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Mr. CARPENTER. Yes, indeed.
Senator KENDRICK. The greater portion of the land that was proposed in the original plan of reclamation under the Pathfinder Dam, the greater portion of the land in Wyoming, I mean, was abandoned as a practicable project after the agreement had been reached in connection with the use of the water.
Mr. CARPENTER. The Senator (Senator Kendrick) is correct. The lands known as the Alcova project and the lands up and down the river in the vicinity of Casper, both above and below
Senator KENDRICK (interposing). The enormous amount in Goshen hole.
Mr. CARPENTER. A large portion in the eastern part of Wyoming, known as Goshen Hole, was left out. But the main item was this, that the embargo order, entered in behalf of this lower site reservoir, prevented all development at the headwaters in Colorado and Wyoming, although money and men to construct were available and begging to be permitted to proceed. That condition has obtained almost to this hour, and there never has been a direct order changing the policy on that river, although it is understood to no longer exist.
These two experiences and others taught Colorado, Wyoming, and New Mexico the extent to which a department of the United States would go in overriding State authority and oppressing whole communities.
This is not a subject which had mere passing notice. Senator Thomas, of Colorado, delivered a speech on the floor of the Senate in which this matter was quite vigorously drawn to the attention of the Senate. Representative Taylor, of Colorado, delivered speech after speech on it on the floor of the House of Representatives. It was frequently discussed and became a matter of great agitation.
At the time of the Salt Lake City meeting these upper States were fully aware of the hazard of allowing a large reservoir to be developed on the lower river, having been taught that the United States would reach out and paralyze every bit of development above such a structure, would prevent private citizens from building their own works, would prevent States from developing their territory necessary to their preservation or prosperity. Incidentally these upper States had also been the victims of litigation in the courts, starting with litigation by Kansas against Colorado, in which Kansas charged that she had the right to the water of the Arkansas River, and in which suit Colorado defended as the State of origin in which it was necessary to use the river. The decision in that case was to the effect that because Colorado had not unreasonably exercised her sovereignty, and had not unduly trespassed upon Kansas, and had not used more than an equitable part of the common supply of the river, the court would not restrain it, giving rise to one of the most illuminating opinions by the Supreme Court of the United States to be found in the books, especially so when the two opinions in that case are considered. That case is reported as Kansas v. Colorado (185 U. S. 125, and 206 ('. S. 46).
The Reclamation Service entered that suit as intervenor and sought to impose upon the Western States a doctrine that priority obtains regardless of State lines. In other words, they would go so far as to say that the national in his property rights is superior to the Nation of which he is a member, that the right of a citizen proprietor on the river is greater than the right of the State in which the appropriation is made. That is the ultimate effect of that doc. trine drawn to its extreme conclusion. While as a matter of preservation of sovereignty it is imperative that the resources of the citizen at all times be under the strong hand of the State, which may take away the property of the proprietor by eminent domain and put it to other use whenever necessity demands, yet
Senator JOHNSON. This was a contention of the Reclamation Serv. ice, you say?
Mr. CARPENTER. Yes; in the Kansas-Colorado case. That contention was specifically considered and repudiated by the Supreme Court of the United States.
A little unfortunate unpleasantness developed over a little river flowing out of Colorado into Wyoming, the Laramie; and the Wyoming people prevailed upon their legislature to sue Colorado.
Senator SHORTRIDGE. Always very vigilant in Wyoming.
Mr. CARPENTER. Their counsel, in disregard of the fact that Wyoming is a State of origin, urged with great persistence that priority obtained regardless of State lines. During the time that suit was pending, which was eleven years, Governor Kendrick, of Wyoming, almost arranged a settlement, but conditions overthrew the results of his efforts, and the case went to final conclusion. Now, it is commonly reported as a clean-cut decision of priority, regardless of State lines. It is not. That is only partly true. The court there decided where there is a controversy between two States over a stream that is common to the two and in which both States recognize the same doctrine of prior appropriation for local distribution of water supply, that the Supreme Court will apply the fundamental principles of that doctrine in making an equitable apportionment of the waters of the river. And that in making the equitable apportionment it will consider what areas have been served in both States by existing canals, will then ascertain the average dependable flow, and will so apportion that average dependable flow between the States in blocks, en masse, that the existing areas irrigated will first be served and protected and that the balance of the water will go to the junior.
