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Show of and make needful regulations respecting Gov- ernment property. Congress is entrusted with unlimited authority to control the use of Federal public lands. And it is for Congress, not the courts, to say how that trust shall be administered. It can accordingly prohibit absolutely the use of public lands, or without limitation fix the terms on which they may be used. Moreover, while States may adopt legislation respecting the character of rights to use of water which may be acquired in streams under their dominion, the Supreme Court held over a half century ago that States may not, by legislation and without the consent of Congress, "destroy the right of the United States, as the owner of lands bordering on a stream, to the continued flow of its waters; so far at least as may be necessary for the beneficial uses of the government property." A water right is a right to the use of water, a right usufructuary in character and not a right to the corpus of the water itself. The United States has acquired such rights in numerous ways, by cession, by purchase, and by exercise of the power of eminent domain. In the West, the exercise of power under the Property Clause has had special significance. There, a rule became generally recognized that the acquisition of water by prior appropriation for beneficial use was entitled to protection-a rule evidenced not alone by legislation and ju- dicial decision, but also by local and customary law and usage as well. This appropriation doc- trine involved a marked departure from the riparian doctrine, prevailing in the East, under which only an owner of lands riparian to a stream may make reasonable use of its waters, and only on his riparian lands. By legislation in 1866 and 1870, Congress recognized as valid the appropriation system gov- erning use of water which had grown up among the occupants of public lands under the peculiar local necessities of their condition. And in an 1877 statute, it declared that all nonnavigable waters upon specified public lands in the West should remain and be held free for the appropria- tion and use of the public, subject to existing rights. In connection with the foregoing legislation, it is established that the United States, as owner of the public domain, had the power to dispose of the land and water thereon together or sep- arately. Intervening in a recent suit by Nebraska against Wyoming, the United States contended that the foregoing statutes of 1866, 1870, and 1877 did not divest it of title to or control over unappropriated waters in nonnavigable streams in the West. The States, on the other hand, claimed that these statutes constitute an irrevoca- ble surrender of any right the United States might have had to control the use of those waters. But in disposing of the case, the Supreme Court found it unnecessary to pass on the question. The Property Clause is important here in an- other respect, for it became the foundation for the 1902 Reclamation Act. The few cases pass- ing on the constitutionality of the act have sus- tained its validity as a means for making market- able, desert lands within the public domain. Similarly, it was early established that the Fed- eral Government may exercise its power of emi- nent domain to obtain private lands for a project irrigating both public and private lands. Under the Reclamation Act, the Secretary of the Interior is authorized to purchase or condemn any rights necessary to the carrying out of its pro- visions. Congress directed him, in carrying out the act, to proceed in conformity with State laws relating to the control, appropriation, use, or distribution of water used in irrigation, and ex- pressly provided that nothing in the act shall be construed as affecting such laws or vested rights acquired thereunder. The Supreme Court re- cently held that this statutory provision, apart from any constitutional requirement, constituted an election by Congress "to recognize any state- created rights and to take them under its power of eminent domain." Thus, when such rights are necessary in carrying out the act, they must be purchased or condemned as authorized by the act. Furthermore, Congress may make the discre- tion of the Secretary of the Interior conclusive as to the necessity for taking land for a reclama- tion project. Any rights or interests in property, as well as land, necessary to carrying out an irri- 911609-5C -21 279 |