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Senator ANDERSON. I want to say that wholly above what your attorneys do, I know when I speak, I speak for the members of the committee when I say that they will try to protect the point that you raise. I am very familiar with the Indian group in my State that you mentioned, and they are very fine people and very good friends and neighbors. I live near them. I am glad to have them in here.
This will conclude the hearing except for the additional statement to be given by Mr. Bennett at a later time, and Senator Barrett will arrange with other members of the committee.
Senator WATKINS. I may want to file some other statements.
Senator ANDERSON. Yes, sir; and any people who have additional statements, if those can be presented to the chairman at a later time, we will try to arrange to carry as many of those as possible in the final record.
Senator BARRETT. Mr. Chairman, I request permission to have inserted in the record the following material:
1. Resolution adopted by the National Reclamation Association. 2. Editorial from the Oregonian, June 8, 1955, Oregon Loses Its Waters.
3. Editorial from Oregon Grange Bulletin, July 5, 1955, Water Rights in Jeopardy.
4. Editorial from Oregon Grange Bulletin, July 12, 1955, State Law Ignored.
5. Editorial from the Oregonian, August 23, 1955, Water Control Showdown.
6. Editorial from the Oregonian, November 3, 1955, Water Fight Coming.
7. Resolution adopted by 21st annual convention, Nevada State Cattle Association, November 3-4.
8. Editorial from the Oregonian, September 17, 1955, States to Fight for Water.
9. Editorial from the Oregonian, November 19, 1955, Pelton Ruling Made Clear.
10. Resolution adopted by the Irrigation Districts Association of California, December 9, 1955.
11. Memorandum to Senator Barrett from Elmer K. Nelson, January 27, 1956.
12. Resolution adopted by the water laws committee of the Texas Water Conservation Association, March 2, 1956.
13. Resolution adopted by the North Dakota State Water Conservation Commission, March 9, 1956.
14. Letter to Senator Barrett from R. M. Dixon, chairman, State board of water engineers, March 13, 1956.
15. Letter to William E. Welsh from Milo W. Hoisveen, chief engineer-State engineer, North Dakota State Water Conservation Commission, March 13, 1956.
16. Letter to Senate Committee on Interior and Insular Affairs from Ivan C. Crawford, director, Colorado Water Conservation. Board, March 14, 1956, with enclosed resolution passed by Colorado Water Conservation Board, January 11, 1956.
17. Senate joint memorial No. 2.
18. Copy of motion re Senator Barret's bill, S. 863. (The material referred to follows:)
RESOLUTION NO. 6
Whereas the Indian people of Arizona are, to a large extent, dependent upon agriculture for their livelihood and for economic development; and
Whereas water in Arizona is necessary for all types of agricultural pursuits; and
Whereas economic development is and will continue to be largely dependent upon use of underground water lying beneath Indian lands; and
Whereas non-Indians outside of reservations have so overdeveloped and overpumped their underground water supply as to cause critical conditions to exist in many non-Indian sections of Arizona ; and
Whereas the Indian people of Arizona desire to have an orderly development of their underground water supply, but many non-Indians, in the knowledge, belief, or hope that this underground water supply will be drained away from Indian lands to non-Indian lands, have and are opposing any Indian development or use of underground water; and
Whereas, though having no jurisdiction so to do, the attorney general of Arizona and the water commissioner of Arizona have threatened to institute criminal proceedings against any non-Indians who drilled or assisted in drilling wells for Indians on Indian reservations; and
Whereas even though said threats may be without legal reason or justification, they constitute an actual effective barrier to the development of Indian lands, in that no one desires to be faced with even groundless criminal prosecution; and
Whereas the United States of America, in its fiduciary capacity, owes a duty to the Indians of Arizona to assist in the economic development of Indian reservations and to encourage the Indians in their efforts to improve their economic standing: Now, therefore, be it
Resolved by the National Congress of American Indians in the 12th annual meeting assembled at Spokane, Wash., That the Honorable Douglas McKay, Secretary of the Interior, and the Honorable Glenn L. Emmons, Commissioner of Indian Affairs, be, and they are hereby requested to direct all officials and employees of the Department of the Interior, and the Bureau of Indian Affairs to assist Indians in Arizona in the development and use of the water supply underlying their Indian reservation; be it further
Resolved, That the Honorable Herbert Brownell, Attorney General of the United States, be, and he is hereby requested to direct the United States district attorney for the district of Arizona to take such actions as may be necessary to effectively allow the Indians of Arizona to develop and use their underground water supply and to protect said Indians' use of said underground water supply.
