well-known condition that all of the appropriations are not to be made at the present time; but many will be made later.

Mr. HUDSPETH. I am sorry to have disturbed you in your state

ment.

Mr. BANNISTER. You have not done so.

Mr. LITTLE. Has it ever been possible to decide and agree in advance of the building of a dam just exactly what would happen? Mr. BANNISTER. I do not quite get the meaning of that question, Mr. Little?

Mr. LITTLE. Well, as to results upon the flow of the stream and its distribution?

Mr. BANNISTER. Do you mean as between States?
Mr. LITTLE. As between anybody.

Mr. BANNISTER. Well; the gentlemen who drew the Colorado River compact did it upon the theory that we could foresee with a fair and reasonable degree of certainty how at least a portion of the water should be divided at the present time, and then, being conservative, they did not attempt to divide the residue at the present time.

Mr. LITTLE. And it would not ever be possible either, would it, to do that in advance?

Mr. BANNISTER. I do not think anybody ever could foresee in advance how they could divide it all at one time.

Mr. LITTLE. That is the point we are up against, is it not?

Mr. BANNISTER. No; because it is seen in advance now that the four upper State will need more water than they are using at present, just as the lower States will need more water. So that the time has come for some division.

Mr. LITTLE. Well, the commission saw that, did they not?
Mr. BANNISTER. I think they did.

Mr. LITTLE. And they think they have made sufficient provision? Mr. BANNISTER. They think they have made sufficient provision. I was speaking about the rights of the upper States. Even if the law should be as contended by some of our friends in the Lower Basin, namely, in favor of the Wyoming v. Colorado decisionMr. LITTLE (interposing). Well, the suggestion you have in mind is that it is impossible to tell in advance just what the answer will be to your suggestions?

Mr. BANNISTER. Well, when I say it is impossible to draft a provision now that will with certainty protect the upper States, what I mean is, not that it is impossible now physically to determine how the water shall be divided, but that, from a legal standpoint, it is impossible to so word a provision to divide the water that the provision would be valid; that we have no assurance that it would be valid.

Mr. LITTLE. It would be impossible to find out legally just what would happen as to any dam, would it not. In other words, they would never build a dam if they waited for a legal decision as to what would happen; is that not correct?

Mr. BANNISTER. Well, I think it is best to have the legality settled before we make the investment.

Mr. LITTLE. Well, there never was a dam so built, was there?

Mr. BANNISTER. Yes: you take it in any Western State; the appropriator will find out whether there is any water that has not been appropriated; and if there is, he knows that he will be protected.

Mr. LITTLE. But are they not litigating in every State for 100 years after a dam has been built?

Mr. BANNISTER. I hardly think that. I think in our appropriation States we settle our water rights with great certainty in our own borders.

Mr. LITTLE. Well, it is very different then in the State that you litigated with-Kansas?

Mr. BANNISTER. Kansas?

Mr. LITTLE. We are still fighting about dams now, and always will be.

Mr. BANNISTER. Well, there is litigation, of course, in all of the States.

Mr. LEATHERWOOD. You have so little water, Mr. Little, that you have to fight about it?

Mr. LITTLE. Sometimes we have too much water.

Mr. BANNISTER. Well, I go back to that right we have, aside from the legal right, with respect to the diversion of water, and that is the right to appeal to Congress for our relief. This project, gentlemen, is to be built out of money that belongs to the Federal Government, and therefore out of money that belongs to all of the States. It is to be built upon lands which belong to the Federal Government; and while those lands should be used for the development of the States in which they lie, nevertheless, it occurs to us, in the upper basin States, that it is not a fair use of the Federal money and Federal lands, in which we are part owners, by virtue of being States of this Union, to advance at our expense the interests of other States in the basin. We think that, no matter what the law may be, although we regard the law as being in our favor, when it comes to the diversion of water the Congress should not favor any State at the expense of another.

But regardless of that, we put up to you this principle: That the only fair way of dividing water among States is to so divide it that every State is going to have a substantial part of the waters of the stream. We are opposed to any kind of monopoly.

