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Of course, in our constitution, we have preferences. A domestic use can take by condemnation from an irrigation use and an irrigation use can take by condemnation from a lower use and so on. We com
We have even preferences as between the recognized uses, which I think is right. I think the Federal Government should abide by that policy.
If the committee please, I am taking more time than I intended. Let me skip over to one of the matters that appears to be quite important and then if there are any questions, I will be glad to answer them.
I would like to comment on the matter of the constitutional question which has been raised concerning the delegation of power to Congress. I don't think it is going to do either myself or the committee any good to go into a discussion of cases. I do, for the record, wish to make this statement, that I believe to be a principal of law, and I will give the citations to the reporter. I believe it is an established principle of law that when Congress so provides it is clear that State laws and regulations governing acquisitions of interests in public lands and waters. will be enforced by the Supreme Court.
Without taking the time to read the citations, I will give the reporter those at the conclusion of my hearing.
(The citations are as follows:)
Gutierres v. Albuquerque Land Co. (188 U. S. 545); Butte City Water Co. v. Baker (196 U. S. 119); Atchison v. Peterson (87 U. S. 507); Basey v. Gallagher (87 U. S. 670); Jennison v. Kirk (98 U. S. 453); California Oregon Power Co. v. Beaver Portland Cement Co. (295 U. S. 142); United States v. Rio Grande Irrigation Co. (174 U. S. 690).
Mr. CHILSON. I believe that is the established law. Applying it to the particular facts of a case, you can always cite a rule of law. As lawyers say, it is easy to know what the law is, but it is hard to apply it to a set of facts.
I would like to try to apply it to the facts that we have here. In order to do that, I will have to take a little time to review.
The Attorney General, as I understand his testimony and the statement, questions the power of Congress under the Constitution to provide that the Federal Government shall acquire its rights to the use of water under State law. The reasoning is the Attorney General says that the Congress may not delegate to the States its power to make all needful rules and regulations respecting the property of the United States.
He goes on to say that the United States acquired the lands from France, Spain, and so forth, and by acquiring the lands, they acquired all the water. So, at the time they got it they got the title to the land and they got the title to the water.
He also says, further, that Congress by the Desert Land Act, the Reclamation Act, and others, did not give these waters to the States. He says that all Congress did was to permit water users to acquire a right of use.
He admits that those users who have appropriated waters before Government withdrawal of the land have and now own a vested property right in these waters.
Let me ask this question: Did the Congress set up any rules and regulations under which these appropriators were going to get the
right to the use of this Government property? The Government property I am talking about is the water. The Government claims they own the water. So, therefore, it is a property. Yet they admit that people did get vested absolute rights to the use of some Government property.
How did they acquire that right? The Federal Government didn't set up a bunch of rules and regulations under which they were to acquire right. They said that these people could acquire that right under State law. They did acquire those rights under that State law, and the Government now admits that they own them. They have an absolute fee simple vested title in Government property. They got it under State law.
However, the Attorney General says that the Government can't acquire the right to the use of this water by the same means. I fail to see the difference.
Senator ANDERSON. Did he say that?
Mr. CHILSON. I hope I don't misquote the Attorney General, because if I do, it will be entirely because of misunderstanding or a mistake. I understood the Attorney General's position was that it would be unconstitutional for Congress to require the Federal Government to acquire its rights to the use of water under State law because it would be delegating to the States the congressional duty of providing rules and regulations respecting the property of the United States.
Senator ANDERSON. That is what he did say. I remember him saying that, I think. What you said a moment ago, as I understood it, was that the Government could not acquire under a State law. I dont' think that is what the Attorney General said at all.
Mr. CHILSON. That is probably right. It would be an unlawful delegation of power by Congress to require the United States to acquire its rights to the use of water under State law. I think that is probably
a more accurate statement.
Senator ANDERSON. I think so, too.
