Mr. MATHEWS. Section 8; containing four subdivisions-(a), (b), (c), and (d). The CHAIRMAN. They are all new, not included in the original draft of the bill? Mr. MATHEWs. That is true, Mr. Chairman. Senator SHORTRIDGE. Which subdivision, Mr. Mathews? Mr. MATHEWS. Section 8. Senator JOHNSON. Section 8 has four subdivisions. Those are new provisions of the bill. Mr. MATHEWS. It is reduced in terms and more compact in its provisions. And you will find that that section is so worded that the Government is required to exercise its ownership and power of management over the project, to use its control over the water impounded, to use its authority over the public domain and lands of the Government so that its own operations and the operations of those who may gain rights in the waters of the river or in the waters issuing from the dam will be in complete subordination to the provisions of the seven-State compact, and thus will preclude these interests from acquiring or asserting any rights arising out of this development as prior rights to those secured to the upper States through the compact. The CHAIRMAN. If the contention of Arizona be correct, namely, that it owns the bed and banks of the stream, and therefore has a vested right to generate and dispose of the power that might be developed in the Colorado River, would this section 8 in any way of fend that view of Arizona? Mr. MATHEWS. Of course that brings up the question whether the Government can have a project or not on the river as against the State of Arizona. Upon that I am perfectly clear from an examination of the law, and will either discuss it right now, or later, if the chairman prefers. The CHAIRMAN. Well, I just wanted your opinion on the question I propounded. Mr. MATHEWS. I say if Arizona does own the bed of the river and owns the waters it will not preclude the United States from undertaking a project of this character. If Arizona is correct in its view that this is a navigable stream, and therefore its bed and waters are under its control, still the Government of the United States, under the commerce clause of the Constitution, would have authority in reference to this stream to improve and control and handle it so that it will cease to be a menace to the people of the United States and their properties who are constantly endangered by its floods. That is, the Congress would still have its constitutional authority over the stream assumed to be a navigable stream. So that it is immaterial whether it is navigable or not, the Government, in either event, has a basis of authority for the proposed development. In other words, if it is navigable the Congress can take hold of the stream and see that it keeps within its banks and ceases to be a menace and danger to the people of the United States who live along the lower reaches of the stream. The CHAIRMAN. Then you think, Mr. Mathews, that the Federal Government has a superior right which would give it power of domination of the stream? Mr. MATHEWS. I think so. But I also think this, from an examination of the history of the stream, that it is not a navigable stream. In the test that has been prescribed by the courts, even though it may theoretically be navigable, it has ceased to be a practical utility, a commercial utility in connection with transportation. The CHAIRMAN. In section 8, subdivision (a) you state that it would cause the obligation on the part of the United States in the operation of the canals to be controlled by the provisions of the compact signed at Santa Fe. Mr. MATHEWs. That is the seven-State compact. The CHAIRMAN. But that compact is not in existence. Mr. MATHEWS. Another section later on refers to that, Mr. Chair man. Senator JOHNSON. If you will look at the last section, section 13, you will see it referred to. Mr. MATHEWS. In section 13 we have a provision in regard to the compact for the purpose of putting the seven-State compact into effect as a six-State compact. The CHAIRMAN. Well, I have not had the time to look at this bill. It was just simply brought to our attention a few minutes ago. Will you not state, Mr. Mathews, concisely, what effect this bill has upon the compact if executed or if not executed, and what you have done in the present situation to make possible the construction of the dam? Mr. MATHEWS. This bill, in section 13, provides for the approval by the Congress of the compact as a six-State compact, upon it being approved by the signatory States. That puts the seven-State compact into effect so far as the six States are concerned. Presumably those will be the six States other than the State of Arizona. So that with the approval of the six States and of the Congress we will have a complete compact so far as those States are concerned. The CHAIRMAN. Your six-State compact has not been executed yet? Mr. MATHEWS. The six-State compact has been ratified by six of the States, including California. The CHAIRMAN. Well, was it not necessary, however, to get a reaffirmation in view of the reservation placed there by the State of California? Mr. MATHEWS. There is