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Senator BARRETT. I am glad you called attention to it. It may be we can protect the Indians by providing in section 9 that there is no intention to impair any of their existing rights.
Mr. RANKIN. If you are going to do that, you certainly want to do it in such a way that you do not destroy the whole effect of the rest of what you are attempting to do.
I think the history shows that striking out “under State law” would make it very clear to the courts that were interpreting it that you do not have to be under State law in order to have existing rights.
The Pelton Dam case defines what existing rights the United States has in certain areas. At least, I would like to call your attention to the problem.
Senator BARRETT. I see your point.
Senator BARRETT. It may be that we could take care of the Indians some other way and do it better than doing it that way.
any rate, we want to make clear that we intend to protect the Indian rights there and we are not disposed to interfere with them.
You say while the language does do it, you say it may do violence to our theories otherwise?
Mr. RANKIN. That is right.
I do think you have a problem, if this does affect present projects and if you are trying to take care of that I do not want to go into that extensively, with regard to present projects you have the problem of overappropriation that I think you will want to keep in mind. do not give some protection then it might be assumed that the Gov. ernment could rush out and file and save itself. That cannot happen if you have overappropriated streams because those appropriation filings are going to get in ahead of anything we can do to save these projects. I think you have to keep that in mind. At least, we are disturbed about it if it is not properly protected.
Senator BARRETT. On that point, if the rights are valid and existing at that time, and vested, is there any reason why they should not acquire them by negotiation or condemnation?
Mr. RANKIN. They would not be vested but they would have a filing in, so if they could beat us to getting use of the water they would.
Senator BARRETT. It is overappropriated but they have not made beneficial use.
Mr. RANKIN. They could not because of the overappropriation. But they might try, then, to say, “we want something out of your dam and we got here first.”
Senator BARRETT. I see your point.
Another problem is the national parks. You tried to make a provision for national parks and monuments to take care of that. But you have not provided any protection for future development of national parks that might affect downstream appropriators. Maybe you would rather that just be handled by condemnation.
Senator BARRETT. How would you suggest we change that, if you do suggest a change? Where is that?
Mr. RANKIN. That is on page 6, the first 4 lines. It is a legislative policy question as to what you want to do, but I assume that the Government has from time to time over the years extended its
use of the waters within the parks beyond what it was in the early period and it might have thereby infringed upon what people downstream had been used to using in the way of water. As this country grows larger, you may find many more people using the parks and much greater demands for water for domestic and other purposes to develop them, as the country does do that. Whether you want to go out and buy the rights or whether you want to reserve them and protect them, is a problem that I think should be considered in this. Senator BARRETT. Are there any national parks where they have not already filed for necessary rights pursuant to State laws, that you know of?
Mr. RANKIN. For present uses, I do not know. I assume they have. I am thinking of the additional uses that would be protected under reservations that would not be protected under the theory of this bill. Senator BARRETT. The Pelton case did not apply to national parks. That applied to reservations other than national parks.
Mr. RANKIN. No; it was all reservations.
Senator BARRETT. We had a statute on national parks at that time but we had none as to other reservations. This is the court legislating in the Pelton case, is it not? You have to draw the distinction between the reservations that the Congress made as far as national parks are concerned and the fact that the Pelton decision said that the Desert Lands Act apparently covered the waterfront; in fact it did not. It only covered the public domain less the reserved lands in the public domain.
Mr. RANKIN. The same thing would be true with Yellowstone and the other parks. They were at one time a part of the public domain. They were just created by the President, which the Supreme Court has approved, or by direction of Congress or authorization and the President acting under that authorization.
Senator BARRETT. I think it was an act of Congress in 1872 that Yellowstone was created, before we were a State.
Mr. RANKIN. I am not sure but you would want to check that question, I would think.
Senator BARRETT. I see your point.
Mr. RANKIN. I do want to raise with you the question about the lines from No. 4 on page 5 down through 10. Assuming that you do not change the character of the right to use the water as being that of the United States--that is, if it continues to be a property right of the United States in accordance with the Pelton decision-I do not think that would be a valid provision. I do not think that could be made under the Constitution.
Senator BARRETT. You say that the Congress had no power or authority to say this is the way we want this property handled?
Mr. RANKIN. I do not think the Congress can properly say, under the Constitution, that here is a piece of Federal property that belongs to the United States Government and the United States executive branch cannot use that property except by subordinating itself to the States.
Senator BARRETT. In other words, what you are saying is that the property clause does not give plenary power to the Congress to do what it desires to do with the property of the United States?
Mr. RANKIN. Not if it wants to subordinate the Federal Government to the States under the Constitution.
I think you can change that by amending the Constitution.
Senator BARRETT. Under the Constitution, the Congress does not have plenary power to do as it so desires with the property of the United States ?
Mr. RANKIN. Not to that extent, it does not. I think you could say that certain property shall not be used, if you wish to do that, but you could not say that the only way you can use this property is if you make yourself subject to the State's control.
Senator BARRETT. It follows then, of course, that section 8 of the Reclamation Act is an unconstitutional grant of authority to the States.
Mr. RANKIN. The courts have never interpreted it so.
Senator BARRETT. I am not asserting that it is because I contend to the contrary. I do not think the courts have ever held that it is. But that is according to your philosophy.
Mr. RANKIN. I do not consider it a grant to the States at all.
Mr. RANKIN. I think it is a direction by the Congress to the Secretary of the Interior to try to comply as best he can with the laws of the States in accordance with the Federal laws and the Federal Constitution and the State laws.
Senator BARRETT. Has the court at any time said that section 8 is unconstitutional?
Mr. RANKIN. No. Not that I know of. Senator BARRETT. It never has said that? Mr. RANKIN. No. Senator BARRETT. It has upheld it several times. Mr. RANKIN. Not in the way you speak of it, as a grant. Senator BARRETT. It had before, and it could have readily said, “Throw this provision out the window.” They were discussing section 8.
