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the Congress speaks, it would seem to me that under the Constitution that the Congress would have that power to act, and it acts, it looks to me as though that is sufficient and adequate. Do you contend that the Congress has no power to say to the States that these things can be done just because the Constitution gives the Federal Government the power?
Mr. RANKIN. I say in regard to the Rio Grande case that the court held that the construction prohibited by Congress was under a superior and since Congress directed that there could not be an obstruction that did not comply with that statute that the State law had to give way to it because of the supremacy clause.
Senator BARRETT. Because of the act of Congress.
Mr. RANKIN. Yes; and because of the Constitution.
Senator BARRETT. Now, they didn't say that. They said that section 10 of the act of September 19, 1890 (26 Stat. 454) prohibits the creation of an obstruction "not affirmatively authorized by law" to the navigable capacity of any waters of which the United States had jurisdiction. That is easily distinguishable from these other matters where the Congress acts and authorizes.
Mr. RANKIN. They said the congressional action was superior to a contrary State action because of the Constitution, which says that the laws passed by the Congress are supreme in their proper area.
Senator BARRETT. Do you contend that the Congress has no authority to act and to give concurrent jurisdiction in these cases?
Mr. RANKIN. This law, as I see it, does not give any concurrent jurisdiction. It subjugates or places the United States and its various activities subject to the laws of the States, which is just as though you tried to reverse the Constitution.
Senator BARRETT. Has that not been the case since 1902 under the Reclamation Act?
Mr. RANKIN. The courts have not construed it as such.
Senator BARRETT. What was done under the Reclamation Act of 1902, and under section 8?
Mr. RANKIN. The courts have never construed that that would provide that they had to recognize that is, the Federal Government—a State law as being superior to a direction by the Congress wherever there was any clash.
Senator BARRETT. That was the Congress speaking. It enacted section 8 of the Reclamation Act, and it held that the States could administer the water; did they not?
Mr. RANKIN. Yes; in a way.
Senator BARRETT. Has the court ever said that was unconstitutional? Mr. RANKIN. They have never passed on it.
Senator BARRETT. What is the effect of the decisions in the Gerlach case and the Ickes v. Fox case?
Mr. RANKIN. In the Gerlach case the court held that the United States did not comply with State law, and they went ahead and had what is called an inverse condemnation, and the United States took the property.
Senator BARRETT. Didn't they uphold section 8 of the Reclamation Act in that case?
Mr. RANKIN. They said that the United States had to pay compensation.
Senator BARRETT. That was provided for under the act.
NIE Senator BARRETT. Did they say it was unconstitutional?
Vr Mr. RANKIN. No. Senator BARRETT. Do you contend it is unconstiutional ? Mr. RANKIN. No; the way it is read I don't. Senator BARRETT. Do you think section 8 of the act is constitutional!
Mr. RANKIN. If you read it so it doesn't subordinate the Federal Government to the States, and that is the way I think the courts have construed it.
Senator BARRETT. What did they do in the Ickes v. Fox case?
isho the complaint that this water was appurtenant to the land, and these
Mr. individuals in the State of Washington owned the water rights them
Sen selves. The case was tried on a motion to dismiss, which admits all the facts properly pleaded. The United States did not put in issue
Nr. the question of who might own those water rights, although the law of Washington at the time was different than what was alleged. On that kind of an issue the court held in favor of the complainants and what they alleged.
Senator BARRETT. The contention was made by the United States that the Government owned the water in that case; is that not right?
Mr. RANKIN. Yes; that is right.
Senator BARRETT. You have contended that, regardless of State law. under the Reclamation Act that the United States has rights over and above State rights acquired in the Colorado case.
Mr. RANKIN. I contended in the Colorado case that with regard to reserved lands, the United States by the Constitution was given
the power through the Congress to regulate and govern those reserved lands. Those rights, when those lands were reserved, included the various property rights that go with land. The right to air, light, egress, ingress, and whatever water rights are appurtenant to the land. and that no one could under a State law acquire a right superior to the rights of the United States subsequent to the reservations.
Senator BARRETT. In the Downer case, as I understand, there had been no development of water rights on the reserved lands, but simply because of the fact that the reservation had been created a number of years prior to the acquisition of water rights by the city of Denver, you contend that under the Constitution the United States rights were paramount and over and above the city of Denver, even though the State law had declared to the contrary.
