to appropriate water, and, the sudden stopping of that compliance as far as the appropriation of ground water was concerned, immediately following the Pelton Dam decision. In order that you may better understand the situation that developed at Hawthorne, I will describe the events leading up to the present time. During World War II, 1942-45, the U.S. Government drilled six wells within the naval ammunition depot at Hawthorne to obtain a supplemental water supply for the base. In 1949 the U.S. Government filed applications to appropriate water from said wells and subsequently permits to appropriate water were granted by the State engineer. Following the completion of drilling and equipping the wells with pumps, water was diverted for beneficial consumptive use. The permittee complied with the provisions of the permits by filing proofs of commencement and completion of work. All that remained to be done by the Department of Navy to complete the water rights and to receive certificates of appropriation from our State was the filing of proofs of beneficial use. However, on July 25, 1955, I was advised by the commanding officer at the depot that the permits were being dropped upon instructions of the commandant of the 12th Naval District. This action was based upon an interpretation of the decision of the U.S. Supreme Court in the case of Federal Power Commission v. The State of Oregon, 349 U.S. 435, (the Pelton dam case), and on the premise that all the wells were located on reserved lands; that is, public lands which were withdrawn and reserved for the use of the Navy Department by Executive order.

In the Pelton Dam case, the source of water supply was a nonnavigable stream, whereas in the Hawthorne case the source of water supply is from a ground water reservoir. In the Pelton Dam case the use is a nonconsumptive use (power generation), whereas in the Hawthorne case the use is a beneficial consumptive use. The only similarity is that in each case the land involved was reserved land. In the Hawthorne case the lands were withdrawn from entry and reserved for use by the U.S. Navy in about 1933.

On December 1, 1955, the State of Nevada filed a complaint for declaratory judgment against the United States of America, in the Fifth Judicial District Court of the State of Nevada, in and for the county of Mineral. On December 7, 1955, service was made on the Attorney General of the United States. The case was transferred to and was heard in the Federal district court at Carson City, Nev., and on August 27, 1958, the court rendered its opinion dismissing Nevada's complaint and holding that the United States need not comply with Nevada law, relying on the Pelton Dam case. The following remarks of the judge are interesting:

"Both on reason and, as we shall see in a moment, on authority, this court is forced to the conclusion that there is no mandate in constitutional, statutory, or decisional law that compels the Federal Government to bend its knee to this type of State law and regulation, whether it be arbitrary or benign."

It should be pointed out that there was no evidence that this withdrawal of water by the Navy from ground water storage would endanger the supply of the town of Hawthorne in the immediate future. Conceivably, it could have done so at some future time. However, the case did not turn on this point but on the concept that the Federal Government need not comply with State law on "reserved" lands. Presumably, the decision would have been the same if there had been many users and a dwindling water supply.

The case was appealed to the U.S. Court of Appeals for the Ninth Circuit and on May 29, 1960, the court dismissed the case on the grounds that the United States did not consent to the bringing of the suit and that the suit was therefore barred by the sovereign immunity of the defendant (The State of Nevada, Ea Rel Hugh A. Shamberger, State Engineer, Appellant v. United States of America, Appellee, No. 16, 389).

To illustrate the illogical position brought about by the Pelton Dam decision as applied in the Hawthorne case, I will describe the physical situation there. The town of Hawthorne, the county seat of Mineral County, with a population of about 2,000, occupies an area of 1 square mile near the center of the depot area. The town's water supply is partly furnished from two deep wells drawing water from the same ground water basin as the Navy wells. Permits to appropriate ground water were obtained on both wells. One permit, which has been perfected, was earlier in priority than the Navy permits and the other permit was junior in priority. As the town grows, undoubtedly other wells will be needed. Because all the wells are drawing water from the same basin, the amount of water withdrawn by any one well or group of wells would affect the total amount of water available to the other wells in the basin. Thus it is not logical that one

group of wells, those owned by the town of Hawthorne, should be operated subject to the State water law; whereas, another group, those owned by the Navy, should be operated not subject to State water laws. While we are speaking here of the Hawthorne case, the same situation could develop in other ground water basins where both Federal and private ownerships exist.

The Government has said that their property right to use waters on reserved areas is limited to unappropriated water. It could well be asked who determines when there is unappropriated waters? It has always been recognized by the States that that determination, together with administering the orderly development of any unappropriated water has been the responsibility of the States. The question also arises as to what recourse the Department of Navy, in the Hawthorne situation, or any other department of the Federal Government in other similar instances, might have taken should subsequent appropriations of water by private interests outside the area of reserved lands jeopardize the Government's use of water. In other words, unappropriated water today may become appropriated water under State law tomorrow.

At about the time when the naval ammunition depot at Hawthorne was dropping their ground water permits due to the reservation doctrine, they were making an application to appropriate water from a surface stream which had crossed privately owned lands and on which there had been some existing water rights. The Navy purchased the land and water rights and then applied for the total flow of the stream. I would like to quote a letter from the commanding officer of the depot dated December 8, 1955, and addressed to me as State engineer. The letter reads as follows:

"Enclosed are the application and map for permit to appropriate the waters [complete flow] from Squaw Creek. All privately owned land within the confines of the depot which Squaw Creek crosses has been acquired by the Government, together with all privately owned water rights. Payment in the amount of $25 covering the required filing fee for the above application will be made through regular Navy channels.

