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That the provisions of section 6 appear to expose to loss, through appropriation by others under State law, all presently vested rights of the United States to the use of water on the Government's military establishments, national forests, Indian reservations, national parks and monuments, and other reserved lands, except as the fulfillment of treaty obligations in connection therewith is involved, should be noted. Even if it were assumed that all affected Federal agencies would proceed immediately to attempt to perfect in conformity with State law the presently vested rights which would be so exposed, little imagination is required to envisage the flood of conflicting claims as to dates of priority which would ensue.
In the next preceding paragraph, an immediate attempt by all affected Federal agencies to perfect in conformity with State law rights presently vested in connection with reserved lands is assumed. If such attempts were not successfully consummated prior to the acquisition of rights by others in those waters which are now reserved by the National Government, or if filings already made thus become effective, liabilities of still another nature might be involved. For example, there are the rights of the Indians and Indian tribes to the use of water on their reservations which are not based on State law. If, as above suggested, such prior rights were lost as the result of the operation of section 6, an obligation to compensate the Indians in a very large amount might well be established. Although section 9 of the proposed bill would appear to eliminate from this particular consideration the Indian rights with respect to reservations established by treaty, there is nothing in the bill which saves the Indian rights stemming from executive action or otherwise.
Section 7 of the proposed bill is a waiver of immunity from suit which is boarder than title 43 United States Code, section 666. The latter permits the joinder of the United States as a defendant "in any suit (1) for the adjudication of rights to the use of water of a river system or other source, or (2) for the administration of such rights * * *." Section 7 (a) of the proposed legislation would permit the joinder of 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 *." Although this Department would vigorously resist in behalf of the United States such a contention, and there is doubt as to the constitutionality of the law so construed, it is conceivable that section 7 (a) might be construed as authorizing injunctive relief against the United States when it is contended that the directions of the Congress to the executive branch of the Federal Government are not being carried out in conformity with State law. Without regard to the validity of such contentions in any such suit, it is readily discernible that such a construction of section 7 (a) might well result in prolonged delays in the accomplishment of water resource development projects provided for by the Congress pending the outcome of such litigation. There is serious doubt whether the Federal projects, either now operating or authorized throughout the West, could have been possible under the provisions of this bill. The net result of a waiver of immunity from suit such as is here presented could be an abdication by the Congress to the judiciary of those powers relating to water resources which are delegated by the Constitution to the Congress and which that body has in the past jealously guarded.
Numerous problems of conflict between constitutional provisions and the provisions of the subject bill are presented.
One of these has to do with the provision of section 6 that all navigable and nonnavigable waters are reserved for appropriation and use of the public pursuant to State law. In several of the affected States, the common law doctrine of riparian rights is recognized in varying degrees. Is not the congressional purpose to make the law of prior appropriation exclusively applicable in all these States, without regard to riparian rights, an invasion of the reserved power of the States to control the non-Federal ownership and use of rights to the use of waters within their respective jurisdictions? It is doubtful that the opening language of section 6 making the provisions of the section subject to presently existing rights under State law overcomes this objection.
Another question with reference to the same language in section 6 is whether the Congress has the power, in the face of the commerce clause of the Constitution of the United States, to reserve for appropriation under State law all navigable waters in the western two-thirds of the Nation.
Brief reference has been made above to the effect which sections 5 and 6 would have of delegating to State control the administration and management of Federal projects and activities. It is further noted that these provisions would in effect delegate to State control those rights to the use of water which under existing laws are property rights owned by the United States of America.
It is believed that such delegation by the Congress to the States of the power to make "all needful rules and regulations respecting" those property rights of the Federal Government would be in contravention of article IV, section 3, clause 2 of the Constitution of the United States. It is also believed that for Congress to attempt to take from the executive branch of the Federal Government and invest in State authorities the power to make rules and regulations for or affecting control of the Federal properties involved in “Federal programs, projects, activities,” including federally owned rights to the use of the water, would be in violation of fundamental precepts of constitutional law respecting the separation of powers. For under article II, sections 1 and 3, of the Constitution, the President is charged to take care that “the laws be faithfully exe cuted * * *." Faithful execution by the President (through the executive departments and agencies) of all the laws of Congress relating to water resources in conformity to the laws of 17 different States would, it is submitted, be patently impossible. But in addition ,the Congress is prohibited from assuming to itself executive functions. A fortiori it may not invest those functions in the States and their agencies over which it has not control. To bestow upon the States the powers of the President to “take care that the laws" relating to rights to the use of water are faithfully executed is contrary to the proposition that Congress can neither delegate its own powers nor enlarge those of a State.
A conflict between the purpose of the proposed legislation to make State laws relating to the use of water superior to all Federal law in that field and the provisions of article VI, clause 2 of the Constitution is also suggested.
For the foregoing reasons, the Department of Justice is opposed to the enactment of the bill.
