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WATER RIGHTS SETTLEMENT ACT

FRIDAY, MARCH 23, 1956

UNITED STATES SENATE,
SUBCOMMITTEE ON IRRIGATION AND RECLAMATION
OF THE COMMITTEE ON INTERIOR AND INSULAR AFFAIRS,

Washington, D.O.
The subcommittee met at 10 a. m., pursuant to recess, in room 324,
Senate Office Building, Hon. Arthur V. Watkins presiding.
Present: Senators Clinton P. Anderson, New Mexico; Joseph C.
O'Mahoney, Wyoming; Eugene D. Millikin, Colorado; Arthur V.
Watkins, Utah.

Present also: Senators Henry Dworshak, Idaho; Frank A. Barrett, Wyoming, and Gordon Allott, Colorado. Senator WATKINS. The subcommittee will come to order. The first witness this morning will be Hon. George Guy, attorney general of Wyoming. Senator BARRETT. Mr. Chairman, let me say I have known George Guy for the past 35 years. He is one of the outstanding lawyers of our State. He is presently the attorney general of our State, and he is doing a splendid job in that high" office. I am delighted that he is here to testify in support of my bill. STATEMENT OF HON. GEORGE GUY, ATTORNEY GENERAL OF THE

STATE OF WYOMING

Mr. Guy. Thank you very much, Senator. Senator WATKINS. The committee will be very happy to have your testimony.

Mr. Guy. Mr. Chairman, I have prepared what seems to be the custom in these matters, a formal statement which I will read.

My name is George F. Guy, and my residence is Cheyenne, Wyo. I am the attorney general of my State.

I have made a study of S. 863, as proposed to be amended and I am appearing here in support of the bill.

Prior to coming to Washington I conferred with our Governor, Milward L. Simpson, and also with State Engineer L. C. Bishop who accompanied me to Washington and who has testified in support of the bill.

I was in Seattle, Wash., in June 1955, attending a meeting of the attorneys general of the 11 Western States when the Felton Dam decision came down from the United States Supreme Court. This decision was received with dismay by the 11 attorneys general present at the meeting. They each represented a State in which the law of appropriation of water had long been an important foundation

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stone of the State's legal and economic system. Each of those States had developed its water on the prior appropriation theory which seems really to have been originated by the early California miners. The practical necessity of this type of law for the arid and semiarid Western States has already been expounded at some length by other witnesses. It needs no amplification from me. It has stood the test of time, necessity, practicability, and judicial review.

Mr. Other witnesses much more competent than I have reviewed the dozen or more congressional acts by which the Federal Congress has recognized State law as applicable in determining the disposition of water rights. This seems to have been the situation for almost 100 years and as far as we in Wyoming are concerned, the Pelton de cision represented to us an abrupt and alarming departure from what has been the law for so long. We read the decision with grave concern and have now in the past year witnessed other manifestations of Federal overriding of States rights in this field which are

ausing us no small amount of apprehension I am thinking particularly of the attitude of the Navy toward the State of Nevada in the Hawthorne case. The full story of the Hawthorne case is well presented for the record in the testimony of Mr. Hugh Shamburger, the State engineer of Nevada.

In Wyoming we have been dealing with the Federal Government on water matters and other matters since the formation of the Wyoming Territory in 1868, and the entry of the State into the Union in 1890

. During this period numerous military establishments were set up and abandoned as the Indian menace subsided and peace came to the frontier. At the present time the last of these pioneer Indian posts is still in use as Warren Air Force Base at Cheyenne and is manned by some ten to fifteen thousand airmen. Just last week I personally participated in a settlement with the Federal Government of an agreement for the use of Natrona County Airport at Casper by the Air Na tional Guard, the agreement including a definite formula for the payment of water used on the airport by the Air National Guard personnel. This agreement was negotiated between the county authorities and the United States Government with the county furnishing the water under State law and without even a thought or question being raised that the United States Government would in any way insist on securing water through some claim of its own separate and apart from the appropriations of water by which the county was securing all the water for the airport; that is, that used by the regular airport operation and also by the Air National Guard units. The completion of the

TE agreement was accomplished without difficulty and without any mention by the Government authorities, or any claim by them, of rights to water.

Senator BARRETT. Will you yield at that point?
Mr. Guy. Yes, sir.

Senator BARRETT. I asked Mr. Bishop if he knew of any case in our State where the Defense Department or any other department of Government had encountered any difficulty with the State in the administration of the acts of Congress, and he said he did not know of any. Do you know of any?

Mr. GUY. The only ones I know of are the ones he did refer to, and I cover that very shortly in the next paragraph of my statement, Senator Barrett. I don't know whether he referred to difficulties, but

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he Production and Marketing Administration have built a lot of stock eservoirs without securing a State permit.

Senator BARRETT. My question is directed to another channel. That is where the agencies did not comply with the State law. I am talking about the Federal agencies having any difficulty with the State in carrying out the desires and wishes and requirements of the Congress.