Mr. Rankin. I don't want to get into a use of terms that may be considered dirty words around here as far as paramount is concerned.
Senator BARRETT. I don't care what term you use.
Mr. RANKIN. I want to make it clear that when the United States reserves a piece of property, it was either by the President under authority that the court has upheld
Senator BARRETT. 1909 or 1910, I assume you mean.
Mr. Rankin. Or under the statutes authorized by Congress. Those lands were reserved. When you reserve a piece of property you reserve to the grantor whatever rights go with the regular property rights
. That is what was done. Under any general principles of law, once that reservation was made, the State could not give a right that was superior to it. That is all there is to it.
Senator BARRETT. Now, wait a minute. The rights that the State granted were vested at that time.
Mr. RANKIN. They could not be.
Senator BARRETT. There was no claim made by the United States on the reserved lands at the time the State of Colorado gave these rights to the city of Denver. Furthermore, is it not fair to say that. the only reason that you came in with that contention in that case was that the United States Supreme Court had made its decision in the Pelton Dam case, and enunciated the principle that there was a difference between some areas on the public domain and those areas that were reserved by either statute or by Executive order were in a wholly different status.
Mr. RANKIN. No, that is not correct.
Senator BARRETT. It was made after the Pelton Dam case. There is no question about that.
Mr. RANKIN. That is right. I think if we would translate this to ordinary property, the United States has large tracts of property throughout the West in various States and those tracts-practically all of them are not even registered in the recorder's offices of the various States as belonging to the United States. We got them many years ago by purchase or cession from other countries. If someone comes onto that land and builds a fense on it, and tries to take a thousand acres of the reserved lands of the United States, and lives on it according to the statute of limitations, so they would get adverse possession under the law of Colorado, for example, the United States has come in time after time and said, "We have finally come to the place where we need that land. We want it and we take it back. This man has come on and tried to occupy it, and had the benefit of it in the interim, and has no vested rights." The courts have so held.
Senator BARRETT. Mr. Rankin, I am not going to prolong this controversy but I want to make two statements.
First, the principle that Mr. Rankin is enunciating here to my way of thinking means just this, that the vested rights acquired in the West are all subject to attack as a result of the law laid down in the Pelton case. In other words, he is saying here that notwithstanding adjudications under State law or rights acquired under State law, that if the United States has some rights on the stream growing out of reservation made previously thereto, although no development was made of those waters by the United States or by anybody else acting under the United States, that the vested rights are subject to attack.
That is the most dangerous doctrine that could possibly be flouted in the faces of the people of the West. This is not the first time that kind of a contention has been made.
I want to call attention secondly to the case involving your State and mine, Nebraska v. Wyoming. I want to read the citation. Volume 325, United States Reports, page 611:
Claim of United States to unappropriated water. The United States claims that it owns all the unappropriated water in the river. It argues that it owned the then unappropriated water at the time it acquired water rights by appropriation for the North Platte project and the Gingrich project. Its basic rights are therefore said to derive not from appropriation but from its underlying ownership which entitles it to an apportionment in this suit free from State control. The argument is that the United States acquired original ownership of all rights in the water as well as the lands in the North Platte Basin by cession
from France, Spain, and Mexico in 1803, 1819, 1848, and by agreement with Texas in 1850. It says it still owns those rights in water in which to whatever extent it has not disposed of it. An extensive review of Federal water legislation applicable to the Platte River Basin is made beginning with the act of July 26, 1866 (14 Stat. 251), the act of July 9, 1870 (16 Stat. 217), and including the Desert Land Act, act of March 3, 1877 (19 Stat. 377), and the Reclamation Act of 1902 (32 Stat. 388), but we do not stop to determine what rights to un appropriated water of the river the United States may have for the water rights on which the North Platte project and the Gingrich project rest have been obtained under compliance with State law. Whether they might have been obtained by Federal reservations is not important, nor, as we see it, is it important to the decree to be entered in this case that there may be unappropriated water to which the United States may in the future assert rights through the machinery of State law or otherwise. The Desert Land Act effected a severance of all waters upon the public domain not theretofore appropriated from the land itself.
