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Senator ANDERSON. What would happen if you took a collection and got the $6?
Senator WATKINS. I would say it is a small consequence in view of the fact that they now own all the water under the lands in the West.
I was going to ask the witness if the United States is resisting in the Fifth District Court? Has it been removed now?
Mr. SHAMBERGER. I do not know exactly the process but, by petition, it has been removed to the Federal district court.
Senator WATKINS. Is the United States actually entering into the case as a party, or resisting on the ground that it cannot be sued without its consent?
Mr. SHAMBERGER. It has filed a motion to dismiss.
Senator WATKINS. I notice in your petition for declaratory judg. ment you cite section 208 (a) from volume 66, United States Statutes, page 56, title II.
Mr. SHAMBERGER. I think that is Senator McCarran's.
Senator WATKINS. That is the rider we put on the appropriation giving consent to sue the United States.
Senator BARRETT. That is right.
Senator WATKINS. I understood that they were honoring that and I wanted to know whether or not they have appeared or are saying you do not have any right to sue.
Mr. SHAMBERGER. As I stated, we will argue the motion to remand it back to the State court on the 19th of April.
Senator BARRETT. They are relying on the McCarran Act.
Senator WATKINS. The State is, but I am wondering what the position of the United States is; whether it is resisting this removal on the ground that they cannot be sued.
Senator BARRETT. That is correct.
Senator ANDERSON. We will get on with this when we get Mr. Roderick in here to find out why.
But, Mr. Chamberger, it was your testimony a moment ago that when you gave them this permit, you also gave the Armed Forces unrestricted use of the water?
Mr. SHAMBERGER. Would you repeat that?
Senator ANDERSON. You said you have never denied them unrestricted use of the water. You restricted other people but not the armed services?
Mr. SHAMBERGER. We would treat the Armed Forces in the underground water basin the same as we would treat the private person.
Senator ANDERSON. I think you will find that that is not what you said.
Mr. SHAMBERGER. We have never refused so far to grant them a permit to appropriate the underground water.
Senator ANDERSON. Did you not say that you have never restricted the use of the water?
Senator BARRETT. He did say that in connection with the other reservations. Was that the Nellis?
Senator BIBLE. Nellis Air Force Base.
Senator BARRETT. I think he made it pretty clear that the intention was to regulate the use of the water in the basin both within the reser
vation and outside the reservation eventually, but they could use all the water they need at the present time.
Senator ANDERSON. If the Government relies upon its rights that it claims it has without regard to registration or the certificate from the State of Nevada, then it would have unrestricted use of that water, would it not?
Mr. SHAMBERGER. That is right.
Senator ANDERSON. Then it is not a question of $6, it is whether they have restricted or unrestricted use?
Mr. SHAMBERGER. That is right.
Senator WATKINS. And whether they have to recognize State laws at all.
Senator ANDERSOx. I am not going to take up a collection. Very "well, go ahead.
Mr. SHAMBERGER. Thus it is not logical that one group of wells, those owned by the town of Hawthorne, should be operated subject to the State water law; whereas, another group, those owned by the Navy, should be operated subject to no State laws. While here we are speaking of the Hawthorne case, the same situation could develop in other ground-water basins where both Federal and private ownerships exist.
The Government has said that their property right to use waters on reserved areas is limited to unappropriated water. It could well be asked who determines when there is unappropriated waters?
It has always been recognized by the States that that determination, together with administering the orderly development of any unappropriated water has been the responsibility of the States.
The question also arises as to what recouse the Department of Navy, in the Hawthorne situation, or any other department of the Federal Government in other similar instances, might have, should subsequent appropriations of water by private interests outside the area of reserved lands jeopardize the Government's use of water. In other words, unappropriated water today may become appropriated water under State law tomorrow.
I fail to see why any agency of the Government would be handicapped by complying with State water laws.
