by the State courts included not only the water rights of the local water users but the water rights which had been previously filed upon and acquired by the United States Bureau of Reclamation under the laws of the State of Idaho. On several occasions I have talked with men of the Bureau of Reclamation who were in charge of the construction and operation of the Federal reclamation projects in that area. These men have always insisted that compliance with State law as required under section 8 of the 1902 act has not in any way hindered or interfered with the Bureau of Reclamation in carrying out its programs in the area.

We believe that the law should be so amended as provided in S. 863 to require that all Federal agencies which are given the responsibility of constructing and developing water projects on the streams of the West should be required to comply with State law in the same manner as the Bureau of Reclamation is required under section 8 of the 1902 act.

SUMMARY

The economy of the entire western half of the United States is dependent upon. the continued beneficial and in most cases consumptive use of the waters of that area. The water rights upon which the western economy is based have all been acquired under State law during the past century. We believe that the welfare of the West requires that water rights in the future should be acquired and appropriated in the same manner as they have been in the past in full conformity to and compliance with the laws of the respective States.

Included in the report of the NRA special committee in 1943, Preservation of the Integrity of State Water Laws will be found an excellent address by the late Ralph L. Carr, former Governor of Colorado. The concluding sentence of former Governor Carr's address might well be said to summarize the position of the members of the National Reclamation Association on this most important subject: "To the States of the West water is life. The control of it by the States is of major importance.

"To lose control of that water may mean the end of the States as active governmental agencies and the establishment of a centralized control of men and rights which will challenge our theory of freedom."

In view of the foregoing and because of the significance of the Pelton Dam case in Oregon (Federal Power Commission v. State of Oregon et al., decided June 6, 1955) which has been fully discussed by a number of witnesses who have preceded me, and also because of the action by the Navy Department based on the Pelton Dam case contending that it is no longer necessary for the Navy to comply with State water laws, we strongly urge the enactment of Senate bill 863 or similar legislation which clearly and unmistakably sets forth the rights of the several States of the West to have complete control and jurisdiction over the appropriation, use, and distribution of the waters of the various streams of the West.

Mr. WELSH. First, I would like to call your attention to the fact that the National Reclamation Association, an organization with which I am sure you are all familiar, has been adopting resolutions on this particular subject every year since 1937, and in my statement is a copy of the resolution which was adopted at the last annual meeting which was held in Lincoln, Nebr., last fall.

I would like also to call to your attention a special committee of the National Reclamation Association and a report of that committee, which was submitted at the annual meeting of our association in Denver, Colo., in 1952. The committee was authorized by resolution in 1942. It included among its members some of the outstanding irrigation and water lawyers of the West. Judge Clifford H. Stone, of Colorado, was chairman of the committee. Some of the other outstanding attorneys who are members of that committee included former Governor Carr, Jean Breitenstein, who is now on the district Federal court in Colorado, Fred Cunningham, an outstanding water

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lawyer in Spokane, Wash., and George Cochran, a very well-known attorney from La Grande, Oreg.

The recommendations of that committee, I think, are very significant. They are included also in my statement.

I have a copy of that report which many people consider one of the outstanding documents dealing with this particular subject that has yet been printed. There are very few copies left, but I have one copy left that I could leave with the committee so it would be available to the committee at any time you might want to refer to it.

Senator ANDERSON. That will be put in the files and I hope the staff will take good care to see that it is not lost because these things become very valuable.

Mr. WELSH. We are very much in favor of the fundamental principles and the general objectives of S. 863. This bill was referred to our legislative committee which met in Washington in January of this year. This committee endorsed strongly the general objectives of the bill and urged the officers of the association to support it before the committees of the Congress. The members of that committee included some of the outstanding attorneys in our organization.

I would like to read the membership to you: Judge H. Moore of Arizona, Fred E. Wilson of New Mexico, C. E. Fix of Idaho, Barnham Anderson of California, Judge R. Clayton of Colorado, Harry E. Polk, the only member not an attorney, and Petrus Peterson, who is to appear a little later as a witness before this committee. This committee unanimously endorsed the objectives of this bill, and the report of that committee was unanimously approved by our board of directors.

Senator ANDERSON. Mr. Welsh, one thing I might clear up. I asked the Representative from California the other day, and I want to be consistent at least. He said he approved the principles but he was anxious to have some amendments.

When you say you approve the principles of this bill, do you approve the bill as now drafted?