Mr. CHILSON. If one is an unlawful delegation of power-that is, allowing private people to acquire the right to use Government property-then certainly it is an unlawful delegation of power-or I mean if it is a lawful delegation of power to allow an individual to acquire a right in Government property under State law, then it certainly is also a lawful delegation of power when the Congress says to the Federal Government to acquire its right to use water that it shall act under State law. It seems to me that one is the same as the other.
Senator BARRETT. Yes. I asked the Assistant Attorney General specifically if he considered that section 8 of the Reclamation Act was constitutional. If I remember correctly, he stated that the court had never passed on that question specifically. The two cases, the Gerlach case and Ickes v. Fox case, he said did not go to that precise point.
I think it is fair to say that he intimated in his judgment section 8 of the Reclamation Act was an unconstitutional delegation of the powers under the property clause of the Constitution.
Mr. CHILSON. That section 8 was?
Senator BARRETT. Yes.
Mr. CHILSON. I did not so understand it. I am not sure.
Senator BARRETT. He didn't say so. I do not want to be unfair about the matter. He did not go so far as to say that in so many words
but he did say that he believed it would be contrary to the Constitution to grant the States power to administer water rights on the public lands superior to the United States.
Senator ANDERSON. Mr. Chilson, do you not think there is a difference between saying that the Constitution will not permit the Federal Government to pass a bill which requires the Government to acquire its rights under State law and saying that the Federal Government can acquire under State law? We think it can acquire under State law. But there is another thing to requiring it and closing any other door to it. That is what I thought the distinction was that the Attorney General was trying to make.
Mr. CHILSON. Perhaps it was, Senator, and I just did not get it. Senator ANDERSON. It is entirely probable that I just did not get it. I am happy to have your comments.
Mr. CHILSON. I think I have expressed my ideas, whether they are right or whether they are wrong. That is my feeling about it. I point out in these cases that the citations will be given to the mining case where the Federal Government did delegate-if that is the word you want to use-its powers to acquire rights under State law in the matter of mining claims and other instances.
Senator BARRETT. I do not like to use the word "delegate."
Senator BARRETT. I do not conceive it to be a delegation of powers. I cannot distinguish between the position taken by the Attorney General to say that under the property clause of the Constitution the Congress has plenary power to dispose outright of the water in the streams in the Western States, and then to say that Congress cannot act, and say that if such and such is done under State law, this is adequate for the appropriation of water by the citizens of the Western States. I cannot draw the distinction between the two. If the Congress has the full power it certainly ought to have the right to do something that would be included in that full power, but which would be a lesser power.
Mr. CHILSON. Senator, I can't conceive that it is an unlawful delegation of power for Congress to tell the Federal Government that when it buys a piece of real estate in Colorado that it shall comply with the conveyancing laws of the State of Colorado.
Senator ANDERSON. Is there not a difference between real estate and water in a navigable stream?
Mr. CHILSON. A water right with which we are dealing, Senator, has almost invariably by the courts and textbook writers and so on said that it is real estate or in the nature of an interest in real estate. It is conveyed as real estate. The owner has the same powers of disposition and so on as other real estate with certain exceptions.
Senator BARRETT. I called attention yesterday to the fact that Congress gave the State of Tennessee the power to dispose of all of the unappropriated public lands in that State, and it gave the State of Wyoming 3 million acres of lands under the Carey Act, and permitted the State to issue State patents on that land reserving to the United States the actual title. The State of Wyoming was made the trustee for the United States.
It is pretty hard for me to distinguish even in property cases, let alone this matter of water use.
Senator ANDERSON. It is very hard for all of us.
Mr. Chilson, I wonder if you might do this. When you receive your copy of the transcript, will you go over what the Attorney General had to say, and again reduce the statements you have made here today to fit right in with what he had to say? I do not believe in the Flast analysis there is much difference between what you are saying and what the Attorney General had said. I was glancing at it here, and he was talking about the commerce clause, and he says when you do regulate that the States cannot say you have to get a license from us. That is what they uniformly held. Maybe we can differentiate between those cases and the others.
