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Senator WATKINS. That is all I want to get. It is a very inconsistent position. As long as it was going your way the State of Utah had the jurisdiction, but the minute it went against you; no.
Mr. RANKIN. A lot of that happpened long before I was ever here.
Senator WATKINS. Yes; it has some bearing because there were things asserted in that particular case that had to do with the paramount right of the United States. It was not by Mr. Rankin, but by those in the case. They had a very difficult time. The court became thoroughly disgusted. They were filing briefs all the time, not as parties to the suit but merely to advise the court. Not even as a friend of the court theory. Finally, the decision of the court was that the United States should be in and the decision was against the United States. We had a conglomeration. They were in and out when it suited them. It got to the point that we need a law something like this to be sure where the United States stands, and make it absolutely clear that when we say we are having adjudication of rights, and the United States takes advantage of the State laws that they are in for all purposes until the matter is finally decided.
This law will have a lot to do with that, in my opinion. If it is not in there now, I am certainly going to propose some amendments to take care of it.
tions to the State engineer. It went through the proceedings to the point where the State engineer decided adversely to what you thought were the interests of the United States. The United States promptly decided thereafter that the States didn't have any further jurisdiction; is that right?
Mr. RANKIN. Yes.
Senator ANDERSON. Mr. Rankin has been here for 12 hours. Senator BARRETT. I am going to take about 2 minutes. I don't care whether you answer this right now, or put the answer in the record. I want to call your attention to a couple of instances of the property of the United States that seem to me to answer your contention.
First, the Congress gave the State of Wyoming I think about 3 million acres of land, and gave it authority to administer those lands and to permit them to be patented under the so-called Curry Act, which is comparable to the Desert Land Act. It was only as an agent of the United States. It was a restricted title to the property to give it out for that particular purpose. Some of the land has been conveyed back to the Government, because it could not be patented. That is one instance.
Second, you recollect that the State of Tennessee was given all the public lands for the purpose of settlement. The Congress gave the State of Tennessee all of the open public lands, and permitted them to dole it out for settlement purposes.
Another thing I want to call your attention to when you are talking about the cessions, particularly the treaty with France, in 1903, when we acquired the so-called Louisiana Purchase, the King of France insisted, and the United States agreed, that States should be carved cut of that area, and the people of those States should be protected in their rights, the same as the people of the Original States. So it was contended that these States that were carved should be sovereign States, and certainly your idea that by that treaty the United States
acquired sole and exclusive title to all of the rights there I don't think are founded, and the treaty does not so state. That is the solemn obligation of the United States. It is the supreme law of the land, as Senator O'Mahoney just whispered to me here and, furthermore, it came in as a trust.
I hope in consideration of these matters that you will give a little cognizance to some of the facts of life here, Mr. Rankin.
Senator ANDERSON. Senator Kuchel. Senator KUCHEL. Mr. Chairman, I would like to ask a few questions. Senator ANDERSON. Go ahead. Senator KUCHEL. First of all, I want to say to my friend from Wyoming that I am unaware of any contention which the State of California has made against the Federal Government with respect to rights of water of the Central Valley project. There is a lawsuit
. Some private people have been engaged in it, private landowners, who have made that contention.
I want to ask Mr. Rankin some questions. It does seem to me that quite aside from what I am sure this committee recognizes must be a proper safeguarding of the rights of the property of the Government of the United States, there is and there has been a continuing fear by the Western States that their historic water laws will be continually undermined by some specific Federal properties and the people who speak for those properties, such as the situation in Nevada.
Generally speaking under the Pelton Dam case, would it be fair to ask this question: Where is title to unappropriated waters in a stream where the Federal Government has, as for example, a power dam erected on that stream?
Mr. RANKIN. Senator, it is impossible to answer that question as you framed it. If you could say whether or not it was built on reserved lands, I could try to answer the question insofar as the court has in the Pelton Dam case.
Senator KUCHEL. If it were on reserved lands, then what would your answer be?
Mr. Rankin. That the unappropriated waters that would relate to those reserved lands, the United States would have reserved along with the reservation of the land.
