State; and then we will divide it so that each State may administer its part of that fund, and that it will not be necessary for the officials of one State to cross the boundaries into the other as would be necessary if State lines were really to be disregarded.

Mr. RAKER. Well, did they not lay the rule down, as suggested by the gentleman from Oregon (Mr. Sinnott) before they ever started to divide the water? In the decision they laid down the rule suggested by Mr. Sinnott, that the same rule applies to the diversion and use of the water in the State as applies in an adjoining State. Mr. BANNISTER. The court said that "Since each of these two States enforces the priority system, we will enforce it as between these States."

And then the court proceeded to do something very differentsomething that is not done in either of those States or in any other State.

Now, it is the determination or the fixation of that water fund which, under the Wyoming-Colorado decision, will require an infinite, painstaking investigation, and will be the breeder of any quantity of litigation-if, indeed, that the principle of that case is to be applied. Then, too, the court in that case threw the burden of reservoir construction on the appropriators in the lower State, whereas if only one State were involved that burden is thrown on the most recent appropriator rather than on the lowest.

Mr. SINNOTT. Now, conceding, Mr. Bannister, my premises, or supposed premises-hypothetical premises, I will call them—that the Federal Government has the right to appropriate and that State lines were obliterated, then these issues would not come up that you referred to?

Mr. BANNISTER. Oh, some of them would, and then some additional ones; because, in the first place, the question of whether State lines are going to be obliterated is going to be tried again.

Let me state what I mean by that: I think that in the ColoradoWyoming litigation, our State made a tactical mistake: That the principle which it put forward in order to defeat the claims of Wyoming was the principle that, because the water arises in Colorado, therefore Colorado is to have it. Our State only mentioned rather than argued the other possible principle, of equitable division.

So the two principles that went to the bat in the Supreme Court were the principle that all of the water of a State that arises within a State belongs to that State, against the contrary principle put up by Wyoming, of interstate priority.

The consequence was, that Colorado was defeated.

Colorado had made that same claim, in Kansas v. Colorado; and it was rejected there; and I think that principle ought to be rejected; because it is a vicious and an unfair principle to apply in a union of States. I think, had our State come forward with the principle of equitable division and opposed that principle to the principle of interstate priority advocated by Wyoming, the chances are the decision might have been different. Nobody knows; but that is the effort that will be made next time-not with Wyoming; but I mean the next time a case arises. Then, too, even if the principle of Wyoming v. Colorado were to be applied to the Colorado River system it probably would require. 25 years to determine the relative

priorities to the use of water between the users throughout the system in the seven States in order to determine the share of each State in the water fund of which I have been speaking and to determine the amount of that water fund itself.

Mr. HAYDEN. Let me see if I correctly understand Mr. Sinnott. He says. "If the United States has the right to make an appropriation." I would like to ask if, by that, he means a right irrespective of the laws of the State, or in conformity with the laws of the State? In other words, does the United States stand in exactly the same position as an individual making an application?

Mr. SINNOTT. The same as any other appropriator.

Mr. HAYDEN. The same as any other appropriator: is that what you mean?

Mr. SINNOTT. Yes.

Mr. HAYDEN. If that were true, then it would follow that the United States must conform to the laws of the State where it seeks to make the appropriation: and if it does not conform to the laws of the States and satisfy the authorities of the States, it can not obtain the appropriation.

Mr. SINNOTT. I understand it has been given that right in the various States.

Mr. HAYDEN. The United States has been given the right to make an application, the same as any other individual who seeks an appropriation. But it is subject to the same limitations and must conform to the laws of the State, the same as any individual. Am I right in that, Mr. Bannister?

Mr. BANNISTER. I think, Mr. Hayden, that is exactly right. The United States is treated as any individual or corporation which makes an appropriation of water: and it falls under the law of the State.

Mr. HAYDEN. In other words, the United States has no right that inheres to it as a sovereign?

Mr. BANNISTER. Not as a sovereign.

