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things that we do not have to have, but if it is pertinent we will include it, and otherwise it will merely be attached to the waterial here.
Mr. SHAMBERGER. That would be satisfactory.
Senator ANDERSON. If there is anything that Senator Barrett particularly wants in the record, if he will so indicate we will do so.
Senator BARRETT. Thank you very much. I will take a look at it.
Senator ANDERSON. Are there questions covering Mr. Shamberger's statement generally?
Senator BARRETT. Mr. Chairman, I just wanted to take one second to congratulate Mr. Shamberger for his vigilance in this matter and for his presentation of his testimony here this morning. I think it is extremely important because it indicates very clearly the ramifications of the import of the Pelton Dam case decision and it should serve as a warning to all the Western States that the rights that they thought they have had since 1866 are certainly imperiled by the Pelton. Dam case.
STATE CONTROL OF UNAPPROPRIATED WATER Senator MALONE. I think our State engineer has made a good witness.
It has been customary for each new set of Government officials to claim all of the unappropriated water in the 17 arid and semiarid States.
Of course the fact that it would be impossible for the State or any private group or individual to finance a project under those conditions means nothing to the average bureau official.
However, now that the Supreme Court has issued a decision that can be interpreted to mean that the Government owns the unappropriated water it is time for the Congress to act in any case.
Senate bill 863 should pass and set at rest all of the doubt relative to the manner of applying for a permit to appropriate water for beneficial use the manner of adjudicating its use and the regulation of its
Certainly if the Government can use any water it finds in the arid and semiarid States without application under the State laws in any way, then the whole system of State adjudication and regulation of beneficial use of water is permanently upset and financial outlays in the development of the area is upset.
When I was State engineer of my State—1927–35—I organized the Association of Western State Engineers for the very purpose of stopping the claims of the Federal ownership of unappropriated water and upsetting the development of western lands.
We stopped it then, but it has emerged again with a new set of Government officials and with new Supreme Court members.
Senate bill 863 is the answer.
Senator ANDERSON. Thank you very much. We are always happy to have
Senator ANDERSON. If Mr. Shamberger desires at a later time to submit additional information, he may do that.
Mr. SHAMBERGER. Thank you, gentlemen.
(Mr. Shamberger's prepared statement and attachments are as follows:)
STATEMENT OF Hugh A. SHAMBERGER, NEVADA STATE ENGINEER Mr. Chairman and gentlemen of the committee, my name is Hugh A. Shamberger, and I am the State engineer of the State of Nevada. I am appearing here today in support of Senate bill 863.
Senate bill 863, if enacted into law, would set at rest, for many years, the jurisdiction and power of sovereign States to provide for the control of the waters within their borders when appropriated for beneficial use. The need for such clarifying legislation has become very evident during the past few months as the result of the Pelton Dam case in Oregon (Federal Power Commission v. The State of Oregon, et al., No. 367, decided June 6, 1955), and the action based on such decision by the Navy Department at Hawthorne, Nev.
I am not going to discuss the Pelton Dam case. That decision has been made, and to many, including some departments of our Federal Government, the Court has said in effect that the United States has exclusive control over waters bordering or within boundaries of Federal reservations regardless of the State's constitutional rights or existing rights to the use of water. I do, however, want to tell your honorable committee what happened in Nevada immediately follow. ing the decision in the Pelton Dam case, and as a direct result of such decision. This will point to the need of the legislation you are considering here today. I refer to what is now commonly called the Hawthorne case.
