that practically marks the Arctic Circle in climatology. Then stepping down from these high areas, and I now point out on the Meeker map, at the town of Grand Junction, just above the interstate line, it is about 4,000 feet above sea level. In other words, there would be a drop of anywhere from-well, in extreme cases there would be a drop of 10,000 feet from the tops of those peaks to Grand Junction, thus making quite rapid changes in climatic conditions as the stream progresses down hill.

Senator PHIPPS. Then you get a further drop to the State line? Mr. CARPENTER. Yes; you get a comparatively rapid drop to the State line, and down to the canyon.

Senator PHIPPS. All right. You may go ahead with your state

ment.

Mr. CARPENTER. In 1918 the situation obtaining upon the lower river was brought to a focal state at a meeting at Salt Lake City called at the request of the people of Los Angeles. At that meeting it was revealed that the studies of all the conditions in the basin, which had progressed over a period of years and been made by governmental employees, had been sufficiently concluded to justify the calling of a meeting and serious consideration of a program of development on the Colorado River. There at once developed at that meeting the ardent desire of the people of the south to do something quickly, and a prudent, conservative attitude on the part of the people of the north to encourage quick development provided they were not to be injured in the proceeding. The meeting adjourned after adopting resolutions that were not at all to the liking of the people of the south. In other words, they did not resolve to proceed at once to develop these enormous reservoirs on the lower basin, but resolved to start development on the headwaters and proceed gradually downward.

At that time our people of the north had an experience unique in American history, and, Mr. Chairman, I am going to mention these matters because I think the committee has already observed that a goodly part of the big problem of this river is the human element. The States of Colorado and New Mexico were suffering peculiar oppression. In 1896 the United States and Mexico commenced conversations respecting the use of the water of the Rio Grande at El Paso, and

Senator KENDRICK (interposing). May I interrupt you right there, Mr. Carpenter?

Mr. CARPENTER. Certainly.

Senator KENDRICK. To what do you particularly refer in connection with oppression?

Mr. CARPENTER. It was the oppression of the National Government strangling development, preventing development in the States. Senator KENDRICK. I thought you had in mind

Mr. CARPENTER (continuing). It was commonly called "the embargo."

Senator KENDRICK. I thought you had in mind the discrimination between the States in the use of the water, and if you had that in mind I wondered why you had left Wyoming out of the list.

Mr. CARPENTER. I will refer to Wyoming in a few minutes.

Senator KENDRICK. We have had our tragic experience in connection with the North Platte River.

Mr. CARPENTER. Yes, indeed. As a result of those conversations between our State Department and the proper authority in Mexico it was recommended by the Secretary of State that the Secretary of the Interior suspend operation of the act of 1891 known as "the right-of-way act," under which easements must be secured for the construction of irrigation works over public lands. It so happened that a larger part of the Rio Grande area in Colorado and New Mexico consisted of public lands, and practically every project of importance was bound to cross some public lands. In harmony with this recommendation the Secretary of the Interior entered what was known as "the embargo order," whereby the Commissioner General of the Land Office was directed to approve no more filings under the act of 1891 until further orders. The effect of that order was just as though an army had been placed in that territory to prevent any construction activities. No building was allowed. The people are law-abiding and respected the order of the Secretary of the Interior, protesting of course wherever they could.

That order was modified in 1906, after the conclusion of a treaty between the United States and Mexico, in which the United States agreed to build a reservoir near Elephant Butte, and to supply the Republic of Mexico with 60,000 acre feet per year out of the supply of the whole river.

They then modified that order by allowing construction of reservoirs in connection with irrigation which had been commenced prior to 1903, but held that all projects started subsequent to 1903 should remain embargoed. That embargo was not lifted until last spring, in spite of the fact that scientific investigations and engineering studies over a period of years indicated that the waters of the river were ample to supply all lands in the United States and Mexico, the surplus going to the Gulf. Nevertheless, in that bureaucratic spirit of supercaution the Secretary of the Interior's office refrained from removing the embargo.

The same condition obtained on the North Platte. The States of Wyoming and Colorado contributed of their public funds, from their share of the reclamation fund, to build the Pathfinder Reservoir, a dam similar to the Elephant Butte, in that it is across the channel of the main river.

Senator SHORTRIDGE. Just where is that?

Mr. CARPENTER. In Wyoming, above Casper. After they had built this reservoir, which was to be utilized and has been utilized successfully in irrigation of lands in both Wyoming and NebraskaSenator KENDRICK (interposing). But, if I may interrupt you, a very much smaller area in Wyoming than in Nebraska.

Mr. CARPENTER. The area in Wyoming is much less than that in Nebraska. After that reservoir had been constructed, in fact, during the construction, there was a policy adopted that there should be no more development in the States of Wyoming and Colorado by use of any part of the waters of that stream above the dam. Project after project was turned down because they "might possibly," to use their language, interfere with the water supply of the Pathfinder project.

Senator KENDRICK. May I interrupt you again?

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 U. 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 Service, 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 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.)