"Since all waters from House Creek flow entirely over land withdrawn from the public domain and reserved for the use of the U.S. naval ammunition depot, an application to appropriate the waters of House Creek will not be filed with the State engineer, State of Nevada."

It is to be noted that there are no private water rights on House Creek nor any private property along its course. Therefore, the Government or the Navy Department chose not to comply with State water law on that particular stream. On the other hand, on Squaw Creek, where the water flowed across previously privately owned land, they complied with State water law.

Also to illustrate the fine line of distinction between obtaining a proprietary right under State law on unreserved lands (i.e., previously private lands) and claiming a sovereign right on reserved lands as in the Hawthorne case, let me point out that in late 1961 the 12th Naval District filed an application to appropriate ground water for military purposes on their large naval airbase near Fallon, Nev., about 60 miles from Hawthorne. This base was established during World War II and the land purchased from private owners. The reservation doctrine did not apply here. The application was approved and the final certificate of water right issued this past April.

In Nevada, the Federal agencies are generally recognizing the States water law, and in fact the cooperation is excellent. However, the uncertainty exists as to what might happen to water originating on reserved lands such as forest reserve lands that were unappropriated at the time the reservation was created. Would subsequent appropriators be using such waters at the sufferance of the Government?

We favor the enactment into law of S. 1275 as written. Paragraph 1 of section 1 would provide that the withdrawal or reservation of public lands heretofore or hereafter established shall not affect any right to the use of water acquired pursuant to State law either before or after the establishment of such withdrawal or reservation. This is the same language that was used in H.R. 4567, 86th Congress, 1st session, and which had been developed by Mr. Perry W. Morton, Assistant Attorney General of the United States, and Mr. Elmer Bennett, Solicitor, Department of the Interior, during the previous administration. At that time the Department of Justice, Department of the Interior, Department of Defense, and perhaps other departments, agreed to it. The bill could have no doubt been enacted into law and a grave mistake was made in not supporting it at that time.

This subsection would have corrected the Hawthorne situation and would have done a great deal to ease the tension that has been built up as to the validity of State water laws.

Mr. Perry Morton, Assistant Attorney General, in a speech before the National Reclamation Association at its annual meeting in Denver, Colo., October 29, 1959, in commenting on the aforementioned proposal contained in H.R. 4567, stated as follows:

"Let no one suppose that such legislation would not involve costs in terms of some future Federal developments. It would. It might even make some possible Federal projects fiscally infeasible. On balance, however, I believe that this particular proposal is one which deserves the prompt consideration of the Congress as a possible means of encouraging State, local, and private development of our western water resources.'

We think this is a fair statement. In the development of our land and water resources there should be a close relationship between the Federal and State agencies. It has been our observations that each year the States are becoming stronger in this field and where this teamwork has been established the area involved has benefited.

Earlier this year your committee approved and the Senate passed S. 1111 known as the Water Resources Planning Act of 1963. The National Reclamation Association endorsed this legislation. It is good legislation because it calls for representatives of the State and Federal agencies in each basin under study to work as a team. We ask the question-will the present legal uncertainties as to the ownership and control of our water resources act as a barrier to developing such a relationship in our river basin studies?

The report of the Select Committee on National Water Resources pursuant to Senate Resolution 48, 86th Congress in Senate Report No. 29 of the 87th Congress, 1st session, January 30, 1961, contains the following language:

"The broadening pattern of these conflicts is conclusive proof of the urgent need for clear-cut definitive action on the part of Congress to work out with the States a redefining of Federal-State powers and responsibilities for control, use, and development of water resources. The Federal Government should not hamstring the States in the States efforts to develop their water resources to meet the needs of their people. Neither should the States hamstring the Federal Government in its efforts to fulfill its functions within the Constitution."

There would seem to be little question but that at least a partial solution should be arrived at without delay. It is our opinion that S. 1275 would provide such a solution, and while it doesn't solve all the problems we believe that it will set to rest the many uncertainties as a result of the Pelton Dam decision and the claims of the Department of Justice.

We believe that any programs of the United States in the field of water development would not materially be affected by the passage of S. 1275. We fail to see wherein there should be serious objections on the part of the Government. Mr. Chairman, we urge that favorable consideration be given this bill.

RESOLUTION No. 8 OF THE NATIONAL RECLAMATION ASSOCIATION

Whereas in several of the past sessions of Congress various bills have been introduced concerning clarification of the conflict of claims to water rights and uses between the Federal Government and rights created under State law; and Whereas many hearings have been held by committees of Congress upon this subject leading to better understanding of the problem and there has been introduced in the 88th Congress, 1st session, S. 1275 by Senators Kuchel, Jordan, and Moss, which bill as introduced has now been approved by a very large number of representative organizations directly interested in the subject; and

Whereas a committee of the National Reclamation Association has worked diligently in furtherance of this subject and has approved S. 1275, and recommended the approval and support of said bill as introduced : Now, therefore, be it Resolved, That the National Reclamation Association express its approval of S. 1275 as introduced and urge its passage and enactment into law.

