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The CHAIRMAN. Mr. Carpenter, you may now go forward with your statement.
Mr. CARPENTER. I justly owe a statement in the matter of responsibility for the attitude of the Reclamation Service. My attention was called at the end of yesterday's statement to the fact that at no time since Mr. Mead headed the Reclamation Service has the director of the service or his assistant, the chief engineer, countenanced the attitude taken by the United States, or rather I should say, they have not encouraged it. The reclamation officials of course are obliged to look to the Department of Justice in legal matters. Mr. Arthur P. Davis, former Director of the Reclamation Service, and Mr. Weymouth, his chief engineer, have discussed with me on numerous occasions during past years those policies that were causing a very decided line of cleavage to develop between governmental agencies in reclamation and the State authorities, and I know of my own knowledge that they are not responsible for the promulgation of those doctrines. They emanated from the Department of Justice, having their origin primarily, especially as regards the doctrine urged in Wyoming v. Colorado, during the time of Attorney General Gregory.
At the time conditions upon this river system began to assume a focal point Colorado suffered another experience which illustrates the generall condition beginning to obtain in the Colorado River drainage. It develops the case of the Henrylyn irrigation district. Referring to the Meeker map on the board, it will be observed that along the Continental Divide and at about the middle of the map certain cross-patched areas appear. They indicate the probabilities of tunneling through the Continental Divide for the bringing of water from the Colorado River to other drainages in Colorado. About 1910 the Henrylyn irrigation district, engaged in the reclamation of a large tract of land immediately adjacent to the city of Denver, commenced construction of a tunnel through the mountain range to the William Fork of the Grand River for the purpose of diverting some 25,000 acre-feet of water, out of 12,000,000 acre-feet that rise and flow in the average year in the Colorado River portion of Colorado.
Their authority to make this diversion under State law was complete. Their right was recognized and confirmed by an unquestioned line of court decisions. They had proceeded a short distance when Federal forest officials stopped them. It appears that they had filed a right-of-way application with the United States some two or three years previous, but in spite of all importunities the matter had been delayed and postponed, the Department of the Interior failing to act. So finally those farmers, wishing water for irrigation of their lands, went to work anyhow. Suit was filed then by the United States in the District Court of the United States for the District of Colorado, to enjoin this diversion of water from the western slope, it being stated that it was primarily on account of the destruction of $60 worth of jack pines, and the fact that they had no right of way over the reservation.
In the negotiations surrounding the filing of the suit and its later prosecution it developed that one of the principal objections advanced by the Reclamation Department was a fear this project at the head of drainage might possibly at some distant future day interfere with the Government project at Yuma, Ariz., some 1,000 or 1,500 miles away. The farmers never were allowed to resume their work on the tunnel and the injustice of the attitude of the United States attracted wide attention.
Following that time the United States made a very thorough investigation of the whole Colorado River drainage under the authority of Congress. The results of that investigation are contained in four typewritten volumes, very thick volumes, to be found on file in the office of the Reclamation Bureau at Washington as well as at Denver. After the preparation of those volumes, investigators on behalf of the State of Colorado, having observed a peculiar reticence on the part of the Government's investigators on the subject of water control, and having been told by one or more subordinate employees of the United States that the Federal Government intended to take control of the whole Colorado River system, an investigation was made and, as a result, this four-volume report was found to contain a legal dissertation, the gist of which was and is that the United States Reclamation Service was then and must continue to be the repository of all knowledge on the subject of reclamation in the Colorado River drainage; that the control of the river must ultimately come into their hands; that the status of all existing vested rights of individual appropriators would have to be worked out by court proceedings; that inasmuch as the States were interested the Supreme Court of the United States would be the tribunal to settle the matter; that a suit having been aggravated between two or more States the other States would intervene and the court would appoint a master; that the master would naturally turn to the Reclamation Service as the only reliable source of information; and finally that, after a long period of court proceedings, a final decree would be entered adjudicating the thousands of individual rights, and the United States Supreme Court would naturally turn to the Reclamation Service as the administrator in perpetuity of such a court decree for the entire basin.
