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Mr. CARPENTER. The Federal Power Commission would have no jurisdiction. Congress would have jurisdiction, and a declaration by Congress would doubtless be controlling upon the Department of Justice. There should be some effort made, or the possibilities are that if allowed to go by default the Western States will awaken to find that a new theory of law has been imposed upon them.
I might say that the danger lies in the second step in the enforcement of that doctrine, which is this, that inasmuch as the water is said to belong to the United States her courts will decree the rights of the appropriators, and having decreed the rights of the appropriators, her courts, by appointments of bailiffs, will then take perpetual charge of administration of water distribution, thus supplanting and displacing the State authorities in that respect.
Senator Phipps. This is, in a measure, perhaps, foreign to the purpose of these hearings, but it is important incidentally. I should like very much to follow that up with you, aside from these hearings, unless you have something in concrete form that you could present to this committee at the present time.
Mr. CARPENTER. I have nothing in concrete form. In fact, I had not thought of preparing any such, and I merely mentioned it as one of the theories advanced with respect to the control of the western rivers that were before us at the time we suggested the Colorado River compact.
Senator KENDRICK. Do I understand you to say, Mr. Carpenter, that a declaration by Congress would have the effect of nullifying the decisions of the court in reference to priority of right?
Mr. CARPENTER. No. The courts have not decided this Government-ownership proposition which has been advanced in the Wyoming case. The Supreme Court laid it to one side and did not rule upon it; they passed it over. Government counsel are now trying to get some Federal district court to hold with them. They then will have the benefit of a precedent in further proceedings.
Senator GOODING. Mr. Carpenter, you mentioned the other day the American Falls Dam, that the Department of Justice was taking some action there. Will you be kind enough to tell the committee what that is?
Mr. CARPENTER. Since I gave that testimony I have searched the libraries for more accurate information, but I was informed at Denver, and it was in the press, that this same doctrine had been urged in the proceeding before Judge Dietrich, as I remember, at American Falls, and that Judge Dietrich had the matter under advisement. This Government-ownership doctrine is followed by all of the Department of Justice representatives, and is being pressed wherever an opportunity affords, in the hope, as I say, that they will get a precedent from some court.
To show you the extent to which that has been going on, there was a request, about two years ago, upon the Department of Justice to bring suit on the North Platte River, consisting of the part of the Platte that is in the State of Nebraska and the part in the State of Wyoming, to adjudicate in the Federal District Court at Omaha the individual rights of water
users on the North Platte and Main Rivers in Wyoming and Nebraska, and possibly in Colorado, with the idea that the Federal court would fix the relative status of individual proprietors in each of those three States, or at least two thereof, and
would therefore enforce that decree in perpetuity by masters in chancery appointed by the Omaha Federal District Court.
The matter was called to the attention of Secretary Work, and he revoked the order and called upon the governors of the three States to appoint commissioners to try and settle the matter by compact, the matter including as it does the Federal reclamation project on the North Platte River. The commission was appointed and has since been functioning, and it is hoped the matter will be adjusted without suit.
Senator PHIPPS. Mr. Carpenter, was not that question involved in a decision of the Supreme Court of the United States at the time the Department of Agriculture sought to assess charges for the use of water on nonnavigable streams in California and Nevada, when the forest reserves were set up, which decision resulted in a change of base by the department and under which they began to assess and did assess, and have been collecting charges against hydraulic horsepower produced on these streams, based upon their supposed conservation of the flood waters in the upper reaches?
Mr. CARPENTER. I knew that they were in certain sections attempting to extort from the power companies some such toll and that it had been in the courts, but I am not familiar with the decisions.
Senator PHIPPS. We will have that looked up. That is all I care to say on that particular topic, but there is one other question I want to ask you before you leave the stand.
Mr. Carpenter, has it come to your knowledge that an attempt is being made by anyone to secure a modification of the proposed compact in its present form, as relates to the upper basin particularly?
Mr. CARPENTER. No; I know of no such action. The only action I know of is that now taking place between California and Arizona, in the form of conversations, and once or twice individuals in Phoenix have suggested that the upper States might deprive themselves of a little more water in order to facilitate negotiations; that is all.
