| OCR Text |
Show 572 INTERSTATE ADJUDICATIONS it would, have done so in clear and unequivocal terms, as it did in recognizing "present perfected rights" in § 6. That the bill was giving the Secretary sufficient power to carry out an allocation of the waters among the States and among the users within each State without regard to the law of prior appropriation was brought out in a colloquy between Montana's Senator Walsh and California's Senator Johnson, wThose State had at least as much reason as any other State to bind the Secretary by state laws. Senator Walsh, who was thoroughly versed in western water law and also had pre- viously argued before this Court in a leading case involving the doctrine of prior appropriation,82 made clear what would follow from the Government's impounding of the Colorado River waters when he said, "I always understood that the interest that stores the water has a right superior to prior appropriations that do not store." He sought Senator Johnson's views on what rights the City of Los An- geles, which had filed claims to large quantities of Colorado River water, would have after the Government had built the dam and im- pounded the waters. In reply to Senator Walsh's specific question whether the Government might ''dispose of the stored waters as it sees fit," Senator Johnson said, "Yes, under the terms of this bill." Senator Johnson added that "everything in this scheme, plan, or design" was "dependent upon the Secretary of the Interior contract- ing with those who desire to obtain the benefit of the construc- tion . . ." He admitted that it was possible that the Secretary could "utterly ignore" Los Angeles' appropriations.83 In this same discussion, Senator Hayden emphasized the Secretary's power to allocate the water by making contracts with users. After Senator Walsh said that he understood Senator Johnson to be arguing that the Secretary must satisfy Los Angeles' appropriations, Senator Hayden corrected him, pointing out that Senator Johnson had qualified his statement by saying that "after all, the Secretary of the Interior could allow the city of Los Angeles to have such quantity of water as might be determined by contract." Senator Hayden went on to say that, where domestic and irrigation needs conflicted, "the Secretary of the Interior will naturally decide as between applicants, one who desires to use the water for potable purposes in the city and another who desires to use it for irrigation, if there is not enough water to go around, that the city shall have the preference." 84 It is also significant that two vigorous opponents of the bill, Arizona's Representative Douglas and Utah's Representative Colton, criticized t^Bean v. Morris, 221 U.S. 485 (1911). This case was relied on by Mr. Justice Van Devanter in Wyoming v. Colorado, 259 U.S. 419, 466 (1922). 8370 Cong. Rec. 168 (1928). Other statements by Senator Johnson are less damaging to California's claims. For example, the Senator at another point in the colloquy with Senator Walsh said that he doubted if the Secretary either would or could disregard Los Angeles and contract with someone having no appropriation. Ibid. It is likely, how- ever, that Senator Johnson was talking about present perfected rights, as a few minutes before he had argued that Los Angeles had taken sufficient steps in perfecting its claims to make them protected. See id., at 167. Present perfected rights, as we have observed in the text, are recognized by the Act. § 6. 8*70 Cong. Rec. 169 (1928). At one point Senator Hayden seems to say that the Sec- retary's contracts are to be governed by state law: "The only thing required in this bill is contained in the amendment that I have offered, that there shall be apportioned to each State its share of the water. Then, who shall obtain that water in relative order of priority may be determined by the State courts." Ibid. But, in view of the Senator's other statements in the same debate, this remark of a man so knowledgeable in western water law makes sense only if one understands that the "order of priority" being talked about was the order of present perfected rights-rights which Senator Hayden recognized, see id., at 167, and which the Act preserves in § 6. |
