ment. As time goes on, water development becomes more complex and more expensive. If the supply is to keep pace with the demand, it will require the cooperation, coordination, and best efforts of Federal, State, and local governments and public and private institutions, and private citizens.

So long as the conflict between the Western States and the Federal Government exists over what law and what rules and regulations shall govern the control, use and distribution of the waters of the Western States, so long will the ill will, mistrust, and fear engendered by this conflict continue to hamstring and hinder the close and harmonious Federal-State relationship in the water resource field which is so essential for the welfare of the West and the Nation.

FEDERAL-STATE RELATIONS IN THE FIELD OF WATER

my

RIGHTS1

(By the Honorable Perry W. Morton 2)

You have honored me by your invitation to appear on this program of your annual convention. There are several reasons, apart from official status, why I found this opportunity personally attractive. For one thing, I am delighted to be again in Denver, Colo., where I first set foot 47 years ago and where I have spent so many happy days of my life. The earlier trips from my hometown of Lincoln, Nebr., were in the years before the Moffat tunnel, when access to Granby was by rail over Corona and the trip to Grand Lake had to be completed by stage coach. I hope I don't look that old, but I am. I remind those who may not be as well acquainted with local geography that Grand Lake is the high point of one of the largest and most useful of the reclamation projects in the United States. I know almost every foot of it on the ground.

Then, too, this association is identified, in my mind, with a fellow townsman, C. Petrus Peterson, one of your highly honored past presidents. This affectionate acquaintance goes back much more than a generation to when Senator Peterson was city attorney and my maternal grandfather was for nearly 40 years the water commissioner in Lincoln. Senator Peterson's office today is in exactly the same. room which was my private office when I left Lincoln in 1953 to assume my present duty in Washington.

Finally, it is a real personal pleasure for me to have this part in a discussion with my good friend Hatfield Chilson, former Under Secretary of Interior, who rendered distinguished public service and earned the respect of all who worked with him while he was in Washington. If I fall into the habit of calling him "Chilly," it is because that is his nickname, and not because it has any reference to some of the remarks he has made here about the views of the Department of Justice.

Beyond these expressions of my personal pleasure in being here, I want to emphasize on behalf of the Department of Justice my appreciation of your invitation. To the best of my knowledge, this is the first time a representative of the Department has ever appeared on your platform.

Having accorded me the courtesy of your invitation, I trust that you may also believe that I am-both personally and officially-just as much interested as you are in a national policy for the sound, comprehensive development and conservation of our country's water resources. I should like to overcome as far as I am able, any idea which may be held that there is something sinister about performing

1 Address before the National Reclamation Association at its annual meeting, Oct. 29, 1959.

2 Mr. Morton is Assistant Attorney General of the United States in charge of the Lands Division of the Department of Justice.

the duties incumbent upon the Department of Justice in representing the interests of all the people who compose the United States.

I am reminded of the hearings held about 3 months ago before a committee of Congress on several pending bills related to the general subject of water rights.3 Witness after witness appeared before the committee making extravagant statements about actions and positions of the Department of Justice. A pile of legislative resolutions was offered for the record. From the similarity of their language it was perfectly apparent that carbon copies had been peddled around from one State to another by the same lobbyist. To your credit, it was not a representative of this association. Practically all of these resolutions contained a "Whereas" which, with minor variations, said that:

* recent decisions of the Federal courts and recent rulings of the U.S. Department of Justice have deprived States and individual persons of rights which said States and persons previously enjoyed in the regulation and control of the use of water in their respective States; ***

Yet, time and again several of these same witnesses were asked by members of the committee, especially two of the distinguished Congressmen from this State, Mr. Aspinall and Mr. Chenoweth, whether they could give the committee a single example of a pending case in which "rulings" of the Department of Justice or the positions which it had asserted had deprived anyone of property without just compensation. And the answer in more than a dozen such instances, without exception to the contrary, was that the witness did not in fact know of any such case.

