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the Wyoming Supreme Court decision which affirms the ownership of waters within my State by the State refers to a similar Colorado constitutional provision and the interpretations of that provision by the Colorado Supreme Court.
The reason for dwelling at some length on the question of actual ownership of the waters within Wyoming is to point out the practicality of administering those waters under State law. There is no machinery within the Federal administration for the administering of public waters similar to the boards of control, water commissions and so forth prevalent in the various Western States. If the tendency manifested by the Felton decision is to be carried to its ultimate conclusion, it would appear that the Federal Government takes the position that it, and not the various States, owns the waters or at least the unappropriated waters within those States. We do not believe this to be the case and we certainly believe that it should not be the case, and are appearing here in support of S. 863 for that reason, and if for no other, that administration by the State agencies of public water will be administration of property owned by the State.
I have read the statement of the Department of Justice made March 19, 1956, and signed by Mr. William P. Rogers, Deputy Attorney General, addressed to Senator James E. Murray, as chairman of the Committee on Interior and Insular Affairs. That statement is seven pages of single spaced typewritten material and time will not permit any extensive study of the arguments made in that statement. However, Mr. Hatfield Chilson, special assistant to the attorney general of Colorado, has made quite a study of this statement and I have discussed the matter with him. He will testify in some detail concerning the reactions of the States to the argument of constitutionality advanced by the Department of Justice. It will suffice for me to say this time that I concur in Mr. Chilson's statement and that we must respectfully disagree with the Justice Department in its contentions that S. 863 is unconstitutional.
Speaking for the State of Wyoming I urge that the committee report favorably on S. 863.
Mr. Chairman, if I may add apart from the formal statement, I was present during the testimony of Mr. Rankin yesterday, and as I get the Government's position, it is that it is unconstitutional for the Government to delegate to any State authorities the operation of any Federal project or Federal operation of any kind. It seems to me that all this bill does is simply say to the Federal agencies if you want the water rights, you come in and stand in line, and file for them, and prove them like anybody else does.
I fail to see where we would be delegating the control and operation of any Federal agency to a State functionary.
Senator WATKINS. It seemed to me from the reading of the Pelton case that since that was not a navigable stream, the sole ground on which they decided that was on the so-called property provisions of the Constitution. Mr. Guy. That is right. It was all Federal property.
Senator WATKINS. Under the rulings there the Congress can do pretty much what it wants to with the property of the United States.
In all the areas where we have streams that are not navigable, those
streams do not come under the commerce clause. I don't see how they can bring them under the commerce clause.
The Congress can act in those fields. It is not unconstitutional. It seems to me that is the logical conclusion from the testimony yesterday. I do not see the basis for holding in a State like my State, where there are no navigable streams.
Seantor BARRETT. Mr. Chairman, there is just one point that I would like to mention here at this time since you again referred to the Pelton case. You asked the question yesterday about the matter of forest reserves, and whether forest reserves were reservations within the scope of the Pelton decision. I think that Mr. Chilson will testify later on today, and I hope you will ask him with reference to the definition of the reserved lands under the Federal Power Act. I am sure that it is very specific and the court refers to the definition in the decision itself. It does include national forests.
Senator WATKINS. I would think so because it said all the lands were open to the public for disposal and the rest of them were reserved lands. I don't see how there is any escape.
Senator BARRETT. I don't either. I want to congratulate our at. torney general, George Guy, for a very splendid statement here. I appreciate your coming down to Washington to help on this matter. Mr. Guy. Thank you very much.
Senator WATKINS. I join with the Senator from Wyoming in that commendation.
Mr. Guy. Thank you. Governor Simpson was appreciative of the opportunity for Wyoming to be represented.
Senator WATKINS. Mr. Byron Wilson has a very short statement, and would like to be heard at this time as a matter of convenience.
