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the Federal Government had put $150 million in the Big Thompson. Do you think the original $150 million would have been put in if they had felt that Colorado might subsequently withhold water that was supposed to pass through that tunne?
Mr. CHILSON. Let me, as a lawyer, answer this way.
Senator ANDERSON. I want to answer as a legislator. Do you think the Congress would have appropriated $150 million for Big Thompson if they thought that subsequently a group of farmers on the western slope of Colorado would have wanted that water, and therefore they would have to cut off the water from Big Thompson Tunnel, and let it stand idle?
Mr. CHILSON. Most certainly the Congress would not have appropriated.
Senator ANDERSON. What happened in the Santa Margarita case? The Government went in and bought some ground, bought a riparian right, and thought they were going to be able to develop a military establishment. After they bought it, the farmers decided that they wanted the water, and California amended the constitution and decided that the control of that water was under the control of the State. Isn't that parallel to the Big Thompson?
Mr. CHILSON. Not in that respect because the State of ColoradoSenator ANDERSON. What did the State of Colorado do that is different? Colorado cannot change its constitution. I am not complaining.
Mr. CHILSON. That is the point I am getting at.
Senator ANDERSON. What is to prevent the new crop of Coloradans from doing what happened in California?
Mr. CHILSON. Senator, I don't know.
Senator ANDERSON. That is what Mr. Rankin was trying to get to. Mr. CHILSON. If that does happen, the Congress has the right to repeal this act.
Senator ANDERSON. We do not want to pass an act that we have to repeal. I am interested in what Senator Barrett proposed. I am very happy he has proposed it, because I think this is a question that has to be solved some day. But if the States have complete jurisdiction over the waters and the Federal Government cannot protect itself, you may find-I am only doing this out of selfishness now-that some future Congress is going to say, "I don't know whether we want to put up money for this dam or not. We don't know what is going to happen to this water at a later date." We have to have Federal appropriations in order to get these large dams built. We cannot just depend on State appropriations. If the States own all the water there might some day come a question of whether the Federal money gets put up or not. We are trying to find a way of making sure that the interests of the Federal Government are fully protected and at the same time we don't upset the well-established water law of the West.
Mr. CHILSON. Senator, about all I can say in answer to you is that there is nothing to keep the State of Colorado from passing a constitutional provision that says that no reclamation project shall divert any waters from the streams. That is under the present situation without this bill. Clearly such a constitutional provision is in violation of the Federal Constitution.
Then, too, we must realize, Senator, that the money that the Federal Government puts up in these reclamation projects, and so on, is for the benefit of the people there. The citizens themselves of my area would most strenuously oppose any attempt to deplete the rights of the Colorado Big Tompson project. We would be up in arms. Senator ANDERSON. Did the citizens in California object?
Mr. CHILSON. Senator, I am not familiar with that case. I have heard a lot of conflicting reports, and I cannot discuss it intelligently because I just don't know. I have heard two sides. I do not know which is right and which is wrong. I have no personal knowledge.
Senator WATKINS. I think as I remember it the United States in the case bought the land for this base and bought the water rights, and then they tried to make a change in the use of the water. Whether the change would be permitted or not ordinarily comes under State jurisdiction and determination. It would have been the same thing in Utah or Colorado if they attempted to change the nature or place of use. They would have had to comply with State law. They had some difficulty about that. They tried to expand the right from what it was when they bought it into something else. That is where they ran into difficulty.
Senator ANDERSON. There is no question about what they did. They bought a piece of land that had a riparian water right with it. Instead of taking that riparian right and attempting to irrigate a patch of alfalfa, they tried to put some water into a Marine camp. That is why I asked a moment ago about the use of military establishments.
Senator WATKINS. They went further than that; I read the complaint in that case. We had it before the subcommittee on the judiciary when we were trying to determine the question of whether the United States could permit itself to be sued in the adjudication of water rights. That happened to be before Senator McCarran's committee when he was chairman, and I held the hearings on it. It went further than that. They were trying to do a lot of things on the claim of paramount powers of the United States. That is when it got into conflict. They had to back down finally. It is not quite like the situation that most people think of.
Senator ANDERSON. As I remember they happened to use the word "paramount" in a completely different text than the paramount matter that arose in the tidelands case. But because the word "paramount" had become a dirty word, they got in trouble. The Government contended it was not intending to assert paramount rights. All I am trying to say is that I do believe we want to be careful that we do not get ourselves in the position of saying that the Federal Government, having built a large reclamation project and poured millions and millions of dollars into it, has obligation to see to it that if it builds a military establishment and puts money into it, the State will decide that is not a proper use for the water and say "We own all the water on the Federal project." You may find yourself having difficulty with appropriations thereafter. That is all I meant.