Senator ANDERSON. You illustrated a moment ago, did you not ? If you are going to restrict them under the State water law, then they would be restricted. If they are going to remain unrestricted, should they not remain outside?
Mr. SHAMBERGER. If you look at it that way, they would be handicapped in not having unrestricted use but they would also be protected under State water law. If there is no unappropriated water, then they would either have to purchase other water rights or else
Senator ANDERSON. Restrict their use?
Senator BARRETT. Let me ask this one question, I am not quite clear about the procedure : Assuming that the Navy insists on its position and this legislation is not enacted, would it be possible for the State of Nevada to grant permits outside the reservation without taking into consideration at all the water that the Navy is extracting within the reservation?
Mr. SHAMBERGER. That would be possible; yes, sir.
Senator BARRETT. In other words, the State of Nevada has the power by reason of State law to interfere with the use by the Navy of the water in the reservation to such an extent that it could even maybe eventually destroy any supply that might be open to them; is that correct?
Mr. SHAMBERGER. That is correct. We would have no State water law to protect their interests as against permits to appropriate that same water.
Senator BARRETT. Now, take it the other way around. Assuming that the Navy complies with State law, as we think the Congress requested them and practically demanded that they do, then in that case you could protect not only the Navy but private owners outside of the reservation by restricting the use under the permits that you grant?
Mr. SHAMBERGER. That is correct, sir.
Senator WATKINS. The matter of priorities would also be enforced if the State law were to prevail?
Mr. SHAMBERGER. That is right.
Senator WATKINS. In other words, if the water supply gets to the point where someone has to be stopped because it interferes with a prior right, the Navy would be subject to that the same as any other entity would be?
Mr. SHAMBERGER. That is correct.
Senator WATKINS. 'Then, of course, if the Navy's theory is correct. following the Pelton case, that the United States owns the water, of course they could not acknowledge or respect State law with respect to priorities.
For instance, in the same place that you are talking about, the same town, the drawdown goes on and on and on, they may get to the point where they have practically exhausted that underground reservoir and then whichever filing happens to come first would be given its priority and the others would be restrained from using water.
Mr. SHAMBERGER. That is correct. Under the law, we could restrict the junior priorities, we would have to restrict the junior priorities first and protect the older rights.
Senator WATKINS. That is your underground water and it is the same as ours.
Mr. SHAMBERGER. The same as surface water.
Senator BARRETT. I hate to be taking time on this but I am not as well informed as I would like to be. Let me state this hypothetical case to you, Mr. Shamberger: Assuming that the State of Nevada, through its State engineer, had issued permits for water wells outside of the reservation to a large number of private owners and they had developed the underground waters there, and after the prior rights had been established and after the water had been developed and after it had been put to beneficial use, along comes the Navy on the reservation and says to the State of Nevada, “We are not concerned with your State water law in any respect; we are going to drill a large number of wells on the reservation and we are going to take all the water that we need," and you say, “You are going to interfere with prior water rights, in the same basin."
Do I understand from the position taken by the Navy Department that they contend that they have the right to destroy the prior right:
of all the people outside of the reservation and to take unlimited supplies of water from that same basin, disregarding wholly the rights estbalished under State law of the private owners outside the reservation ?
Mr. SHAMBERGER. I do not think so, Senator. The Navy has said that they respect vested rights, rights that have been perfected. I think they would realize that those rights outside of the reserved area which were perfected rights in such instance and probably purchased them, I am not sure.
They have repeatedly said, and they have followed that course as far as surface rights are concerned, to respect vested rights.
Senator BARRETT. I think they have followed that course up until the Pelton case, but in the Pelton Dam case it seems to me the position they have taken is that they do not have to come to the State of Nevada and it would lead me to believe that they are not concerned with State law outside the reservation nor inside the reservation.
Mr. SHAMBERGER. A little later on, I think I will develop something on that, Senator.
Senator OʻMAHONEY. May I ask a question at that point ?