RESOLUTION NO. 7
Whereas Indian people are largely dependent upon agriculture for their livelihood and economic development; and
Whereas water is vital for agricultural pursuits; and
Whereas non-Indians, including officials of various States, have threatened to limit Indian rights to use of water; and
Whereas the United States of America, in its fiduciary capacity, owes a duty to the Indians to assist in economic development of Indian reservations and to encourage Indians in their efforts to improve their economic standing: Now, therefore, be it
Resolved by the National Congress of American Indians. That the Attorney General of the United States, the Secretary of the Interior, and the Commissioner of Indian Affairs be requested to direct all subordinate officials to assist and protect Indians in the development and use of water underlying, flowing through, and available for Indian reservations.
RESOLUTION NO. 8
Whereas water rights of all Indians within the Colorado River Basin are directly or indirectly involved and may be affected by the case of the State of Arizona v. State of California, et al., bearing No. 1 original, in the Supreme Court of the United States; and
Whereas full and proper protection of these Indian' rights necessitates extremely close cooperation between the Department of Justice, the Department of the Interior, and attorneys representing these Indians; and
Whereas because of friction which seems to exist between the Department of the Interior and the Department of Justice, it is feared that these Indian rights will not be fully and adequately protected and that such rights may be lost to present and future generations of the Indian people : Now, therefore, be it
Resolved by the National Congress of American Indians at the 12th annual convention assembled at Spokane, Wash., That the Honorable Herbert Brownell, Attorney General of the United States, the Honorable Douglas McKay, Secretary of the Interior of the United States, and the Honorable Glenn L. Emmons, Commissioner of Indian Affairs, be, and they are hereby requested to confer and coordinate the work and efforts of their respective Departments to the end that water rights of Indians within the area covered by the Colorado River watershed will be fully and adequately protected in the case of State of Arizona v. State of California now pending in the Supreme Court of the United States; be it further
Resolved, That such coordinated work and efforts be carried to the extent that each individual Indian water right within said area be so protected and upheld that each individual Indian or group of Indians will receive all of the water to which they are legally and equitably entitled.
Whereas the authority to regulate and control the appropriation, distribution, and use of the waters of streams arising in States lying wholly or partly west of the 98th meridian is properly the exclusive sovereign function of the States; and
Whereas existing laws have not resulted in clear and uniform practice in accordance with said principles by all Federal agencies and officers having to do with use or development of water resources; and
Whereas the recent decision of the Supreme Court of the United States in the Pelton Dam case (Federal Power Commission v. State of Oregon (349 U. S. 435)). points to the urgent need for the Congress to legislate to the end that all Federal agencies comply with State law to safeguard the rights of the States to control and regulate the beneficial use of water within their borders; and
Whereas the Pelton Dam case establishes a dangerous precedent because it has already been used by one agency of the Federal Government as a basis for its refusal to complete existing permits to appropriate ground water under the laws of Nerada, on the grounds that the wells are on reserved lands of the Government: Now, therefore, be it
Resolved by the National Reclamation Association, That the Congress be urged to pass legislation to the effect that within the States lying west of the 98th meridian and subject to existing rights under State laws, all navigable and nonnavigable waters together with underground water be reserved for appropriation and use by the public pursuant to State laws; and be it further
Resolved, That Federal agencies and permittees, licensees, and employees of the Federal Government, in the use of water for any purpose in connection with Federal programs, projects, activities, licenses, or permits, shall, as a condition precedent to the use of any such water, acquire rights to the use thereof in conformity with State laws and procedures relating to the control, appropriation, use or distribution of such water.
