conclusion that, at least with respect to the navigable portions 108 of streams, the United States has such full control that no private rights can be acquired in them which are good against it and that, therefore, compensation is not constitutionally required to be paid regardless of the purpose for which they are taken.

109

It should be noted, however, that in what we may refer to as the offbrand cases-viz, those in which navigation is found to play a very remote part at best-there has been a strong tendency in the Court to find that Congress did not intend to claim the benefits of the servitude or to deny the landowner or water rights owner full compensation for what was taken from him even though it might perhaps have done so.10 Such, in substance, were the holdings in Ford v. Little Falls Fibre Company,110 where the question was whether the Federal Power Act authorizes a licensee to enlarge its production by installing flash boards which diminish the effective head of an upstream power plant without payment of compensation; International Paper Company v. United States,111 where the Government had in effect requisitioned the plaintiff's water rights in order to increase power production for wartime needs; United States v. Gerlach Live Stock Company,112 where the question was one of compensation for riparian rights, good under State law, which were destroyed by the construction of Friant Dam, a feature of the Central Valley Federal reclamation project; and Federal Power Commission v. Niagara Mohawk Power Corporation, where the question was whether the Federal Power Act forbade the company to take account of the costs incurred by it in connection with the use of another's water rights when computing its amortization

reserve.

113

Hence, though a holding of noncompensability is always a possibility, it seems so remote that, considering the state of confusion and the controversial nature of the closely related power site valuation

108 Cf. Douglas, J., dissenting, in Grand River Dam Authority v. Grand Hydro, 335 U.S. 359, 375n (1948): "The exclusive control which the United States has in the waterpower of a navigable stream extends to the waterpower of a nonnavigable stream where private command over it is inconsistent with the Federal program of control over navigation. United States v. Willow River Co., 324 U.S. 499, 509. Federal regulation and control has the same effect in each case. Oklahoma v. Atchison Co., 313 U.S. 508, 525." Compare United States ex rel. Tennessee Valley Authority v. Powelson, 319 U.S. 266, 273 (1943) where the Court, speaking through Mr. Justice Douglas, had left this question open:

"It is argued on behalf of petitioner that even though the Hiwassee River is nonnavigable throughout this part of its course, compensation for the loss of any supposed power value is no more permissible than in case of a navigable stream. It is pointed out that United States v. Chandler-Dunbar Co. *** held that there is 'no private property in the flow of a navigable stream. *** And it is contended that although the Hiwassee River is nonnavigable at the points in question, the flow at those places has such a direct and immediate effect upon the navigable portion of the river farther downstream as to give the United States the same plenary control over both the navigable and nonnavigable portions of the river * **, thereby bringing into play the rule of the Chandler-Dunbar case. Cf. United States v. Kelly, 243 U.S. 316. But we do not stop to consider that question. For if we assume, without deciding, that rights in the 'flow' of a nonnavigable stream created by local law are property for which the United States must pay compensation when it condemns the lands of the riparian owner, the waterpower value which respondent sought to establish [still] cannot be allowed."

100 See United States v. Twin City Power Co., supra, note 90 at 225: "The legislative history and construction of particular enactments may lead to the conclusion that Congress exercised less than its constitutional power, fell short of appropriating the flow of the river to the public domain, and provided that private rights existing under State law should be compensable or otherwise recognized. Such were United States v. Gerlach Live Stock Co. *** and Federal Power Commission v. Niagara Mohawk Power Corporation *

110 280 U.S. 369 (1930).

111 282 U.S. 399 (1931).

112 Supra, note 91.

113 347 U.S. 239 (1954). With this case, compare Niagara Falls Power Co. v. Federal Power Commission, 137 F. 2d 787 (C.C.A. 2d, 1943), cert. den. 320 U.S. 792 (1943).

question 114 and the protection which is already given to established consumptive uses by such provisions as section 27 of the Federal Power Act and section 8 of the Reclamation Act of 1902, it is doubtful whether any overall attempt to solve it in the sort of legislation that is now being considered is necessary and whether it would not be more of an impediment than a help in dealing with the more immediate problems with which that legislation is concerned."