Mr. Guy. Senator, I think just the opposite has been the case. I was not present, because I was away in the service myself, but the Federal Government took the Split Rock gunnery range, an area of 25 miles by 40 iniles south of Casper by a mere certificate of taking in 19-13.

I will now proceed with my formal statement. Senator BARRETT. Very well. Mír. Guy. State Engineer L. C. Bishop in his testimony on March 19, 1956, to the committee related that a number of stock reservoirs had been constructed by Federal agencies in Wyoming in the past 20 years without compliance with State laws. He stated, however, that the other Federal agencies had all complied with State laws on the matter of securing and using water.

I think he particularly referred to the Reclamation Bureau and the Agriculture Department.

However, on March 17, and just prior to my departure from Wyoming, I received a long distance telephone call from Mr. Don Spiker, a legislator and an attorney at Riverton, Wyo., who represented that as attorney for two Wyoming irrigation districts he was having considerable difficulty with the Bureau of Indian Affairs. At a recent meeting at Riverton representatives from the Billings office of the Bureau of Indian Affairs, including Mr. C. L. Decker and Mr. A. R. Arnston, representing the Indian Bureau, advised Mr. Spiker that the Bureau was not recognizing Wyoming law with respect to water appropriations. Spiker took the position that the McLaughlin Treaty of March 1905, provided that Wyoming State law would govern with respect to the adjudication of water rights for the Indians, but that apparently the Bureau of Indians Affairs is taking a different attitude. This change in attitude has manifested itself since the Pelton decision.

Since coming to Washington I have learned from representatives of other States of similar episodes in their States which indicate this change of attitude on the part of the Federal agencies since the Pelton decision. It would appear that the only remedy for the States in this circumstance would lie in legislative enactment of S. 863.

The contentions of the Western Stttes that State law should apply in the determination of water rights is well founded. I do not propose to speak for States other than my own, but I do know that in several of them constitutional provisions were inserted or there are State statutes which declare the water within those States to be public property. Article 8, section 1 of the Wyoming Constitution reads as follows:

The water of all natural streams, springs, lakes and other collections of water within the boundaries of the State are hereby declared to be the property of the

State.

Other constitutional provisions provide for a board of control and the administration of law of prior appropriation under the general supervision of the State engineer.

Someone may ask the question: "How could the people of Wyoming obtain ownership of the waters within their State by merely declaring by constitutional provision that they own such waters?" "That question was indeed asked and answered in the case of Farm Investment Company v. Carpenter et al. (9 Wyo. 110, 61 Pac. 258), decided May 26, 1900. In that case which was a controversy between claimants to water rights, one of the parties insisted that rights claimed by his opponent, based upon the constitutional provision, was meaningless in that the State “no more than an individual can acquire property by a mere assertion of ownership and that the United States as the primary owner of the soil is also primarily possessed of title to the waters of the streams flowing across public lands."

The Wyoming Supreme Court in denying this contention said as follows:

So far as any proprietary rights of the United States are concerned, the question would seem to be settled in favor of the effectiveness of the declaration by the act of admission, which embraces the following provision, and that the constitution which the people of Wyoming have formed for themselves, be, and the same is hereby, accepted, ratified and confirmed. McCormick v. Telegraph Company (25 C. C. A. 35, 79 Fed 449). In that case the Circuit Court of Appeals for the Eighth Circuit of the United States held that, under a similar provision in the act of Congress admitting Utah, all the provisions of the Utah Constitution were invested with all authority conferred by any act of Congress.

I want to digress at that point, Mr. Chairman, just to emphasize at least the analysis which I feel is a reasonable one, and that is that the court of appeals in the case of your own State of Utah had said that the act of admission ratifies and confirms the Utah constitutional provision, and has the effect legally of so investing it with the power of Congress the same as if it had done so originally itself.

Senator WATKINS. In our constitution it specifically provides that the water is the property of the people.

Mr. Guy. It is similar to ours, except ours said “State" instead of “people”.

Senator WATKINS. I think they can be interchangeable.

Mr. Guy. Yes, sir. I would like to say, too, that the Court of Appeals of the Tenth Circuit in a case which went up from Judge Kennedy's court in Wyoming in 1940, while this precise question was not presented, in that case the court reaffirmed the proposition of the constitutional provision of declaring the waters in Wyoming to be owned by the people.

Now, to get back to the formal statement, the Wyoming Supreme Court decision reasoned that the Federal Government had in effect confirmed the Wyoming Constitution which declared all waters within the State to be the property of the State. The decision further says:

If any consent of the general government was primarily requisite to the inception of the rule of prior appropriation, that consent is to be found in several enactments by Congress, beginning with the act of July 26, 1866, and including the Desert Land Act of March 3, 1877.

The opinion then goes on to review decisions from other States including a considerable dissertation upon the Colorado constitutional provision which is almost identical with the Wyoming provision and including a quote from the Colorado case of Fort Morgan Land and Canal Company v. South Platte Ditch Company (18 Colo. 1, 30 Pac

. 1032). While † do not speak for Colorado it is interesting to see that

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