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What Congress has done by the various acts relating to western water use, is to provide for the acquisition of a right to the use of water in conformity with local customs, court decisions, and State laws. As a matter of fact, the principle of appropriation is itself a State law, developed from the early customs of miners.
Therefore, the right to acquire the use of Government property (the water) in conformity with State law has long been recognized by Congress and is now recognized by Mr. Rankin.
It was not an unconstitutional delegation of the legislative power of Congress to authorize private persons to acquire a right to use of water, which is claimed to be Government property, under State law. Similarly, it is not an unconstitutional delegation of the legislative power of Congress to provide that the Federal Government, in acquiring the right of use of the water supply, shall likewise do so in conformity with State law.
SUBORDINATION OF THE PROPERTY OF THE FEDERAL GOVERNMENT TO THE STATES
Mr. Rankin believes that S. 863 subordinates the property of the Federal Government to the States (p. 592).
I cannot agree. Mr. Rankin recognizes that the ownership of a right to use water is separate and apart from the ownership of the water itself, and that except for the navigational servitude and rights acquired by withdrawals and reservations, the United States stands on the same level as a private citizen with respect to the acquisition of the right to the use of water (p. 556).
2011 Since a private citizen acquires his rights to the use of water in conformity will with State law, the United States does and should stand in the same position. 10 This does not subordinate the rights of either the individual water users or the United States to the States. It merely provides the means and procedures of acquiring a right of use,
Nor does s. 863 subject the physical properties of the Federal Government to dit re State control, as Mr. Rankin believes. The right of use of water is a distinct Thou and separate property right from the property right in the physical works such as the dams, reservoirs, and canals, by which the water is put to use. This principle was recognized by the United States Supreme Court in Nebraska v. Wyoming (p. 702, transcript of hearings, March 23, 1956). S. 863 provides . Pan that only the right to the use of water be acquired in conformity with State Stang law. S. 863, as I read it, does not and is not designed to require that the physical works shall be managed, controlled, and operated by the State or any agency thereof.
I trust that I have covered the matters which the chairman had in mind. I terb wish to make one further comment.
WITHDRAWALS AND RESERVATIONS
Mr. C The e
In my testimony, I pointed out that the Government's claim of vested rights to the use of water, by virtue of withdrawals and reservations, is a serious threat and obstacle to future development by the States and their citzens of the utiliza. tion of the unappropriated waters. It is unnecessary that I repeat these views in this statement.
However, Mr. Rankin has called the attention of the committee to the fact that the proposal to strike the words "under State law” from line 22 on page 4 of S. 863, will not alleviate the condition created by the Government's claims, based on withdrawals and reservations (pp. 587, 588). The Attorney General contends that these claims, based on withdrawals and reservations, are existing right which will not be affected by S. 863, if the words “under State law" are stricken from the bill.
Mr. Rankin has also pointed out that it is within the right of Congress to say that certain property of the United States shall not be used (p. 593).
I suggest for the consideration of the committee that any rights to the use of iter f water which the Federal Government may have acquired by virtue of withdrawals or reservations be limited to the uses now being made thereunder. Such a provision, in conjunction wth the balance of section 6, would place the Federal Government on an equality with others in the future acquisition of rights to the use of water. This, I understand, is one of the principal objects of S. 863. Respectfully submitted.
Senator BARRETT. Mr. Chairman, I am mighty glad you gave Mr. Chilson permission to do
that, because I am sure it will be very helpful to the committee. I appreciate that this is a rather complex uz problem. I do want to call attention to the testimony made by the
Defense Department that it never had any trouble with the State of
except perhaps this rather involved matter out in California. As I is gathered from Senator Kuchel's remarks the other day, the whole DATE problem in California resolved itself back to a requirement that the e Defense Department comply with the State law.
Senator ANDERSON. Will you give us something at a later date, Mr. THE BEST Chilson, and get it to us, because we probably will not take action on
this until after the Easter recess. Will you go ahead with your testimony? I am sorry to have interjected my questions to you.
Mr. Chilson. That is all right. I am going to conclude unless 14 there are some other questions. I just want to conclude with a short be recapitulation of what disturbs me more than anything else. That is right that under this claim of ownership of unappropriated water, and more
particularly the claim of water rights by virtue of these withdrawals, it is not just a hypothetical or theoretical danger to the Western States. It is actual. I tried to cite the figures of the amounts of the withdrawn land, and show the character and what water they might require out of the streams for the development and it is actual.
