Senator WATKINS. While we are on this question of whether the United States should be joined in a suit or not, do you not think in view of what was stated yesterday by the Assistant Attorney General with reference to the rider in the appropriations act, that we ought to work on that as well to make sure that when we come to adjudicating water rights in a State where the Federal Government has some interest, probably as a trustee for water users, immunity ought to be waived there? There would be no question of making the United States parties to that suit.

Mr. ELY. I agree there may be a question on removal in the Federal court, but there is no advantage to anyone so far as I can see in avoiding the determination of controversy. If we can't agree on them, that is what courthouses are for, to get them over with and behind you. The sovereign immunity is a blockade to the very issues the bill attempts to resolve.

Senator WATKINS. In the case I am just mentioning the United States has taken on a job to act for and on behalf of the people, and the right to the permanent use of the water is guaranteed by the contracts themselves. There is no reason why the United States then simply because it holds title should refuse to go into court, and have that right adjudicated with the rest of the rights on the river. Mr. ELY. I agree with you.

The next amendment is on page 7, line 23, strike the word "apportioned", leaving it to read, "nothing in this Act shall be construed to interfere with the rights of any State to waters under any interstate compact."

The reason I suggest striking that is that the word "apportioned" has become a word of art in the Colorado River controversy, there being a dispute as to who certain provisions in the Colorado River compact, particularly their (b), "apportion the waters in perpetuity or grant permission to use or appropriate waters." The deletion of this word would not change the sense, and would remove possible complications there.

I have an additional amendment prepared after hearing Mr. Rankin yesterday. I would suggest that there be included in the bill as a separate section perhaps this language:

All withdrawals and reservations of land heretofore or hereafter made by the United States shall be deemed made without prejudice to valid rights to the beenficial consumptive use of water originating in or flowing across such lands, theretofore initiated under the laws of the States in which such lands are situated.

It appears to me that to effectuate the purposes of S. 863 you might properly come right to grips with the question Mr. Rankin suggested. Senator BARRETT. Where would you suggest adding such an amendment?

Mr. ELY. As a separate section at any appropriate place.

Mr. Chairman, in considering this amendment and the others I have suggested, it seems to me appropriate to consider what the objectives of the legislation are. I have discussed with Mr. Banks, who deals every day with this problem of administration of water rights, and it seems to us that what you have endeavored to do here in the bill is first to quiet title to rights heretofore initiated under State law by all agencies. That is without prejudice to the rights initiated by others.

Senator WATKINS. That is one of them.

Mr. ELY. That is one of them. Second, to provide for the necessary cooperative development of interstate waters by Federal, State, and local interests-intrastate, I mean-on a firm basis.

As a third objective, to provide for the development of interstate waters, preferably by interstate compact.

It seems to me that some of the discussion and particularly some of the objections to your bill that I have heard confuse those.

First, if the threat to State-created water rights results from the existence of Federal reservations under which, as Mr. Barrett suggested the other day, the United States may assert that because a reservation was created years ago, its water rights, although initiated today, have a priority ahead of those initiated under State law many years ago. It is a problem that can be met head on. Your power over the public lands is plenary. These reservations and withdrawals can be made subject to existing rights. The 1910 statute, for example, which authorized and made withdrawals, did not attempt to close the public domain. It left it open to operation of the mining laws.

You don't have to take the scissors and cut off at any one point nor deal with the whole bundle of Federal rights. You may leave some of them available for State or individual acquisition and use. Inasmuch as you can, if you choose, provide that withdrawals or reservations are with prejudice or without prejudice, they can be subject to existing rights, why not just say so. Reservations or withdrawals heretofore or hereafter made, if that is the policy of this legislation, if that is the threat that imperils these water rights, cut it right off at the pocket by some direct language.

Senator BARRETT. Would that just go as to existing rights?

Mr. ELY. No. It would apply to rights initiated under the laws of the State prior to the making of the reservation, whether that reservation was made in the past or whether it is made in the future. As Mr. Banks suggested, we refer particularly to rights initiated under the laws of the State. You may have water rights lawfully initiated under State law not perfected to the ultimate. But the intent of the bill is to protect.