Mr. LEATHERWOOD. The prior rights, if any, could be set up as against the application of the Government?

Mr. HAYDEN. The same as any other appropriator. I wanted to determine what principle of law would apply, and to see if Mr. Sinnott and I are in accord.

The CHAIRMAN. The witness has a few suggestions he wishes to make; and as the time is limited. I think we should permit him to go ahead and make his statement.

Mr. BANNISTER. Yes, Mr. Chairman; there are four or five points that I have not made yet because of time spent in answering questions. Mr. SINNOTT. Mr. Chairman, I would just like to get Mr. Bannister's opinion on one point: As to whether this is a navigable

stream or not?

It

Mr. BANNISTER. Well, as to that I do not think I can say that my opinion is of much value, because of the lack of information. would not be a navigable stream, I should say, unless it is commercially navigable. Now, in its natural condition, my general understanding is that there is so little of commercial navigation possible

92265-24-PT 1-15

there that it would not be classed as a navigable stream. But I am not prepared to say

Mr. SINNOTT (interposing). Well, at the point above where it is proposed that the dam is to be constructed, Boulder Canyon, is it navigable up there?

Mr. BANNISTER. No; it is not navigable up there; but that would not necessarily be against the navigability of the stream below. Mr. RAKER. Well, there is a man running a boat up there now, and charging fare for passengers.

Mr. BANNISTER. Above the dam?

Mr. RAKER. Yes.

The CHAIRMAN. Right at the dam site.

Mr. BANNISTER. I am not objecting to that.

Mr. RAKER. But I say you can go up and down the river there. Mr. SINNOTT. Well, if gasoline launches were running there large enough to carry 20 or 30 people, would that make it a navigable stream?

Mr. BANNISTER. Why, if there were enough of them and operating commercially I should imagine so. And yet I do not feel that I am an authority on the question of just what makes a stream navigable and what does not.

Mr. SINNOTT. Well, if it is navigable in fact, of course it is navigable in law?

Mr. BANNISTER. Yes; then it is navigable in law.

Now, let me assume that the stream is navigable as you suggest, then the question is, what legal effect does that have? Does it increase in any wise the powers of the Federal Government over it? I am glad you asked that question. I barely touched on it yesterday. That fact would give to the Federal Government the right to regulate the stream in the interests of commerce upon the stream; but it would not give the right to the Federal Government to regulate the stream with respect to an object or purpose that is not commerce upon the stream.

Now, the great practical question is this:

Is the construction of a dam for the purpose of permitting the withdrawal of water for agricultural and power purposes a regulation on the part of the Federal Government that has to do with and is for the promotion of interstate commerce on this stream? If it is, then the Federal Government would have a measure of power or right that would be superior to the power of the State, although for every purpose not connected with commerce the power of disposing of and regulating the water would be in the State.

But I say that the construction of the dam for these purposes of irrigation and power is not the exercise by the Federal Government of the commerce power, because it is not connected with commerce purposes. And, therefore, the State law of Arizona governs the situation; and that the Federal Government must walk into Arizona and go up to the desk of the State water commissioner of that State and ask for his permit, just as would any private citizen.

Mr. SINNOTT. Would the declaration by Congress that the building of a dam is for promoting navigation of the stream be conclusive?

Mr. BANNISTER. That would not be conclusive on the Supreme Court. This is true: That whoever would decide that a stream is navigable, if the question were one of rational debate, upon which honest minds could differ, the Supreme Court surely would allow to Congress the privilege-and ought to of decision.

But where Congress makes a bald declaration of a fact that is not so, and everybody knows is not so, I think there the declaration of Congress would be investigated by the courts. Because, where the States have rights they are, of course, to be preserved.

A qutstion which was asked me yesterday is. What was the effect of the act of 1866 and the desert land act of 1877? The questioner said, in effect, is it not true that all appropriation rights come from the Federal Government by virtue of those two acts? To that my answer is that, in the California system States these statutes have the effect of grants of appropriation rights, carved out of previously existing riparian rights, owned by the Federal Government. In other words, they have the effect of grants out of property previously owned by the Government.