Senator WATKINS. As I looked that situation over and read the complaint, and I heard more before this committee, it looked to me like the attorneys for the Government in the beginning did not make too careful a study of the water laws and water rights when they were buying. They thought they were buying a lot of things they were
not buying at the time. They had to do it pretty much in accordance with State law. That is what they did not want to do. They claimed they had the right to do it because the United States Government had paramount rights to do this, that, and the other.
Senator ANDERSON. I am sure that the Senator from Wyoming was not trying to set up a new procedure, but trying to make sure that hereafter we live close to these water laws that have been inexistence in western areas for a long time, and we do not suddenly get off on a new theory that is going to cause some trouble. I fully subscribe to his desires to have that done. I think it is very important and very necessary.
That is why I was hopeful that Mr. Chilson with his good experience in water law would take the Attorney General's testimony and analyze it for us. I am persuaded that neither of the Senators from Wyoming were convinced by the testimony of the Assistant Attorney General. I would merely like to have you take a look at it, and supply us with a statement at a later date.
We have to go to the floor of the Senate and reassure a good many Senators who come from other States that this is not doing violence to the well-established principles that have been in existence for a long time, nor does it unduly jeopardize the rights of the Federal Government.
(The information requested was subsequently transmitted by Mr. Chilson as follows:)
CHILSON & MCCREARY, Loveland, Colo., March 27, 1956.
Mr. G. W. LINEWEAVER,
Senate Interior and Insular Affairs Committee,
Senate Office Building,
Washington, D. C.
DEAR MR. LINEWEAVER: In order that I might comply with Senator Anderson's request to prepare a supplemental statement for the committee, you delivered to me a stenographic transcript of the hearings on S. 863, as of date of March 22 and March 23, 1956.
I am returning these transcripts herewith together with my supplemental statement.
Very truly yours,
CHILSON & MCCREARY, Loveland, Colo., March 27, 1956.
Hon. CLINTON P. ANDERSON,
Chairman of Subcommittee on Irrigation and Reclamation,
DEAR SENATOR ANDERSON: During the course of my testimony on March 23, 1956, on S. 863, you requested that I furnish the committee with a supplemental statement analyzing the testimony of Mr. J. Lee Rankin, Assistant Attorney General of the United States, who testified before the committee on March 22, 1956.
You paricularly requested my comment on the following statement made by Mr. Rankin :
"I don't say there is an exclusive right. I do say that the courts have said that the United States has certain rights with regard to its own propery. The thing that bothers me about this proposed bill is that it has a program for the States, in effect, to administer the property of the United States. I don't find any law that would permit the Congress to delegate that responsibility to the States." (See transcript of hearings, March 23, 1956, page 742.)
I understand that my supplemental statement should be addressed principally to the constitutional question of the power of Congress to require the Federal Government and its agencies to "acquire rights to the use thereof (water) in
conformity with State laws and procedures relating to the control, appropriation, use, or distribution of such water:" (S. 863, page 5, lines 3 to 9).
I will refer to Mr. Rankin's testimony by reference to the page of the stenographic transcript of the hearings of March 22, 1956.
As to section 5 of S. 863, Mr. Rankin raises no constitutional question and recognizes the right of Congress not to exercise the navigational servitude under the commerce clause (pp. 509 and 510).
Mr. Rankin states, "Our principal problem in regard to the proposed bill is section 6. This section, it may be assumed, or we assume, is intended to provide that unless any rights under present authorized constructed or future projects are obtained under State law with regard to either navigable or nonnavigable waters, and the rights to the use of such waters acquired under the State laws, not only relating to appropriations but also the control, use, and distribution of those waters, subject to the State laws, that the Federal Government, agencies, and employees should not be permitted to use them. That raises many serious problems" (p. 514).
Also Mr. Rankin says, "The thing that bothers me about this proposed bill is that it has a program for the States in effect to administer the property of the United States. I don't find any law that would permit the Congress to delegate that responsibility to the States" (p. 536).
The bases for the constitutional questions raised by Mr. Rankin are in brief as follows:
1. That the title to the unappropriated waters and the right of use thereof are in the Federal Government; that these unappropriated waters and the right of use thereof, being property of the United States, are subject to and controlled by the Constitution and laws of the Federal Government and not by the laws of the State. That by virtue of article VI, clause 2, of the Federal Constitution, which provides that the Constitution of the United States and the laws of the United States made in pursuance thereof shall be the supreme law of the land.
2. That article IV, section 3, clause 2 of the Constitution empowers Congress to make all needful rules and regulations respecting the property of the United States. That this power of Congress to make rules and regulations respecting Government property is, under the supremacy clause above cited, binding on the States.
3. It is a rule of constitutional law that the power of Congress to make laws cannot be delegated by Congress to the States.
4. That section 6 of S. 863, which requires the Federal Government to acquire rights to the use of water in conformity with State laws, subordinates Federal property to State control, and therefore is an unconstitutional delegation of the legislative powers of Congress to make rules and regulations respecting Government property, as provided in article IV, section 3, clause 2, of the Constitution, above mentioned. (See Report of Attorney General dated March 19, 1956, p. 7, and appendix thereto, pp. 2 and 6.)