114a

CONTROL OVER UNAPPROPRIATED WATERS

The length of the foregoing discussion is not intended to indicate a belief that the navigable streams doctrine is the source of all problems in the Federal-State water rights field. Other problems—problems which probably provoke even more invective than those in the first group are those which are often spoken of as if their answers turned on the answer to the further question, as it is sometimes put, of who "owns" the unappropriated waters of the Western States.

This question is virtually unanswerable. It is unfortunate that the terms "property" and "ownership" ever crept into the English language as descriptions of any governmental interest in or power over the waters of its streams, whether the government in question be the Federal Government or a State. It is only by a species of poetic license that we apply such terms as these to fugitive stuff like water before it is reduced to possession.115 The "more or less attenuated residuum of title that the State may be said to possess," was Mr. Jus

114 This problem, in brief, is whether allowance is to be made in condemnation actions and in administrative determinations of a utility's rate base and amortization reserve under the Federal Power Act for the value of its water rights or for a special value attaching to its land because of its usefulness for a hydroelectric plant. This has been a matter of quite heated dispute between the majorities and the minorities of the Court in each of the three cases that have been before it in recent years. Grand River Dam Authority v. Grand Hydro, supra, note 108; Federal Power Commission v. Niagara Mohawk Power Corporation, supra, note 113, and United States v. Twin City Power Co., supra, note 90. In the first of these, it was held that the Federal Power Act does not preclude a State court_from admitting evidence of power site value in a condemnation action brought by a Federal licensee where the licensee did not rely on Federal eminent domain authority. In the second, it was held that the act did not wipe out the value of preexisting water rights and that allowance for payments made for the use of such rights had to be permitted by the Federal Power Commission in the accounting record of the licensee. In the third, the holding was that the Chandler-Dunbar rule precludes the special value when the United States itself is the condemnor. These three cases illustrate, but do not exhaust, the range of questions involved in the power site valuation problem. The differences in result in these cases are such that one is tempted to say, with the late Prof. Thomas Reed Powell, if I remember his dictum correctly, that "Between any two cases there is always enough of a difference to make a difference if the Court wants to see the difference.' It may be noted, however, that of the four members of the Court who participated in all three cases two (Burton and Frankfurter, JJ.) voted consistently to allow the special value and two (Douglas and Black, JJ.) voted consistently to disallow it. Four other members participated only in the first of these three cases: Chief Justice Vinson and Mr. Justice Jackson there voted to allow the special value, Mr. Justice Murphy and Mr. Justice Rutledge to exclude it. Mr. Justice Reed participated in the first and third cases; he voted to allow in the first, to exclude in the third. The same change of votes is recorded for Chief Justice Warren and Mr. Justice Clark who participated in the second and third cases. Mr. Justice Minton, on the other hand, voted to exclude in the second and to include in the third. Mr. Justice Harlan voted to include in the third, the only one of the three cases in which he participated.

114a It should be noted, however, that the suggestions made hereafter in sec. 2(b) of the draft of bill appended to this memorandum have considerable relation to the problem without attempting to furnish an entire solution.

115 Cf. the argument of counsel for California as summarized by the reporter in Arizona v. California, supra 91, at 433:

"Arizona does not claim to own the running water, nor could she do so. Only such water as is taken into possession and control is subject to ownership. Control of these waters is an exercise of the police power, which is another term for the power of government. ** It is an exercise of political power.

"The right of the United States to exercise control over the Colorado River for improvement of navigation or otherwise is also the exercise of political power ***. It is thus a conflict between the political power of the State and the political power of the Nation."

tice Holmes' characterization of one claim of this sort.116 The same could as well be said of a Federal claim to ownership. In either case, the accent would be on "more" rather than on "less."

Others have gone further than did Mr. Justice Holmes. The Idaho Supreme Court has frankly spoken of its State's constitutional provision on the subject as referring "not *** [to] an interest or title in the proprietary sense, but rather in the sovereign capacity *** for the purpose of guaranteeing that the common rights of all shall be equally protected and that no one shall be denied his proper use and benefit of this common necessity" 117 and the Wyoming Supreme Court has said: 118

The obvious meaning and effect of the expression that the water is the property of the public is that it is the property of the people as a whole. Whatever title, therefore, is held in and to such water resides in the sovereign as the representative of the people. The public ownership, if any distinction is material, is rather that of sovereign than proprietor.