Mr. WELSH. The committee had the bill before them for a day and a half and they made no definite suggestion as to amendments. They may not have been fully convinced that it was in final form, but they made no recommendations as to any amendments.

Senator ANDERSON. I do not mean that if we found there was a place in the bill that might call for some amendment that we might not make it. Generally speaking, the language of the amended bill is before us.

Do you approve, in general, that bill?

Mr. WELSH. Yes, sir, we do.

Senator ANDERSON. You reserve the right if you found something wrong to change that portion?

Mr. WELSH. That is right.

Senator ANDERSON. I did not want a recommendation of something in principle to take to the Senate floor if you can say this is what you think is all right.

We have to report out actual language. We cannot report out principles.

Mr. WELSH. That is right.

Senator ANDERSON. Very well.

Mr. WELSH. They had no suggestions. I think most of the things that I would like to say are covered in the statement which I had prepared. I think I could call attention to this fact: that since this general principle has been endorsed in resolution over a period of 20 years by our association, it is safe to say that that would represent a very, very large percent of the leaders in irrigation and reclamation both in the legal field and the engineers and others during all that period. Those resolutions have been adopted, I know, for the last 7 years unanimously. In other words, there is a unanimity of opinion in favor of the principles outlined in this bill.

Senator ANDERSON. Thank you.

Mr. WELSH. I have a letter from a member of our association, a prominent attorney in southern California, and I would like to have that inserted in the record. It is from Mr. Harry W. Horton. Senator ANDERSON. Without objection, it is so ordered. (The letter referred to is as follows:)

Re Barrett bill, S. 863, and Engle bill, H. R. 8347.
NATIONAL RECLAMATION ASSOCIATION,

HORTON & KNOX,

El Centro, Calif., March 10, 1956.

897 National Press Building, Washington 4, D. C.

(Attention: Wm. E. Welsh.)

DEAR WELSH: I have your letter of March 3, indicating that Senator Barrett believes that his bill will be scheduled for hearings before the committee of the Senate beginning March 19, 1956. As I will be engaged in the trial of the case of Arizona v. California, which trial starts the 9th of April 1956, it is quite possible that I will be unable to be in Washington in connection with Senator Barrett's bill or Congressman Engle's bill on the House side.

I wish, however, to express my wholehearted support of the policy contained in these bills, and I only wish that I could be present in Washington to lend a helping hand in support of the bills.

However, there are certain comments I would like to make which you are at liberty to use before the committees or in such manner as you may see fit, and they are as follows:

It is my firm belief that section 8 should be completely deleted from the bill. My reasons are that there are too many reasons making it necessary now and in the future for suit to be brought against the United States without further congressional consent where interstate stream matters are involved. The old timeworn theory that the United States should not be sued without its consent has handicapped the development on interstate streams and has caused the Congress and the Supreme Court of the United States to resort to matters which are not healthy in order to support Federal construction or development on interstate streams.

I am a firm believer of the proposition that this development can go ahead and that amicable arrangements will be made for development on interstate streams through State compacts, or, if the States are unable to agree upon their water problems interstatewise, then by a suit in the United States Supreme Court. If section 8 should specifically provide for authority to sue the United States without any further congressional action on the interstate stream matters, it would promote compacts and at least give some means of settling these problems that is not now available. The lack of a means of settling these matters in the United States Supreme Court has caused departments of the United States to go to extremes in taking matters into Federal hands, and I think that the healthiest thing to do is to provide for an authorization for suit.

On the question of interstate streams under the present holding of the United States Supreme Court, remote tributaries are considered as a part of an interstream system. If section 8 is to remain in the act, it will hamstring the act in most material particulars.

In support of the Barrett bill and Engle bill, I may say that there is a crying need for congressional declaration of what is set forth in these bills. The inadequacy of the water supply in the West and the need for its development is such as to make it absolutely necessary that the States and the local agencies within

the States be protected and be able to proceed with this development. Likewise, the development can be more harmoniously carried out if and when Federal aid and participation is indicated.

The Pelton Dam case, to wit, the Oregon case of Federal Power Commission v. State of Oregon (99 L. Ed 1215), and the more recent decision of United States v. Twin City Power Company, decided by the Supreme Court January 23, 1956, indicated the absolute necessity of congressional action to curb the extreme to which these decisions seem to be going.

Sincerely yours,

HARRY W. HORTON.