The Bureau of the Budget has advised that there is no objection to the sub mission of this report. Sincerely,
WILLIAM P. ROGERS, Deputy Attorney General. Senator WATKINS. I would suggest, Senator, that maybe they intend to send a representative up to present the cases supporting their contention, if they have any. I understand that is what they did over in the House. They sent a representative of the Department up to present the Department's views in more detail.
Senator BARRETT. I agree that they sent somebody over to the House. I have read that House report but I have not been able to find any cases in all of the testimony that Mr. Rankin made over in the House that substantiates the theories and philosophies and doctrines that he espouses, and that is the point I am here making. They come up to the Senate after the House hearings of a month ago with some more broad assertions without any documentation of them. That is the point that I make.
Senator WATKINS. Maybe it is the best they can do.
Senator Watkins. We can consider the fact that they did not submit any authorities.
Senator BARRETT. That is right.
Senator WATKINS. It may be a weak report but we could send it back, of course. If that is the only reason they have and their arguments are weak as they are, then maybe it is so much the better for your bill.
Senator BARRETT. Of course you are eminently correct on that point, Mr. Chairman.
Senator WATKINS. Generally speaking, I share your convictions and I think just as strongly as you do.
Senator BARRETT. I am sure you do, Mr. Chairman.
Mr. Chairman, I think that Senator Anderson suggested that we should have Mr. Bennett here as the first witness tomorrow morning.
Senator WATKINS. Are there any other witnesses who want to go back? I would be willing to take their testimony if they wish to give it now.
Senator BARRETT. Before you came in, Mr. Shamburger said he wanted to wait until Senator Malone was present.
Senator WATKINS. I suggest, Senator Barrett, that probably in the case of Wyoming, maybe they are going to rely on what you present as the representative of the State, and therefore you would not need the attorney general of the State.
Senator BARRETT. I would prefer to have our attorney general testify but he will be here for several days.
Senator WATKINS. I think each State should have their legal position stated, whether it is by the Senator or by the attorney general.
Senator BARRETT. In this case, I would prefer to have attorney general George Gay present Wyoming's case. I think that we will have other witnesses from the Western States who will back up the legal position that we are taking in this case.
I must say to you, Mr. Chairman, that it has been suggested that some amendments be made to this bill. It would be peculiar if a bill were presented that did not need amending in some respects.
I think it can be improved. The underlying philosophy of the bill is something that does not permit of much changing or any compromise, and consequently I cannot see any point at all in studying the matter any longer because it has been studied and restudied for a long, long period of years.
I hope that this committee will take action and report this bill for a vote on the floor of the Senate, and I am sure if we can get it that far along there will be no question about the outcome.
I ordinarily would agree to studying further but I think that this is one case where we have just studied so long that further study would not resolve any difficulties that we have with regard to this legislation.
Senator WATKINS. Well, of course, I think I can agree with the Senator that it has been the settled policy for so long that there could never be a threat to the policy under the Supreme Court rulings of the United States.
Since witnesses have been notified that hearings have been set and time would be available for them to testify, I think probably we had better finish the hearings.
Senator BARRETT. I certainly agree to that.
I understand that the attorney general wants a further study of this matter. Ile wants the Western States to study this matter further and to change this bill to a study bill and get some commission authorized to study it from a Federal-State standpoint.
I think myself that there is an element of worthiness in the suggestion, if you confine the suggestion to the States other than the reclamation States. I think it is entirely in order for a study to be made of the 31 States other than the reclamation States, but as to the reclamation States of the West, I can see no point whatsoever in studying and I just do not think that the position that the States must necessarily take is susceptible of compromise in any material way.
We either have these water rights or we do not have them. We could not possibly compromise them. 3
Senator WATKINS. You are talking about the Western States ?
Senator BARRETT. I am talking about the Western States and, consequently, I can see no point whatsoever in the suggestion that we should study this matter any further. I think that the Attorney General is completely mistaken if he thinks that there would be anything gained by further study on the part of the western people with reference to the question of western water rights.
Senator WATKINS. That has been studied and the court has passed on it a number of times, constitutions have been approved, compacts have been approved by the Congress of the United States to the point where it would seem that the matter should have been settled beyond all question.
With respect to the rest of the United States, I think we found out on the conference with regard to the small projects bill of which you and I are members, that they do not have any water codes outside the 17 Western States. They do not have any water rights except the old riparian doctrine, and they are trying to impose control without the right to water. And that, we are finding, is a very difficult thing to do. There I think a study would be all right.
Senator BARRETT. I quite agree with the chairman there, and I think it is in order and should be done. It is probably going to be necessary that such a study be made and some cooperation be achieved by the States before we can write that legislation, but that is an entirely different matter. I think that it would be dangerous for we people in the West to take the position that we agree there is some good reason for questioning our rights to control the water on the streams in our respective States. Consequently, I am opposed to making any further study of that matter.
Senator WATKINS. The thing has never been settled, and I thought it had been settled.
