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to the Senate Office Building, it came to my mind that when the District of Columbia was created, it embraced a large area on the south side of the Potomac River, and the Congress gave it away to the State of Virginia. Congress could also give control of the Senate Office Building to the State of Maryland if it wanted to, because in the provision of the Constitution which you yourself read, it has complete control over the territory and property of the United States. Mr. RANKIN. I can't agree with the last.
Senator O'MAHONEY. You read it.
Mr. RANKIN. No, I agree that you could give the property and let them do what they want to with it, just like the Congress did with the part of the District of Columbia. They didn't say that this part shall be considered carved out of the District of Columbia, and Virginia shall rule it from now on. They said we shall not own that property any longer.
Senator O'MAHONEY. Let us get back to water. In the opening sentence in which you laid down your point of view just before Senator Barrett undertook to analyze it, if I understood you correctly you said that when the Government by executive act-you didn't use the words "executive act" but I think it was implicit created the reservation upon the public domain, then the United States acquired the property rights to the land, to the contents thereof, and to the waters appurtenant thereto. Do you recall saying that?
Mr. RANKIN. That is accurate except I didn't use the word "acquire" for definite reasons. The United States had it from the date of cession and it just held it back and reserved it.
Senator O'MAHONEY. Did it have the waters appurtenant thereto? Mr. RANKIN. Under all property law, it would have the right to use of those waters.
Senator BARRETT. They didn't reserve from the date of cession.
Mr. RANKIN. I didn't mean they reserved it. I mean they had the right. It was a part of the public lands at that point.
Senator O'MAHONEY. That is precisely the point.
Mr. RANKIN. They could reach out and pull it back, and that made the whole property rights that went with it belong to the United States and it could be withheld.
Senator O'MAHONEY. When the lands were ceded to the United States as in the case of the Louisiana Purchase, as I see it-I may be mistaken the United States acquired that land so purchased not under the laws of France, but under the laws and philosophy of the United States. Do you agree?
Mr. RANKIN. Really they acquired it under the philosophy of international law.
Senator O'MAHONEY. But the laws of France did not come with the purchase.
Mr. RANKIN. That is right.
Senator O'MAHONEY. The laws of the United States and the philosophy of the United States immediately took charge of the territory so purchased. They became the law of the land, is that not right?
Mr. RANKIN. The law of the United States did, yes.
Senator O'MAHONEY. Yes. The law of the United States.
You said that when the Government by executive act created a reservation, it became the owner of the waters appurtenant thereto. Those are flowing waters.
Mr. RANKIN. Yes, but I didn't say it then became the owner. It was the owner from the date of the cession.
Senator O'MAHONEY. May I say it was the owner in trust to be disposed of in the manner in which Congress decided.
Mr. RANKIN. That is right.
Senator O'MAHONEY. Then when Congress undertook to deal with flowing water, from the very beginning, its policy was to make those water rights available to people and not to the Government per se. Our public domain is a public domain, belonging to the people and not to the state. I use the word "state" now in the modern sense, which is an organization that is greater and above the people. It is against that doctrine that those of us who are supporting the bill are contending.
So what I want to ask you is this: How did the Government acquire exclusive right to the waters appurtenant to the land when under the laws of the State and the laws of Congress, providing for the disposition of water property, the Government never went through the processes laid down in the law of the Federal Government and of the States to acquire. Before you answer, let me read from the Gerlock case. This is from page 13 of the opinion:
Whether Congress could have chosen to take claimant's right by the exercise of its dominant navigation servitude is immaterial.
The court did not pass on that just as in the Colorado-Wyoming case it did not make any ruling whatsoever on the contention that was being made upon the part of the United States that there was a dominant power or ownership. So the decision goes on:
By directing the Secretary to proceed under the Reclamation Act of 1902, Congress elected not "to in any way interfere with the laws of any State relating to the control, appropriation, use or distribution of water used in irrigation or any other vested right acquired thereunder."