I would like to conclude with a reference to an example which the al mi Attorney General gave yesterday, because I think it is very applicable.
I have been using the words “squatters' rights." The example which
substance it is correct is that he said, let us suppose that a man moves vir sy onto Government-owned land and he lives there for many years.
Eventually the Federal Government desires the use of that land. The settler by virtue of having lived there all those years acquires no rights. So we can move him off. He was using that illustration in connection with the Government's rights for the use of water,
Senator ANDERSON. He said it could not make any settlement with him either.
Mr. CHILSON. That is right, without compensation. In our counDu try we call people that go on other people's land squatters, and if the land is privately owned, after he has squatted there for so many years
, he obtains title and the right to continue to occupy. But due to the fact that statutes of limitations do not run against governmental agencies, a squatter acquires no rights in Government land, therefore I think Mr. Rankin was exactly correct.
Applying that same illustration to the city and county of Denver I use them because they are a large growing community, their water needs are greater, they spent millions of dollars already in bringing water from the Colorado River to Denver, they are going to spend many millions more, Colorado Springs is going to do the same thing, Englewood is going to do the same thing--and yet because these withdrawals were made prior to the time that Denver initiated its water rights, the water rights which the Federal Government claims by virtue of withdrawals, if correct, means that Denver has nothing but squatters' rights. If '100 years from now, or 50 years from now, or 30 years from now, or at any time in the future, the Federal Gov.
ernment desires to utilize that property, which is the water, they can deny the city and county of Denver—they could, I do not know that they can now in view of the settlement of the lawsuit—they could under the claim that was made in that case tell Denver, "We need this water; you stop diverting. Your Montezuma tunnel which you are building, which is 13 miles in length, it doesn't make any difference. Your Moffatt tunnel, and so on and so forth, will have to go by the board." I don't think the Federal Government would ever go that far. But nevertheless, how can a municipality-this is not Government money that Denver is going to put in, this $70 million, this is local taxpayers' money–how can you expect the city and county of Denver to go out and raise money to acquire a water right which is nothing more than a squatter's right and can be divested at any time that the Federal Government says that it needs the water?
Senator ANDERSON. Would the enactment of this bill change that situation ?
Mr. CHILSON. We believe it would, because then, Senator, as I understand the purpose and the effect of this bill, it will mean that the Federal Government will have exactly the same rights to the water use as any other citizen. If it initiates a use before Denver, which it did in the Colorado-Big Thompson project—that was one of the big arguments, and the Government came out ahead, but they didn't get it on the basis of withdrawal, but on the basis of appropriation. I'hey got theirs as of 1935 when the Colorado-Big Thompson was started instead of 1908 or 1910 by virtue of withdrawals. We don't want to mistreat the Federal Government. The only thing we don't want the Federal Government to do is not to make a claim to water Mr. until they put it to use. It is not hard to acquire a water right in Colorado. I am not familiar with other States. It is as simple as all ABC. There is only one way to acquire a water right in Colorado. Pri You go to the stream, you divert the water, and you put it to a bene- Pet ficial use, period. You have a water right. You don't need a filing. You don't need a permit. You don't need anything.
Eventually if you want to make that your water right a matter of die record, they have what they call an adjudication proceeding, which is nothing more or less than the court determination of where your water right fits in on a priority basis with the other people who have also made apropriations. But your water right begins the minute that you
do the first work to divert the water from the stream. It is stiyer that simple.
All we ask the Federal Government to do is to acquire its water inte a right under our State law which means that they take their priority date as of the minute that they make the first survey towards a diversion of water.
Thank you very much.
Senator MILLIKIN. I want to congratulate you on a very masterful statement.
Mr. CHILSON. I thank the Senator.
Senator BARRETT. I certainly concur in the remarks made by the senior Senator from Colorado. I did want to ask you this question
. Do I understand you to say that if the theory of the Government in the Blue River case had been carried to a final conclusion that then
the end result might well have been that the city and the county of thes
Denver would have expended $70 million and would have acquired
a vested right under the laws of Colorado to the water, but neverthewhile less that vested right could well have been lost if the contentions made
by the Government with reference to the shale reservations were acbatek cepted by the courts? uld:
Mr. CHILSON. That is correct. If the Government's theory is corthis rect, its right became vested when the withdrawals were made, whereas
Denver's right was some time in the 1940's given by the decree. The Government claimed vested rights since 1910, which means that its rights, whatever they are, and whenever exercised, if they conflict with Denver, Denver has to give way. If the Government's utilization of the water at any time in the future based on that vested right, they could call it from Denver to the extent of all the waters in the river, except rights initiated prior to the dates of the withdrawal.
