legislation must be interpreted in the light of existing facts--that all through this mining region in the West were streams, not navigable, whose waters could safely be appropriated for mining and agricultural industries, without serious interference with the navigability of the rivers into which those waters flow. And in reference to all those cases of purely local interest the obvious purpose of Congress was to give its assent, so far as the public lands were concerned, to any system, although in contravention of the common law rule, which permitted the appropriation of those waters for legitimate industries. To hold that Congress, by these acts, meant to confer upon any State the right to appropriate all the waters of the tributary streams which unite into a navigable watercourse, and so destroy the navigability of that watercourse in derogation of the interests of all the people of the United States, is a construction which cannot be tolerated. It ignores the spirit of the legislation and carries the statute to the verge of the letter and far beyond what under the circumstances of the case must be held to have been the intent of Congress.25

Finally, he pointed to the prohibition in section 10 of the act of September 19, 1890,26 against "the creation of any obstruction, not affirmatively authorized by law, to the navigable capacity of any waters, in respect of which the United States has jurisdiction ***" **" This, he said, "is a later declaration of Congress" than the statutes relied on by the defendants and "so far as it modifies any privileges or rights conferred by prior statutes *** must be held controlling * * *” 27 It was enacted by Congress as "an exercise *** of the power, oftentimes declared by this court to belong to it, of national control over navigable streams ***." Though it is "urged that the true construction of this act limits its applicability to obstructions in the navigable portion of a navigable stream," this is not so:

The language is general, and must be given full scope. It is not a prohibition of any obstruction to the navigation, but any obstruction to the navigable capacity, and anything, wherever done or however done, within the limits of the jurisdiction of the United States which tends to destroy the navigable capacity of one of the navigable waters of the United States, is within the terms of the prohibition. Evidently Congress, perceiving that the time had come when the growing interests of commerce required that the navigable waters of the United States should be subjected to the direct control of the National Government, and that nothing should be done by any State tending to destroy that navigability without the explicit assent of the National Government, enacted the statute in question. And it would be to improperly ignore the scope of this language to limit it to the acts done within the very limits of navigation of a navigable stream.28

Winters v. United States is the second of the four cases mentioned above. The principal concern of the parties to the case was whether the creation of the Fort Belknap Indian Reservation, in accordance with an agreement with the Gros Ventre and Assiniboine Tribes in Montana,29 entitled the latter to the use of water from the Milk River,

20 Ratified by the act of May 1, 1888, 25 Stat. 113, 133. Most of the Indian water rights cases have revolved around treaty provisions. For examples, see United States v. Powers, 305 U.S. 527 (1939); Conrad Investment Company v. United States, 161 Fed. 829 (C.C.A. 9th, 1908); Skeem v. United States, 273 Fed. 93 (C.C.A. 9th, 1921); United States v. McIntire, 101 F. 2d 650 (C.C.A. 9th, 1939); United States v. Hibner, 27 F. 2d 909 (D.C.D. Idaho, 1928). In United States v. Walker River Irrigation District, 104 F. 2d 334, 336 (C.C.A. 9th, 1939), however, it was held that "A statute or an Executive order setting apart the reservation [in this case, the Walker River Indian Reservation, created Nov. 29, 1859, by departmental action] may be equally indicative of the intent" to reserve water and equally efficacious in doing so. See also United States v. Big Bend Transit Co., 42 F. Supp. 459, 467 (D.C.E.D. Wash., 1941), dealing with the Spokane Indian Reservation, created by Executive order of Jan. 18, 1881, to the same effect. With these cases, compare United States v. Wightman, 230 Fed. 277, 283 (D.C.D. Ariz., 1916), dealing with the San Carlos Indian Reservation, to the effect that the Winters case "is not an authority that the mere creation [of a reservation] ex vi termini reserves to the Indians, or to the United States for their benefit, the beneficial use of all waters flowing within the reservation. There is no treaty right of the Indians involved in this case"; Byers v. Wa-Wa-Ne, 86 Oreg. 617, 169 Pac. 121 (1917), to the same effect. For a full discussion of the Winters doctrine

on which the reservation bordered, to the exclusion of white settlers on other lands in the vicinity which had formerly been occupied by the Indians. The parties were at odds with respect to whether the major part of the use of water by the Indians had commenced earlier or later than that of the white settlers, but no attention was paid to this in the opinion of the Court. It rested its decision, written by Mr. Justice McKenna, on the circumstances surrounding the making of the agreement:

The reservation was a part of a very much larger tract which the Indians had the right to occupy and use and which was adequate for the habits and wants of a nomadic and uncivilized people. It was the policy of the Government, it was the desire of the Indians, to change those habits and to become a pastoral and civilized people. If they should become such the original tract was too extensive, but a smaller tract would be inadequate without a change of conditions. The lands were arid and, without irrigation, were practically valueless. And yet, it is contended, the means of irrigation were deliberately given up by the Indians and deliberately accepted by the Government."

30

This contention the Court rejected. It accepted the contrary contention that the circumstances surrounding the making of the agreement indicated an intention to preserve for the Indians the means of accomplishing the purpose of the agreement. It rejected, also, the contention that the admission of Montana to the Union subsequent to the agreement and "upon an equal footing with the original States" destroyed the implied reservation of water for the Indians:

The power of the Government to reserve the waters and exempt them from appropriation under the state laws is not denied, and could not be. The United States v. The Rio Grande Ditch & Irrigation Co., 174 U.S. 690, 702; United States v. Winans, 198 U.S. 371. That the Government did reserve them we have decided, and for a use which would be necessarily continued through years. This was done May 1, 1888, and it would be extreme to believe that within a year Congress destroyed the reservation and took from the Indians the consideration of their grant, leaving them a barren waste-took from them the means of continuing their old habits, yet did not leave them the power to change to new

ones.

31

and its ramifications, consult Federal Indian Law, edited Horne (U.S. Department of the Interior, 1958), 662 ff.

The Wyoming court has expressed the view in Merrill v. Bishop, 74 Wyo. 298, 310 ff., 287 Pac. 2d 620, 624 (1955), that the usual Winters rule is not applicable in that State because Congress, when Wyoming was admitted to the Union, went further than "merely [to] admit it on an equal footing with the remainder of the States" by approving a constitution which declared all waters to be "the property of the State." The court went on to say, however, that "The Federal Government being in absolute control thereof [1.e., of the Indian reservation], the Federal courts may hold that the water rights were impliedly reserved notwithstanding the broad language contained in the act of admission * The case, it should be noted, dealt with the water rights of a white owner of lands that were originally an Indian allotment.

80 207 U.S. at 576. How much water is reserved for a reservation is frequently an important question. In the Conrad Investment Company case, supra, note 29, the court, after saying (at 831 f.) that the Winters case "determines the paramount right of the Indians to the use of the waters * to the extent reasonably necessary for the

purposes of irrigation and stock raising, and domestic and other useful purposes" and that "the policy of the Government [is] to reserve whatever water *** may be reasonably necessary, not only for present uses, but for future requirements," affirmed the lower court's decree, which had enjoined the defendants from depleting the flow of the stream in question below 33% second-feet, and provided that "whenever the needs and requirements of the complainant for the use of the waters of Birch Creek *** upon the reservation exceed the amount of water reserved by the decree * * * the complainant may apply to the court for a modification of the decree." See also the Skeem and Hibner cases, cited in note 29, to the same effect. In the Walker River case, supra, note 29, however, the court, although holding (at 339 f.) that "there was an implied reservation of water to the extent reasonably necessary to supply the needs of the Indians" and that "the area of irrigable land included in the reservation is not necessarily the criterion for measuring the amount of water received," went on to make a firm determination of the quantity to which they were entitled and decreed to the Government for this purpose 26.25 second-feet. On the power of Congress to open reserved waters to private appropriation under State law and of the Secretary of the Interior to agree to limitations on the amount of water the Indian reservation will use, see United States v. Big Bend Transit Co., supra, note 29; Byers v. Wa-Wa-ne, supra, note 29; and United States v. Ahtanum Irrigation District, 236 F. 2d 321 (C.A. 9th, 1956).

31 207 U.S. at 577.