We cannot twist these words into an election upon the part of Congress under its navigation power to take such water rights without compensation. In the language of Mr. Justice Holmes, writing for the Court in International Paper Company v. U. S. (282 U. S. 399, 407), Congress "proceeded on the footing of a full recognition of (riprarian) rights and of the Government's duty to pay for the taking that it purported to accomplish. * * *" We conclude that whether required to do so or not, Congress elected to recognize any State-created rights and to take them under its power of eminent domain.
How can the State-created rights, created by law, to the jurisdiction of the water in these arid-land States be taken away except by law of Congress? Do I make my point clear?
Mr. RANKIN. Yes. The Gerlock case did not deal with the question of reserved lands.
Senator O'MAHONEY. I am aware of that, of course.
Mr. RANKIN. It is now contended that the United States has not complied with the law of California, although it has built the Central Valley project and spent a good many millions of dollars on it.
Senator O'MAHONEY. Just between you and me, I believe the State of California is estopped in that case from making any claim because it asked for that project itself. That is a different point. I don't want to go into any California controversy with my friend.
Senator WATKINS. Would you yield for a moment on the question of reserved lands?
Senator O'MAHONEY. Yes.
Senator WATKINS. Does counsel believe that forest reserves are reserved lands?
Mr. Rankin. That is quite a complicated problem. The forest lands were reserved very largely by direction of the Congress of the United States.
Senator WATKINS. Then they would be reserved lands.
Mr. RANKIN. In part, Senator. I am sorry not to be able to answer you squarely, because we have had a case involving that question in Utah in which it was contended that certain people got vested rights on some of the Agriculture Department's lands because they made filings, and the United States did not, or at least it did not do so in time.
Senator WATKINS. You are talking about water?
Mr. RANKIN. That is right. We took it to the Supreme Court of Utah, and contended that it was not contemplated by the law of Utah that you would have to file for that type of rights on the forest or grazing lands of the United States. The State supreme court held with us.
Senator O’MAHONEY. I want to point out to Mr. Rankin that my whole point was to try to determine whether you felt that by any implication from any law, from the Constitution or any law passed thereunder, including the laws admitting the States, there is any implication that the Government of the United States can step in and set aside the laws of Congress and by implication acquire water rights which were not granted under any law of Congress?
Mr. RANKIN. The way you phrase the question, I don't see how the answer could be anything but no.
Senator BARRETT. I don't want to get into a long extended discussion about some matters with Mr. Rankin, but I would like to point out some things.
Senator WATKINS. Would the Senator yield to me on the matter of forest lands?
Senator BARRETT. Yes.
Senator WATKINS. What I was trying to find out is whether or not you take the position that the forests are Federal reserves.
Mr. RANKIN. Generally I would have to say they are because they were made in accordance with the direction of the Congress by the various acts.
Senator WATKINS. They would come within the purview of the reserves considered in the Pelton case?
Mr. RANKIN. That is right.
Senator WATKINS. What about the water on those forests? The Federal Government still owns the forests. Does it still own the water?
Mr. RANKIN. If you say the rights to the use of the water, I think that is the holding of the Pelton case.
Senator WATKINS. You mean that the United States still owns them?
Mr. RANKIN. It depends on when the reservation was made and whether anyone acquired rights before.
Senator WATKINS. How could they if it belonged to the United States and the United States had not provided any way for its disposition?
Mr. RANKIN. But it did.
Senator WATKINS. That is what we will get to.
Senator WATKINS. Didn't it give it to the States?
Senator WATKINS. Whom did it give it to?
Mr. RANKIN. It made provision that anyone who would appropriate the water and apply it to beneficial use would have the right to it. That person obtained a vested right which was perfected and valid. There would not be any question about that under the law of the United States or in the Supreme Court or any other place in the United States.
Senator WATKINS. That would include the State of Utah, for instance.
Mr. RANKIN. If the State of Utah appropriated it and applied it to beneficial use, it would have that right if it was done prior to the time that it was drawn back by the United States by the reservation.