Since the Supreme Court has thrown some doubt into the matter. We just simply take the position, and I agree with you, that if there is any burden in the matter it is on the Federal Government to show that what the courts have done in the past has been wrong.
Senator BARRETT. I have a memorandum here which was prepared last month by Mr. Nelson of our committee, with reference to the Flood Control Act of 1944, and I would like to put it in the record. It is addressed to myself, with copies to Senator Joseph C. O'Mahoney; Hon. Clair Engle, Hon. Hamer H. Budge, Members of Congress.
It is from Elmer K. Nelson and the subject is section 6 of the Flood Control Act of 1944.
1. At your meeting today I mentioned section 6 of the Flood Control Act of 1944 and the attempt by Senator O’Mahoney to have a substitute adopted.
2. Section 6 of the Flood Control Act of 1944 does not provide that the Secretary of the Army, then the Secretary of War, shall comply with the water laws of the States involved. This is one major reason for the several resolutions of NRA. Section 6 is as follows:
"SEC. 6. That the Secretary of War is authorized to make contracts with States, municipalities, private concerns, or individuals, at such prices and on such terms as he may deem reasonable, for domestic and industrial uses for surplus water that may be available at any reservoir under the control of the War Department: Provided, That no contracts for such water shall adversely affect then existing lawful uses of such water. All moneys received from such contracts shall be deposited in the Treasury of the United States as miscellaneous receipts (58 Stat. 890) (33 U. S. C. A. 708)."
3. When this act was debated in the Senate (Nov. 29, 1944, at p. 8548), Senator O'Mahoney offered the following amendment as a substitute for section 6 then under consideration :
“SEC. 6. That the Secretary of War is authorized to contract for water storage for any beneficial uses or purposes with States, legal subdivisions thereof, State and interstate agencies, municipalities, public, quasipublic, or private corporations, firms, associations, or individuals on such terms and conditions as he may deem reasonable, when storage capacity for any such uses or purposes is or may be made available at any reservoir now or hereafter constructed by the War Department: Provided, That the right to the use of water for such purposes shall have been established by proceedings in conformity with state laws: And provided further, That no such water storage shall be in conflict with, or adversely affect, then existing lawful uses of water. All moneys received from such contracts shall be deposited in the Treasury of the United States as miscellaneous receipts.”
4. This amendment, as is seen, was not adopted. But it is clear that Senator O'Mahoney had in mind a statute having the effect of the intent of the bill proposed by the National Reclamation Association.
Senator BARRETT. At this point in the record I shall put in the statement of Senator Roman L. Hruska of Nebraska.
STATEMENT OF Hon. ROMAN L. HRUSKA, A UNITED STATES SENATOR FROM THE
STATE OF NEBRASKA It is my privilege to make a statement on behalf of S. 863, introduced by Senator Barrett and other Senators. The bill—the proposed Water Rights Settlement Act of 1956—is, in my opinion, constructive and needed legislation. It is a current expression of long-established Federal policy on water rights in the West.
For nearly 90 years, there has been a settled rule that Western water rights are dependent on and determined by the law of the several States. Congress has consistently approved a Federal policy that the authority to regulate and control the appropriation, distribution, and use of waters of streams arising in States lying wholly or partly west of the 98° meridian is unquestionably and properly the exclusive sovereign function of the States. This as it should be, and most certainly that is exactly what successive Congresses of the United States have intended for almost 100 years.
My own State of Nebraska is 1 of 9 reclamation States (of the total of 17) which claim under its constitution-article 15, section 5, Constitution of the State of Nebraska—that the rights to all surface waters are the property of the people.
In my State, as in many States, rights to the use of water are valuable property rights which are vital to the economic livelihood of the people concerned. As a matter of sound public policy, Federal agencies should not assert, nor should there be the slightest question about the propriety of such an assertion, that Federal agencies have an absolute property right to all water on land that they
acquire. In my judgment there is no legal justification for the Federal claim 1 advanced.
There should not be the slightest question about the validity of existing rights. Such a reckless approach at this late date shouldn't even be allowed to be given serious consideration.
Nevertheless, a determined group continue to carry on a fight for the control of the western waters. As far as it is possible to do so, this matter should be settled for once and all.
This legislation will go a long way in preventing the disrupting of the orderly development and use of water resources under traditional doctrines. These doctrines guided the development of the West and on them rest the future development of the West.
Senator Barrett, the other Senators who have joined with him, and this Subcommittee on Irrigation and Reclamation, should be commended for leadership in this matter which is so vital to many of our people. The basic issue involved here is abundantly clear. This matter should be brought to issue, and the historic policy in this connection should be reaffirmed by the passage of S. 863.
Senator WATKINS. If there is nothing further at this time, the subcommittee will recess until tomorrow morning at 10 o'clock.
(Whereupon, at 12:50 p. m., the subcommittee recessed, to reconvene at 10 a. m., Tuesday, March 20, 1956.)