This case involved the drilling of wells by the naval ammunition depot at Hawthorne, Nev.; the complying with State water laws in obtaining permits to appropriate water, and, the sudden stopping of that compliance as far as the appropriation of ground water was concerned, immediately following the Pelton Dam decision. In order that you may better understand the situation that developed at Hawthorne, I will describe the events leading up to the present tille.
uring the Second World War, 1942–45, the United States Government drilled six wells within the naval ammunition depot at Hawthorne to obtain a supple mental water supply for the base. In 1949 the United States Government filed applications to appropriate water from said wells and subsequently permits to appropriate water were granted by the State engineer. Following the completion of drilling and equipping the wells with pumps, water was diverted for beneficial consumptive use. The permittee complied with the provisions of the permits by filing proofs of commencement and completion of work. All that remained to be done by the Department of the Navy to complete the water rights and to receive certificates of appropriation from our State was the filing of proofs of beneficial use. Because of certain circumstances, however, the Department of the Navy was not in a position to file said proofs when due, so pursuant to State ground-water law, kept the permits in good standing by obtaining extensions of time. However, on July 25, 1955, I was advised by the commanding officer at the depot that the permits were being dropped upon instructions of the commandant of the Twelfth Naval District. This action was based upon an alleged rule of the United States Supreme Court in the case of Federal Power Commission v. The State of Oregon (349 U. S. 435), and on the premise that all the wells were located on reserved lands, that is, public lands which were withdrawn and reserved for the use of the Navy Department by Executive order.
I advised the commanding officer of the United States naval ammunition depot that if said permits were canceled, then any diversions from said wells after that date would be illegal according to the water laws of Nevada. I further stated that, acting upon the advice of the attorney general of Nevada, should the depot make such illegal diversions the State of Nevada would take the matter into court.
The commanding officer of the depot then advised me that the action was the result of instructions originating from the Chief of the Bureau of Yards and Docks, Navy Department, Washington, D, C., who in turn issued his instructions based on a recent ruling of the Supreme Court (Federal Power Commission v. The State of Oregon, 349 U. S. 435).
On September 7, 1955, following the failure of the permittee to file said proofs, I issued an order canceling the 6 permits and granting the permittee 30 days within which to reinstate said permits or else cease using said waters. When no effort was made by the Department of the Navy to reinstate said permits within the time allowed, the State of Nevada, through its attorney general, Harvey Dickerson, filed the bill of complaint against the United States of America.
The basis of the decision by the Navy Department to drop the ground-water permits at Hawthorne was, as stated by the commanding officer, the decision in the Pelton Dam case. Here the Court held that because both termini of the dam were on reserved Government land, the State water laws were not applicable. The wells on the depot at Hawthorne likewise are located on reserved lands, that is, public lands which were withdrawn and reserved for the use of the Navy Department by Executive order.
Using the Pelton case decision as a guide, the Government now says in effect that the State water laws of Nevada are not applicable on reserved lands of the naval ammunition depot at Hawthorne. In the Pelton Dam case the source of water supply is a nonnavigable stream, whereas in the Hawthorne case the source of water supply is from a ground-water reservoir. In the Pelton Dam case the use is a nonconsumptive use (power generation), whereas in the Hawthorne case the use is a beneficial consumptive use. The only similarity is that in each case the land involved is “reserved land." In the Pelton Dam case one terminus of the dam is to be located on an Indian reservation and the other terminus on lands which had been withdrawn from entry in 1909 under the public land laws and reserved for power purposes. In the Hawthorne case the lands were withdrawn from entry and reserved for use by the United States Navy in about 1933.
On December 1, 1955, the State of Nevada filed a complaint for declaratory judgment against the United States of America, in the Fifth Judicial District Court of the State of Nevada, in and for the county of Mineral. On December 7, 1955, service was made on the Attorney General of the United States. The case has been transferred to the Federal district court at Carson City, Nev. On April 19, 1956, the Federal district court will hear a motion by the State of Nevada to remand the case to the Fifth Judicial District Court of the State of Nevada, and will also hear a motion by the United States to dismiss.
I am attaching as a part of this statement copies of the motion for declaratory judgment, copy of the order of the State engineer and copies of letters heretofore referred to from the commanding officer of the United States naval ammunition depot at Hawthorne.
