have worked in the west. Our economy absolutely required that we
divert water from its accustomed channel to. irrigate our desert
land, to mine our minerals and develop our industries. If we had
confined water use to the lands abutting a stzeam, we would still
be known as the Great American Desert.
373
25
In the Sporhase case, supra , the Supreme Court reviewed the
history of water development and recognized expressly that
Congress for over 100 years has generally deferred to the states.
Still, it has the power to change. It was and is my opinion that
western water problems are mostly local and that a statute trying
to provide uniformity over the entire nation, or for that matter,
even over the entire west, would not work as well as local
statutes addressing local problems.
Federal and Local Problems
It must be recognized that in the very nature of the problem
there must be some dual control. Obstacles constructed across
navigable streams have to be regulated if navigability is to be
protected, and such construction can hardly be left to the
control of the individual state. The licensing and regulation of
such structures is in fact a federal problem, and in any event is
placed under the control of Congress by the Constitution. Yet,
the power to regulate and license such structures does not need
also to embrace control over the appropriation of project water.
The use of water from a stream ought to be administered under a
single system insofar as this is possible. Users of water above
and below the licensed dam will have initiated their rights under
state law. It will in no way interfere with the federal
government's power to protect the navigability of streauns to
first require the procurement of a federal license, and then to
require the securing of project water in accordance with state
law, as was provided for reclamation projects by the National
Reclamation Act. If this were done, the agencies created by
Congress could prohibit the obstruction of navigable streams,
except under federal license, but the use of water would be
fitted into the state priority system in existence above and
below the licensed daun.
That problem is complicated in some areas by the fact that
the river in question may be the boundary between two states, or
374
26
â– ore, with different rules of appropriation. It might also be an
interstate stream which originates in one state and flows into
â– another. But theoretically this problem is solved by the fact
that each state is entitled only to its equitable share of such a
stream, and the total rights initiated under the laws of one
state may not exceed that state's equitable share of all the
water. Hinderlider v. LaPlata River and Cherry Creek Ditch Co. ,
304 U.S. 92 (1938) .
One further problem in these cases develops after the
conclusion is reached that Congress has withdrawn the water. For
example, in the Indian cases, it is not enough to hold that
Congress by implication withdrew the water. This merely gets it
back in federal control. To get the water to the Indians,
Congress must act in some fashion to grant to the Indians the
right of use. This also must rest on implication in some cases.
Where the Indians use the water of the same stream from which
other users divert under state law, the administration of these
rights on a priority, or any other basis, will inevitably bring
conflicts. The quantity of water available for the Indians must
be given some type of a priority, and the water of the streeun
must be divided upon some basis during periods of low flow and in
times of shortage. In the Pelton case the water of the streeim in
question was going to be used for power purposes. The Supreme
Court concluded that Congress had granted to the Federal Power
Commission the right to license the use of the water under
section 4 of the Federal Power Act, which provided that the
Commission could issue a license "for a power project to use
waters on land constituting reservations of the United States
located in Oregon." It isn't at all clear what these waters
consisted of, what the extent of the grant was intended to be, or
how it fitted into the state priority system, except that vested
rights of others were supposed to be protected.
Water rights granted under such a project may or may not be
fitted into the state priority system. In the Pelton case the
375
water use was non-consumptive, and a lower regulating dcun made it
possible to feed the water downstreaun in an even flow, rather
than in surges, as needed for power purposes. But the principle
of law there stated would permit Congress, under the property
clause, to withdraw other unappropriated waters and to grant the
right of use to other projects, where such protection may not
exist. If such is done, conflicts will arise between that
project and rights initiated under state law. It would permit a
much more orderly administration if the federal agencies were to
license and control the operation and construction of facilities
which might interfere with navigation, and the water were
appropriated under the existing state system, as was expressly
required in the National Reclamation Act. No particular
difficulty has been encountered from this requirement in more
than 80 years of reclamation projects.
Perhaps one other problem ought to be noted in this dis-
cussion of power. On non-navigable streams, where the federal
government has permitted acquisition of private rights in accor-
dance with state law, these rights are vested and should be
protected by the due process clause of the Constitution. On
navigable streams, where rights have been initiated under state
law, may the same rule apply, or are such rights subject to the
dominant power of the federal sovereign to provide for and
protect navigation? If this dominant power can wipe out rights
initiated under state law on navigable streams, how far upstream
can the dominant power run? The depletion of stream flow by
diversion and consumptive use could interfere with navigation,
even though the diversion may be from a non-navigable tributary.
The dominant power really ought not to be extended so far. The
federal government, under the property clause in the Constitu-
tion, may dispose of federal property. This is a right without
limitation. (See the above quote from Alabama v. Texas , supra ) .
From the Supreme Court opinions it would appear that the federal
government owns the unappropriated waters of both navigable and
non-navigable strecuns flowing through public lands. If under the
376
28
»rty clause Congress elects to offer the waters to the
>lic, and the offer is accepted by the initiation of private
jhts of use, there isn't any theoretic reason why these rights
50 should not be protected by the due process clause. Then if
igress thereafter elects to exercise its sovereign power over
ip waters of a navigable strecira, the United States should pay
ist compensation for injury to private vested rights. The power
regulate comnierce does not require the federal government to
rohibit all obstructions to commerce, nor to exercise its full
*ers as a sovereign to negate private rights it has granted as
^.^proprietary owner. ,
I, Resolution of Conflict Between Federal and State Power
I In the last analysis, however, the matter ought to be
jresolved as a matter of policy — not of power. Even if the
dominant servitude for navigation could wipe out all private
rights, as a matter of theory, it should not be exercised to that
full extent as a matter of policy. Rights initiated in accor-
dance with the federal offer ought to be protected. If thereaf-
ter it is necessary to take the rights for public use, compen-
sation should be paid therefor.
The federal government itself ought to be and is vitally
concerned with the development of the west. It is easy to forget
that there was once written across the old maps of the west the
legend "Great American Desert." The settlers have built an
empire from the desert. The whole economy of the west is depen-
dent upon its water resources. The people have been encouraged
by the federal government to so build, and the great western
water resources should all be put to use. A doctrine which will
encourage the continued appropriation and use of the
unappropriated waters is in the common interest of all, although
there is a growing concern for protection also of the public
interest in such things as minimum stream flows and environmental
values in live streeuns. Waters readily available have long since
377
29
been appropriated. Unappropriated water can only be diverted and
put to use at great expense. If, under the various federal
sovereign powers, rights so initiated are to be taken without
compensation, there is little encouragement to future
development. The federal government has in the past encouraged
the development of oil and gas through liberal tax and leasing
laws. Procedures for acquiring mining claims, homesteads, desert
entries, etc., have been calculated as a matter of policy to
encourage development. The western lands cannot be developed
without water, and a protective policy which will encourage the
expenditures necessary to appropriate the water and develop the
land must evolve. Because the problems incident to the use of
water are local in character, the law governing the use of water
should be developed on a local level.
We will next exeunine state appropriation procedures.
o
98-969 (584)
BOSTON PUBLIC LIBRARY
3 9999 05995 129 1