Then it cites the Oregon Power Company v. Portland Cement Company:
It extended the right of appropriation to any declarant who reclaimed desert land, providedand there is a quote from the act* * * and not navigable shall remain and be held free for the appropriation and use of the public for irrigation, mining, and manufacturing purposes subject to existing rightsand then they cite Ickes v. Fox, and another case here, Brush, Commissioner (300 U. S. 352).
Mr. Chairman, I am not going to take up any more time arguing this point, because I suppose it's natural for lawyers to disagree. We are going to have lawyers testify who have devoted a lifetime to the study of water law, and
I am sure they will disagree with you, Mr. Rankin, very wholeheartedly. But it seems to me, Mr. Chairman, that Mr. Rankin is overlooking the fact that the Constitution itself said this, and I quote:
The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States and nothing in this Constitution shall be so construed as to prejudice any claims of the United States or any particular State.
The courts have held repeatedly that the Congress has plenary power and authority over the property of the United States, and when it acts, it is the final authority. When it acts the court will resp its decision. The only thing that we have to do is to speak out in no uncertain language. When we do I don't have any fear that the Supreme Court is going to say we have acted in an unconstitutional manner.
Mr. RANKIN. I would like to make this comment. That case, it seems to me, merely holds that the Court decided not to pass upon the issue raised' by the United States that it was entitled to the unappropriated water, and reserved that question. It said like most jurists would say since there is no real issue, the United States either got it under State law or nobody claims it doesn't have it, so we won't pass on that question. That is all the case holds.
Senator BARRETT. Do not overlook why I brought it up. I brought it up to show this contention has been made. It was made at that time. You made it at Denver. I think you are contending here and now that the United States has practically the exclusive right.
Mr. RANKIN. I don't say there is an exclusive right. I do say that the courts have said that the United States has certain rights with
regard to its own property. The thing that bothers me about this proposed bill is that it has a program for the States in effect to administer the property of the United States. I don't find any law that would permit the Congress to delegate that responsibility to the States.
Senator BARRETT. I don't think there is any delegation of authority. The Congress had the power to do anything that it wanted to do with that property. As you said yourself, it could give it away if it wanted
Mr. RANKIN. I agree with that.
Senator BARRETT. It could give the land away and keep the water or give the water away and keep the land, or it could do anything it wanted with its property.
Mr. RANKIN. That is right.
Senator BARRETT. The Congress by passing this bill is acting. It is taking the action. The States are only exercising the ministerial power to a large extent that they have as a result of the fact that Congress has acted.
Mr. RANKIN. Let me make my point clear. If there is a building across the street-say, the lot that the United States has purchased for a Senate building the Congress has the right to give that away, to transfer it, sell it, or dispose of it in any way it sees fit. But I don't think it has the power to give the State of Maryland the right to say what shall be done with the property, or how it shall be occupied or any other way that they should delegate to a State the control of that property. They can give the water-I want to be very clear about that-if the Congress decides to do it, it can give the rights to the use of water on any reserved lands to whatever States it wants to. I think the case of U.S. v. Texas (339 U. S. 707) holds that so clearly, and U. S. v. California (332 U. S. 19), and some of the other cases, that there is no question about it.
Senator BARRETT. Is there any question that whatever Congress wants to do about this property they have the right to do it?
Mr. RANKIN. No, that is a different question.
Senator ANDERSON. He just said they could not do it with the Senate Office Building site. They could not give it to Maryland.
Senator BARRETT. I am talking about this property. I think that it is unfair to use that comparison.
Mr. RANKIN. I don't question if you want to give it away. Then you can let anyone else have dominion over it. You have a right to decide in your legislative judgment that it is a sound, desirable policy, if you decide that you can give the States dominion over that property just like has been done in the development of the West in regard to large areas of land.
Senator BARRETT. If the Congress acts and says that the States can do such and such with the property of the United States, what is wrong with that?
Mr. RANKIN. Then you are putting control of the property of the United States in the hands of the States.
Senator BARRETT. The Congress has plenary power.
Mr. RANKIN. Not that kind.
Senator BARRETT. I yield to my colleague.
Senator O'MAHONEY. I want to get this clear in my own mind. I don't want to argue with you. When you made this recent reference