STATEMENT OF J. BYRON WILSON, CHAIRMAN, WYOMING
NATURAL RESOURCES BOARD
Mr. Wilson. Mr. Chairman and gentlemen of the committee, my name is J. B. Wilson, resident of McKinney, Wyo. I am president of the Wyoming Natural Resources Board for whom I am appearing today in this hearing. I am not an engineer nor am I an attorney, but representing the Natural Resources Board of Wyoming, as I do, we unqualifiedly endorse S. 863, and hope that it will speedily pass Congress.
Until this decision which has been referred to so frequently in these hearings—and I have attended practically all of these hearingswe felt secure in the ownership of our water. I farm considerable land under irrigation which we developed—my father before me, and since then I have developed some of it—and we have felt secure as referred to by Attorney General George Guy in the act of admission of the State of Wyoming. We assumed that the Federal Government recognized that.
We also assumed as has been frequently pointed out that the Federal Government recognized the State ownership and control of the water in a number of acts, including the Desert Land Act. I perhaps am the only witness who has proven up on a desert-land entry, and I am still irrigating the land. It cost a good deal of money.
Senator WATKINS. You are one of the rare individuals in the United States who actually made a go of it.
Mr. Wilson. May I say, Senator, it is only because it is a part of another property. That is the only way we could acquire title. That cost really more than it was worth at the time.
There is one matter that has been referred to this morning by Senator Barrett, and was referred to by Senator O’Mahoney a day or two ago, and that is the matter of the Government ownership of land. We have always maintained that the Government ownership of these lands was a sort of trust arrangement. They were holding these lands until such time as Congress directed their disposition. We don't regard the Federal ownership of lands as seriously as do some of the others, because we have been assured by Congress in the past—and that is written into the Taylor Act as I am sure the Senator will recall—until otherwise disposed of. They are merely holding these lands in trust.
Senator BARRETT. Will you yield to me there?
Senator BARRETT. I think the language in the Taylor Act is just a bit stronger. I think it says until final disposition is made, which indicates that the Congress was reaffirming its historic position that it would dispossess itself of the title to the public domain, certainly as to the land embraced within the Taylor law.
Mr. Wilson. Senator Barrett, that may be the implication but I have discovered that whenever a Government bureaucracy gets hold of anything, even Congress has a difficult time in shaking them loose.
Senator BARRETT. We think that in the Desert Land Act of 1877 the Congress divided the land from the water and gave the States control over the water. We thought we had jurisdiction over the water since then. Maybe we don't even have that now. get it you can't be too sure you have it; isn't that right?
Mr. Wilson. That is true. I was amazed, as a matter of fact, when you first spoke to our board about this decision in the Pelton case. We didn't realize the serious implications. To me, representing the State that I do in the West, this is the most important bill before Congress. It has far-reaching implications. I happen to be 72 years old. It is going to be pretty difficult for me to adjust myself to the thinking that the State does not control waters when 'what little property I have is built upon that theory. I have water rights that go back to 1886 when the State was a territory. Apparently if we are to believe the Assistant Attorney General, and follow the doctrine of the Pelton case, I don't have any rights.
So I regard this legislation as being the most important bill before Congress. With all due respect to the present chairman of the committee, I think it is even more important than the Colorado River case, and we did support that. But it is more important to us, although we did support the Colorado River bill, as the Senator well knows.
I realize that the committee is pressed for time and anything that I might say would be largely repetitive. I want to endorse the opening statement made by Senator Barrett, the statement made by our distinguished Attorney General, and urge Congress to take as speedy action as possible in enacting this bill to prevent and settle this question and prevent the uncertainty that now exists. Our development
in the West as far as irrigation is concerned is going to stop until this matter is settled.
Of course, Congress is our court of last resort. We find the various executive departments making decisions that we do not particularly care for, and we have no resort except Congress. We have confidence in Congress, and that confidence up to date has not been misplaced. I am particularly happy that on this committee--and I have attended practically all of the hearings on this bill—there are so many members that are thoroughly familiar with the situation in the West, and I am hoping that we will get favorable action from this committee.
