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Senator BARRETT. Do you have a question, Senator Dworshak?
Senator DwORSHAK. Yes.

Mr. Bennett, I received a telegram which I should like to read with reference to this legislation and have your comment on it. I received it from Wilfred Broncho, chairman of the Fort Hall business council, as follows:

Senate bill S. 863, introduced by Senator Barrett, of Wyoming, known as the Water Rights Settlement Act of 1956, could in its present form stop Indians from developing additional water guaranteed them under the provisions of the Winters decision and might impair the right to irrigation water which they are now using because they do not have the State rights. It is imperative that we protect what water rights we still have until we reach that ultimate development envisaged by the Winters decision. In considering the larger aspects of this bill we hope that the Senate will not forget the smaller but equally as important Indian water rights impliedly guaranteed them by their treaties and the courts. To this end we urge that you seek an amendment to the bill at the hearings now being held to the effect that existing Indian rights to irrigation water will be reserved by the bill or that it be passed without prejudice to existing rights to Indians. We are awaiting authority from the Commissioner of Indian Affairs to send two delegates from Fort Hall to be in Washington the week of March 26. It is hoped they will have an opportunity to confer with you on this and other matters.

Do you have any comments to make on that particular approach to this legislation?

Mr. BENNETT. Senator Goldwater just asked the same question, Senator. I told him that the Department's report recommends deletion of the three words "under State law" as they now appear in section 6 of the proposed substitute bill. In that way it is our judgment that all existing rights, whether Indian or otherwise, which rest upon Federal law would be preserved.

Senator DwORSHAK. Thank you.

Mr. BENNETT. Senator Barrett also indicated on the record that such an amendment would be agreeable to him.

At this stage I would like to go into the Pelton Dam case itself and the underlying reasons for the concern which has been expressed by previous witnesses before this hearing.

In the Pelton Dam case the applicant for a license under the Federal Power Act proposed to construct a dam which would on one side of the river abut an Indian reservation dating from 1855, and, on the other side of the river, would abut a power site reserve.

The applicant applied for water rights under State law. He was unable to satisfy the requirements of the State fish and game commission whose approval is required, as I understand it, under Oregon State law, and therefore he was unable to get an appropriative water right under Oregon law.

Nevertheless, the Federal Power Commission, following generally the decision in First Iowa Electric Cooperative v. Federal Power Commission (328 U. S. 152), granted him a license for the construction of his project. That action in and of itself, if it rested on the Fire Iowa Electric Cooperative decision alone, might have entirely different connotations than it does as a result of the fact that the Federal Power Commission and the Supreme Court both proceeded to deal with the question of the applicability of the Desert Land Act.

The Deschutes River was presumed by the Court on stipulation of the parties to be a nonnavigable stream. The contention of the State of Oregon on appeal to the Supreme Court was that the applicant for

the license had not complied with State law relating to appropriation, control, distribution, and use of water, and, therefore, under the Desert Land Act, he would have no water rights whatsoever and no right to impound that water in the absence of State license or State permit.

The Supreme Court proceeded to meet the question of applicability of the Desert Land Act very squarely. It held that the Desert Land Act does not apply to any lands which have been withdrawn or reserved from entry under the public land laws from the date of the withdrawal of the reservation of the land.

The Court, of course, for the purpose of this decision did not hare to resolve such questions as whether the rights which the Federal Government in effect recalled by creation of the power site reserve were riparian rights in the traditional common-law sense or whether they were plenary rights to use whatever amount of water the Federal Government might at any time in the future decide it wanted to put to beneficial use on the reservation. That question was not necessary in this decision. I can only con

I jecture as to what the result might be.

Nevertheless, in a number of publications in the West some attention was paid to certain pleadings which were filed by the United States in other litigation after the Pelton decision. I will use a hypothetical example to indicate why the concern was expressed. You had an instance of an appropriative right which was well upstream in a given watershed. The priority date under State law, we will say, was 1945. Farther down the river there were a number of oil shale reserves, power site reserves, other types of withdrawals or reservations which dated back as far as 1905. On the strength of the Pelton decision the United States filed a statement of additional claim in at least one pending case which demanded a priority to an indeterminate amount of water as of the dates of the withdrawals and the reservations. Some of those reservations, as I mentioned before, date back to 1905.

