will be prepared to go into that, just what the situation is, and I think we will have the factual material, just exactly what happened, better than for me to try to outline it. What I want to do in my short statement is to point out in the record with respect to these Government organizations that all they are doing is coming in after 75 years of water use and upsetting the only method of beneficial use that the States or any area have been able to work out. In other words, if the Government does own the water, if it is finally established that they do own all the water and appropriations for the States with State authorities mean nothing, then the Government would have, in the natural course of events, to set up a detailed adjudication machinery similar to the States and then the individual users could be brought in to establish vested rights just as they have already been brought in under State law and well established. It would be a tremendous undertaking and no Federal setup. could do the job like public authorities in the State, the administration, the State engineer and under the laws set up by the legislature, because in each State there are different conditions. Now, another thing I would point out is that some of the States in the Northwest, notably California, have a combination of what is called appropriation and riparian rights. They have never been altogether straightened out. Our State has only appropriation rights because of the fact that our legislature recognized very early and our courts that the only method under which a project could be financed or even just a ranch financed would be that a rancher could file with the State engineer or whatever agency is set up by the legislature and he would know what his priority was and, understanding the stream very well, he would know whether he could invest his money, borrow money from the bank and go ahead and develop his ranch. That is the way the western arid and semiarid areas have been developed, Mr. Chairman. So the beneficial use in every case under the appropriation theory has been developed as the criterion of the right to use the water. The State engineer, whatever name he may go by, the public official for the waters of the State, is very jealous of that beneficial use of water and the duty of water, and the duty of water is much different in one place as compared to another. But the State engineer of that State, being entirely familiar with the use of water and the adjudication of the water, understands the duty of water which may change over the years, as a matter of fact. But there is a certain amount of water allocated under the adjudication which is supervised by the State engineer and he can prevent the waste of water. If that was undertaken from Washington, you can just imagine about what the situation would be in the long run. It could not possibly be done as efficiently and once this thing is established that the Government owns the unappropriated water and must then set up an organization to adjudicate water, I see no other alternative but to go through and do the job the States have done for 75 to 100 years. Then it seems to me that the whole business is in the soup and the investments made over long periods of years in the arid and semiarid areas are in danger. Now, if the system of Federal control had any merit, it could be examined, but the claims, and I have read the reports from the departments, all of which I presume, Mr. Chairman, have been made a part of the record, they have some idea in the back of their mind that if the State law applied, they are restricted in some way. I want to point out that a State engineer cannot refuse a filing. A filing can be made as of today in the Fallon area and I think it is the same in every arid State and that filing is accepted, and as of that moment of filing has a priority that is automatically established. Now, if the water becomes short in that area, whether it is underground water, if there is an underground water law applicable in that State, and most of them have underground water laws at this time, but streamflow especially, if the water becomes short, then there is a call for adjudication and the water is adjudicated according to priority. If it develops that a priority as of this moment established by a Government filing or any other, State, municipality or county, and they do not have enough water, then, as Senator Barrett has already pointed out, the law of eminent domain takes care of that situation 75335-56- -3 and the condemnation of property and the proper payment, and they get all the water they need up to the amount in the area. If they did not have to condemn it, then I again point out, Mr. Chairman, that there is no way you could finance a project. In other words, you could vote bonds and under the Government financing, the Bureau now, if there was no water right established, it would be very hard to sell the bonds in any case. Therefore, it could stop the financing of mines, it could stop the financing of projects, if the whole situation is upset and it is brought to Washington with the rest of the material control over the actions of the people that have been brought here for the last 25 years. Senator ANDERSON. Senator Barrett, before we proceed, I do want to call your attention to this sentence in the report from the Assistant Secretary of Defense. The Department, however, is opposed to any legislation that would interfere with or endanger the national-defense effort. Do you feel that your legislation is going to endanger the nationaldefense effort? Senator BARRETT. In no way, shape or form, Mr. Chairman. Senator MALONE. Mr. Chairman, that is what I tried to make clear in my; statement, that there is no water withheld from the Federal Government. They could condemn the whole State of New Mexico or Nevada. Senator BARRETT. They can get in the same way as anyone else by complying with State law or they can buy it or condemn it if someone else owns it. Senator ANDERSON. I think we would all agree that we are against sin and stanch for the defense of motherhood, and we are not going to do anything that interferes with national defense. I think it might be good to ask the Department of Defense to come over and give us a detailed analysis of just how this bill endangers the national defense effort. Senator MALONE. Mr. Chairman, I would like to say right at that point that all of these letters show an abysmal ignorance of this legislation and I would like to cross-examine each one of them as they come through. Senator BARRETT. The Senator from Nevada pointed out the last sentence in the third paragraph of the Defense Department report reading as follows: Thus, the application of State law to the use and distribution of water on Federal property lying within a State would be required, resulting in the exercise of control by State administrative officers over the day-to-day use of water on Federal reservations. Senator WATKINS. Mr. Chairman, in Utah the Defense Department has rather large projects and they were able to get water following our State law, and this was done without any trouble from the State. Senator ANDERSON. May I say that I have set on the other side of the table in times past but I was always expected to come before this committee and explain why I did what I did. I think Colonel Nichols, we would like to have a witness from the Department of Defense who prepared this letter or signed this letter or who is responsible for this letter come and give us a little better explanation. Senator Barrett has conscientiously and intelligently tried to deal with this situation and I am happy to compliment him on the way he did it. I do think it is unfortunate that a phrase is thrown in to the effect that he is trying to endanger the national defense or jeopardize the Republic. Senator MALONE. They have no representatives here today? This is going to go on for a few days and I hope Mr. Kennedy will be ready when the times comes to deal with these things because, if it does not endanger the national defense or does not interfere with the national defense effort, then that ought to be withdrawn from the report. If it does, then it ought to be laid out to us with sufficient clarity so that we can all understand it. Senator GOLDWATER. Mr. Chairman, I might say that we have 10 military establishments in Arizona, and every one of them have developed their own water resources under the State law. They have had no trouble at all in doing it; in fact, the State bent over backward to cooperate with them. Senator WATKINS. That is true in every western State where they are required to operate under State law. Senator ANDERSON. I feel that we need to have, since there is a conflict between these departments, we need to have the departments appear and it will be my purpose to try to get them here and to try to make clear to us the basis for their opposition. Senator BARRETT (presiding). Senator Goldwater, you are one of the cosponsors of this bill and we would be delighted to have you make a statement with reference to the bill at this time if you so desire. Senator GOLDWATER. Senator Barrett, as you know, you and I discussed this situation last year when these court decisions came down and I agreed with you at that time concerning the necessity of legislation, and I do now more than ever. I myself, as a Republican, am deeply concerned and disturbed by the attitude of this administration as reflected in the several reports that we have before us where this administration heretofore has diverted most of its domestic efforts to getting the Federal Government out of the business of the several States, in conformity with the 10th amendment, it now seems bent on getting into the area that is most sacred and most important to the arid and semiarid States of the West. They are, in effect, tampering with the way of life in the West that has existed since the West has existed; in fact, as was brought this morning, the present recognition of water rights stems from the very founding of California and has been borne out through over 100 years of practice as accepted by the people of the West. This attitude of the several agencies of the Government I think will seriously affect Western land values inasmuch as water rights and land values are one and the same thing when one is figuring property and property values in our part of the country. I think the very fact that these several agencies of Government have expressed themselves as being of a mind that the Federal Government should get into an area where the States have historically operated will probably throw a cloud over these values even as of now. |