no reservation, Mr. Chairman, at all, affecting the terms of the seven-State compact. Not a line, not a word or a comma or any sort of mark has been changed, or is proposed to be changed. The California Legislature ratified without reservation the compact, which had been framed as and for a seven-State compact, but attached to that simply the condition bearing upon the date when that compact should become operative as to California. It might have stated that that compact as to California should become operative on the 1st day of January, 1927, and the legal effect of the condition it attached would have been exactly similar. It simply fixed a date in the future, a contingency in the future, which would mark the time when the compact thus ratified by the legislature of California should become operative as to that State. The text of the compact remains as was contained in the socalled seven-State compact. It is the seven-State compact proposed to be made effective among the six States ratifying it. And if this bill be enacted into law, providing for the prescribed storage, providing for the approval of Congress, then all the conditions affecting the time when California's ratification becomes operative shall have been fulfilled, and ipso facto, without any sort of further action required on the part of the legislature of that State or any of the other five ratifying States, the compact, as a six-State compact, will become effective. The CHAIRMAN. I think Mr. Bannister, from Denver, and Mr. Carpenter, from the same city in the State of Colorado, gave as their views a doubt as to the ability of Congress through legislation to do that which you are trying to do here. Have you any doubt about the right of Congress? Mr. MATHEWs. None whatever. All this bill asks Congress to do is clearly within its competent powers, and when Congress exercises this power, authorizes the dam and approves the six-State compact, and executive proclamation has been made, every condition required to make the six-State compact fully operative has been met, and we have the six-State compact as to all States excepting the State of Arizona. Senator PITTMAN. What do you think of that provision of the last ratification of California requiring the President of the United States, as I recollect it, to proclaim that Congress has carried out all of the protections anticipated in the seven-State compact? In whose opinion would that be? That of the President of the United States, or the Attorney General of the United States? How would the President arrive at a guarantee that the protection existed? Mr. MATHEWs. I imagine the President would consult the Attorney General in that kind of a case, just as he probably consulted the Attorney General upon the proposed admission of Arizona and New Mexico into the Union. He inquired whether the conditions precedent to the proclamation had been fulfilled. And this bill I think wisely makes provision for an opportunity for the Chief Executive to consult those who will best know as to whether the conditions specified have been met before the final act, the formal public act, is done. Senator PITTMAN. Well then, the President of the United States would have to be satisfied that no subsequent Congress was going to take any action that would permit Arizona to appropriate more than her proportionate part of the water? Mr. MATHEWS. Well, that goes to the question of the validity of the six-State compact. I do not think the President of the United States would be concerned with that question. I think that his concern would be as to whether the conditions incident to the creation of a six-State compact and the conditions as to the authorization of the proposed reservoir had been fulfilled. Senator PITTMAN. Would it be within the power of a subsequent Congress to pass an act authorizing the State of Arizona to build a series of dams within her State for diversion, storage, irrigation, and power purposes? Mr. MATHEWS. Apart from the question whether there would be authority, I would first emphasize the point that the theory of the bill is to make the matter as to the six-State compact a matter between the Congress of the United States and the upper States interested. Now, as to whether Congress could authorize Arizona by any sort of legislation to build the dams, I do not believe that the Congress would be acting within its competent powers in that respect. But whether it would or not, I would regard as the main basis of assurance to the upper States the fact that Congress formally, through a bill passed by it and signed by the President, had given formal assurance perpetually to those upper States of the rights they wished to have in line with the seven-State compact. Senator PITTMAN. I admit that it would be a violation by Congress of a treaty, but what I was asking you was whether or not a subsequent Congress would not have the power to grant to Arizona that which the Congress passing this bill had guaranteed to withhold from them? Mr. MATHEWS. Well, I think there might be a question on that. Perhaps Congress has