Senator Phipps. What I am fearful of is any movement or action that would involve added delay in reaching a final agreement. It seemed to me that as far as the testimony presented before this committee is concerned the lower basin States were not objecting to the quantity of water that might be used in the upper basin, but, on the other hand, asserted their desire to see us go ahead and construct the reservoirs and dams and thereby help, through equating the flow of the stream, in bringing about a constant and dependable supply of water for irrigation and other purposes in the lower stream. It seems to me that the lower basin States should be able to compose their differences without making it necessary to send the compact back to the upper basin States for further consideration of the legislatures of those States, they having already acted and given their approval.
Mr. CARPENTER. I have no knowledge of any such proposal, or even any intimation of any such, as far as the Northern States are concerned.
Senator PHIPPS. Very well.
Representative TAYLOR. Mr. Carpenter, the letter referred to by Senator Ashurst is something that Colorado has no responsibility for?
Mr. CARPENTER. Not in the slightest.
Representative TAYLOR. And there is no effort on our part up there to attempt to modify or change or in any way misconstrue the plain meaning of that compact ?
Mr. CARPENTER. Not in the slightest degree. The letters do not represent our position. Our attitude is simply this, Mr. Taylor, that we wish to do everything we can legitimately, having due regard to our own rights, to promote early development below.
The CHAIRMAN. Are there any further questions to be asked the witness?
Senator GOODING. Mr. Carpenter, has any study been made in Colorado in regard to the return flow of the water to the stream after use for irrigation ?
Mr. CARPENTER. Yes, sir; a number of studies, the most notable of which is on the South Platte River. Other studies have been made on the Arkansas, the data on which is not yet published; also the investigations on the Rio Grande. Those are still in preparation. The results of the investigation on the South Platte River are published and may be obtained from the State Agricultural College at Fort Collins, Colo.
Senator GOODING. Do you know what the percentage of return is? Do you recall it?
Mr. CARPENTER. It is around 50 per cent. But the water of the South Platte is reused so often that it is more “worn out" than water that would not be so frequently reused. That is, on the South Platte the return will come into a tributary, be picked up and taken out, come back to the main stream, be picked up and taken out again, etc., repeatedly, clear from above Denver to Julesburg, at the interstate line. That publication on the return flow of the South Platte River is, however, very illuminating. It takes the river in its earlier stages and brings it down to date, showing a tremendous increase and equalization of flow along the lower stretches of the river. In fact, the startling condition there obtains that the large project at Julesburg, at the interstate line, is one of the youngest and most inferior in point of appropriation on the entire river in Colorado, and yet the project now has the best water supply of any large project in the whole drainage in that State. purely because of the return flow.
Senator GOODING. In other words, the upper basin in that case and the same would apply with reference to the Colorado-acts as a reservoir for the lower country?
Mr. CARPENTER. Yes, sir. About half, I think, of the soil consists of air, or voids, and where the water is poured onto the surface of the soil it sinks down through these voids and forms a ground reservoir-in this case of the South Platte consisting of about 1,500,000 acres.
The CHAIRMAN. Does that conclude your statement, Mr. Carpenter?
Mr. CARPENTER. Yes, sir.
Senator SHORTRIDGE. I would like to ask some few questions, Mr. Chairman. They will be fow, because many that I had intended to put have already been put and answered.
It is not necessary for me to say it, but I do say that in directing attention to the claims of Arizona I do so in no spirit of hostility toward that State. Indeed, I have an affection for it. Nor is that a feigned affection. My father and mother lived in that State for a time, and the fact that it is represented by such amiable Senators makes me feel very kindly toward it.
For the benefit of the committee, Mr. Chairman, and of others who will come to study this problem, and in order to predicate one or two questions to Mr. Carpenter, I ask to have inserted in the record section 28 of the act of June 20, 1910, found in Thirty-sixth Statutes at Large, page 557, particularly page 575. It will take but a moment to read it, and that would seem necessary in order for me to propound one or two questions to Mr. Carpenter. This is a section of the enabing act whereby Arizona came into the Union. It reads:
There is hereby reserved to the United States and excepted from the operation of any and all grants made or confirmed by this act to said proposed State all land actually or prospectively valuable for the development of water powers or power for hydroelectric use or transmission and which shall be ascertained and designated by the Secretary of the Interior within five years after the proclamation of the President declaring the admission of the State; and no lands so reserved and excepted shall be subject to any disposition whatsoever by said State, and any conveyance or transfer of such land by said State of any officer thereof shall be absolutely null and void within the period above named; and in lieu of the land so reserved to the United States and excepted from the operation of any of said grants there be, and is hereby, granted to the proposed State an equal quantity of land to be selected from land of the character named and in the manner prescribed in section 24 of this act.
