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A copy of the complete report of the Committee of the National Reclamation Association, from which the attached quotation is taken, was filed in connection with the statement of William E. Welsh, secretary-manager of the National Reclamation Association before the subcommittee on March 23, 1956.


Assistant Attorney General,
Office of Legal Counsel.


Page 11, paragraph numbered 3:

"3. Adjustment of conflict: As interpreted and applied in the New River and the Red River decisions, the power of the Federal Government under the commerce clause transcends the use of water under State laws for reclamation purposes. It follows that the preservation of the integrity of State water laws cannot be accomplished if efforts for that purpose are confined to the insertion in various acts of Congress of a provision requiring that Federal agencies constructing and operating Federal projects shall observe the State laws respecting appropriation, use, and distribution of water. It is evident that the solution lies largely in the integration of the operation of physical facilities and the coordination in an appropriate manner of jurisdictions in a dual form of government. Everything should be done to advance the concept that the control, regulation, and utilization of water in the arid and semiarid West should be in accord with the principle that the highest use shall be for domestic consumption and for growing crops, and that multiple purpose and power projects shall be so designed and operated that the needs of irrigation shall at all times be paramount to hydroelectric water requirements. Further, the imposition of Federal jurisdiction under the commerce clause to maintain navigable capacity and regulate floods in lower reaches of rivers having their sources in the arid and semiarid regions should recognize the desirability of the maximum use of water for irrigation purposes. This same objective should be kept in mind in formulation of plans for basin development and in the authorization of specific projects in order to insure both the recognition of applicable State laws and the appropriate coordination of Federal and State jurisdictions over the waters involved in such plans or projects. This purpose can also be served through water compact adjustments and the activities of basin States' committees. (R. pp. 127-130, R. pp. 111-112, R. pp. 130–132)." (Emphasis supplied.)

Senator BARRETT. Does that conclude your testimony?

Mr. RANKIN. That is all I have.

Miss N. D. McSHERRY,
Assistant Chief Clerk,

Senator BARRETT. Thank you very much, Mr. Rankin. It may be that we may call you back here at a later date to discuss some of these points. I suppose you will be available.

Mr. RANKIN. Any time I can be of help.
Senator BARRETT. Thank you very much.
Mr. RANKIN. Thank you, sir.

Senator BARRETT. The appendix to the report of Department of Justice will be inserted in the record.

(The document referred to is as follows:)


Washington, March 26, 1956.

Committee on Interior and Insular Affairs,
United States Senate, Washington, D. C.

DEAR MISS MCSHERRY: Herewith is the appendix to the report of the Department of Justice on the proposed amendment to S. 863 which was inserted in the record at the close of Mr. Rankin's testimony on March 22.

The corrections which it was desired to make have been made and this copy should be inserted in the record in place of the copy which was removed. Sincerely,

DAVID R. WARNER, Chief, Water Resources section.


PROPOSED AMENDMENT TO S. 863 This appendix to the designated report is furnished for the purpose of listing the authorities relied on in preparation of the report. In some instances, additional explanation of the points made in the report is also given.

To facilitate comparison of the listing of authorities with the report, the several statements supported by the authorities listed are referred to by page number and paragraph, and are quoted. The supporting authorities are re ferred to under the several quotations. Page 4, second paragraph

"* * * Use for a beneficial purpose is a prerequisite to acquisition of a water right in those States following the system of prior appropriation. * * *"

Arizona v. California (283 U. S. 423, 459 (1930)). Page 4, second paragraph

“* * * By definition what constitutes a beneficial purpose in a particular State would depend upon the law of that State. Many Federal uses are not recognized as being for beneficial purposes under present laws of all the Western States and many are not so recognized under present laws of any of those States. In this category are navigation, recreation purposes, conservation of fish and wildlife, maintenance of national parks, monuments and scenic attractions, military purposes, and others."