I would like to point out that a considerable portion of the land area in the Western States is owned by the Federal Government and that much of this land is reserved land. Of the approximately 70 million acres of land in Nevada, almost 60 million acres, or about 85 percent is owned by the Federal Government. Furthermore, about 12 million acres of the federally owned land is reserved land. Under the Pelton decision, as interpreted by the Navy, the Government would not need to comply with State water law on these 12 million acres of reserved lands. We are also aware that such reserved area can be increased by Executive order. This would further decrease the effectiveness and extent of the operation of State water law, if the Department of Navy is correct in its interpretation of the Pelton Dam case.
If the Department of Navy's decision is upheld, it will make it virtually impossible for the State engineer to control the orderly development of groun:l water to its optimum extent. The Hawthorne case will illustrate the illogical stand taken by the Department of Navy.
The town of Hawthorne, the county seat of Mineral County, with a population of 2,000, occupies an area of 1 square mile near the center of the depot area. The town's water supply is partly furnished from two deep wells drawing water from the same ground-water basin as the Navy wells. Permits to appropriate ground water were obtained on both wells. One permit, which has been perfected, was earlier in priority than the Navy permits and the other permit was junior in priority. As the town grows, undoubtedly other wells will be needed. Recently the Navy drilled two additional wells. Because all the wells are drawing water from the same basin, the amount of water withdrawn by any one well or group of wells depletes the total amount of water available to the other wells in the basin. Thus it is not logical that one group of wells, those owned by the town of Hawthorne, should be operated subject to the State water law; whereas, another group, those owned by the Nary, should be operated subject to no State laws. While here we are speaking of the Hawthorne case, the same situation could develop in other ground-water basins where both Federal and private ownerships exist.
The Government has said that their property right to use waters on reserved areas is limited to unappropriated water. I could well be asked who determines when there is unappropriated waters? It has always been recognized by the States that that determination, together with administering the orderly development of any unappropriated water has been the responsibility of the States. The question also arises as to what recourse the Department of Navy. in the Hawthorne situation, or any other department of the Federal Government in other similar instances, might have should subsequent appropriations of water by private interests outside the area of reserved lands jeopardize the Government's use of water. In other words, unappropriated water today may become appropriated water under State law tommorrow.
I fail to see W., any agency of the Government would be handicapped by complying with State water laws. In Nevada, and I presume in other States as well, the Federal agencies in general comply with State water law before water is placed to beneficial use. In the case of the Hawthorne Naval Ammunition Depot, at about the time they were dropping the permits to appropriate ground water they were making an application to appropriate surface water from a stream originating on the Mount Grant watershed, just westerly from the depot, and which either crossed some private lands or on which there were some existing water rights. As to the rather fine distinction as to whether to comply with State water law, I would like to quote a letter from the commanding officer at the United States Naval Ammunition Depot at Hawthorne, dated December 8, 1955, and addressed to me as State engineer. The letter reads as follows:
"Enclosed are the application and map for permit to appropriate the waters (complete flow) from Squaw Creek. All privately owned land within the confines of the depot which Squaw Creek crosses has been acquired by the Government, together with all privately owned water rights. Payment in the amount of $25 covering the required filing fee for the above application will be made through regular Navy channels.
“Since all waters from House Creek flow entirely over land withdrawn from the public domain and reserved for the use of the United States Naval Ammunition Depot, an application to appropriate the waters of House Creek will not be filed with the State engineer, State of Nevada."
A copy of this letter is attached as a part of my statement.
I am very much in agreement with Senate bill No. 863. I would suggest, however, that it be amended to include ground water as well as surface water. I say this because the water laws of several States provide that ground water belongs to the publie and is subject to appropriation for beneficial use in the same manner as surface water. Such is the law of Nevada and other Western States that have perfected statutes covering the appropriation of ground water.
Also, it is a well known fact that our Nation's demand for water has increased to the point where in many sections of the country we are hard pressed to satisfy that demand. In semiarid States, such as Nevada, all our surface water, except floodwaters, have long since been appropriated. We must therefore look to the development of our ground-water supplies to meet the ever increasing demands. Thus, ground water will play a very important role in maintaining the well-being of our Nation. Consequently, it is my firm belief that all ground water as well as surface water should be subject to the establishment of rights to the beneficial use thereof, according to the law of the State wherein such appropriation is sought.