Mr. CHILSON. I will be glad to do so. I will just make one more brief statement to be sure that I have made myself clear. I find sometimes when I read what I say, I have not said what I intended to say.
Just briefly, I understood the Attorney General to say that this act is unconstitutional because it requires that the Federal Government acquire its water rights under State law, and that the reason that it is unconstitutional is because of the provisions of the Federal Government which imposes the duty upon Congress to make all needful rules and regulations respecting the property of the United States, and that the Congress cannot delegate that power to the States, and that the requirements of this bill do delegate the powers of Congress to the States.
I am only suggesting to you for the guidance of the Congress it would be helpful, because I think this is an extremely important question and one that has to be resolved soon by the Congress. I wish you would just observe what the Attorney General testified and the questions that were asked by Senator Barrett and Senator O'Mahoney and others, and again from your broad experience in water law give s your appraisal of that situation.
All I was pointing out was that if this is an illegal delegation of power, then so also was the delegation of the power to the States to allow private appropriators to acquire a water right in Government water-the Government claiming all of the unappropriated waters that that also was an illegal delegation of power.
If that is true, then, of course, all of the appropriations are contrary to the Constitution of the United States, and there is not a vested water right in anybody in the West. That is as near as I can make my reasoning clear.
Senator BARRETT. Although he said specifically that there was no question about the vested rights as a result of his reasoning, and of his argument, and of his theory and philosophy, he certainly is attacking the vested rights also.
Mr. CHILSON. That is right. My point is that if the private appropriators under the acts of Congress are good, then there was no illegal delegation of power. If there was no illegal delegation of power in that instance, I can't see that there is any illegal delegation of power in this act.
Senator ANDERSON. May I read Mr. Rankin's language? I am skipping the first part of his sentence because he answered Senator Barrett's statement that the United States would have practically exclusive right.
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 property. 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.
That is what I would like to have you comment on in your supplemental statement.
Mr. CHILSON. That was the next comment I was going to make. I was going to refer to that. That is a different point from the one I have been discussing. The Attorney General expresses the fear that this act will put under State control the Federal works which have been constructed in the West. He referred, I believe, particularly to the millions of dollars spent in reclamation projects, and so on. This is rather fine legal reasoning. I will try to be careful.
The United States Supreme Court has upheld what has long been some principles established by State courts and State law, and that is the water right, and the water right is what this legislation deals with. It deals with the water right, not with the physical works.
That a water right is a separate and entirely distinct piece of property from the dams and ditches and canals by which the water is diverted and used.
The Supreme Court, and I will give the citation in a moment, has recognized that principle and has said that the ownership of the water right is in the user who actually puts the water to a use, and that the Federal Government in building a reclamation project does not own the water right, but it does own the physical works, the dams and ditches and canals.
(Citation referred to is Nebraska v. Wyoming, 325 U. S. 589, at 614.)
I find nothing in this proposed legislation that subjects the physical works of the United States to the control of any State official or administration. Actually, Senator, the way it works out is easily handled.
Let us take what I am familiar with. I can talk better about what I know about. The Colorado Big Thompson project, for example, the State water officials determine when there is water available in the stream for the priority of that project, and allow the Government to divert the waters from the stream or impound them in the reservoir.
The people who work the gates and the people who actually take the water are Government employees. The State official does not touch a single turnstile or single headgate or anything else. The Government brings that water to a tunnel to deliver to the opposite side of the Continental Divide. They don't have canals to the land. This is a supplemental supply. The canals were already built. So the way the Government delivers that water is that they turn it into the streams on the eastern side of the Continental Divide.
The Bureau of Reclamation says when they dump this water in the stream, we want nothing to do with it. That is State matters. That is State control. We have made the water delivery to the stream and it is up to the State administrators to turn it out to the ditches. There is no conflict.
Senator ANDERSON. No, but suppose you get in a situation that arose in California. Suppose the State of Colorado at a later date amended its constitution or changed its laws, and provided that water should not be diverted from the west slope to the east slope, even after