You repeatedly said in the last 2 or 3 minutes that the Navy said this or the Navy said that with respect to water rights under State law.
How do they say it?
Mr. SHAMBERGER. I have reference to a statement that was presented to the Interior and Insular Affairs Committee of the House by the general counsel for the Navy, in which he made that statement.
Senator O’MAHONEY. Has that been made a part of this record?
Senator ANDERSON. The Armed Forces will be testifying later this lf afternoon.
Senator O’MAHONEY. I think we ought to have that formal statement so we will know by thier own language.
Mr. SHAMBERGER. That statement was made not in considera
Senator BARRETT. That was with reference to withdrawals.
Mr. SHAMBERGER. In Nevada, and I presume in other States as well, the Federal agencies in general comply with State water laws
before water is placed to beneficial use. In the case of the HawIl thorne Naval Ammunition Depot, at about the time they were I dropping the permits to appropriate ground water they were making
an application to appropriate surface water from a stream origi
nating on the Mount Grant watershed, just westerly from the depot, ind and which either crossed some private lands or on which there were some existing water rights.
As to the rather fine distinction as to whether to comply with State water law, I would like to quote a letter from the commanding officer at the United States naval ammunition depot at Hawthorne, dated December 8, 1955, and addressed to me as State engineer. The letter read as follows:
Enclosed are the application and map for permit to appropriate the waters (complete flow) from Squaw Creek. All privately owned land within the confines of the depot which Squaw Creek crosses has been acquired by the
Government, together with all privately owned water rights. Payment in the amount of $25 covering the required filing fee for the above application will be made through regular Navy channels.
Since all waters from House Creek flow entirely over land withdrawn from the public domain and reserved for the use of the United States naval ammunition depot, an application to appropriate the waters of House Creek will not be filed with the State engineer, State of Nevada.
A copy of this letter is attached as a part of my statement. I might state that you will note the distinction on House Creek. which is referred to in the second paragraph. It is located entirely on reserved public domain. It crosses no private land nor has anyone ever acquired any water rights, so the Navy says that they need not comply with State water laws on that creek, whereas, on Squaw Creek, which did cross privately owned lands purchased by the Navy and on which there were some existing water rights also purchased, they filed for the unappropriated water.
I am very much in agreement with Senate bill No. 863. I would suggest, however, that it be amended to include ground water as well as surface water.
I say this because the water laws of several States provide that ground water belongs to the public and is subject to appropriation for beneficial use in the same manner as surface water. Such is the law of Nevada and other Western States that have perfected statutes covering the appropriation of ground water.
Senator BARRETT. Mr. Shamberger took this matter up with me last summer and I advised him at that time that it was my intention, and we thought that the language was sufficiently broad to cover both ground water and surface water. However, in order to make the matter perfectly clear, I did agree at that time to an amendment which would spell out in just so many words ground water as well as surface water, so I think it should be done.
Mr. SHAMBERGER. Also, it is a well-known fact that our Nation's demand for water has increased to the point where in many sections of the country we are hard pressed to satisfy that demand. In semiarid States, such as Nevada, all our surface water, except floodwaters, have long since been appropriated.
We must, therefore, look to the development of our ground water supplies to meet the ever-increasing demands. Thus, ground water will play a very important role in maintaining the well-being of our Nation.
Consequently, it is my firm belief that all ground water as well as surface water should be subject to the establishment of rights to the beneficial use thereof, according to the law of the State wherein such appropriation is sought.
In my opinion, unless the Congress now legislates to safeguard the rights of the States and to insure that their rights shall not be imperiled by Federal control, such State control will be lost by process of attrition.
Senator ANDERSON. How much material is submitted here, Mr. Shamberger, that you want to appear in the record ?
Mr. SHAMBERGER. Well, I will leave that to the chairman.
Senator ANDERSON. Would you mind if I, in turn, left it to the staff to sort of go through it because we do not want to fill the record with