See constitutional provisions and statutes of the several States. Page 4, second paragraph

"* * * It could be argued that Federal law recognizing the validity of such purposes in the field of Federal activity would have to be accepted as part of the State law relating to the control, appropriation, use, or distribution of water."

Article VI, clause 2, Constitution of the United States :

“This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, any thing in the Constitution or laws of any State to the contrary notwithstanding." Page 4, second paragraph

“Past experience indicates that this view would not be willingly accepted. * * *"

Illustrative of this experience is every litigated case in which a right to the use of water not based upon State law has been asserted by the United States against a right claimed under State law. The number of such cases is large. A very few of them by name are:

Winters v. United States (207 U. S. 564 (1907)).
Federal Power Commission v. Oregon (349 U. S. 435 (1955)).

Elephant Butte Irrigation District V. Gatlin (Supreme Court of New
Mexico, decision February 1956. Not yet reported).
Page 5, second paragraph

“* * * reference is also made to the impracticability in numerous other situations of acquiring all necessary water rights in conformity with State law prior to proceeding with Federal projects. * * *"

For example, it is generally required under the laws of the Western States that before an appropriative right to the use of water can be finally established, there must be an actual application to beneficial use. In one recent case, prelim. inary filings were made under State law before proceeding with a Federal project. After completion of the project at a cost of over $1 million in Federal funds, it was contended the law of the State had not been complied with and that the United States had acquired no rights. Although after litigation that case has been decided favorably to the United States (Elephant Butte Irrigation District

v. Gatlin, supra), a contrary result would have meant a very substantial loss to the Government.

Page 5, second paragraph

**** it is suggested that the infeasibility of turning over to authority other than the executive branch of the Federal Government the control of projects built at a cost of hundreds of millions of dollars contributed by the taxpayers of the entire Nation requires no further comment."

Illustrative here is the Colorado-Big Thompson project. Operating in 20 water districts in Colorado, each subject under the laws of that State to the jurisdiction of a different State court, and using the water from many streams, that project serves 615,000 acres on the Atlantic slope of the Rocky Mountains while benefiting the western slope of those mountains from Grand Lake to the point where the Colorado River enters Utah. The will of the Congress in providing for that project could have been defeated by an attempt to comply with State laws which were neither conceived nor enacted in contemplation of a single project of that character.

Page 6, first paragraph

"*** Although this Department would vigorously resist in behalf of the United States such a contention, and there is doubt as to the constitutionality of the law so constructed, **""

Mississippi v. Johnson (71 U. S. 475 (1866)).

Page 6, first paragraph

"The net result of a waiver of immunity from suit such as is here presented could be an abdication by the Congress to the judiciary of those powers relating to water resources which are delegated by the Constitution to the Congress and which that body has in the past jealously guarded."

United States v. Ide, 263 U. S. 497 (1931), affirming 277 Fed. 373.

Page 6, third paragraph

"*** In several of the affected States, the common law doctrine of riparian rights is recognized in varying degrees."

These States are: California, Kansas, Nebraska, North Dakota, Oklahoma, Oregon, South Dakota, and Texas.

Page 6, third paragraph

"*** Is not the congressional purpose to make the law of prior appropriation exclusively applicable in all these States, without regard to riparian rights, an invasion of the reserved power of the States to control the non-Federal ownership and use of rights to the use of waters within their respective jurisdictions?

* * * ""

In California, for example, express constitutional and statutory provisions recognize riparian rights and secure them against encroachment by appropriators. In Deering's California Codes, water, section 1201, it is declared that: "All water flowing in any natural channel, excepting so far as it has been or is being applied to useful and beneficial purposes upon, or insofar as it is or may be reasonably needed for useful and beneficial purposes upon lands riparian thereto, or otherwise appropriated," is subject to appropriation. [Emphasis supplied.] To similar effect are the constitution of the State of California, article XIV, section 3, and Deering's California Codes, water, section 101.