I remember that two years ago, at Riverside, Calif., and that was before the case of Wyoming v. Colorado was decided and when some of the people of my State were contending for the principle that, because all of the waters of the river arose within Colorado, therefore we were entitled to all of them-that I took the position in opposition to that principle, because I thought it represented State selfishness, raised to the nth power; and I think Mr. Swing will remember that I took that position.

And that was in advance of the decision of the Supreme Court to the effect that that was a selfish position, and that it would not be adopted by the court.

At the same time I was opposing the contention made by some of our friends down in California at that time, and possibly Arizona--I have forgotten as to that-the same contention, which was called selfish when it was made by Kansas, to the effect that, because that State was at the mouth of the stream, therefore it was entitled to have all of the water come down from the States above. I took a position by which every State would be allowed to share in the water; a provision by which that which by nature was a common supply of all the States should become a common supply by law.

And, therefore, in opposing the interstate priority principle, which is or may be a principle of State monopoly, I am consistent with the position which I have hitherto taken. The case of Wyoming v. Colorado is settled. The division on the Larimee River is made. But, gentlemen, under that principle if only the State which is the first in time has appropriations early enough it may take all of the water of the stream, or nearly all, and leave nothing for the other States.

When you come to international law on interstate streams we find that there is no principle of international law by which any State is allowed to monopolize any stream which is international in character. It was the old law a century or more ago that any State could do with the waters of an international stream in its borders what it would.

But beginning with the time of the treaty of Paris, following the Napoleonic wars, when it came to international streams, they were thrown open to community of use-to community of navigation, and not to monopoly of navigation. And, consequently, our own Mississippi River was as free to the ships of Spain as to those of America. The same thing is true as to Canada with regard to the waters of the Great Lakes and the St. Lawrence. We have only a few instances of international controversy over the withdrawal of water for irrigation, but in such as have arisen they do not recognize the principle of priority, but do recognize the principle of equitable division. If you take the Milk River and the St. Marys River, between this country and Canada, one of which rises in this country and flows into Canada, and the other of which rises in Canada and flows into this country, you will find that under a treaty made between this country and Great Britain the waters were divided half-and-half, 50-50; and when it came to the Rio Grande, we find here that Old Mexico was allowed 60,000 acre-feet-not because her use was prior, but because this Government, as a matter of fairness and equity, recognized the right of Old Mexico to the flow of a portion of the

stream.

Now, my question is this: Why should a State in the American Union be permitted to treat another State of that same Union worse than one nation treats another, under international law and practice? Why this principle of interstate priority-this principle which may or may not be a monopoly, depending upon how early the appropriations by the one State are made, compared with the appropriations in the other? It is vicious in the extreme. Earlier settlement often is due to nothing but accident.

Gentlemen, if we have regard for a State for the purpose of allowing it to have a local State government, with its governor, its legislature, and its judiciary, why not adopt an economic principle which will allow to that same State a freedom of economic development?

We do not ask in the North for a monopoly; and I know that our compact friends in the South, who have stood so loyally by that compact, do not ask for it either. And if there were any way by which this bill could be worded so that, as a matter of certainty, it would protect the upper States, I would be the very first to come forward and help, if possible, to draft the provision.

But the power of Congress is so involved in doubt that we of the upper basin can not have the requisite degree of sureness; and we

can not stand by and see our States despoiled of water because of or upon any theory of an earlier priority in the States of the lower basin.

I know the case of the Imperial Valley is certainly appealing. There are probably 50,000 people there; and property worth a hundred million of dollars that must be protected. Why can they not be protected by temporary dredging the river bed and by temporary embankments? That probably can be done at the present time.

But if they can not be protected in that way let me ask you this: Why sacrifice the four upper States of this basin, with their population totaling almost 2,000,000 people, in order to protect from flood in the Imperial Valley?