All this and much more appears in that four-volume report, particularly in volume 4, part 19, discussion of water rights by W. J. Eggleston, district counsel United States Reclamation Service.
Thus it came to the attention of the States, that the United States Government intended to supersede all State law and override State authority on that river.
Before I progress further I desire to point out that each of the Colorado River States has its own complete machinery for administration and control of the distribution of its water supplies. In all those States the waters are declared and recognized to be the property of the State, and the citizens are permitted the use according to State law. It will be recognized that any appropriation made in a State is at all times subject to the eminent domain of the State, and if the right of use by the citizen becomes an obstruction to the welfare or progress of the State, the State may proceed to condemn it and take it away: Of course, this would be impossible if a right were brought into being by diversion made in a lower State, maintained by a servitude upon the water supply within an upper State. Those States, by constitutions and statutes, treat the rule of prior appropriation as merely a rule of administration by which the State parcels out to its people and regulates the use of a limited resource in the hands of a select few in order that the resource may not be wasted and the greatest good may come to the greatest number. In harmony with that rule they have a State engineer, or like officer, who is chief of police in such matters, and who has under him various officers. In Colorado we have from eighty-five to one hundred-odd men working each year, whose sole business is that of distribution of water of our streams to the several appropriators; and these are in addition to the employees of the various companies and others diverting water. In other words, the State has perfected machinery, seasoned with age and experience, backed up by State statutes and court decisions, for the sole purpose of regulating the internal distribution of water supplies of the Commonwealth.
And that is true in all of the Western States. The rights of the individual are determined either by proceedings in court or before mixed tribunals, called boards of control, from whose decision appeals lie to the courts. These court proceedings are somewhat in the nature of quiet-title proceedings, are regarded as proceedings in rem, and the decrees entered are the law of the State and define the extent of the rights of the individual, subject always to the superior right of the State to retake its own property and devote it to some other use, under the rule of eminent domain.
Senator SHORTRIDGE. Mr. Carpenter, may I ask you a question at that point without unduly breaking in on your train of thought?
Mr. CARPENTER. Certainly.
Senator SHORTRIDGE. Is it your contention that as to what may be called an interstate river, the upper States may use, may consume all its flowing water?
Mr. CARPENTER. To the extent of exhausting the supply, do you mean?
Mr. SHORTRIDGE. I do.
Mr. CARPENTER. No. To make myself clear, let me say that the position in litigation of all litigants is that of extremes. If you, Senator Shortridge, are on one side of the table and it falls to my lot to be upon the other, we each assert the extreme rights of our clients in the hope that the court will find a medial ground. So in the litigation in which Colorado has been a party the State has asserted the international rule, which is that a nation of origin has a right, if need be, in self-defense, to wholly exhaust a stream rising in her territory.
Senator SHORTRIDGE. But manifestly there is greater amity, affection indeed, between two continguous States
Mr. CARPENTER. That is very true.
Senator SHORTRIDGE. Than exists between separate, independent nations.
Mr. CARPENTER. That is very true. In asserting that rule of extreme control or absolute dominion of the river, we have not pressed in argument the further fact but that the upper nation must be able to maintain its position by force of arms in case of dispute.
Senator SHORTRIDGE. But there will be no trouble on that point in this case.
Mr. CARPENTER. Oh, no. The result being, of course, that the Supreme Court of the United States in each of the litigated cases has not sanctioned that doctrine, and has twice said it did not apply as between States of the Union, that the rule of equitable apportionment applies, the court seeming to carry with its interpretation of interstate relations a strong regard to intrastate principles of law. The matter having twice been decided, we are now willing to accept the doctrine of equitable apportionment.
Senator SHORTRIDGE. You bow to the decision of the Supreme Court of the United States?
Mr. CARPENTER. Yes. I speak of State control of its water supply. We, of course, recognize that any adjoining State, neighbor to a State of origin, has some interest in the stream, and the quantity of water which the upper State may finally apportion to its citizens is that quantity which will remain in the river for that purpose after supplying any allocation made to a lower State either by the United States Supreme Court or by a compact between the States. But as to that water so remaining within the jurisdiction of the upper State, the State exercises complete control (except for navigation) and administers it from day to day for the purpose of deriving the greatest good to the greatest number of its citizens and thereby promoting its own self-preservation.