I am keenly aware that there are controversies. While we live in this world, I don't suppose that anyone will ever invent a way to avoid controversies. I was impressed during the recent visit of Mr. Khrushchev with the fact that controversies are one of the luxuries of our way of life. One of our most priceless heritages is our freedom to disagree. There would not be such a great body of court decisions in the field of water law if individuals did not have controversies between themselves, or individuals with their State governments, or municipalities with their States. And so forth.

Multi-purpose development of our water resources by its very nature involves serious competition between the various interests affected. For limited illustration, flood control and navigational factors may be the functional antithesis of irrigation or power factors, and, depending on geography, irrigation, and power develpoment may themselves be in conflict. These functional conflicts are the breeding grounds of legal conflicts. But I suggest that it is a mistake to keep the glare of a spotlight focused always on the idea of conflict. I submit that we will get ahead much better if we can orient our thinking to emphasize the very substantial areas of agreement and the possibilities of cooperation.

In tune with this thesis, I should like to associate myself with the remarks of the distinguished gentleman from Colorado, Congressman Aspinall, who said at the opening of the recent committee hearings:

The problem is too complex to be settled in any such summary fashion as saying no more, on the one hand, than "States rights" or, on the other, "suprema

3 Hearings on "Federal-State Relations in the Field of Water Rights," before the Subcommittee on Irrigation and Reclamation of the Committee on Interior and Insular Affairs, House of Representatives, 86th Cong., 1st sess. Government Printing Office, 1959.

cy clause of the Constitution." Neither of these settles any questions, however attractive it may be as a rallying cry.*

Notwithstanding natural differences in points of view, I would hope that all may recognize as an ultimate goal the establishment of programs which will look to the best interests of the Nation as a whole, which will give recognition to the legitimate interests of the States and the people directly affected by water development, and which likewise recognize the proper and necessary concerns of the National Government.

I have no difficulty in accepting, without substantial amendment, a great deal of what my brother Chilson has had to say to you. He has, for example, made passing references to certain provisions of the U.S. Constitution, such as the judicial power under article III,5 the supremacy clause in article VI, the property clause in article IV," and the commerce clause in article I. My own remarks will soon narrow down to a discussion of some of the matters most directly related to the property clause. But I wish first to summarize some thoughts about the commerce power as to which I think we are in complete agreement notwithstanding some of the less than objective discussions we sometimes hear.

From the standpoint of governmental power, the interest of the United States in the flow of a navigable stream originates in the commerce clause. That clause speaks in terms of governmental power, not of property. There may be vested property interests in the use of navigable water, but those interests are held, and since 1789 have been held, subject to the exercise of the commerce power. Congress may by inaction allow the power to remain dormant, or it may exercise the power in a variety of ways to less than its full extent. But it cannot surrender the power itself. If it expressly decides to exercise the power to its fullest extent all competing interests are displaced and the flow of the river is appropriated for the declared public purpose.9 No matter how solemnly one Congress may declare a policy against the exercise of the power, it cannot bind a future Congress to the same decision. It cannot even bind itself against contrary action in the next 5 minutes. On the other hand, for so long as it does not change its mind either particularly or generally, it can provide compensation for the infringement of private rights existing under state law. This is the result reached in the Gerlach,10 Niagara-Mohawk,11 and other such cases, and must be accepted as the law.

Passing reference was made in the previous paper to the "vast" extent of the commerce power extending to any stream which might be

4 Ibid., p. 21.

5 Art. III, sec. 2: "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; *** to Controversies to which the United States shall be a Party; to Controversies between two or more States; ***”

Art. VI (second par.): "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

7 Art. IV, sec. 3, clause 2: "The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; ***"

8 Art. I, sec. 8, clause 3: [The Congress shall have Power] "to regulate Commerce *

among the several States, *

*

United States v. Twin City Power Co., 350 U.S. 222 (1956); United States v. ChandlerDunbar Co., 229 U.S. 53 (1913).

10 United States v. Gerlach Live Stock Co., 339 U.S. 725 (1950).

11 Federal Power Commission v. Niagara Mohawk Power Corp., 347 U.S. 239 (1954).