Nebraska v. Wyoming 119 is the one instance in which the issue of Federal versus State "ownership" was squarely raised before the Supreme Court and in its decision the Court spoke of the issue as being "largely academic so far as the narrow issues of this case are concerned" and, having satisfied itself that the Secretary of the Interior had followed the procedure outlined for him in section 8 of the Reclamation Act of 1902 with respect to acquiring appropriative rights in accordance with State law, dismissed the issue by remarking that "Whether they might have been obtained by Federal reservation is not important."

Fortunately for our purposes it is not necessary to pursue the ownership question in order to see and to discuss two more immediate problems which the bills before the committee involve. In discussing them, we can safely start with the assumption that, whatever the terms we have been quoting may mean, the United States presently has some claims of right that involve serious questions for State administrators and that, vice versa, the States make some claims that raise serious questions for Federal administration.

The two questions to which I refer are these: (1) To what extent shall Federal agencies and licensees be required to comply with the same State laws respecting the appropriation and use of water that private water users are required to comply with? (2) To what extent shall reservations of land from the public domain continue to carry with them rights to the use of water for the purposes for which the reservations are made?

The second of these questions was foreshadowed by the statement, already quoted, in United States v. Rio Grande Dam and Irrigation Company when that case was decided in 1899:

** in the absence of specific authority from Congress a State cannot by its own legislation destroy the right of the United States, as the owner of lands bordering on a stream, to the continued flow of its waters; so far at least as may be necessary for the beneficial uses of the Government property."

116 Hudson County Water Co. v. McCarter, 209 U.S. 349, 355 (1908).

120

117 Walbridge v. Robinson, 22 Idaho 236, 242, 125 Pac. 812, 814, 43 L.R.A. (n.s.) 240 (1912).

118 Willey v. Decker, 11 Wyo. 496, 534, 73 Pac. 210, 211 (1903). 119 325 U.S. 589, 611 f (1945).

120 Supra, note 14.

It is part of the picture in the Winters doctrine cases. 121 It was raised but dodged as we have just seen in Nebraska v. Wyoming and it came to full fruit in the Pelton Dam case. The result is that such statements as those contained in California Oregon Power Company v. Beaver Portland Cement Company 122 to the effect that the Desert Land Act established the rule, with respect to public lands—

that all nonnavigable waters thereon should be reserved for the use of the public under the laws of the States and territories named

and that

following the act of 1877, if not before, all nonnavigable waters then a part of the public domain became publici juris, subject to the plenary control of the designated States *** with the right in each to determine for itself to what extent the rule of appropriation or the common-law rule in respect to riparian rights should obtain

must be taken to be inapplicable to uses made by the Federal Government. Indeed, apart from any other considerations that might lead to this conclusion, the

old and well-known rule that statutes which in general terms divest preexisting rights or privileges will not be applied to the sovereign without express words to that effect- 123

is of as great force in reading the provisions of the Desert Land Act and similar laws as it is elsewhere.

The big question which the Pelton Dam decision raises is not that of infringement on existing private rights to the use of water-the Court specifically noted that all such rights were protected by the terms of the Federal Power Act 124-but of dual authority in administering water resources within a State.

The reservation question which was asked above thus merges into and becomes a part of the larger first question-the question of the extent to which Federal agencies and licensees are or should be required to comply with the laws of the States when they are carrying out acts of Congress providing for the development of the Nation's water resources or involving the use of these resources. And this, in turn, is but one aspect of the perennial question of Federal-State relations that arises wherever the application of State law may impede or frustrate the carrying out of a Federal function or the carrying out of a Federal function without regard to such law may hamper or nullify the administration of that law. The present ability of Federal administrators, in the absence of Federal legislation to the contrary, to carry on their functions without asking permission of State authorities is, in other words, not peculiar to the water rights field. They need not restrict their dealings with construction contractors, for instance, to those who are licensed by the States.125 They need not sub121 Supra, notes 15, 29, and 30. See also Burley v. United States, 179 Fed. 1, 12 (C.C.A. 9th, 1910):

"That the United States may, where the circumstances and conditions require it, reserve the waters of a river flowing through its public lands for a particular, beneficial purpose, was held by this court in Winters v. United States, 143 Fed. 740 *** and 148 Fed. 684 *** This decision was affirmed by the Supreme Court *

"To the same effect was the decision of this court in Conrad Investment Co. v. United States, 161 Fed. 829 *

123 295 U.S. 142, 162f (1935). See also Ickes v. Fox, supra, note 52.