Mr. WELSH. I would like to add that he makes one suggestion here that may not be in sympathy with the objectives as determined upon by our legislative committee and our board of directors wherein he recommends the elimination of section 8 in the bill.

I am not sure that our association would go along with that objective. Nevertheless, he is a member of our association and I would like to have it in the record.

Senator ANDERSON. Thank you very much.

Mr. Peterson?

STATEMENT OF PETRUS PETERSON, ATTORNEY, LINCOLN, NEBR., FORMER PRESIDENT, NATIONAL RECLAMATION ASSOCIATION

Mr. PETERSON. Mr. Chairman and gentlemen of the committee, my name is Petrus Peterson. I am a lawyer. I live at Lincoln, Nebr. For a period 4 years I had the honor to serve as president of the National Reclamation Association, terminating that in October of last year.

Perhaps the only justification for my being here is that during that period, and particularly at our convention in Lincoln in October, the resolution to which Mr. Welsh has referred was passed.

I have been familiar with the general attitude of our membership during that period, and it is not too much to say that recent judicial decisions, pronouncements, and particularly briefs by a representative of the Federal Government have created a great deal of uneasiness. This bill which is before your committee represents, as we see it, an effort to allay those fears and to get the machine which we call the Government of the United States and the government of the States gear.

in

It is interesting to me, and I think to everybody, to observe that there are some areas of agreement. One area of agreement is that no vested water rights shall be taken away without compensation. I don't quite follow the argument that those water rights would in the future lie beyond the capacity of the Congress to provide for on the same basis. If we are to maintain the integrity and confidence in those water rights, we do not accomplish it by writing something on a piece of paper or in a book. Those rights require an administration, and Congress, under the reclamation law, did provide for that administration at the hands of the governments of the States. We have operated under that procedure for more than a half century. While it has not always been on a complete basis of harmony, the work that has been accomplished has been accomplished under that pattern. It would be disastrous, we think, if that pattern for the future becomes seriously impaired by some new philosophy or some new limitations.

I have not had the privilege of hearing my fellow Nebraskan testify, Mr. Rankin, but I have had the opportunity to read a good share of his testimony in the House committee, and this noon to read a portion of his testimony before this committee. I have observed and I have had a little experience over 40 years in legislative matters that we lawyers are seldom very good counselors in the matter of preparing legislation to terminate litigation. We are so apt to be misled by reading our own briefs and what we have said at various times that we. somehow get our vision clouded.

I have the feeling that those who have represented the Department of Justice in this litigation have become overconscious of vindicating their position rather than aid in a solution of what we all recognize as a very serious problem.

I say that in friendliness. I don't want to be critical. I have not been able to find any justification for a statement that the power of Congress somehow is limited in this field in its handling of this problem. If there is such a limitation I suspect it has been violated now for 50 years. I have not observed any change, certainly no constitutional amendment has intervened.

In order to get this dual system of government that we have functioning properly, we never get very far, I think, by trying to measure the swords in our respective hands to see who can stop who. It requires a careful, painstaking work to make the system gear together in order to accomplish our objectives. It does not disturb me to know that Congress has power under the commerce clause, or other constitutional provisions, but they are powers and not limitations, as far as I can read them. I can see no difficulty myself constitutionally in the matter of carrying out a program which is outlined in this proposed legislation. I doubt that there is half as much real controversy arising out of the ultimate decisions of the United States Supreme Court as there is out of the arguments which have gone into the consideration of those decisions.

If we start with the proposition that water rights are property, that they are acquired under the legislation of the Congress which gave the right to the States to set up those rights, and the rights of the States to administer, then we have to, as I see it, try to find the point at which there can be conflict between that program and such powers as the commerce clause.

If we assume that Congress should always exercise all of the power which the commerce clause gives, then I can see how we would jeopardize the whole program. Congress never has. There in an area in this field of navigation where I think we all recognize, as I understand this bill recognizes, that Congress should continue to function in the discharge of a national program.

When we get to the area of flood control, then Congress has the power under the commerce clause to march up the rivers and make this program unworkable. It never has and I hope never will.

In the main, flood control and our irrigation programs walk hand in hand if we plan them together as we have tried to do in the past. So, Mr. Chairman, and gentlemen of the committee, I should hope that in the final consideration of this bill we keep clearly in mind the necessity, if we are to function in the West in its development, the necessity of having the States continue to function in this field within the area which Congress defines in this legislation.