In my opinion, unless the Congress now legislates to safeguard the rights of the States and to insure that their rights shall not be imperilled by Federal control, such State control will be lost by process of attrition.
UNITED STATES NAVAL AMMUNITION DEPOT,
Hawthorne, Nev., July 25, 1955. Mr. Hugh A. SHAMBERGER, State Engineer,
Carson City, Nev. DEAR SIR: This will acknowledge receipt of your letter of May 31, 1955, regarding water right applications 12988–12993 inclusive (wells 1 through 6).
This is to advise your office that the applications for water rights with regard to the wells are being dropped and no continuing action is expected. This action is a result of instructions from the commandant, Twelfth Naval District who in turn has based his decision on a recent rule of the United States Supreme Court (Federal Power Commission v. State of Oregon).
All of the wells on this depot are located on reserved lands, that is, public lands which were withdrawn and reserved for the use of the Navy Department by Executive orders. Yours very truly,
W. S. MAYER, Jr. Captain, United States Navy, Commanding Officer.
UNITED STATES NAVAL AMMUNITION DEPOT,
Hawthorne, Nev., August 15, 1955. Vir, Hugh A. SHAMBERGER, State Engineer, State of Nevada,
Carson City, Nev. DEAR MR. SHAMBERGER: This acknowledges your letter of August 5, 1955, relative to water rights applications 12988–12993 inclusive (well Nos. 1 through 6). This is to confirm the statements made in my previous letter of July 25, 1955, in which I advised that the applications for water rights with regard to the wells located on lands withdrawn from public domain are being dropped. This action is a result of instructions originating from the Chief of the Bureau of Yards and Docks, Navy Department, who in turn, has based his decision on a recent ruling of the Supreme Court (Federal Power Commission v. State of Oregon, 349 U. S. 435). Yours very truly,
W. S. MAYER, Jr., Captain, United States Navy, Commanding Officer.
UNITED STATES NAVAL AMMUNITION DEPOT,
Hawthorne, Nev., December 8, 1955. Hon. HUGH A. SHAMBERGER,
State Engineer, Carson City, Nev. DEAR MR. SHAMBURGER: Enclosed are the application and map for permit to appropriate the waters (complete flow) from Squaw Creek. All privately owned land within the confines of the depot which Squaw Creek crosses has been acquired by the Government, together with all privately owned water rights. Payment in the amount of $25 covering the required filing fee for the above application will be made through regular Navy channels.
Since all waters from House Creek flow entirely over land withdrawn from the public domain and reserved for the use of the United States naval ammunition depot, an application to appropriate the waters of House Creek will not be filed with the State engineer, State of Nevada. Very truly yours,
Captain, United States Navy, Commanding Officer.
W, Commanding officer
STATE OF NEVADA
Carson City, Nev., August 5, 1955. UNITED STATES NAVAL AMMUNITION DEPOT,
Hawthorne, Nev. (Attention: W. S. Mayer, Jr., Captain, United States Navy, Commanding
Officer.) DEAR CAPTAIN MAYER: This acknowledges your letter of the 25th ultimo in reference to permits to appropriate water, serial Nos. 12988 to 12993, inclusive.
You stated that the applications for water rights with regard to the wells are being dropped and no continuing action is expected, and that this action is the result of instructions from the commandant, 12th Naval District who in turn has based his decision on a recent rule of the United States Supreme Court (Federal Power Commission v. State of Oregon). You further state that the wells on the ammunition depot are located on reserved lands, that is, public lands which were withdrawn and reserved for the use of the Navy Department by Executive orders.
On July 27, 1955, we sent you third and final notice by registered mail that proofs of beneficial use were due on these permits on or before July 27, 1955, and unless such proofs or affidavits of extension of time in which to file said proofs are