123 United States v. United Mine Workers, 330 U.S. 258, 272 (1947).

124 349 U.S at 445.

125 Leslie Miller, Inc. v. Arkansas, 352 U.S. 187 (1956). Cf. California Public Utilities Commission v. United States, 355 U.S. 534 (1958), on authority of Federal agents to negotiate with common carriers without approval by State public service commissions of rates agreed upon.

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mit their plans for structures to a State officer for approval before beginning construction.126 They need not require their employees who drive Federal trucks to have State drivers' licenses.127

But, to return to the narrower problem of Federal-State relations in the water rights field:

It has been suggested that there are constitutional infirmities in the proposals that have been made to require all Federal agencies to abide by the laws of the States dealing with the appropriation, control, use and distribution of water. Were it not for the official standing of those by whom this suggestion has been advanced, it would have a rather hollow ring to it, particularly since the proposals are largely modeled on a statute as venerable as section 8 of the Reclamation Act of 1902. Fortunately, the often interrupted and rather unsystematic exposition of the supposed infirmities by Assistant Attorney General (as he then was) Rankin in 1956 128 has recently been refurbished and made more lucid in what is evidently a carefully prepared paper by Assistant Attorney General Morton. 129 The notion that there may be some constitutional prerogative in the executive departments to proceed without regard to State law that would be infringed by a congressional requirement to the contrary appears to have dropped by the wayside. It is admitted, the premise being that the United States has a proprietary interest in the unappropriated waters of our streams, that Congress could "give away" this interest to the States with the presumable consequence (though this is left unsaid) that reacquisition would have to be in accordance with the laws of the donee. It is admitted also that it is "competent for Congress to say to Federal officers that they shall conform to State law as far as they can without defeating the Federal purpose in the acquisition of water rights" [emphasis in original] with the caveat added that "When Congress authorizes or directs a Federal department or officer to construct and operate a project within its own sphere of delegated powers, the Constitution does not permit a construction which subjects that direction to the choice of consent or veto by any State or State official." Finally, it appears to be admitted that, though there has been "some very loose talk about the so-called 'delegation' of the power to State legislatures" which is objectionable, the same results might be reached on a theory of "adoption" of State laws by Congress for the guidance of Federal officials and, in view of the Sharpnack case, 130 that this "adoption" can be such a "continuing adoption" that it includes State laws enacted after the Federal act becomes effective.

126 Arizona v. California, supra, note 91 at 451 f.

127 Johnson v. Maryland, 254 U.S. 51 (1920). Cf. sec. 211(j) of the Federal Property and Administrative Services Act of 1949, as amended by sec. 2 of the act of Sept. 1, 1954, 68 Stat. 1126, 40 U.S.C. 491 (J): "The United States Civil Service Commission shall issue regulations to govern executive agencies in authorizing civilian personnel to operate Government-owned motor vehicles for official purposes Such regulations.

may require operators and prospective operators to obtain such State and local licenses or permits as would be required for the operation by them of similar vehicles for other than official purposes."

129 Hearings on H.R. 8325, etc., 84th Cong., pp. 23, 25 f., 38, 43 ff., 53. 129 Mr. Morton's paper is reprinted infra, pp. 51 ff.

180 United States v. Sharpnack, 355 U.S. 286 (1958). Mr. Morton's comments on this case, which had to do with the Assimilative Crimes Act, could readily be adapted to the problem before the committee by substituting the words shown in brackets for those in the original statement which precede them: "There is nothing in the case which sanctions delegation of legislative power. The adoption of certain State criminal [water] laws simply made them a part of the body of Federal law to be enforced [observed] by Federal officials in the administration of Federal justice [water development programs]." [Emphasis in original.]