Mr. Rankin made that plain, that the withdrawals would not come in ahead of private rights that were vested prior to the date of the withdrawal.
Senator BARRETT. I call your attention to the fact that the withdrawals in that case were made 35 years or 40 years ago, and many of these withdrawals go back to even the turn of the century and before that. So that while they make the statement that vested rights are not in jeopardy as a matter of fact, if they were permited to carry out the contentions that they made in that case, and in some other cases, vested rights are subject to loss.
Mr. Chilson. Yes. It depends on the definition of vested right. As I understand it, the Government would define that vested rights are all rights that vested prior to the date of withdrawal.
Previously we had understood that when the Government referred to vested rights, it referred to all rights that vested before the Government initiated its use of the water.
Senator BARRETT. I want to congratulate the witness for his splendid dissertation here this afternoon on this very important subject, and
very complicated, I may say, also. Senator ANDERSON. May I congratulate you for your patience with us. We probably asked a great many questions.
Senator WATKINS. I would like to make it unanimous. As one ches
lawyer to another, I think he did a very masterful job in answering the various questions, and in his rather informal presentation. It is quite a different thing to do it this way than to sit down and prepare a brief where you can be careful of every word you use. It takes a lot of ability to do that, and I appreciate it very much.
Senator ANDERSON. Mr. Bennett, would you be able to come back
Mr. BENNETT. Yes.
Senator ANDERSON. Then we will give you the same privilege we have given some others of filing your views on this, if you desire.
State your name for the record, please.
STATEMENT OF JOSEPH R. GARRY, PRESIDENT, NATIONAL
CONGRESS OF AMERICAN INDIANS
Mr. GARRY. My name is Joseph R. Garry. I am the president of the National Congress of American Indians. That is the largest allIndian organization in the United States. I am also president of the Affiliated Tribes of the Northwest, having a membership from the States of Oregon, Idaho, Washington, and Montana.
Senator ANDERSON. Where is your home?
Mr. GARRY. The National Congress of American Indians respectfully petitions this subcommittee of the Senate of the United States to amend S. 863, 84th Congress, to insure that Indian water rights are fully protected. We also ask you to grant additional time for interested tribes and intertribal organizations to submit written statements for the records of this hearing. They are as follows: All-Pueblo Council of New Mexico; Arizona Inter-Tribal Council; Affiliated Tribes of the Northwest ; California Indians Congress; Confederated Tribes of Nevada; and the Inter-Tribal Policy Board of Montana.
Senator ANDERSON. May we dispose of that by saying without objection these groups will be given until about April 10 to file these statements with us. Is that satisfactory to the sponsor of the bill?
Senator BARRETT. Yes, sir.
Mr. GARRY. We ask to have included in the record of this hearing the attached resolutions. They are Nos. 6, 7, and 8, passed at our last 6. annual convention held in Spokane, Wash., August 29 through Septem-mi ber 2, 1955. Although they do not bear specifically on S. 863, they 1 clearly show the Indians' concern to protect their water rights.
We appreciate very much the opportunity to appear before your committee.
Senator ANDERSON. Without objection, the resolutions referred to will be set forth in full at the end of Mr. Garry's statement.
May I commend you on the brevity of it, Mr. Garry, and tell you that it is going to be twice considered because of the brevity that you Senator DWORSHAK. Mr. Chairman, may I ask one question?
Mr. Garry, I received a telegram earlier in the week from the Tribal Council of the Reservation in Idaho calling attention to the essential need of safeguarding Indian water rights in S. 863. When I submitted the telegram to this subcommittee, there was a brief discussion and it was decided that if three words on page 4, line 22, under State law, were deleted, that probably the Indian water rights would be safeguarded.
I ask for your comment on that, and whether you have given it adequate study or not?
Mr. GARRY. I have not gone through it too thoroughly. I had this called to my attention since I have been in here. But I think that there might be suggested amendment, a paragraph that is in my statement. Senator DWORSHAK. You have no specific amendment?
Mr. GARRY. I have no specific amendment to offer. I think the attorneys would have to present the language.
put to it.
11. 1927 12.