In view of this complete machinery which exists in these arid States any desire by a governmental bureau to ultimately, by insiduous or other methods, take over the control and dominion of the streams within the States and to override State authority at once becomes not only abhorrent but gives rise to a feeling of bitter resentment and sounds a call to arms for self-defense.
It was with knowledge of the plans then outlined in the report of the Reclamation Service to which I have referred that the States of the upper basin came to the Salt Lake City conference, called at the behest of the lower river. One point, however, should be brought to the fore, and that is that while the State of Arizona lies in the southern basin it is similar in some respects to the upper States. It, too, is a State of origin of a part of the water that flows across its territory. The Gila River rises in New Mexico. Of the supply of that stream our engineer advises us that about 443,000 acre-feet per annum come from New Mexico. It then flows across Arizona and discharges its water into the Colorado River at the town of Yuma and above the headgate of the Imperial Valley Canal, which diverts this Gila water.
Senator Phipps. Would you mind stating the total acre-feet that flow into the Colorado River at Yuma?
Mr. CARPENTER. From the Gila River ?
Senator PHIPPs. Yes; from the Gila. You have given 443,000 acre-feet as the flow from New Mexico. Now, how much additional water originates in Arizona is what I am trying to get at.
Mr. CARPENTER. Let me look for that among my papers. Senator Phipps. You may supply that for the record later if Mr. CARPENTER. Very well. If it is agreeable to the committee I will put in some tables covering this water-supply situation, prepared by Mr. Ralph I. Meeker, the engineer who was our adviser at
Santa Fe and is the expert in charge of these matters for the State of Colorado.
The CHAIRMAN. Have you those figures with you?
The CHAIRMAN. Do you desire to have them made a part of your statement or follow your statement ?
Mr. CARPENTER. I suggest that they follow my statement as an addenda.
The CHAIRMAN. Very well; if you will furnish them to the clerk of the committee that will be taken care of.
Mr. CARPENTER. I will do that.
Mr. CARPENTER. Nevada likewise is to a very limited degree a State of origin. California can not claim to be the origin of any water of the river; it is wholly a beneficiary State. Arizona is partly a beneficiary State and partly a State of origin.
Senator AshURST. Under what theory is she a beneficiary State? I have heard nothing in the past month to indicate that Arizona is a beneficiary State in any way. I would like to have you tell me.
Mr. CARPENTER. That is to be determined. Arizona is partly a beneficiary State and partly a State of origin. Nevada occupies a similar position. Nevertheless any claim that will be recognized in interstate relations and attaching to the river in the lower States, whether State or origin or beneficiary State, affects the river to its source and might be asserted to be a servitude upon the stream to the snow banks at the extreme point of origin.
So we had in 1918 an unusual situation with respect to this great basin. In the development of its water supply it was almost in a virgin state, and yet upon some occasions of extreme drouth or low flow there had developed some slight indication of contention and strife. The questions involved in this river problem included most of the territory obtained by the United States through the Mexican War and the Gadsden Purchase, a part of the territory obtained in the oregon settlement, and a part of the territory obtained in the Louisiana Purchase. The rights of 7 Commonwealths, each admitted upon an equality with the others and with the original 13, were at stake, and the rights of the United States were involved in the sense of its international relations with the Republic of Mexico, and in other minor phases.
We faced three more or less conflicting principles of law, two of them urged by all the power of the Department of Justice of the United States. And I might pause right here to say that, surprising as it may sound, to this hour the Department of Justice is pushing through divers and sundry suits in the Federal courts of the Western States a series of attempts to get the United States judges to announce the doctrine that the United States and not the several States is the owner of unappropriated waters of the streams of the West. And following that doctrine to get those courts to appoint court bailiffs to supersede State authorities in the control of those rivers. No better example than that obtaining on the Truckee River in Nevada may be cited, where the master in chancery has been persuaded to recently approve a decree under that theory, and it is now pending for final decision before the United States district court.