Senator KUCHEL. When you use the word, “relate," do you mean related to the theory of beneficial use that could be made of a certain quantity of those unappropriated waters to the Federal reservation?
Mr. RANKIN. I would think or guess that the Court might decide it that way. The Court has never passed on that question. It is the same kind of a problem we have with regard to lands that the States have in their own right, and what water rights they have with relation to those lands. All property owners have, by the nature of owning lands, unless the land and water have been separated, appurtenant to them whatever the water rights are.
The State of California, for instance, has riparian rights in areas where they own land. I assume they have tried to acquire appropriative rights or they have just gotten the lands and have not decided yet how they are going to use them to their fullest development.
Senator KUCHEL. Under the Pelton Dam case, however, are the unappropriated waters which the Government of the United States can claim belongs to it governed in any manner by the laws of the State of Oregon, in your opinion?
Mr. RANKIN. I don't think so.
Senator KUCHEL. With respect to the construction of a power dam by the Federal Government where there are no federally reserved lands, you say it is impossible to give a legal opinion as to where title to the unappropriated waters on such a stream would be?
Mr. RANKIN. No; the difficulty I had with your question before was that you didn't indicate whether they were reserved or not. If you say that they are not reserved lands, then you have the question of whether there is a navigational servitude.
Senator KUCHEL. Assume there is not.
Mr. RANKIN. If you want to wipe that out, then the United States is like anybody else, and it doesn't have any superior rights that it can exercise. Then it condemns any prior vested rights and pays for them like anybody else would have to.
Senator KUCHEL. Would this statement be a fair interpretation of your opinion? That the United States, where it holds property, stands on the same level as a private citizen with respect to rights to water, except in those instances where you would grant it a greater right by reason of specific constitutional powers as, for example, in the field of navigational servitude.
Mr. RANKIN. Or reservations.
Senator KUCHEL. Or reservations of land made pursuant to the Constitution.
Mr. RANKIN. That is right.
Senator KUCHEL. Is there any recommendation you can make to the committee by way of proposed amendments which would permit this Congress to indicate its desire that the Federal Government comply with State water law except in those instances which you would enumerate where lands have been reserved, and where there is a navigational servitude?
Mr. RANKIN. I think if we are to do that, we should try to give a little more study. I don't mean a long time. I mean a short time to try to come up with something. The problem that I have in regard to that is whether you really mean that the United States has to get its water rights before it ever starts a project.
For example, on Central Velley, that project was started in 1939. California has enjoyed the benefits of that property, since 1944, when the water first started to be applied to beneficiaļ use in various canals. We have not ended the litigation in spite of every reasonable effort I could make since I have been back here, and it is almost 16 years since the project was started. Yet all this time the people of that country have been getting the benefit of that project.
The Department of Justice is opposed to any bill insofar as it can make its voice heard that would delay the benefits to the people of the West of these projects until we can iron out all the legal difficulties,
Senator KUCHEL. And I approve of that policy 100 percent.
Mr. RANKIN. Another thing is that I think we have to recognize the relationship between the Federal and State Governments. I know that this is not the only area with which we are dealing in the Department of Justice where we have head-on collisions with State power and Federal power. If you want to change it and the Federal Government subordinate to the States in a particular area or generally, I think you have to amend the Constitution.
Senator KUCHEL. My question was going to be, your opinion to the committee is that Congress cannot under the Constitution bring the water rights of the Federal Government down to a level of private landowners in those specific fields that you have mentioned.
Mr. RANKIN. Yes. For example, this includes the words "control, use and distribution.” There are State water codes throughout the West that place the control of structures, water releases, and so forth, under the State engineer. Congress in all of its legislation provides that shall be under the Secretary of Interior or some other governmental department or agency and places the responsibility there, and properly so, as I see it. I don't see how you can take a Federal project and say that it will be subject to State control unless you give it to the State. There is no constitutional problem at all if you want to say we will take a certain project and give it to the State and the State can run it from then on. But if you are going to say it is a Federal project, and shall continue as such, then you cannot take away from the executive branch the power to control that project.
