WATER RIGHTS SETTLEMENT ACT T TUESDAY, MARCH 20, 1956 UNITED STATES SENATE, SUBCOMMITTEE ON IRRIGATION AND RECLAMATION OF THE Washington, D. C. The subcommittee met at 10 a. m., pursuant to recess, in room 224, Senate Office Building, Hon. Clinton P. Anderson, (chairman of the subcommittee) presiding. Present: Senators Clinton P. Anderson, New Mexico; Joseph C. O'Mahoney, Wyoming; Arthur V. Watkins, Utah. Present also: Senators Alan Bible, Nevada; Frank A. Barrett, Wyoming; Barry Goldwater, Arizona; Gordon Allott, Colorado. Senator ANDERSON. The subcommittee will come to order. Mr. Shamberger, you may proceed. STATEMENT OF HUGH A. SHAMBERGER, NEVADA STATE ENGINEER Mr. SHAMBERGER. Thank you, Mr. Chairman. Senator ANDERSON. Will you state your name for the record, Mr. Shamberger? Mr. SHAMBERGER. Hugh A. Shamberger, and I am State engineer of the State of Nevada. I am appearing here today in support of Senate 863. Senator ANDERSON. Be sure to indicate now whether you are talking about the Senate bill as originally introduced or as amended by Senator Barrett. Mr. SHAMBERGER. I am speaking about the amended version. I might also add that I have been in the State engineer's office of Nevada since 1935 as a deputy and then as an assistant and for the last 6 years as State engineer. I am a member of the American Society of Civil Engineers and director of the National Reclamation Association. Senate bill 863, if enacted into law, would set at rest, for many years the jurisdiction and power of sovereign States to provide for the control of the waters within their borders when appropriated for beneficial use. The need for such clarifying legislation has become very evident during the past few months as the result of the Pelton Dam case in Oregon, Federal Power Commission v. The State of Oregon, et al., No. 367, decided June 6, 1955, and the action based on such decision by the Navy Department at Hawthorne, Nev. I am not going to discuss the Pelton Dam case. That decision has been made, and to many, including some departments of our Federal Government, the Court has said in effect that the United States has 61 exclusive control over waters bordering or within boundaries of Federal reservations regardless of the State's constitutional rights or existing rights to the use of water. I do, however, want to tell your honorable committee what happened in Nevada immediately following the decision in the Pelton Dam case, and as a direct result of such decision. This will point to the need of the legislation you are considering here today. I refer to what is now commonly called the Hawthorne case. This case involved the drilling of wells by the naval ammunition depot at Hawthorne, Nev.; the complying with State water laws in obtaining permits to appropriate water, and the sudden stopping of that compliance as far as the appropriation of ground water was concerned, immediately following the Pelton Dam decision. In order that you may better understand the situation that developed at Hawthorne, I will describe the events leading up to the present time. During the Second World War, 1942-45, the United States Government drilled six wells within the naval ammunition depot at Hawthorne to obtain a supplemental water supply for the base. In 1949 the United States Government filed applications to appropriate water from said wells and subsequently permits to appropriate water were granted by the State engineer. Following the completion of drilling and equipping the wells with pumps, water was diverted for beneficial consumptive use. The permittee complied with the provisions of the permits by filing proofs of commencement and completion of work. All that remained to be done by the Department of the Navy to complete the water rights and to receive certificates of appropriation from our State was the filing of proofs of beneficial use. Because of certain circumstances, however, the Department of the Navy was not in a position to file said proofs when due, so, pursuant to State ground water law, kept the permits in good standing by obtaining extensions of time. However, on July 25, 1955, I was advised by the commanding officer at the depot that the permits were being dropped upon instructions of the commandant of the 12th Naval District. This action was based upon an alleged rule of the United States Supreme Court in the case of Federal Power Commission v. The State of Oregon (349 U. S. 435), and on the premise that all the wells were located on reserved lands; that is, public lands which were withdrawn and reserved for the use of the Navy Department by Executive order. I advised the commanding officer of the United States naval ammunition depot that if said permits were canceled, then any diversions from said wells after that date would be illegal according to the water laws of Nevada. I further stated that, acting the advice of the attorney general of Nevada, should the depot make such illegal diversions, the State of Nevada would take the matter into court. The commanding officer of the depot then advised me that the action was the result of instructions originating from the Chief of the Bureau of Yards and Docks, Navy Department, Washington, D. C., who in turn issued his instructions based on a recent ruling of the Supreme Court, Federal Power Commission v. The State of Oregon (349 U. S. 435). On September 7, 1955, following the failure of the permittee to file said proofs, I issued an order canceling the 6 permits and granting the permittee 30 days within which to reinstate said permits or else cease using said waters. While no effort was made by the Department of the Navy to reinstate said permits within the time allowed, the