Senator BARRETT. Indeed it is. Would this language, then, take care of any situation that might arise as a result of the Pelton Dam case?

Mr. ELY. No. This deals with beneficial consumptive use of water. I have throughout avoided the conflict between power and fish protection or other nonconsumptive uses. This would, however, negative an implied threat of the Pelton Dam decision to the right of the United States under a withdrawal or reservation to interfere with rights initiated to beneficial consumptive use under the laws of the State. Senator BARRETT. Would it protect against future rights that might be obtained under State law for beneficial consumptive use of water? Mr. ELY. The intent is to protect rights to beneficial consumptive use initiated under State laws at any time prior to the making of the withdrawal or reservation. So I may use the example you gave the other day, Senator Barrett, of an Executive order made in a matter of hours at some time in the future, it could not operate to cut off rights initiated under State law even though they were made in the future, but before that withdrawal.

Senator WATKINS. There is a companion piece of legislation that ought to go along with this, and that is the one I introduced requiring hearings on withdrawals, so that we would have an opportunity to find out exactly (1) what is to be done and (2) if they are going to take the water rights along with the withdrawal. We better find out what is proposed and take care of that.

Senator BARRETT. To my way of thinking, that is one of the most dangerous implications to this whole procedure. That is the fact that the door is open there for the execution of withdrawals and reservations on such short notice by the executive arm of the Government, without notice to anyone.

Senator WATKINS. That is the way I felt about it. That is why I introduced that piece of legislation. It would require some time and hearings on it so that people would have an opportunity, States particularly, to present their views and objections.

Senator BARRETT. There is another thing that has occurred to me with reference to these withdrawals. It seems to me that there are so many on the books and so many created by Executive order that there ought to be some sort of review. I do not know just how much that would interfere with the establishment of any rights, but apparently from the purport of the Pelton Dam case, I think if the effect of the withdrawal order was to withhold the lands from settlement, then most of these present Executive orders come within the rule established in the Pelton case, and as a result we may find the West pretty well blanketed already by these withdrawals and reservations presently in force.

Senator WATKINS. Unless we can sell them out. Congress could do that if it wanted to.

Senator BARRETT. There ought to be a review of them to determine whether there is good ground for each reservation or whether the need for them is past, and if so we should cancel them on that ground. We have the authority to cancel them if we do so desire.

Senator WATKINS. If we can get the votes.

Senator BARRETT. There would be a fight but I think we can get the votes.

Senator WATKINS. It is a rather difficult thing to do at times because the opposition of the departments and executive arm makes it very difficult to pass legislation of that nature.

Senator BARRETT. I would like to ask Mr. Ely at this point about the extent of the Pelton case with reference to reservations. Would you say that applied to Taylor Grazing Act lands?

Mr. ELY. That I cannot say, Senator Barrett. The implication is dangerous.

Senator BARRETT. It certainly is. The Taylor Act, as you know, states in so many words that it is a reservation. There is no question about that. The practical effect is that you can't homestead those lands. It would seem to me that it met the requirements set forth in the Pelton case, although I agree that there is some doubt about it. I don't know how many millions of acres are included clearly within the Pelton case, but no doubt there is substantial acreage over and above the forest reserves and the power site reserves. I don't know how many other reserves there are on the books. There are countless numbers of them. It occurred to me that since the court was so liberal in its interpretation in that decision that sometime or other it might

very well say that the 180 million acres under the Taylor Act were also within the ruling.

Senator WATKINS. Let me ask the witness a question about forests. Do you regard forests as reservations that would come within the purview of the Pelton decision?

Mr. ELY. That again, Mr. Chairman, I can't say. I think again the implication is certainly dangerous. As Mr. Bennett pointed out the other day when they got into a discussion of the Desert Lands Act, it was going beyond the scope of the case. It is then difficult to know what the implications are.

I would say that your bill is justified by the implications raised in that suit, notwithstanding the fact that the issues that were in fact there for decision did not relate to consumptive use, and should have been rather narrow.

Senator WATKINS. I can see how they could get away from that if they simply said that decision was limited to the facts in that case. But they may take the other view.