the reserve power. Senator PITTMAN. Well then, would the President of the United States, having that advice from the Attorney General, certify that beyond any peradventure that the upper States would be protected against an overappropriation through an overappropriation by Arizona in addition to the appropriation undertaking in the six-power pact? Mr. MATHEWs. Well, I do not think the President could certify that within the scope of the function he is assigned under the bill. I do not believe that that function is assigned to him under this bill or under this contemplated legislation, Senator. Senator PITTMAN. Well, I mean under the ratification by California. I understand the ratification is to take place when certain things set out in the ratification take place, and one of them is a certificate, if I recollect it, by the President of the United States that the legal rights of the upper basin and the six States are absolutely and forever protected in accordance with the compact? Senator JOHNSON. No, that is not it. Senator PITTMAN. Well, let us read it then. Senator JOHNSON. Simply that Congress has authorized the storage. Senator PITTMAN. Let us read it. That is the only clause in there that embarrasses me. Senator JOHNSON. I am sure that need not from a legal standpoint embarrass you, and from the standpoint of fact and accomplishment it would not be embarrassing at all. Senator PITTMAN. Well now, here it is. I will read it: Provided, however, That said Colorado River compact shall not be binding or obligatory upon the State of California by this or any former approval thereof, or in any event until the President of the United States shall certify and declare (a) that the Congress of the United States has duly authorized and directed the construction by the United States of a dam in the main stream of the Colorado River, at or below Boulder Canyon, adequate to create a storage reservoir of a capacity of not less than 20.000,000 acre-feet of water That, of course, can be done and, (b) that the Congress of the United States has exercised the power and jurisdiction of the United States to make the terms of said Colorado River compact binding and effective as to the waters of said Colorado River. 72578-26-PT 614 That certified copies of the foregoing preamble and resolution be forwarded by the Governor of the State of California to the President of the United States, the Secretary of State of the United States, and the governors of the States. Now what I am getting at is this: The President is required to certify that the Congress of the United States has given protection to the rights of the various States under the compact. Senator JOHNSON. No. He is required to certify first to the authorization by Congress, and secondly, substantially to the ratification of the six-power pact. Senator PITTMAN. Well now, mind you, the first clause there deals with the building of the dam. Senator JOHNSON. Yes. Senator PITTMAN. The second clause is undoubtedly for the purpose of assuring the upper States that the six-power pact is just as much a protection as the seven-power pact. Senator JOHNSON. That it has been ratified. There has got to be some form of ratification in any event. You take any treaty that the President promulgates or indulges in a pronunciamento or a proclamation of the ratification of any treaty. Senator PITTMAN. It does not say that, though. Senator JOHNSON. That is substantially what it says. That the Congress of the United States has exercised the power and jurisdiction of the United States to make the terms of said Colorado River compact binding and effective. Now then, the question is: Can the President certify that it is binding and effective if a subsequent Congress may grant to Arizona the right to build dams and use more water Senator JOHNSON. Well, I think your question, Senator, goes entirely to the question of whether or not the six-State compact could be a legal compact. Senator PITTMAN. That is one phase of it. Can it become a legal contract? Senator JOHNSON. Well now, that is a different proposition entirely. Senator PITTMAN. And if the Attorney General of the United States in advising the President on that would say, "It is a legal contract so long as a subsequent Congress does not violate it," then the President would say, "Can I then truthfully say that this is binding as against the subsequent Congress?" Senator JOHNSON. But I submit to you that your argument goes entirely to the question whether the six-State compact has any legality at all. Assume that it is ratified by the Congress, assume that there was no time limit as to its ratification attached by the State of California, and assume that the Congress then acts and the President says that the compact is in force and binding, why, then, you have exactly the same legal proposition that you present now in that regard, no difference in degree at all or of any kind. Senator PITTMAN. Here is my mind on the subject: I contend that it would be a legal contract if the Congress ratified the sixpower compact. Senator JOHNSON. Well? |