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Show COLORADO RIVER LITIGATION 587 Still another, and profoundly significant, factor in understanding the effect of the Project Act on the law of appropriation and judicial apportionment is the pervasive hostility that many westerners had to any form of federal control of water rights. Colorado's Delph Car- penter, who was as much responsible as any man for both the Compact and the contract requirement of §5 of the Project Act, testified in 1925 to what he termed an insidious and calculated policy of the Na- tional Government, fostered particularly by the Departments of In- terior and Justice, to encroach upon state prerogatives and supersede state authority with respect to the distribution of water. He made it clear, as did Wyoming's Senator Kendrick, that he deemed this policy oppressive, destructive, and deplorable.10 Utah's Senator King made the same objection on the floor of Congress. 69 Cong. Rec. 10262. When it was suggested that Congress might legislate to meet the problem of California's threatened preemption of the river, a storm of doubt arose as to its constitutional power to do so. Upper Basin and Arizona spokesmen-those who were to be benefited by limiting appropria- tions-repeatedly insisted that the only constitutional ways of ap- portioning the river were by suit in this Court or by interstate com- pact.11 And Senator Bratton of New Mexico, hardly an opponent of the Project Act, objected that by merely suggesting in § 4 (a) the terms of a compact which the States were free to modify or to reject, Con- gress was infringing upon state sovereignty. 70 (Jong. Eec. 470-471. 10 Hearings before Senate Committee on Irrigation and Reclamation pursuant to S. Res. No. 320, 68th Cong., 2d Sess. 663-675. "It was the oppression of the National Govern- ment strangling development, preventing development in the States. . . . These two ex- periences and others taught Colorado, Wyoming, and New Mexico the extent to which a department of the United States would go in overriding State authority and oppressing whole communities. . . . Thus it came to the attention of the States, that the United States Government intended to supersede all State law and override State authority on that river. . . . [A]|ny desire by- a governmental bureau to ultimately, by insiduous [sic] or other methods, take over the control and dominion of the streams' within the States and to override State authority at once becomes not only abhorrent but gives rise to a feeling of bitter resentment and sounds a call to arms for 'self-defense. . . ." Id., at 663, 665, 671, 673. See also his remarks at Hearings, supra, note 1, at 146-157. 11 Senator King. "If the Senator means by his statement that the Federal Government may go into a stream, whether it be the Colorado River, the Sacramento River, or a river in the State of Montana, and put its powerful hands down upon the stream and say, 'This is mine; I can build a dam there and allocate water to whom I please, regardless of other rights, either suspended, inchoate, or perfected' I deny the position which the Senator takes." 70 Cong. Rec. 169. The Senator in question was Carl Hayden; he denied that his statement, which concerned his authorization for a compact among the three lower States, meant any such thing. Senator Phipps. "I am firmly convinced that there must be voluntary ratification on the part of each interested State in order to make the compact effective. This is the only method of settling possible controversies permanently and of putting the water of the stream to its highest beneficial use. It is the only satisfactory method; it is the only legal method to avoid proceedings in the courts which would prove costly and almost interminable." 68 Cong. Rec. 4515. Senator Hayden. "There are only two ways in which this controversy can be settled. Either the States can agree upon an equitable apportionment of waters of the Colorado River or, in the absence of a compact, the Supreme Court of the United States can determine what the rights of the various States are in on [sic] that stream. . . . Arizona denies that it is within the power of Congress to apportion the waters of an interstate stream among the States." Hearings, supra, note 2, at 75, 76. (Emphasis added.) Representative Coi/ton. "I have been informed that an attorney for the Reclamation Service of the United States claims that Congress has the power to allocate and apportion all of the Colorado River among the States regardless of their wishes in the matter. Such a theory is abhorrent to our whole plan of government and particularly to the theory on which our whole system of water rights has been built up." Hearings before House Com- mittee on Irrigation and Reclamation on H.R. 5773, 70th Cong., 1st Sess. 414. Representative Leathbrwood. "[T]here are only two agencies that can allocate the waters of this great river, the States themselves by treaty ratified by the Congress of the United States, or by the judicial branch of the Government; for the Congress has no power to allocate any of the waters of this river or any other river where the doctrine of prior appropriation is in force." Hearings, supra, note 2, at 31. Ward Bannister. "[T]here is nothing in the Federal Constitution upon which to base the power of the Federal Government to divide this water among the States. . . . [T]he same thing that would invalidate a provision inserted by Congress direct would invalidate any rule promulgated by the Secretary of the Interior under Congressional permission, and the upper States would find themselves utterly helpless." Hearings, supra, 7, at 195. |