But in the Colorado system States, to which six of the seven States of this basin belong, the acts do not have that effect. In those States they have no real effect whatever.

They did have an effect in these areas prior to statehood, because, then, Congress was supreme over the entire areas.

But with no riparian water rights existing in the Federal Government within these areas, but with only the political power to make law through its judiciary and through Congress existing in the Federal Government, and with the States being admitted into the Union, those States were admitted into the Union without any outstanding property rights of any kind existing in the Federal Government, and a large part of the political or law-making power which the Government possessed was transferred to the States upon their admission to the Union, including in that power the power to create systems of water rights; and therefore Arizona, Colorado, Utah, and these other States are the creators of their water systems. That is as good an answer as I can give to that question.

Mr. SINNOTT. Would it be constitutional to repeal that grant--if it is a grant?

Mr. BANNISTER. I should say that it would be constitutional to repeal the grant, but it could not affect the water rights already acquired under it in the California system States. And it would do no good to repeal this grant as to the Colorado system States, because Congress has no property in those States with respect to the waters, and their systems could continue unimpeded under their own laws.

Mr. RICHARDS. Mr. Chairman, may I be permitted a question? I am, possibly, not clear as to one point of the theory of the gentleman; and that is this: After ratification of the compact, how are you going to determine any existing difficulties, in so far as legal questions and questions of fact are concerned? Will the representatives of the various States settle those, or will you pass them right up to the Supreme Court for decision?

Mr. BANNISTER. Well, they would go to the courts for decision in the absence of amicable settlement, because the compact simply fixes the quantity of water that each group should have; and if that

compact is not lived up to, then, as in the case of any private contract that is not lived up to, the remedy is in the courts.

Mr. RICHARDS. I thought possibly the compact had given the representatives of the respective States opportunity to make an agreement between themselves?

Mr. BANNISTER. Well, the compact does provide that, if differencies arise, the States may settle them by mutual agreement; but I mean if they could not agree the remedy would be in the courts. Mr. RICHARDS. And there is no definite period when a decision might be reached as to that?

Mr. BANNISTER. No. With respect to that Colorado system, let me say this: That it is not in derogation of the powers of the Federal Government. Even if the Federal Government did not have property rights prior to statehood of these States, that is not belittling to the Federal Government, because we concede to the Federal Government something greater than property rights. We concede that it had omnipotent political law-making power. We simply say that it did not have riparian rights, because it was not good for anybody in that extremely dry region that riparian rights should be possessed by anybody, and we leave it to the United States Supreme Court to say if we are not right, feeling pretty sure the court will say we are.

And I did not finish my answer yesterday as to why a simon-pure appropriation system is better in our region than the riparian sys

tem.

The riparian system requires that the waters be used on riparian lands; that is, those land ownerships contiguous to the stream; and also permitted all riparian owners to have a portion of the waters of the stream for use on their lands regardless of dates of commencing use.

Now, the appropriation system does not operate under either one of those limitations. The water may be used on lands either riparian or nonriparian: and instead of everybody having the right to water, the right is only had by those who make appropriations; and they enjoy in the order of their appropriations, the first user having the first right, the second the next right, and so on. The theory is that the social welfare in these States is better subserved if a smaller number of water users have enough water for their respective purposes than if, because of a larger number, the water must be divided in such minute quantities that nobody will have enough with which to accomplish anything worth while.

And then, on the point of the relative merits of this principle of equitable division and that of interstate priority, I want to call the attention of you gentlemen to something which I think relates not only to this bill, but to every other reclamation bill that will be brought before you that has anything to do with an interstate stream. The principle of equitable division is a fairer and a better one for several reasons:

In the first place, it recognizes the economic opportunity of every State upon the stream.

In the second place, it scatters the use of the water more widely over a greater area; and everybody who has had anything to do with the use of water upon lands knows that dry lands-and we have dry lands in all of the States-will possess their maximum usefulness if