Mr. ELY. There is a type of situation that I think has engendered some of the departmental objections to the bill that I don't think necessarily meant to get involved in and don't have to.

There are two general classes of claims the United States has made to the control and use of water. One is rising historically from its ownership of the land and derivation of title from foreign nations. It always owned the land and therefore always owned the water and has not divested the rights to the control of the use of waters in the

streams.

The other class of cases whereby the United States, by construction of works under an entirely different constructional power, usually navigation, has built a dam, has stored and conserved waters that formerly wasted to the sea, has created a new resource not conforming with the laws of any State, and is confronted with the problem of what powers it has to dispose of those waters. There it is.

From my viewpoint, I have no difficulty in recognizing the right of the United States if it is building a dam for a constitutional purpose and conserving the waters thereby stored to be regarded as an appropriator, using that word in a loose sense, of the salvage of stored waters in its own right, and with the authority to dispose of them as property. There you reach the question under the property clause what restrictions or controls shall the Congress now in its plenary power impose upon the disposition of those so-called newly appropriated waters. Senator WATKINS. Would that apply where the United States signs contracts with the citizens for the citizens to pay for the job done and the citizens themselves, it would appear, would be the real owners of the water? The United States only in effect would be loaning them the money and the know-how to do that job.

Mr. ELY. In cases like that, if I understand correctly, the United States may or may not have proceeded with a purely reclamation project under State law, filed for permission to store the water and dispose of it, and so on. There is certainly no objection to doing so on a small intrastate project. What I am talking about is the case where you have a large interstate project built under the alleged constitutional purpose for the improvement of navigation.

Senator WATKINS. For instance, these projects that we have been discussing recently, and the Colorado project, the United States ex

pects to be repaid for the entire expenditure except that part of it allocated to some flood control or fish and wildlife or something of that sort. Under those circumstances the problem would not arise if the United States is merely stepping into the act as the manager and the banker.

Mr. ELY. To my mind, it does not depend on whether the United States does or does not have title as a trustee or banker, or for other purposes. The question is this: You do not need to deny the Federal Government's right to build works, conserve, and appropriate in its own right waters in excess or surplus to those theretofore appropriated under State law. If it were not saved that way it would go to the sea. But you do have plenary power under the property clause to control the disposition of the waters so stored or created above the appropriative rights in the States.

Senator WATKINS. You are talking about the 17 Western States; are you not?

Mr. ELY. Yes.

Senator WATKINS. What about the rest of the United States?
Mr. ELY. The same principle would hold.

Senator WATKINS. For instance, take the Thirteen Original States; does the Federal Government own any part of that property?

Senator BARRETT. The rights would be secured under the commerce clause.

Mr. ELY. That is right.

Senator BARRETT. I don't think there is any question about that.

Mr. ELY. That is correct, in my view. What seems to be bothering some of the governmental departments is somehow or other your bill is going to hamstring them in the construction of works and the acquisition of the right to store water and use it for navigation, flood control, or power, or whatever. That to my mind is not a valid objection to your bill. You can reach your result by controlling the water that is released from those dams.

Senator BARRETT. That is right.

Mr. ELY. That is the purpose of the amendment I suggested earlier. I would like permission to place a rather carefully spelled out position of California in the Arizona v. California case on that very point which is in issue, where the United States delivers water under contracts from Hoover Dam, is it delivering it in discharge or recognition of appropriative rights under State law or in disregard of them? I think you may find it useful to have that. It is a few pages.

Senator WATKINS. You can file the statement, and if it is not too long, we may put it in the record. We will leave that for future determination. We would like to have it filed as an exhibit, anyway. Mr. ELY. Yes, sir.

(The document was filed with the committee as an exhibit.)

Senator KUCHEL. Mr. Ely, let me ask you a couple of questions. In the last proposed amendment which you offered to the committee, the language is as follows:

All withdrawals and reservations of land heretofore or hereafter made by the United States shall be deemed made without prejudice to valid rights to the beneficial consumptive use of water originating in or flowing across such lands, theretofore initiated under the laws of the States in which such lands are situated.