I thank the committee for their attention.
Senator WATKINS. If you cannot get action in this committee, I do not know how we could get a committee that would act on it.
Mr. Wilson. I agree with the Senator, and I am very happy about that.
Senator BARRETT. Mr. Chairman, when Mr. Wilson took the stand, I was called to the telephone otherwise I would have then said to the committee that Mr. Wilson is one of the most prominent citizens of our State. He is presently the president of the natural resources board which is one of the important boards in our State, and by the way that board has jurisdiction over water matters. He has served on the board now for nearly 6 years. He has rendered great service to the State of Wyoming. As he has testified, he is a farmer who takes water out of the Platte River by reason of territorial water rights, and farms a rather extensive acreage rather than a small acreage as he testifed to, and rather successfully, I may say. We value his judgment in our State very highly. I am very happy that he could be here and testify on this matter.
Mr. Wilson. Thank you very much, Senator Barrett. May we say that we are also proud of the work that Senator Barrett has done and is doing for the State of Wyoming.
Senator WATKINS. I would like to join in that, too. Thank you
STATEMENT OF NORTHCUTT ELY, SPECIAL COUNSEL FOR THE
STATE OF CALIFORNIA
Mr. Ely. Mr. Chairman, I think it would be helpful if Mr. Banks accompanied me to the table.
Senator WATKINS. Very well.
Mr. Ely. My name is Northcutt Ely. I am a lawyer in general practice with offices in Washington, and appear here today as special counsel to the division of water resources of the State of California, of which Mr. Banks, the State engineer, is the chief, and as special assistant attorney general of the State of California in charge of the case of Arizona v. California, now pending in the United States Supreme Court under the direction of Attorney General Brown.
I am speaking without a prepared statement, and there has consequently been no opportunity for review by any of these officials of what I have to say here. I believe that what I am saying is in accord with what we have pleaded in the United States Supreme Court case.
First, I should say that as a lawyer and as a citizen I am in accord with the objectives of S. 863. I am not impressed by some of the legal objections which have been raised to it. During a later part of my testimony I shall try to comment upon some of those. I shall take the liberty, if I may, of submitting some specific amendments which I think would help to carry out the purposes of the bill.
During the course of my testimony, I shall have occasion to refer to certain provisions of the Federal Constitution and to make your. references Clear, I shall ask to have them included in the record at this point, if I may. Senator WATKINS. Very well. (The information is as follows:)
CONSTITUTION OF THE UNITED STATES
Art. I, Sec. 8 (Commerce Clause) : “The Congress shall have Power * ** To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Art. I, Sec. 10 (Compact Clause):
"No State shall, without the consent of Congress * * * enter into any Agreement or Compact with another State, or with a foreign Power * * *." Art. IV, Sec. 3 (Property Clause):
"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;" Art. VI (Supremacy Clause): "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 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."
Mr. ELY. I shall also have occasion to refer to the Federal statutes giving recognition to the State system of water rights. I have identified 16 of them, and I have no doubt there are more.
I think it might be useful if there were placed in the record the extracts from those statutes, if I may.
Senator WATKINS. At this point in the record ? Mr. Ely. If you please. Senator WATKINS. The provisions of Federal statutes in recognition of State law as governing water rights presented by Mr. Ely will be now placed in the record at this point.
(The information is as follows:)
PROVISIONS OF FEDERAL STATUTES IN RECOGNITION OF STATE LAW AS GOVERNING
1. The act of July 26, 1866 (14 Stat. 253):
"Whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right-of-way for the construction of ditches and canals for the purposes herein specified is acknowledged and confirmed; but whenever any person, in the construction of any ditch or canal, injuries or damages the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or damage. R. S. & 2339” (30 U. S. C. A. 8 51).
2. The act of July 9, 1870 (16 Stat. 218):
"Whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the