RESOLUTION 1 OF THE COLORADO RIVER WATER USERS ASSOCIATION

Whereas by resolution adopted by the Colorado River Water Users Association at its 19th annual meeting in Las Vegas, Nev., on December 7, 1962, a study was to be made and submitted concerning the protection of State water rights against further encroachment by assertions of Federal executive authority; and Whereas the States have developed a cohesive and unified body of water law which attempt to achieve maximum certainty in the enjoyment and possession of water rights, and the security of these water rights is essential to the planning, development, and maintenance of water projects on which the economy depends: Now, therefore, be it

Resolved, That the 20th annual meeting of the Colorado River Water Users Association again reiterates its position that the Congress should enact legislation which will declare unmistakably that water rights are a species of real property rights which should be acquired and maintained as other forms of real property rights under the laws of the respective States. To this end, and as a first step toward the ultimate goal this association supports the principles substantially as contained in S. 1275 as introduced and urges enactment of such legislation.

Senator Moss. Thank you, Mr. Shamberger. We appreciate that and it comes as an appreciation of the position taken by one of the great, or perhaps two of the great, water organizations of the country, the National Reclamation Association and the Colorado River Water Users Association.

I particularly liked your emphasis on the fact that one of the effects of this bill would be to encourage States and local units and even private interests to take a share in developing the water resources rather than gravitating everything into Federal development.

Now I think we all recognize that the big, the massive projects are going to have to be Federal because of the need for the resources that cannot be amassed by States or lesser governmental agencies but these must be complemented by innumerable smaller developments that very properly ought to be done by States or even water districts and sometimes private enterprise. If this legislation will have that effect, that certainly is a plus for it.

Mr. SHAMBERGER. We think it will.

Senator Moss. 'Yes, sir.

Mr. Kuchel, do you have questions or comment?

Senator KUCHEL. This is an excellent statement, and it should be of enormous value to the committee. I think that my colleague from North Dakota, Senator Burdick, in thirsting for information on the Hawthorne problem in Nevada reflected the interest of all of us on that subject.

Let us assume that this bill had been the law at the time of the problem with respect to this town of Hawthorne that the State of Nevada and the Department of the Navy were interested in. The facts are that to the extent that the Navy required and used water it would proceed to acquire and use that water; would it not?

Mr. SHAMBERGER. It had already proceeded to comply with State water laws. In fact, they had reached the point where they were ready to file proof of beneficial use at the time the Pelton decision came out. Just overnight they advised us that they joined the application of permits, that they had been advised that due to this decision they did not need to comply with the State water law on reserved lands.

I might point out, Senator Kuchel, that 60 miles away from Hawthorne we have a big naval air base and this base comprises land which was purchased by the Navy. It had a surface water right from one of

the earliest reclamation projects in the country but when they drilled for ground water for domestic use they applied for water and have received certificates. In other words, on another ground water basin they have gone ahead and followed State law, received certificates, and have completed appropriation.

On such a fine line of distinction I pointed out in my statement that the Navy, on water sources on which they had to purchase water rights, they have gone ahead and filed water applications and completed them but in another instance where the stream was impounded on the reservation and there had been no water rights required they stated they did not have to. So it is a very fine distinction between the reserved lands that have been purchased.

Senator KUCHEL. Let us assume that the needs of the Federal Government required the use of water which was unavailable by reason of prior appropriation. Let us assume that this example would deal with the Department of Defense.

Could the Federal Government under the present law have its needs recognized in an appropriate law to acquire by purchase or condemnation the water rights which belong to non-Federal appropriators?

Mr. SHAMBURGER. We consider, of course, water rights as property rights and they could certainly purchase and have been doing it. Senator KUCHEL. The able lawyer from the Navy Department is here, Mr. Charles Goodwin.

Do you agree with that?

STATEMENT OF CHARLES GOODWIN, ASSISTANT TO THE GENERAL COUNSEL, DEPARTMENT OF THE NAVY-Resumed

Mr. GOODWIN. Yes. No question about it, we can condemn any privately owned water rights providing that Congress gives us the authority to proceed that way.

Senator KUCHEL. I ask my able friend from the Navy Department one more question: Would S. 1275 in any way restrict that right on the part of the Federal Government; in this example, the Navy Department?

Mr. GOODWIN. Not on the part of the Federal Government. I think there is some problem as to whether we could proceed as we now proceed on the basis of requiring water rights for any project that is authorized and proceeding to condemn those water rights on the basis that the condemnation is impliedly authorized.

I think this might make it perhaps necessary that there be very express authorization. I cannot resolve that problem. I think it is one of the questions of interprepation of the present language of the bill.

Senator KUCHEL. I will not take time now but would you furnish this committee with a legal memorandum on the problem you and I have just discussed here with respect to the specific language of the bill?

Mr. GOODWIN. Yes.