The basic issue in First Iowa Hydro-Electric Cooperative v. Federal Power Commission, the third of the cases noted above, was whether a diversion of water from the Cedar River, a navigable stream in Iowa, could be effected under a Federal Power Commission license without a permit from the State. This in turn involved the question of the meaning and effect of section 9 of the Federal Power Act, the pertinent part of which reads thus:

each applicant for a license hereunder shall submit to the commission

(b) Satisfactory evidence that the applicant has complied with the requirements of the laws of the State or States within which the proposed project is to be located with respect to *** the appropriation, diversion. and use of water for power purposes * * *33

The Commission dismissed an application for a license on the ground that the applicant had not presented the evidence required, explaining that it did so because the validity of the Iowa laws was in question and should be judicially settled before it proceeded further. The applicant took the case to the Court of Appeals for the District of Columbia which sustained the Commission's decision. The Supreme Court reversed.

The Iowa laws in question not only forbade the construction of any dam without a permit from the State's Executive Council but provided, in effect, that the council should issue a permit only if it found, among other things, that "any water taken from the stream in connection with the project [will be] returned thereto at the nearest practicable place *

In substance, the Court held that this provision in particular, and other provisions of Iowa law to which it alluded more generally, were incompatible with various provisions of the Federal Power Act, especially that providing that licensed projects—

shall be such as in the judgment of the Commission will be best adapted to a comprehensive plan for improving or developing a waterway or waterways for the use or benefit of interstate or foreign commerce, for the improvement and utilization of waterpower development, and for other beneficial public uses, including recreational purposes

34

and were therefore superseded by the Federal law; that to the extent that they were superseded section 9(b) of the Federal Power Act did not require a showing of compliance with them; and that therefore the Commission should have proceeded to determine the merits. of the cooperative's application for a license.

Mr. Justice Burton, writing the majority opinion of the Court, said: To require the petitioner to secure the actual grant to it of a State permit *** as a condition precedent to securing a Federal license for the same project under the Federal Power Act would vest in the Executive Council of Iowa a veto power over the Federal project. Such a veto power easily could destroy the effectiveness of the Federal act. It would subordinate to the control of the State the "comprehensive" planning which the act provides shall depend upon the judgment of the Federal Power Commission or other representatives of the Federal Government.35

If a State permit is not required, there is no justification for requiring the petitioner, as a condition of securing its Federal permit, to present evidence of 32 Act of June 10. 1920, 41 Stat. 1068, 16 U.S.C. 802.

33 328 U.S. at 162.

34 Act of June 10, 1920, sec. 10 (a), 41 Stat. 1068, as amended, 16 U.S.C. 803 (a), 35 328 U.S. at 164.

the petitioner's compliance with the requirements of the State code for a State permit. Compliance with State requirements that are in conflict with Federal requirements may well block the Federal license. For example, compliance with the State requirement * ** that the water of the Cedar River all be returned to it at the nearest practicable place would reduce the project to the small one which is classified by the Federal Power Commission as "neither desirable nor adequate." Similarly, compliance with the engineering requirements of the State Executive Council, if additional to or different from the Federal require ments, may well result in duplications of expenditures that would handicap the financial success of the project. Compliance with requirements for a permit that is not to be issued is a procedure so futile that it cannot be imputed to Congress in the absence of an express provision for it.36

The authors of the Federal Power Act, he went on, knew how to distinguish between those matters which they were leaving to the State and those which they were turning over to the Commission. In section 27 of the act, for instance, they distinctly provided:

That nothing herein contained shall be construed as affecting or intending to affect or in any way to interfere with the laws of the respective States relating to the control, appropriation, use, or distribution of water used in irrigation or for municipal or other uses, or any vested right acquired therein 37.

thus employing language similar to that of section 8 of the Reclamation Act of 1902:

The effect of § 27, in protecting state laws from supersedure, is limited to laws as to the control, appropriation, use, or distribution of water in irrigation or for municipal or other uses of the same nature. It therefore has primary, if not exclusive, reference to such proprietary rights. * * * There is nothing in the paragraph to suggest a broader scope unless it be the words "other uses." Those words, however, are confined to rights of the same nature as that relating to the use of water in irrigation or for municipal purposes. This was so held in an early decision by a district court *** where it was stated that "a proper construction of the act requires that the words 'other uses' shall be construed ejusdem generis with the words 'irrigation' and 'municipal" (Alabama Power Co. v. Gulf Power Co., 283 F. 606, 619).