[From the Oregonian, June 8, 1955)
OREGON LOSES ITS WATERS
The United States Supreme Court's decision in the Pelton Dam case is a staggering blow to sovereignty of the Western States over their internal, nonnavigable waters. Those who have been indifferent to the legal battle over use of the Deschutes River in the belief that it was merely a fish versus power fight may now perceive that it involves a great deal more than Pelton Dam.
The decision means that Oregon and other Western States have no jurisdiction or control over the use of waters flowing through Federal lands when such lands have been reserved for specific uses by an administrative order of a Federal
Since there is no legal appeal beyond the Supreme Court, the only recourse from this point onward if Oregon is to regain the power to determine the most beneficial uses of its waters is to go to Congress. The support of populous California and other States should be obtained for an amendment to the Federal Power Act. Congress should write into the act the requirement for State permission before construction of power dams on nonnavigable, intrastate streams.
The 7-to-1 decision of the Supreme Court, reversing a 2-to-1 decision of the Ninth Circuit Court of Appeals, has not yet been received and carefully studied here. But it seems to turn on a distinction made between Federal lands such as national forests and grazing lands, and Federal lands set aside as power sites. The Desert Land Act of 1877 gave to the Western States to which it applied the control of waters flowing from the public domain. About 1909, under Theodore Roosevelt's influence, the Secretary of Inerior began withdrawing power sites on streams. This action was questioned, and in 1910 Congress gave the Secretary specific authority to make reservations for power purposes.
No one seems to have a handy record of how many such power reservations were made in the State of Oregon in the period 1909 to 1913. But these included the Pelton and Round Butte sites on the Deschutes, sought by Portland General Electric Co., as well as several in the Rogue River system. The Supreme Court held that these were not subiect to terms of the Desert Land Act. Hence, no State authority need by recognized.
If this means what we believe it means, these old sites on the public domain as well as any others the Secretary of Interior may wish to withdraw or reserve for power purposes may be turned over to private or public dam builders by the Federal Power Commission without regard for State laws or licenses.
Since the Federal Government owns 51 percent of Oregon's land area and virtually all major rivers originate in or flow through Federal lands, this means that Oregon has lost jurisdiction over the bulk of its inland waters.
The hearing held by the State engineer the other day on the city of Eugene's application for the Beaver Marsh project, in a national forest, thus appears to have been a waste of time. The site could be taken out of State jurisdiction—if in fact, it is there now-by a simple order of a Federal official.
The elaborate machinery for a State water resources commission and law adopted by the last legislature will have far less authority than had been supposed, if Congress does not change the laws interpreted by the Supreme Court.
Sportsmen and commercial fishermen who have given some thought to proposing that the people of Oregon vote on establishment of fish sanctuaries in certain rivers in which fish are a paramount value may as well forget about it, if the Supreme Court's decision stands. The Federal law would nullify such an expression of popular will in Oregon.
So far as the Deschutes itself is concerned, PGE's decision to ask for reinstatement of its 50-year license for a dam at Pelton site and one at Round Butte site will depend on a number of factors. Some of these are its plans for partnership development of John Day Dam and joint construction with other utilities of the Mountain Sheep and Pleasant Valley Dams in the Snake River.
But the effect of the Supreme Court's ruling goes far beyond the Deschutes. We believe a State should have primary jurisdiction over the use of nonnavigable waters within its borders. Oregon's congressional delegation should get to work on this immediately.
[From Oregon Grange Bulletin, July 5, 1955]
WATER RIGHTS IN JEOPARDY
The 7-to-1 decision of the United States Supreme Court holding that the Federal Power Commission was within its rights in granting a license to Portland General Electric Co. to build Pelton Dam on the Deschutes can be met only with consternation on the part of irrigation farmers of the West.