Furthermore, that when a river rises in a State and flows rapidly out of a mountain region into a country lower down, where reservoir and storage opportunities are plentiful, that the burden of storing water to supply senior proprietors will be placed upon the lower State in which the senior proprietors are located, even to the extent of giving a preferred right of immediate draft upon the river to an upper, the junior appropriator. For instance, if the Imperial Valley in this Colorado River matter were to come forward and say that she is appropriating all the waters of the river, and that juniors above, all of which, by the way, are Government projects, are interfering with her use of the waters of the river, those new projects, under the doctrine laid down in the Wyoming case, would simply come in and say: Imperial Valley, you are allowing millions of acre-feet of water to rush to the sea unimpounded. You can not make us turn down water until you have used every reasonable effort to conserve this common supply. In the Wyoming case they
permitted the most junior project at the source to take a preferred draft, leaving it to the seniors in Wyoming to build their own storage and take up the slack in the river. In that case, I might furthermore say, the court determined that the place of use of water is immaterial; that it is perfectly legitimate to tunnel from one drainage area to another; to take, for example, the waters of the Atlantic and take them to areas on the Pacific, and vice versa. There is nothing sacred about a drainage area in the use of the water of a stream.
Other questions were decided, among them: That no matter what the comparative value of crops may be, if the use of water be beneficial, the right will be protected.
In that case, we in Colorado contended that we could make so much better use of the water, that the water used in Colorado would produce so much more food for mankind and be of greater benefit to mankind, that we had a natural preference to the use of that stream. The court held against us, and set at rest the question that has arisen in the Colorado River matter a number of times
Senator KENDRICK (interposing). Then the court did not take your statement seriously? Mr. CARPENTER. Apparently not. In that case
In that case and I am getting a little ahead of my story in order to give you in a connected way this legal proposition--the United States of America intervened on behalf of reclamation projects, and laid claim to all of the unappropriated waters of the west, saying and arguing that all the unappropriated waters of western streams belonged to the United States and are wholly removed from State control; that citizens may, so long as Congress permits, take water out of the streams and when so severed that portion of the water so severed by the citizens comes under the operation of the police power of the State, but when abandoned it reverts to the Government, etc. The court did not pass upon that doctrine, upon that contention, although it was ably and repeatedly presented. I say repeatedly, it was twice argued. There were three oral arguments in that Wyoming case
Senator SHORTRIDGE (interposing). In the Supreme Court of the United States?
Mr. CARPENTER. Yes. Now, long before the Salt Lake City meeting in 1918
Senator Jones of Washington (presiding). Mr. Carpenter, before you start on a new phase of your statement I would remind you that it is now nearly 12 o'clock. The committee will have to adjourn, as matters of importance will come up on the floor of the Senate this afternoon and we will not be able to hold an afternoon hearing. However, we will hear you again at 10.30 o'clock tomorrow morning.
The committee will now stand adjourned until 10.30 o'clock tomorrow morning.
(Whereupon, at 11.50 o'clock a. m., the committee adjourned until to-morrow, Wednesday, December 16, 1925, 10.30 o'clock a. m.)
COLORADO RIVER' BASIN
WEDNESDAY, DECEMBER 16, 1925
UNITED STATES SENATE,
Washington, D. C. The committee met, pursuant to adjournment on yesterday, at 10.30 o'clock a. m. in the committee room of the Committee on Commerce, Senator Charles L. McNary (chairman) presiding.
Present: Senators McNary (chairman), Jones of Washington, Phipps, Shortridge, Johnson, Oddie, Gooding, Cameron, Pittman, Kendrick, and Ashurst.
Present also: Senator King, of Utah; Representatives Swing, of California ; Taylor, of Colorado; and Leatherwood and Colton, of Utah.
The CHAIRMAN. The committee will be in order. The committee last week expressed the hope that the hearings might be concluded not later than Friday of this week. I am conscious that we will have to speed along as rapidly as possible if we are to realize a fulfillment of that hope. However, I am not inclined, nor is the committee, to hasten the hearings, beyond the point where a full development of the theory and desire of the Northern States may be fully heard. Mr. Carpenter, you occupied yesterday morning. Can you conclude this morning?
Mr. CARPENTER. I will try my very best, and I think I can.
The CHAIRMAN. We will give all the time necessary for a full development of the subject, but I hope you will proceed as rapidly as you can, and without in any way going over the same ground that you may have heretofore covered.
Mr. CARPENTER. I shall refrain so far as possible from any duplication.
STATEMENT OF DELPH E. CARPENTER, ESQ., ATTORNEY AT LAW,
Senator ASHURST. Mr. Chairman, I should like to ask a question. The CHAIRMAN. Certainly.
Senator ASHURST. Mr. Carpenter, I have a couple of questions I should like to propound. Would you prefer that I wait until you finish your statement or might I just as well propound them at this time?
Mr. CARPENTER. It will be more agreeable to me if you could wait, Senator Ashurst. However, if you wish to propound them now I shall be glad to attempt to answer them.
Senator ASHURST. Very well, I will wait until you conclude your statement.