Mr. Rankin develops the theory of Federal ownership of water and water use as follows:
1. United States, on cession of territory, became the owner of all waters and rights to use the same: That when the western lands were ceded to the United States, the United States became the owner of the lands and the waters and the rights to the use of the water (pp. 539, 540, 541, 570).
2. Congress has power to give the waters and right of use thereof, or a part thereof, to the States (pp. 536, 537, 538).
3. But Congress has not given or granted to the States any rights in the water or the right to use the same. Therefore, the title to the unappropriated waters is still in the United States (pp. 545, 546, 570, 571).
4. All Congress has done to date has been to give the right of use to individual appropriators: I understand Mr. Rankin's position to be that the congressional acts of 1866, 1870, the sert Land Act of 1877, the Reclamation Act of 1902, and the other congressional acts passed by Congress relating to western water use gave the States no rights in the waters or the water use. That the effect of these acts was simply to provide that anyone who appropriates the water and applies it to a beneficial use under the principle of appropriation obtained a vested right to it (pp. 546, 547, 570).
5. Therefore, the title to the waters and title to the right of use of unappropriated waters is in the United States: The Federal Government's title to the unappropriated waters and the use thereof is in two categories:
A. Absolute title by virtue of withdrawals and reservations: Mr. Rankin contends that when the Federal Government withdrew or reserved public
lands, that as of the date of the withdrawal or reservation, title to the use date of the withdrawal or reservation, title to the use of the waters became vested in the United States to the extent needed in connection with the withdrawals and reservations. Thereafter an appropriation of water, whose rights were initiated after the date of the withdrawal or reservation, obtained no rights as against the future uses by the Federal Government which might be made in connection with the withdrawal and reservations (pp. 530, 531, 532, 545, 571).
B. The remaining unappropriated waters are open for appropriation to beneficial use by individual appropriators.
Mr. Rankin contends that Congress does not have power to require the Federal Government to acquire rights of use of water in conformity with State law.
Having developed the theory that the title to all unappropriated waters is in the United States, Mr. Rankin contends that since water and the right to use water is property, and since that property is owned by the United States, Congress in dealing with this property is subject to the Federal Constitution (p. 536).
6. That although the Constitution permits Congress to grant to the States the title to the unappropriated waters and the title to the right of use thereof, Congress cannot retain the title and direct that the Federal Government acquire the rights to use thereof in conformity with State law. (P) 558, 559, 562, 565, and 566, and p. 7 of Report of Attorney General dated March 19, 1956.)
The reason Congress cannot do this is because it would be a delegation of its legislative power "to make all needful rules and regulations respecting the property belonging to the United States" (p. 7 of Report of Attorney General dated March 19, 1956).
The State of Colorado and other Western States deny that the ownership of the unappropriated waters and the right of use thereof is in the United States. The reasons for this contention are set forth at length in the hearings. Briefly they are:
1. That the acts of Congress dealing with western water law severed the water from the land and placed the right of use of the water under State law.
2. That the State constitutions and statutes declaring the waters to be the property of the State or the public have been recognized by the Federal Government.
If the States are correct, the Government's contention falls because it is based on the theory that the waters and water use are property of the United States. Nevertheless, I will comment here on the assumption that the Federal Government's claim of ownership of the waters and right of use thereof is correct.
The Attorney General has filed herein a list of court decisions which he believes sustains his position. (See appendix to Report of Attorney General.) In my testimony I cited certain court decisions which I believe deny the position of the Attorney General (p. 733, Stenographic Transcript, March 23, 1956).
Little would be accomplished here by a further discussion of these cases. However, I wish to emphasize that Mr. Rankin repeatedly said that although Congress could give the water and rights to the use of water to the States, it could not keep the title in the United States and subject the water and right of use to State control. It is equally clear that Mr. Rankin deems the requirement of acquiring a right of use of water in conformity with State law, State control. But Mr. Rankin recognizes that Congress has the power to permit individual water users to acquire a vested right to the use of water by appropriating it and putting it to a beneficial use under the principle of appropriation. Mr. Rankin recognizes that these appropriators have acquired a right to the use of Government property, to wit: the waters, the title to which is in the United States (pp. 546, 548, and 570).
We must remember that the constitutional objection raised is that Congress itself must make the rules and regulations respecting the property of the United States, and that Congress cannot provide that these rights of use shall be acquired under State law.
To be consistent, therefore, in order for a private appropriator to obtain a valid right to the use of the water owned by the Federal Government, Congress would have to set up the rules and regulations under which the right of use is to be obtained. Congress has not done this. Congress has not prescribed the rules and regulations for the acquisition of the right of use of water by individual appropriators, or how the priority of rights should be established, who should administer the priorities, nor has Congress established any of the myriad of other rules and regulations by which appropriative rights of individual water users are determined and administered.