In means, in effect, that the FPC has final jurisdiction over the waters of any stream, navigable or otherwise, which flows through Federal lands which have been, or in the future might be, set aside as power sites. Few, if any, western streams of consequence do not fall into this category.
In March 1952 in commenting on the Pelton controversy, this page stated, "if the FPC has jurisdiction (over water rights), title to every such right would be clouded because it would mean that a State-granted water right is valid only at the sufferance of the FPC and could be invalidated at any time the FPC saw fit to use the water for another purpose."
Although the Desert Land Act of 1877 gave to the Western States jurisdiction over waters flowing from the public domain, the court held that subsequent legislation enacted in 1910 empowered the Secretary of the Interior to withdraw from the public domain sites on streams and "reserve" them for power produc
tion and other purposes. Pelton, Round Butte and many other sites on other western streams have been so reserved.
The court held that such sites are not subject to terms of the Desert Land Act and therefore not subject to jurisdiction of the States in which they are located, because they are no longer public lands, but reservations.
When the Court's decision was announced, the State Grange executive committee issued the following statement from Klamath Falls, where the State session was in progress:
"It is impossible to reconcile this decision that the Federal Power Commission has authority to control nonnavigable, intrastate streams with the decision made only a few months ago that 3 States have complete jurisdiction over their offshore oil resources for a distance of up to 10 miles.
"The people of this State now must take this issue into the Congress of the United States to have the laws clarified so that the State's right to control this most priceless and vital resource, intrastate streams, shall be clearly defined and protected."
Whether or not Portland General Electric Co. ever builds a dam at Pelton is relatively immaterial when considered in the light of the far-reaching significance of the Court's decision. Associate Justice William O. Douglas, the lone dissenter, pointed up the main issue when he contended that, "If, by mere executive action, the Federal lands may be reserved and all the water rights appurtenant to them returned to the United States, vase dislocations in the economies of the Western States may follow."
Every one of the 17 Western States is affected. They should immediately join in demanding that Congress enact appropriate legislation to return the control of waters of these nonnavigable, intrastate streams to the States, as was originally the intent of the Desert Land Act.
[From Oregon Grange Bulletin, July 12, 1955]
STATE LAW IGNORED
Both the Hoover Commission and the President's Commission on Governmental Relations recently have insisted that the Federal Government and its agencies respect the laws of the States governing use of inland waters. Said the latter
"Historically, the States have taken the position that the National Government irrevocably and unconditionally relinquished all rights to the control and use of nonnavigable streams under the Federal legislation enacted in 18 6, 1870, and 1877. Recent assertions of the doctrine of national paramount rights in inland waters, in connection with water litigation, have caused unrest and uncertainty in areas where water for irrigation and domestic use is precious. The Commission recognizes that solutions to ific jurisdictional conflicts may be obtained through the courts but feels that in many cases litigation can be avoided if Federal agencies will comply with local laws. Adoption of this policy would not affect the control exercised by the National Government over interstate waters under the commerce clause of the Constitution."
The most flagrant instance of a Federal agency disregarding State law, and being upheld in the United States Supreme Court, was that of the Pelton Dam case involving the Deschutes River of Oregon. The Court held that because a Secretary of the Interior had reserved the lands on each bank for power purposes, a Federal Power Commission license governed development of the site, though the State denied a license because of noncompliance with State law.
While it may be recommended that Federal agencies observe State laws governing nonnavigable waters, the harsh reality is that this is not being done. The only way to guarantee that is for Congress to amend the Federal statutes involved.
[From the Oregonian, August 23, 1955]
WATER CONTROL SHOWDOWN
The issue of Federal jurisdiction superseding State rights in determination of the proper use of nonnavigable waters entirely within a State appears to be headed toward a congressional showdown. The United States Supreme Court's