I also wish to introduce in the record—and you will pay heed, Mr. Carpenter, to the language-section 6 of article 10 of the constitution of Arizona :
No lands reserved and excepted of the lands granted to this State by the United States, actually or prospectively valuable for the development of water power or power for hydroelectric use or transmission, which shall be ascertained and designated by the Secretary of the Interior within five years after the proclamation of the President declaring the admission of the State, shall be subject to any disposition whatsoever by the State or by any officer of the State, and any conveyance or transfer of such lands made within said five years shall be null and void.
Now, without introducing specifically the act of the Secretary of the Interior, I think it is agreed on all hands that before the expiration of the five-year period referred to the Government of the United States, acting through the Secretary of the Interior as provided, exercised the reserved right to appropriate waters.
Would you be good enough to give the committee the benefit of your view as to whether the State of Arizona, in view of the enabling act, her constitutional provision, and the decisions applicable, has the legal or equitable right to assert ownership, with all the attributes of ownership, over any dam which the Federal Government may erect or ca'use to be erected within or partly within the State of Arizona?
Mr. CARPENTER. Senator, the provisions of that enabling act and the constitution of that State have several times been given a very cursory attention by us, and we have not arrived at a final conclusion. I should prefer to refrain from expressing an opinion.
Senator SHORTRIDGE. Very well. We have the claim of Arizona and the claim of Nevada-which in that respect, as I recall, are harmonious to the effect that if a dam should be erected at Boulder Canyon those two States are willing to have the Government charge for any power developed and sold, and receive the proceeds until the Government is reimbursed for any outlay, and that then, thereafter, and in perpetuity the two States are entitled, as claimed, to the proceeds; that is to say, that they become the absolute owners in fee, with all the rights of ownership. That, I understand, is the position advanced by Arizona, and similarly by the Governor of Nevada. That involves the same point.
Mr. CARPENTER. It involves the same question.
Mr. CARPENTER. On the one side of the river there is the Arizona condition, and on the other side the Nevada condition is not similar to that obtaining in Arizona.
Senator SHORTRIDGE. I understand you to say-not speaking finally, of course, for the State of Colorado—that the State is satisfied with the seven-State compact as drafted ? Mr. CARPENTER. Yes, sir.
Senator SHORTRIDGE. Also, that it was satisfied and is satisfied with the six-State compact, having evidenced that satisfaction by act of its legislature.
Mr. CARPENTER. They passed the act authorizing the six-State ratification to become effective. But I will say further, that it is not altogether satisfactory to our people—the six-State compact. Nevertheless it is the law of the State of the present time.
Senator SHORTRIDGE. You used the expression that you might be attacked, that Colorado "might be attacked," or “ would self to attack or assault by or from Arizona should the six-State compact go into effect.” Would you have the kindness, if you can in a few words, to indicate the ground of such attack! Would there be any basis for such attack, or legal justification for such attack!
Mr. CARPENTER. We fail to see, in view of the physical conditions, where Arizona would have any justification for an attack, but we are painfully aware of the fact that such attacks have been made in the past, without just cause and upon political or other motives, and do not care to be exposed to the danger of such attacks if we can avoid it.
Senator SHORTRIDGE. You mean, of course, legal attack by peaceful legal processes?
Mr. CARPENTER. Yes. The peaceful legal processes, in the form of suits in court, must be defended, and are very prolonged and partake somewhat of the characteristics of war, without bloodshed.
Senator SHORTRIDGE. Just a final question. Do you think that if Congress, by act, by appropriate language carefully drawn, scrutinized by the legal mind, should provide that no rights acquired by the lower basin States by appropriation, use or otherwise, should impair any existing legal rights of the upper States or citizens of the upper States, such a provision would be valid and binding?