In the meantime, of course, dozens of other water rights have been initiated and vested according to State law. The question is, how valid and of what value are those intervening rights in view of that holding?

That is the question which of course has caused a considerable degree of concern in the West.

I am not proceeding to give an answer to that. I am not proceeding to say that the Supreme Court necessarily would take an extreme position if such issues were presented to it, but I am saying that is the occasion for the concern.

Senator BARRETT. Let me ask you this question if you don't mind, at this point. As I undersand the Colorado case, the city of Denver claimed some rights for its own purposes which were subsequent to the contentions made by the Government arising out of these shale reservations made, as you said, I think, about 50 years ago. Isn't it true, No. 1, that there wasn't any application of water insofar as the shale reservations are concerned, no beneficial use was made of any water on the reserved lands; and, No. 2, doesn't the contention of the Government at least cast a dark cloud of suspicion on the vested rights of the city of Denver, when they say that they are rather tenuous and that they are subject to attack, because of the prior reservation made!




Mr. BENNETT. That is the fear which has been expressed by a number of attorneys and water officials in the West, Senator. I should point out that the Pelton Dam case itself did not involve a factual situation where rights vested under State law were being abrogated. Consequently, there have been a good many who said that if the Supreme Court had before it the specific set of facts which was involved in the case I mentioned, it would not abrogate those rights without just compensation. That of course is a matter of speculation. You cannot determine that with any certainty as the law now stands, in my judgment.

Senator BARRETT. I quite agree with you that the Pelton decision standing by itself, makes it quite clear that perhaps the court would take the position that vested rights were protected at all events.

Nevertheless, the great danger, as I see it, from the decision comes from another direction, and that is that 90 percent of all the water of the West originates on public lands, so there is very little comfort to say that not all the lands are presently reserved, especially when we know that could be done.

The executive branch of the Government has the present authority under the 1909 and 1910 acts to create a reservation in a matter of hours. So they then have the power in the palm of their hands to place all of the public lands of the West within the four corners of the Pelton Dam case, and that being the fact, certainly there is adequate ground to be alarmed at the trend as far as these Supreme Court decisions are concerned.

There is one other question I would like to ask you.

Counsel for the Justice Department, testifying on the House side, made some contentions with reference to the fact that this would constitute an invasion of the rights of the Federal Government under the constitution, and so on, and so forth, and questioned this matter on constitutional grounds.

I realize your unwillingness to express any opinion on the matter, but I would just like to have you tell me, and I do not care to have you express any opinion, but I would like to have you tell me what this language means.

In the first Iowa decision that you mentioned just a while ago, Three Hundred and Twenty-eighth United States Reports, page 152, I find this language and I quote:

In the Federal Power Act there is a separation of those subjects which remain under the jurisdiction of the States from those subjects which the Constitution delegates to the United States and over which Congress vests the Federal Power Commission with authority to act. To the extent of this separation, the act establishes a dual system of control. The duality of control consists merely of the division of the common enterprise between two cooperating agencies of Government, each with final authority in its own jurisdiction. The duality does not require two agencies to share in the final decision of the same issue.

Where the Federal Government supersedes the State government, there is no suggestion that the two agencies both shall have final authority.

As I understand and interpret the decision of the Supreme Court in all of these cases involving both the commerce clause and the property clause of the Constitution, they hold that the Congress has plenary power and they can do practically as they like and, having acted as they did in the Desert Land Act, primarily, that certainly the Congress was acting within the scope of its authority under the Constitution.

Can you tell me what that language means other than what I am saying?

Mr. BENNETT. I would not want to draw any legal conclusion from it. I would say this:

It is very consistent with the trend of Supreme Court decisions over the past 50 years or longer, as pointed out by Professor Corwin in his recent compilation of constitutional law which has been published as a congressional public document.

He pointed out that in the beginning of our constitutional history, the Supreme Court tended to take the entire field of constitutional action and say that where powers were delegated to the Federal Government, you had a very tight compartmentation, which meant that those things which were delegated to the Federal Government could never be exercised by the State government even with the consent, let us say, of the Congress.