Mr. RANKIN. It never does that. As you know the court always limits itself to the smallest constitutional area it can to decide the problem.
Senator BARRETT. Undoubtedly it does. It had section 8 and that is a pretty small section, as far as sections go. They were considering three sentences. If the court saw fit they could have decided the issue by saying this section is unconstitutional.
Mr. RANKIN. If they can decide the same issue by saying that someone has already done something so it is not necessary to decide this, they always do. Senator BARRETT. Yes,
I think that is the policy that they follow. Mr. RANKIN. I thing I have already called to your attention the problem involved in having to acquire these rights in advance of any project.
I want to call your attention to how serious that is in the history of the projects and also the effect that it might have on any development that you might undertake in the future. I also want to call your attention to section 7 and the much greater difficulties that would be imposed upon the Government to try to ever get any project into effect in the West where you make the provision for litigation and the possibility of it, including the claim that there be a right to an injunction because of unlawful acts in that section. I seriously doubt whether we
would have any projects built over a long period of years with that provision.
Senator BARRETT. If we would take section 7 out it would not change existing law; would it?
Mr. RANKIN. Yes, because you there consent to joining the United States to many controversies that you have never consented to before. Senator BARRETT. Which language goes further than existing law there?
Mr. RANKIN. We call special attention in our letter, on page 6, to the changes.
Senator BARRETT. I think you did.
Mr. RANKIN. I think you would tie the hands of the governmental agencies so that until the lawyers got out, which might be years, they would not move a wheel.
Senator BARRETT. You would prefer to leave the law as it stands at the present time?
Mr. RANKIN. Yes.
Senator BARRETT. You do not like it, but you would take that in preference to this. Is that the idea?
Mr. RANKIN. Very much so. I think it is a great mistake, Senator, to injure the development of the West. I know you do not plan to or intend to.
Senator BARRETT. That is why we hope you will change your attitude down in the Justice Department. That is precisely what all this argument is about.
Mr. RANKIN. I think if you provide as you do in this legislation for nothing to go forward on these projects until these rights are acquired, until the litigation would become final, and we could determine that we really had the rights, that would do great damage.
Senator BARRETT. Is that not a matter of administration, Mr. Rankin? You can protect yourself on those things. Of course, we want you to protect the United States and the Treasury of the United States. I think that is a matter that is peculiarly one for the administrative people to work out. I am sure the Congress has that in mind, that they will do that very thing.
Mr. RANKIN. I don't think you would give us a chance to work it out under this legislation with those provisions. Under the present law, the Government can go out, and it can take land, and it can take water rights that are vested and develop a project, and the Constitution requires that there be full and just compensation. So the people are taken care of. It may take some time under the provisions Congress has made for it, but they are fully compensated for it. The project goes ahead. This would reverse the process, so we could not do those things.
Senator BARRETT. In what respect?
Mr. RANKIN. You have to have the water rights, and you have to have them established. You can't just go out and make a filing.
Senator BARRETT. You have to comply with State law, but everybody else has to do the same thing. You have to file your application first. Then you have to apply the water to the land and make beneficial use of it before it ripens into a right. You do not mean to say that you have to change that procedure, do you?
Mr. RANKIN. What if the United States does not do that by inadvertence—we have had cases like that—the law at the present time is that we have to compensate.
Senator BARRETT. And that is the way it should be.
Mr. RANKIN. But we can go ahead and build. That is exactly what Central Valley is. The litigation has gone on 16 years.
Senator BARRETT. And in the meantime you have built.
Senator BARRETT. Do you have anything else, Mr. Rankin, that you would like to call to the attention of the committee?
I think you have included your citations in your report; have you not?
Mr. RANKIN. Generally, and I have a list of authorities that I am going to give you that relate to the report.
Senator BARRETT. Do you have several copies of those citations! Mr. RANKIN. Yes, sir; I will furnish you a group of them.
There is only one other thing I wanted to call attention to. As you know, this matter has been in controversy for many years and the National Reclamation Association's report of October 1943—
Senator BARRETT. Is that the Denver meeting!
Mr. RANKIN. Yes. That raises a question of whether or not this should be handled in this manner.
I would like to call to your attention, and have it put in the record. as to the particular paragraph.
Senator BARRETT. Is it part of the recommendations?
Senator BARRETT. One of the witnesses is going to put all of the recommendations in.
Which one did you want to call attention to specifically and then we will relate it to the recommendations when all of them go in later. If you prefer now to have it at this time, there is no objection to doing that.
Mr. RANKIN. I would like to put it in at this point.
Mr. RANKIN. I will have to give it to you in the morning. I will have to check it.
Senator BARRETT. It may be included in the record at this point. We will duplicate it later. (The information referred to is as follows:)
DEPARTMENT OF JUSTICE,
Washington, March 26, 1956. Hon. CLINTON P. ANDERSON,
Chairman, Subcommittee on Irrigation and Reclamation, Senate Com
mittee on Interior and Insular Affairs, United States Senate, Wash
ington, D. C. MY DEAR MR. CHAIRMAN : In my testimony on March 22. 1956, before your subcommittee in the hearings on S. 863, 84th Congress, 1st session, and the amendment thereto proposed by Senator Barrett, I suggested that the method proposed by this legislation is not the right way to solve the problems at which the legislation is directed. In paragraph No. 3, on page 11, of a report dated October 1943, of a committee of the National Reclamation Association, entitled “Preservation of Integrity of State Water Laws," appear statements which clearly support this view. Attached hereto is a copy of the section of the report referred to.
It is respectfully requested that this letter and the attachment be inserted in the record of the proceedings before the subcommittee.