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Senator ANDERSON. Is there any objection to my suggesting to the Department of Defense that we would like to have them submit
any language that they feel will put them in the position of supporters of this bill rather than opponents?
Senator BARRETT. I see no objection at all, Mr. Chairman. I certainly welcome that suggestion. We certainly can consider any sug. gestions.
Senator OʻMAHONEY. I have listened with the greatest of interest to what Senator Kuchel has said, and I think his opening question clearly shows that the Santa Margarita matter is not an illustration which is relevant to this bill.
Senator Kuchel's first questions to the Assistant Secretary was, "Do you agree that when the Government or the Department of Defense acquires water rights in a State it must be in accordance with the laws of the State ?"
That was your question, was it not?
Senator O'MAHONEY. The answer was substantially, "Yes; but we feel that some protection should be written into the bill for special
What I want to point out for the record is that the Department of Defense acquired the land upon which the marine base was built in accordance with the State laws of California, and after it had acquired the land and built the base and was using the water to bathe and water the soldiers and help them to run their laundry and their domestic affairs the riparian right of water was sought to be withdrawn from the marines by the State of California.
Senator KUCHEL. In derogation of State water law.
Senator O'MAHONEY. In derogation of State water law that existed at the time they acquired the land, when they purchased the land,
Senator KUCHEL. That is your opinion, Senator, and there is a dispute over it but at least
Senator O’MAHONEY. If there is a dispute over it, then the point that I make is good.
Senator KUCHEL. No.
Senator O’MAHONEY. Oh, yes; because the position of the Marines is that they acquired the land in accordance with the State law. That is what they wanted to do, that is what they tried to do.
Of course, I know there was a dispute over it because I know that Mr. Yackey came down to Washington before the Senator from California was a member of this committee or a Member of the Senate and before he was able to apply his fairness and his intelligence to this matter and Mr. Yackey was seeking to change the law so as to drive the Marines out and, failing to get that, then the change was made in California.
Senator KUCHEL. Senator, all I want to say is that I do not want to use this to rehash that tragic controversy. I do want to say that if there were a disputeSenator O’MAHONEY. The most serious tragedy has been repaired.
Senator KUCHEL. The Senator suggests that that is what we have courthouses for.
But my question with respect to the Secretary was to see if we could first of all agree that the agencies of this Government, when they
acquire property in any State in the American Union, acquire that property so far as the property is concerned, including the water rights, under State law.
I want to be sure that I understand what you say, Mr. Secretary. From your statement: The Department of Defense, in keeping with general policies concerning State requirements, considers that its water rightsand I interpolate here, I assume water rights acquired under State law ?
Mr. RODERICK. That is correct.
Senator KUCHEL (continuing)— should be exercised with due regard for State requirements.
Now, what does that language mean, “with due regard for State requirements”? Does it mean with compliance of valid State requirements or does it mean with consideration for State requirements holding the responsibility of deciding whether the Department would, having received them, decide otherwise or not?
Mr. RODERICK. Mr. Senator, if any commander, regardless of what branch of the service he was in, if he could carry out his mission, he wants nothing but the State laws to comply with. He had no desire to do anything other than following the State laws. That is our position all the way through.
We want to follow the State laws and also the State requirements.
For instance, supposing there is a dry period. We want to cooperate in cutting down our supply along with the rest of the State. There is no intention of doing anything else. But the whole thing does show just what I have been pointing out, that there is a need for a little bit of caution. Have we looked into every side of it so the commander out in the field will not be embarrassed, as we have been discussing here?
Other than that, we have no feeling other than that we are for this bill.
Senator KUCKEL. So that your statement as a matter of policy is that your agency of Government desires scrupulously to follow the laws of the several States with respect to water law?
Mr. RODERICK. Yes; but we have the question of whether the commander can carry out his mission in all cases and we have had enough precautionary cases come up where we wondered. Maybe some amendment could protect that.
I do not know; that was a new thought.
Senator WATKINS. May I ask this question, and it may help to clear up the situation.
I read one of the complaints, or whatever you call them it the declaration in our State that was filed and prepared by the Attorney General's office of the United States. That seemed to go a lot farther with respect to certain paramount rights. That was the controversy that came before me when I was holding a hearing in the Judiciary Committee on a matter of this kind.
After all is said and done, is it not true that the final position on this matter is not determined by the Secretary of Defense but it is determined by the Department of Justice!
Mr. RODERICK. Well, I am not qualified to answer definitely.
Senator WATKINS. Who appears for you in these cases and sets up the views ?
Mr. RODERICK. In the final decision, I am sure it is the Department of Justice.
Senator WATKINs. That is right, and the Department of Justice was in this case and Mr. Beeler was the man actively in charge of that case out there. He made certain declarations with respect to the paramount rights of the United States by reason of its sovereignty.
Mr. RODERICK. Senator Watkins, I am really speaking of policy, which I believe this bill and this committee has the right to set. I think it is the policy we are talking about more than the legality, as far as the Defense Department comes in.
Senator Watkins. That becomes ultimately a legal question; what the Secretary of Defense may say about this matter.
Mr. RCDERICK. I am not qualified to answer legally.
Senator WATKINS. But when they go into court and determine the rights they have, the Department of Justice represents them and they set forth their views, do they not?
Mr. RODERICK. I did want Senator Kuchel to know that it is the intention of the Defense Department to follow State laws.
Senator WATKINS. Suppose the Justice Department advises your lawyer that you cannot follow State laws; that they have some sort of paramount law?
Mr. RODERICK. I would not be qualified to answer.
Senator WATKINS. You would have to follow the Department of Justice?
Senator KUCHEL. I do not quarrel with that and I go back to the writing of the Santa Margarita bill which my friend from New Mexico and I participated in.