As he points out, more recently a different trend became noticeable, in which the Supreme Court began to see the picture of governmental action as a whole and to view our Federal system of governmentthat is, the National Government on the one hand and the State gov. ernments on the other—as sharing powers on a cooperative basis and that Congress, in many of its actions, was merely attempting to make the broad scope of the Constitution effective by interlocking its exercise of authority with a concurrent exercise of authority by the States. (The Constitution of the United States of America, E. S. Corwin, ed., S. Doc. 170, 83d Cong., 2d sess., p. XII.)

Now, I think that it is just that type of thinking which is reflected by the language you quoted from the first Iowa čase; that the court was reading into the Federal Power Act a desire on the part of Congress to work out a system which would be effective in the end but would still give proper recognition to the proper functions of the State governments on the one hand and the National Government on the other.

Senator BARRETT. I certainly agree with your explanation of the matter.

I do not think there would be any confusion at all in the Western States over this issue, were it not for the fact that the court itself has created suspicion and doubt by reason of this decision out in Oregon.

I do not profess to be a student of constitutional law, let alone any expert in that field, but there is one thing that bothers me and I indicated a moment ago this proposition.

No. 1, you stated a while ago that the intention of the Congress in the Desert Land Act of 1877, was to invest in the general public the right to acquire certain water rights by complying with State law. That in itself is a grant.

Now, the point I have in mind is, supposing that we here in Congress enact some legislation and give John Doe a specific section of land and the President signs the bill. That in itself constitutes a conveyance of title to him, does it not?

Mr. BENNETT. That is correct.
Senator BARRETT. No question about that.

Now, I cannot distinguish between doing that and enacting a law similar to the Desert Land Act, when we say to all the people, "We are separating the land from the water and you can acquire, under State law, certain rights to the use of that water."



That is as much of a right as the right to hold a section of dry land, in my book, maybe a bigger right, more valuable right.

Now, the point that bothers me is this:

If you would agree with my reasoning that that is precisely what took place at that

time, then by what stretch of the imagination can can take away those rights from the people who acquired them in the Desert Land Act by the mere subterfuge of creating a reservation out of the very same lands?

Mr. BENNETT. From the point of view of perspective in dealing with this question, Senator, the only answer Î can give you is that the view is definitely held by some that the language of the Desert Land Act did not constitute a grant.

As I understand it, the argument is made that Congress could have granted all rights to the use of water to the State for disposition under its laws.

Senator BARRETT. No question about that.
Mr. BENNETT. But the Congress did not do so.

Senator BARRETT. I did not say grant the water, but what I say is, they gave the right. I do not think you need to use the word "grant" but they gave the right to the people to acquire, did they not?

Mr. BENNETT. The argument is that they did not; that the language of the Desert Land Act was not technically adequate to constitute a grant of rights to the use of water.

Senator BARRETT. Did not give the rights to the States to prescribe the manner in which the water in their States could be appropriated and used—beneficially used on the land.

Mr. BENNETT. The contention is made that what was done in the Desert Land Act was to state that the Federal Government would protect and preserve rights to the use of water of those people who complied with State law, but that until such time as that water was so appropriated under State law, the naked legal title, so far as rights to the use of water are concerned, remained in the United States.

Senator BARRETT. I do not think there is any question about that. I think it only ripens into a right when they comply with State law; there is no question about that. But still, Congress is the only one who has the authority to make such a disposition then, if you do not want to call it a grant, of their privilege.

Having done so, it would seem to me to follow that nobody else other than the Congress could take that privilege away from the people of the country who had the rights granted under the Desert Land Act.

Mr. BENNETT. I think that is quite true.

The one thing I might point out is that the Supreme Court, in the Pelton Dam case, did refer to the 1910 act which conferred on the executive departments, authority to withdraw lands from entry under the public land laws for any public purpose.

Senator BARRETT. I know they did, but do you think for one moment that the Congress had it in mind when they passed the 1909, 1910 reservation acts that they were thereby in effect repealing any part of the Desert Land Act!

Mr. BENNETT. The Supreme Court seems to have interpreted it that way

in the Pelton case. Senator BARRETT. I know they did but I still do not agree with the Supreme Court.


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