See California-Oregon Power Co. v. Portland Cement Co. (295 U. S. 142 (1930)). Page 6, last paragraph and first 2 lines on page 7

"Another question *** is whether the Congress has the power, in the face of the commerce clause of the Constitution of the United States, to reserve for appropriation under State law all navigable waters in the western two-thirds of the Nation."

See Rio Grande Irrigation District v. United States (174 U. S. 690 (1899)). In this same connection, it would appear clear that the Constitution prohibits a requirement that the powers of the National Government with respect to navigation shall not be exercised until, as a condition precedent, a right to do so shall first be acquired "in conformity with State laws and procedures relating to the control, appropriation, use or distribution of such water” (sec. 6 of the proposed bill).

See First Iowa Coop. v. Federal Power Commission (328 U. S. 152 (1945)).


Page 7, second paragraph

"* * * It is further noted that these provisions would in effect delegate to State control those rights to the use of water which under existing law are property rights owned by the United States of America."

Federal Power Commission v. Oregon (349 U. S. 435 (1955)). Page 7, second paragraph

"** * * It is believed that such delegation by the Congress to the States *** would be in contravention of article I, section 3, clause 2 of the Constitution of the United States. * * *"

That Congress may not abdicate to the States its constitutional power to "make all needful rules and regulations respecting the * * * property belonging to the United States” is a well established proposition of law. Cooley states: "One of the settled maxims in constitutional law is, that the power conferred upon the legislature to make laws cannot be delegated by that department to any other body or authority.' (1 Cooley's Constitutonal Limitations, 8th ed., p. 224.) It has likewise been authoritatively declared. “It is a cardinal principle of our fundamental law, inherent in our constitutional separation of the Gorernment into three departments and the assignment of the lawmaking function exclusively to the legislative department, that the legislature cannot abdicate its power to any other department or body" (79 L. ed. 476).

In reiterating the principles set forth in regard to the abdication by Congress of the powers conferred upon it, the Highest Court, in a famous case, made these comments: "Instances are cited in which Congress has availed itself of such assistance [an establishment of rules and regulations by interested parties); as e. g., in the exercise of its authority over the public domain, with respect to the recognition of local customs or rules of miners as to mining claims, or, in matters of a more or less technical nature, as in designating the standard height of drawbars.” The Court then presented this question : “But would it be seriously contended that Congress could delegate its legislative authority to trade or industrial associations or groups so as to empower them to enact the laws they deem to be wise and beneficent for the rehabilitation and expansion of their trade or industries?" Responding to that question, the Court emphatically declared: "The answer is obvious. Such a delegation of legislative power is unknown to our law and is utterly inconsistent with the constitutional prerogatives and duties of Congress.” (Schechter Corp. v. United States, 295 U. S. 495, 537 (1934).) Earlier the Court had stated: “That Congress cannot delegate legislative power to the President is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution” (Field v. Clark, 143 U. S. 649, 692 (1891)).

Having outlined the fundamental purpose to be accomplished by legislation, the Congress may permit minor and subordinate regulations to be prescribed bị another body. (Butte City Water Company v. Baker, 196 U. S. 119, 126 (1905).) However, where “[Congress] sought to authorize and sanction action by the States in prescribing and enforcing, as to all parties concerned, rights, obligations, liabilities and remedies designed to provide compensation for injuries suffered by employees engaged in maritime work," the Court declared with infinite clarity: “* * * we think the enactment is beyond the power of Congress. The subject was intrusted to it to be dealt with according to its discretion not for delegation to others. * * * Congress cannot transfer its legislative power to the Statesby nature this is nondelegable" (Knickerbocker Ice Co. F. Stewart, 253 U. S. 149, 163, 164 (1919)). (Emphasis supplied.) Page 7, second paragraph

"But in addition, the Congress is prohibited from assuming to itself executive functions."