Senator KUCHEL. On that point, do I understand you to state that the Congress is powerless in a given instance to delegate any portion of control over a reclamation project to any other public agency?
Mr. RANKIN. If you are going to take the Federal project and give it to some State agency, I don't see any power in the Constitution to do that, and still own it for the Federal Government. If you want to give it to the State, they can operate it like any other State property.
Senator BARRETT. Will my colleague yield to me?
Didn't the Supreme Court decide in the case of Ickes v. Fox that the United States had control over the physical property, the dam itself! Isn't that the distinction they made in that case, but not jurisdiction over the control, and the use, and distribution of the water!
Mr. RANKIN. The difficulty with that is that the Court only decided that case that way because that was the way the complaint was drawn, and the United States did not deny those allegations. If you will examine that opinion, I think you will find that is exactly the way that the issue was drawn, and it is exactly the way the Court decided, based upon the allegations as they were made.
Senator BARRETT. The Court made a clear distinction between the physical property and the right to control the water. I don't think anybody can dispute that fact. I think that is the distinction they made.
Senator ANDERSON. In the Continental Shelf Act, we took the State laws and adopted them as Federal laws. Could we do the same thing here? Could the Barrett bill be changed so we took the State laws and made a Federal application in this area?
Mr. RANKIN. You could do that insofar as you don't place the control of the Federal projects in the hands of the State.
Senator ANDERSON. We are not worrying about the control of Federal projects. We are trying to make sure that this water law follows the natural water law of the West.
Mr. RANKIN. There is a difference in this bill, I believe, as I interpret it from what it appears some of you would desire to do, which is to make sure that the appropriation of water be in a certain manner according to the laws of the West.
Senator WATKINS. That 1902 act provides just that thing, doesn't it, that is, section 8? That has been the practice uniformly all the way through.
Mr. RANKIN. The difficulty with that kind of a question is that we have the cases like Arizona against California, and the Friant Dam case in Central Valley, where the Court has said that even though you have not complied with State law, you get it in spite of State law.
Senator WATKINS. Take the case I am talking about in Utah. That is wholly in the State of Utah. That is not an interstate stream.
Mr. RANKIN. It doesn't involve any of these problems, except this provision about jurisdiction for litigation.
Senator WATKINS. It involves this question of whether or not they recognize State law and State control." You say that they should not be subjected to the State control. You do give them control over the use of water. The United States has acquiesced in that for years and years. I am talking about the practical thing because I have gone through it as an attorney for one of these projects. They make their filings, they make their proof, they go along constantly recognizing the State law and the State's control over the water. Isn't that true?
Senator O'MAHONEY. May I add, Senator Watkins, to your statement that this bill does not deal with the projects, with the dams or any of those facilities that may be constructed by the Government, but only with the right to use water.
Senator WATKINS. That is dead right.
Senator BARRETT. There is nothing in this bill that says anything about the projects.
Senator ANDERSON. We will resume now.
Senator WATKINS. I have a question here relating to some information, Mr. Rankin.
One of the witnesses testified here today that in late 1952 a petition was entered in the District Court of the 11th Judicial District of the State of Colorado in case known as No. 6913, involving the rights of the United States of water in water district No. 12 of the State of Colorado. It was said that in that case the United States apparently had appeared and filed its claims. That was an adjudication suit, as I understand it.
Mr. RANKIN. That is right.
Mr. RANKIN. Yes, sir.
Senator WATKINS. Could you get us a copy of that notice that was sent to the court and furnish it to the committee? Mr. RANKIN, I will send it to the committee.
Senator KUCHEL. Mr. Rankin, a few questions back you were talking about the legal rights of the Federal Government and you gave as your opinion that the Federal Government could not delegate any control over Federal reclamation projects. I think in general that was your statement. Mr. RANKIN. Yes, sir.
Senator KUCHEL. Is it not true that there is in the reclamation law authority provided for the operation and maintenance of reclamation