38

Section 9, on the other hand, "does not itself require compliance with any State laws":

Its reference to State laws is by way of suggestion to the Federal Power Commission of subjects as to which the Commission may wish some proof submitted to it of the applicant's progress. The evidence required is described merely as that which shall be "satisfactory" to the Commission. The need for compliance with applicable State laws, if any, arises not from this Federal statute but from the effectiveness of the State statutes themselves."

In Federal Power Commission v. Oregon there was again conflict between the Commission's and the State's licensing authorities. This time, however, a nonnavigable stream, rather than a navigable stream, was involved and the question arose concerning the effectiveness of a State prohibition against construction of a dam which would interfere with the movement of anadromous fish without the approval of and a license from the State. The case did not involve water rights as such, but the basic argument of the State, as summarized by the Court, was that the acts of July 26, 1866, July 9, 1870, and the Desert Land Act of 1877 "constitute an express congressional delegation or conveyance to the State of the power to regulate the use" of the waters

36 Ibid. at 166 f.

37 41 Stat. 1077, 16 U.S.C. 821.

38 328 U.S. at 175 f. The latter part of this holding was considerably qualified in Federal Power Commission v. Niagara-Mohawk Power Corporation, 347 U.S. 239, 256 (1954), where the Court said that the provision of section 27 relating to vested rights "is applicable to proprietary water rights for power purposes as well as those for other proprietary uses."

39 Ibid. at 177 f.

in question and that "these acts preclude or restrict the scope of the jurisdiction, otherwise apparent on the face of the Federal Power Act, and require the consent of the State to a project such as the one before us." 40

To this the Court's answer was, first, that the Federal Power Act specifically covers not only projects which involve the use of navigable waters of the United States but also projects which utilize lands owned by the Federal Government" and, secondly, that the 1866, 1870, and 1877 acts are not concerned with reserved lands (such as were here involved) but only with public lands and the waters thereon: The nature and effect of these acts have been discussed previously by this Court. The purpose of the acts of 1866 and 1870 was governmental recognition and sanction of possessory rights on public lands asserted under local laws and customs. Jennison v. Kirk, 98 U.S. 453. The Desert Land Act severed, for purpose of private acquisition, soil and water rights on public lands, and provided that such water rights were to be acquired in the manner provided by the law of the State of location. California Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142. See also, Nebraska v. Wyoming, 325 U.S. 589, 611-616. It is not necessary for us, in the instant case, to pass upon the question whether this legislation constitutes the express delegation or conveyance of power that is claimed by the State," because these acts are not applicable to the reserved lands and waters here involved. The Desert Land Act covers "sources of water supply upon the public lands * **" The lands before us in this case are not "public lands" but "reservations." Even without that express restriction of the Desert Land Act to sources of water supply on public lands, these acts would not apply to reserved lands [citing United States v. O'Donnell, 303 U.S. 501, 510, and United States v. Minnesota, 270 U.S. 181, 206].“ The Court also reaffirmed the doctrine of the First Iowa case, saying: There * * * remains no question as to the constitutional and statutory authority of the Federal Power Commission to grant a valid license for a power project on reserved lands of the United States, provided that, as required by the Act, the use of water does not conflict with vested rights of others. To allow Oregon to veto such use, by requiring the State's additional permission, would result in the very duplication of regulatory control precluded by the First Iowa decision."

AND FIVE ACTS OF CONGRESS

As the foregoing outline of these four cases indicates, Congress has not been inactive in the enactment of legislation affecting, directly or indirectly, the laws of the States dealing with the use of water. At least five major pieces of legislation-in addition to a proliferation of minor acts and of acts dealing with individual projects to be undertaken by Federal agencies have been enacted during the period with which we are concerned.

The first of these five is the section 10 of the act of September 19, 1890,45 on which the Rio Grande case turned. This section, after providing, as the Court pointed out, that-

40 349 U.S. at 447.

41 Ibid. at 441 f.

42 Cf. Douglas, J., dissenting: "I assume that the United States could have recalled its grant of jurisdiction over water rights, saving, of course, all vested rights. But the United States has not expressly done so; and we should not construe any law as achieving that result unless the purpose of Congress is clear." Ibid. at 456.

43 Ibid. at 447 f.

44 Ibid. at 444 f.

45 Supra, note 26.