In two closely related decisions in point of time, the Highest Court reviewed the nature of the power to “legislate” as it relates to the power to "execute" (Myers v. United States, 272 U. S. 52 (1926); Springer v. Philippine Islands, 277 U. S. 189 (1927)). In the latter case, the Supreme Court held unconstitutional acts of the Philippine Legislature which undertook to authorize a committee established by that body to vote stock of the Philippine Government. Pointing out that the organization of the then Government of the Philippines was identical with that of our Government from the standpoint of separation of powers, Jus: tice Sutherland for the Court, declared: “It may be stated, * * * as a general rule inherent in the American constitutional system, that, unless otherwise provided * * * the legislature cannot exercise either executive or -Judicial power ;

* * *

* *

"Legislative power, as disinguished from executive power, is the authority to make laws, but not to enforce them or appoint the agents charged with the duty of such enforcement. The latter are executive functions” (Springer v. Philippine Islands, 277 U. S. 189, 201, 202 (1927)). [Emphasis supplied.]

Continuing, the Court then made this significant statement bearing upon the constitutionality of the proposed transfer of the power of the President to administer those rights to the use of water which are owned by the National Government: "*** The property is owned by the Government * * * There is nothing * * * in the nature of the legislative power * * * to suggest that the legislature in acting in respect of the proprietary rights of the Government may disregard the limitation that it must exercise legislative and not executive functions. It must deal with the property of the Government by making rules, and not by executing them. The appointment of managers ** * of property * * * is essentially an executive act which the legislature is without capacity to perform directly or through any of its members.” (Springer v. Philippine Islands, 277 U. S. 189, 203 (1927)). Page 7, second paragraph

* To bestow upon the States the powers of the President to take care that the laws' relating to rights to the use of water are faithfully executed is contrary to the proposition that Congress can neither delegate its own powers nor enlarge those of a State."

In re Rahrer (140 U. S. 545, 560 (1890)). Page 7, third paragraph

"A conflict between the purpose of the proposed legislation to make State laws relating to the use of water superior to all Federal law in that field and the provisions of article VI, clause 2 of the Constitution is also suggested.” Article VI, clause 2 of the Constitution is quoted supra, at page 2.

By the provisions of the proposed bill, particularly of section 6, it appears that there would be accorded to the administrative agencies of the States not only the power to manage the properties of the United States, but also an authority to veto the will of Congress as reflected by numerous laws concerning the use of water by the National Government. To enlarge the powers of the States in that manner would appear contrary to the provision last above quoted of the Constitution. In First Iowa Coop. v. Federal Power Commission (328 U. S. 152, 171 (1945)), the Supreme Court declared: “We find that when that [Congressional] Act is read in the light of its long and colorful legislative history, it discloses both a vigorous determination of Congress to make progress with the development of the long idle water power resources of the National and a determination to avoid unconstitutional invasion of the jurisdiction of the States. The solution reached is to apply the principle of the division of constitutional powers between the State and Federal Governments. This has resulted in a dual system involving the close integration of these powers rather than a dual system of futile duplication of two authorities over the same subject matter.

"The act leaves to the States their traditional jurisdiction subject to the admittedly superior right of the Federal Government, through Congress, to regulate interstate and foreign commerce, administer the public lands and reservations of the United States and, in certain cases, exercise authority under the treaties of the United States * * *” [Emphasis supplied.]

In Federal Power Commission v. Oregon, supra, the Supreme Court, declaring that the State law would be inoperative when it conflicted with a valid act of Congress, stated : "To allow Oregon to veto such use, by requiring the State's additional permission, would result in the very duplication of regulatory control precluded by the First Iowa decision.”

In both the First Iowa case and in Federal Power Commission V. Oregon, there was presented the question whether the States would deny the power of the Federal Government to carry out its constitutional functions. It was held they could not do so. It would seem to follow that the Congress may not empower them to do so.

Senator BARRETT. The subcommittee will stand adjourned until 10 o'clock in the morning.

I think the first witness will be Mr. Guy.
It will be in room 224.

(Whereupon, at 5:10 p. m., the hearing was recessed until 10 a. m., Friday, March 23, 1956.)

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