Senaor WATKINS. The reservation has been in effect a long time in the State of Utah. Did they draw all the unappropriated water back that fell on those forests? I want to know.
Mr. RANKIN. That is not water law.
Senator WATKINS. I know it is not water law. What you are contending for is something I don't think is water law either.
Mr. RANKIN. Senator, they don't pull the water out of the ocean. I don't claim anything like that.
Senator WATKINS. What I am trying to find out is, if the United States decided on the Provo River and used that water and put in dams, could they have the right to do it?
Mr. RANKIN. It would depend on when the rights on the river below that forest were obtained.
Senator WATKINS. I know, but you said they had a right to pull it back.
Mr. RANKIN. No. I didn't say they could pull back anybody's rights that had matured by their appropriating the water and applying it to beneficial use. If you had half a dozen people down the river that had taken the water and applied it to beneficial use before the reservation, these would be vested rights, protected throughout the country without any question.
Senator WATKINS. Didn't the State of Utah get a vested right in that water by the same means-by the approval of the State constitution?
Mr. RANKIN. No.
Senator WATKINS. It didn't get that?
Mr. RANKINS. No.
Senator WATKINS. Yet the people by complying with State laws get a title to the use of the water.
Mr. RANKIN. They get it from the United States, and they get it by reason of the act of Congress.
Senator WATKINS. From the United States?
Mr. RANKIN. That is right.
Senator WATKINS. The United States gave the State of Utah the right to determine who would have that water and who would not. Mr. RANKIN. I don't think they ever gave the right to the States. Senator WATKINS. What did they give to the State? The State goes ahead and it has its water law, and its water code, and that is as
far as we ever go in the courts in determining who has it and as to what the State has done with it. We have never had to go to the United States to find out whether they approve what the State courts and State legislature have done about water rights.
Mr. RANKIN. The Congress recognized the principle of the appropriation of water.
Senator WATKINS. Didn't it go further than that?
Mr. RANKIN. It made it valid. Anybody that acquired it by reason of that had a valid right. Anybody who acquired it under that got a vested right.
Senator WATKINS. We had a Utah case that was hanging fire for a long time on the Provo River. The United States up to date has not actually admitted in the case. I am referring to one I discussed with you. I don't remember the name now. It is United States v. Provo Bench Canal Company.
Mr. RANKIN. It doesn't involve anything that is in here.
Senator WATKINS. Didn't counsel for the United States insert in that case some paramount right it had?
Mr. RANKIN. No. We asserted in that case that when you divert water, you have the right to change the point of diversion and have the benefit of whatever water you had before as long as you don't injure anyone else on the stream.
Senator WATKINS. You are recognizing State law, then. Was the United States actually in that case?
Mr. RANKIN. The courts have not finally decided.
Senator WATKINS. You contended that the United States was not
Mr. RANKIN. Yes.
Senator WATKINS. All the way through?
Mr. RANKIN. We have to do that because of Congress.
Senator WATKINS. It was an activity begun under the Reclamation Act of 1902.
Mr. RANKIN. That is right. We don't have the right to submit the United States to any court without your permission.
Senator WATKINS. You did have that permission in a rider to the appropriation act a number of years ago.
Mr. RANKIN. The courts have not construed that right.
Senator WATKINS. The courts have not construed it. How did you construe it? You kept yourself out of it. You pretended the act was not in effect.
Mr. RANKIN. The Senator who proposed that bill did not say in proposing it that it should apply to any project that had been authorized. He said this shall apply only to future projects. That is part of your legislative history.
Senator WATKINS. What does the law itself say?
Mr. RANKIN. It says that where you have an adjudication of water rights that you can get jurisdiction of the United States in a certain
Senator WATKINS. That is right.
Mr. RANKIN. And that manner was not complied with in the case either.
Senator WATKINS. I know. Whether it was or was not, you were supposed to be in the case. The United States initiated the applica