You will recall, Senator Anderson, the phrase "that the Navy shall proceed under State law in accordance with the advice of the Attorney General.” Some of my people violently quarreled with that language.
Senator Anderson said, “What is wrong with it?" and I agreed with Senator Anderson. In the last analysis, it must be the Department of Justice which advises your department with respect to your rights under water law, and I suppose that if we can receive from the Department of Defense what we have this morning, a statement of policy, then in the last analysis it is with the Department of Justice, Mr. Chairman, that if any cleavage develops, we will have that difference before us.
Senator WATKINS. That is where I think the whole thing finally goes.
Senator ANDERSON. Exactly right, and I am trying to clear away some of the brush that is here in front of us. Nobody wants to interfere with the Defense Establishment in its operations in the defense of this country.
Senator KUCHEL. Yes, sir.
Senator ANDERSON. But if it is not necessary as far as the Defense Department is concerned, but is solely necessary in order to take care of a legal point of view of the Department of Justice, we ought to let the Defense Department people go home and get the Department of Justice in here, who are the real protagonists.
Senator WATKINS. That is what you will have to ultimately do.
Senator ANDERSON. That is what we will do. We are very happy, Mr. Secretary and Colonel Robertson, that you are here because it nelps us find out what your problems may be.
Personally, I find myself in sympathy with what the Senator from Wyoming, Senator OʻMahoney, said a while ago, that the Santa Margarita case was not involved in this legislation because we want co deal in this legislation with instances in which the Department of Defense is willing to acquire property and administer in accordance with State law.
We are anxious to find out if you have any objection to that, and apparently you have not. You have some warning signals.
Mr. RODERICK. We have warning signals, but you have stated exactly the way we would like to operate.
Senator ANDERSON. You try to bring us up an amendment that will take care of that. The earlier you can submit it to us, the better. We would be happy to have it, and I think I can speak for the rest of the committee that we will not try to bind you to it.
We will ask you to submit something that you think is satisfactory. If discussion develops that it is not too satisfactory or if Justice points out that you abandon the whole point of view, we would expect you to come back and say, "Maybe we cannot stand on that language, but give us something to work on.”
We are just trying to get this bill through in good shape for all the people of this country,
Are there additional questions of these witnesses?
Senator KUCHEL. Just to pinpoint what you have suggested, would it be fair to ask, Mr. Secretary, that in the final analysis the advice of the Attorney General would guide you, over and above your own. legal staffs in the Department and your military legal advisers?
Mr. RODERICK. Senator Watkins asked me about the same question, and I do not believe I am qualified to answer, except that I assume we would have to.
Senator ANDERSON. I think you will find that a Cabinet officer, if he is brought into a controversy, must take the advice of the Attorney General as his lawyer.
The Senate of the United States subpenaed me at one time and I had a notion to tell them where to go.
Senator WATKINS. There is one man that does not have to take it, and that is the President.
Senator ANDERSON. I found out I could not take the advice of the Solicitor of the Department of Agriculture, but had to depend upon the advice of the Attorney General. He is your lawyer, and I think, regardless of how you feel about it personally or how your Department feels about it personally, they will end up taking the advice of the Attorney General.
Senator BARRETT. Mr. Chairman, I wonder if I could ask one more question? I would like to settle in my own mind one point, and it is this: After listening to the statements by the two witnesses for the Department of Defense, it is very clear in my mind that they are enunciating the same principle that Secretary McKay has enunciated, and that runs all through this bill that we want to protect State waterright law.
Now, the difficulty that you have encountered in California is under existing law. Is it not a fact that you would not be in any different situation with reference to these same problems under the proposed bill than you are under existing law !
Mr. RODERICK. Mr. Senator, I believe you are probably correct, but I am not able to answer that. It is a legal question.
Senator BARRETT. I am convinced that I am right about that. Am I not right about that, Senator O'Mahoney?
Senator O'MAHONEY. I believe you are.
Senator WATKINS. That is what you are attempting to do, perpetuate existing State laws?
Senator BARRETT. We cannot understand why these problems cannot be worked out. Of course, when you submit yourself to State law, then you are on the same footing as anybody else. The Defense De. partment wants to observe State law. You do have some problems. We have had many problems with the Interior Department, but we worked them out.
If there is some language we can put in, why of course we want to help you.
Mr. RODERICK. We recognize that, Senator, and our desire is that a defense mission given to a commander out in the field can be carried out satisfactorily.
Senator ANDERSON. May I break in? Senator BARRETT. Certainly. Senator ANDERSON. Mr. Secretary, the Senator from Wyoming asked you a question that I think was very important to all of us
, and Senator O'Mahoney agreed with your interpretation of it. I wish you would examine that page or part of this hearing this morning in which that question was answered, and ask your lawyers to advise you on it, because if your offhand answer, which I think is a good one, is correct, then you have gone some steps toward the final solution of this problem.
I would like to have you specifically look at that particular question and the comment of Senator O'Mahoney and your own reply because I think you indicated a possible solution.
I am sorry to break in, excuse me.
Just one more observation which I would like to make before I get through.
The Department of the Interior has carried on its functions under State law since 1902, and, of course, they are the main agency of government that is concerned with western water law and rights, and the Secretary of the Interior comes in and says, “Certainly we can do that. We operate under State law and work out our problems."
They have problems, of course; everybody recognizes that. But still they say, “We want to continue with that policy."
As I take it you feel there ought to be some way that out these problems yourself under State law. Everybody wants to work them out, there is no question about that.
Mr. RODERICK. No question about that.
Senator BARRETT. So I hope you will approach this in the same light that the Interior Department does and come up to this committee
“We agree with the principles of this legislation, and if you
you can work