State of Nevada, through its attorney general, Harvey Dickerson, filed the bill of complaint against the United States of America. I might state at this point, Mr. Chairman, that the granting of 30 days within which to place the permits in good order or to reinstate them was outside the provisions of the law. I merely was trying to lean over backward in the hopes that the Navy would come in and reinstate the permits. Senator ANDERSON. This suit is being actively prosecuted. Mr. SHAMBERGER. That is correct. I will come to that a little later. The basis of the decision by the Navy Department to drop the ground-water permits at Hawthorne was, as stated by the commanding officer, the decision in the Pelton Dam case. Here the court held that because both termini of the dam were on reserved Government land, the State water laws were not applicable. The wells on the depot at Hawthorne likewise are located on reserved lands, that is, public lands which were withdrawn and reserved for the use of the Navy Department by Executive order. Using the Pelton case decision as a guide, the Government now says in effect that the State water laws of Nevada are not applicable on reserved lands of the naval ammunition depot at Hawthorne. In the Pelton Dam case, the source of water supply is a nonnavigable stream, whereas in the Hawthorne case the source of water supply is from a ground-water reservoir. In the Pelton Dam case the use is a nonconsumptive use, power generation, whereas in the Hawthorne case the use is a beneficial consumptive use. The only similarity is that in each case the land involved is reserved land. Senator WATKINS. When you say it is reserved land, is it land that was in the ownership of the United States and then reserved for military purposes? Mr. SHAMBERGER. That is correct, sir. Senator WATKINS. It was not land that they had bought from private ownership? Mr. SHAMBERGER. No, sir. There may have been some private land in the area, I am not sure, but I think all of it was Federal land reserved by the Executive order. Senator WATKINS. I see. Senator BARRETT. When was the reservation made, Mr. Shamberger? Mr. SHAMBERGER. As I recall, it was about in 1931 or 1932, maybe a little earlier than that. Senator BIBLE. I think 1933. Senator BARRETT. But it had been in the ownership of the United States under the public domain at the time of the Desert Land Act and not reserved until sometime in 1933? Mr. SHAMBERGER. That is correct, Senator. In the Pelton Dam case one terminus of the dam is to be located on an Indian reservation and the other terminus on lands which had been withdrawn from entry in 1909 under the public land laws and reserved for power purposes. In the Hawthorne case the lands were withdrawn from entry and reserved for use by the United States Navy in about 1933. On December 1, 1955, the State of Nevada filed a complaint for declaratory judgment against the United States of America, in the Fifth Judicial District Court of the State of Nevada, in and for the county of Mineral. On December 7, 1955, service was made on the Attorney General of the United States. The case has been transferred to the Federal district court at Carson City, Nev. On April 19, 1956, the Federal district court will hear a motion by the State of Nevada to remand the case to the Fifth Judicial District Court of the State of Nevada, and will also hear a motion by the United States to dismiss. Senator WATKINS. Is that the Hawthorne case? I am attaching as a part of this statement copies of the motion for declaratory judgment, a copy of the order of the State engineer and copies of letters heretofore referred to from the commanding officer of the United States Naval Ammunition Depot at Hawthorne. I would like to point out that a considerable portion of the land area in the Western States is owned by the Federal Government and that much of this land is reserved land. Senator WATKINS. Is it not a fact that practically all of the mountain ranges where the rainfall and the snowfall occurs is in Federal ownership? Mr. SHAMBERGER. Almost 100 percent. Senator WATKINS. That is true in most of those Western States, as I recall. Senator BARRETT. If the Senator will yield to me, it is practically entirely within reserved land status. Senator WATKINS. Much of it forest reserve? Senator BARRETT. All the forest reserves. Senator WATKINS. Taylor grazing? Senator BARRETT. There is a little question about the Taylor grazing; however, the act itself states that it is a reservation. But. be that as it may, it is a borderline case, to say the least, and certainly the power lies in the executive arm of the Government to place it in reservation overnight so it could be put in a reserve classification merely by an order of the President. Senator WATKINS. I have a bill pending somewhere in this committee to make it necessary to hold a hearing before any more withdrawals or reservations at least can be made from public domain for these purposes. Senator BARRETT. A withdrawal has the same effect as a reservation. Senator WATKINS. That is the way they do it, as I understand it. Mr. SHAMBERGER. I might further answer your question, Senator Watkins, by saying that all of the good reserve lands are usually the best watershed lands. Senator WATKINS. That might have some implications. The reason I ask the question is because the water falls on federally owned lands in practically all of those Western States. Mr. Chairman, may I identify the bill I talked about a moment ago. It is S. 531, introduced January 20, 1955. Senator BARRETT. Let me remind my colleague, however, that while I think it is a good bill, it would not correct the situation we are |