The valley should be protected. I am willing to bear my part of taxation in order to protect it, but I can not believe that in order to protect the valley it is necessary in advance of the ratification of this compact-possibly it is not necessary to do anything at all-but certainly not necessary to put up here a great dam, at an expense of $50,000,000, with power and irrigation as the great products or byproducts of the dam, when those same by-products would really be come the chief products and flood protection the secondary product. What we want is development of the basin, gentlemen, as a wholeno favors to us, and none to anybody else.

Mr. LITTLE. Have you any evidence whatever that this would disastrously affect any farm in the four upper States, or any right? Mr. BANNISTER. Any right?

Mr. LITTLE. Or any farm? Have you any evidence that that is the fact, or is that just a theory or possibility?

Mr. BANNISTER. It is no theory or possibility.

Mr. LITTLE. Well, I suggest that you lay before the committee some instances in which great wrong would be done. Of course, that might happen. But if you think that that is an actual probability, I think you ought to show how it is.

Mr. BANNISTER. Each one of the four upper States has great areas of land which may be watered from this river just as Arizona and California have areas which may be watered. The development has not reached the limit in any of these States.

Mr. LITTLE. Well, what is your evidence that they can not be so watered anyhow?

Mr. BANNISTER. Why, the evidence is because this project will undoubtedly call for the entire flow of the river; and if it does, and if an interstate priority does exist by law, we should be compelled to let our water go down to supply it; we would then have no water to carry on our future development.

Mr. LITTLE. What you need then would be some legal assurance that there should be no such vested right below?

Mr. BANNISTER. Well, yes; and the only way that I see of bringing that about is the Colorado River compact. And on that let me say this, that I believe that the Colorado River compact will be adopted and ratified in Arizona as the result of the election this fall. I believe at the present time the majority of the voters of that State are for it; and I have no end of admiration for the men who have conducted the fight in that State in behalf of the compact.

Mr. LITTLE. That would dispose of this question, would it?

Mr. BANNISTER. Then the bill could be enacted with safety to the upper basin.

I say I think that Arizona will ratify, for this reason: In the first place, the proposition for the division of water between those States is a fair proposition. It will commend itself to the Senators and Representatives of this Congress, when they see that four States would be endangered by the enactment of this bill in advance of the ratification; and I can not believe that they will be in favor of the bill.

And then, as for the people of Arizona, I think that when they fully understand what this bill means, that the upper States are entitled to a part of the water; when they see that they can not get power permits or licenses from the power commission: when they see that they can not get reclamation bills enacted by Congress, until there has been a ratification, then they will ratify; and the upper States are opposing, not because they want in any way to punish Arizona or California but because they are obliged to step into Congress, and through their Senators and Representatives protect their rights, in order that there may be a fair division between the groups, and may not be an undue quantity of water consolidated in the lower basin and held or claimed there on any theory of priority.

I thank you, Mr. Chairman and gentlemen.

Mr. LITTLE. Just a minute. I wish that Judge Raker might be allowed to finish his line of investigation-unless Mr. Hayden has some questions?

Mr. HAYDEN. I think I may ask a question that, perhaps, will interest Judge Raker and some of the other members of the committee.

I understand that your theory with respect to the Colorado River compact is that it is in the nature of a treaty between the States, and that the same principle should apply as between the States interested in the waters of that stream as applies between nations, with respect to the waters of rivers for navigation; it is an interstate treaty?

Mr. BANNISTER. Well, not exactly that. Of course, the Constitution expressly forbids the States from making treaties. It says they may make agreements with the consent of Congress. But as I see it. the division of water is then for the Supreme Court to make. It is for Federal authority, and not for any State to arrogate the authority to itself. But I think that the Supreme Court would be likely, most likely-certain, in fact, to uphold an agreement which the States themselves have made for a division between themselves. Mr. HAYDEN. I was anxious to bring that point out.

Mr. BANNISTER. And, of course, in international relations there would be no court to uphold such an agreement.

Mr. HAYDEN. Now, as to the international phase, you stated that is was customary among nations to consider the joint uses of streams for navigation?

Mr. BANNISTER. Yes.

Mr. HAYDEN. The only precedent that I know of which directly affects the international status of the Colorado River is that of the Rio Grande case, wherein this Government had denied any right