The United States seeks to impound 2.4 million acre-feet of water from California's Stanislaus River as part of its Central Valley Project. The California State Water Resources Control Board ruled that the water could not be allocated to the Government under state law unless it agreed to and complied with various conditions dealing with the water's use. The Government then sought a declaratory judgment in the District Court for the Eastern District of California to the effect that the United States can impound whatever unappropriated water is necessary for a federal reclamation project without complying with state law. The District Court held that, as a matter of comity, the United States must apply to the State for an appropriation permit, but that the State must issue the permit without condition if there is sufficient unappropriated water. 403 F.Supp. 874 (1975). The Court of Appeals for the Ninth Circuit affirmed, but held that § 8 of the Reclamation Act of 1902, 32 Stat. 390, as codified, 43 U. S. C. §§ 372, 383, rather than comity, requires the United States to apply for the permit. 558 F.2d 1347 (1977). We granted certiorari to review the decision of the Court of Appeals insofar as it holds that California cannot condition its allocation of water to a federal reclamation project. 434 U.S. 984 (1977). We now reverse.
Principles of comity and federalism, which the District Court and the Court of Appeals referred to and which have received considerable attention in our decisions, are as a legal matter based on the Constitution of the United States, statutes enacted by Congress, and judge-made law. But the situations invoking the application of these principles have contributed importantly to their formation. Just as it has been truly said that the life of the law is not logic but experience, see O. Holmes, The Common Law 1 (1881), so may it be said that the life of the law is not political philosophy but experience.
The very vastness of our territory as a Nation, the different times at which it was acquired and settled, and the varying physiographic and climatic regimes which obtain in its different parts have all but necessitated the recognition of legal distinctions corresponding to these differences. Those who first set foot in North America from ships sailing the tidal estuaries of Virginia did not confront the same problems as those who sailed flat boats down the Ohio River in search of new sites to farm. Those who cleared the forests in the old North-west Territory faced totally different physiographic problems from those who built sod huts on the Great Plains. The final expansion of our Nation in the 19th century into the arid lands beyond the hundredth meridian of longitude, which had been shown on early maps as the "Great American Desert," brought the participants in that expansion face to face with the necessity for irrigation in a way that no previous territorial expansion had.
In order to correctly ascertain the meaning of the Reclamation Act of 1902, we must recognize the obvious truth that the history of irrigation and reclamation before that date was much fresher in the minds of those then in Congress than it is to us today. "[T]he afternoon of July 23, 1847, was the true date of the beginning of modern irrigation. It was on that afternoon that the first band of Mormon pioneers built a small
The arid lands were not all susceptible of the same sort of reclamation. The climate and topography of the lands that constituted the "Great American Desert" were quite different from the climate and topography of the Pacific Coast States. As noted in both United States v. Gerlach Live Stock Co., 339 U.S. 725 (1950), and Ivanhoe Irrigation District v. McCracken, 357 U.S. 275 (1958), the latter States not only had a more pronounced seasonal variation and precipitation than the intermountain States, but the interior portions of California had climatic advantages which many of the intermountain States did not.
If the term "cooperative federalism" had been in vogue in 1902, the Reclamation Act of that year would surely have qualified as a leading example of it. In that Act, Congress set forth on a massive program to construct and operate dams, reservoirs, and canals for the reclamation of the arid lands in 17 Western States. Reflective of the "cooperative federalism" which the Act embodied is § 8, whose exact meaning and scope are the critical inquiries in this case:
Perhaps because of the cooperative nature of the legislation, and the fact that Congress in the Act merely authorized the expenditure of funds in States whose citizens were generally anxious to have them expended, there has not been a great deal of litigation involving the meaning of its language. Indeed, so far as we can tell, the first case to come to this Court involving the Act at all was Ickes v. Fox, 300 U.S. 82 (1937), and the first case to require construction of § 8 of the Act was United States v. Gerlach Live Stock Co., supra, decided nearly half a century after the enactment of the 1902 statute.
The New Melones Dam, which this litigation concerns, is part of the California Central Valley Project, the largest reclamation project yet authorized under the 1902 Act.
The history of the relationship between the Federal Government and the States in the reclamation of the arid lands of the Western States is both long and involved, but through it runs the consistent thread of purposeful and continued deference to state water law by Congress. The rivers, streams, and lakes of California were acquired by the United States under the 1848 Treaty of Guadalupe Hidalgo with the Republic of Mexico, 9 Stat. 922. Within a year of that treaty, the California gold rush began, and the settlers in this new land quickly realized that the riparian doctrine of water rights that had served well in the humid regions of the East would not work in the arid lands of the West. Other settlers coming into the intermountain area, the vast basin and range country which lies between the Rocky Mountains on the east and the Sierra Nevada and Cascade Ranges on the west, were forced to the same conclusion. In its place, the doctrine of prior appropriation, linked to beneficial use of the water, arose through local customs, laws,
In 1850, California was admitted as a State to the Union "on an equal footing with the original States in all respects whatever." 9 Stat. 452. While § 3 of the Act admitting California to the Union specifically reserved to the United States all "public lands" within the limits of California, no provision was made for the unappropriated waters in California's streams and rivers. One school of legal commentators held the view that, under the equal-footing doctrine, the Western States, upon their admission to the Union, acquired exclusive sovereignty over the unappropriated waters in their streams. In 1903, for example, one leading expert on reclamation and water law observed that "[i]t has heretofore been assumed that the authority of each State in the disposal of the water-supply within its borders was unquestioned and supreme, and two of the States have constitutional provisions asserting absolute ownership of all water-supplies within their bounds." E. Mead, Irrigation Institutions 372 (1903).
And see United States v. Rio Grande Dam & Irrig. Co., 174 U.S. 690, 702-703, and 709 (1899).
As noted earlier, reclamation of the arid lands began almost immediately upon the arrival of pioneers to the Western States. Huge sums of private money were invested in systems to transport water vast distances for mining, agriculture, and ordinary consumption. Because a very high percentage of land in the West belonged to the Federal Government, the canals and ditches that carried this water frequently crossed
The Mining Act of 1866 was not itself a grant of water rights pursuant to federal law. Instead, as this Court observed, the Act was "`a voluntary recognition of a preexisting right of possession, constituting a valid claim to its continued use.'" United States v. Rio Grande Dam & Irrig. Co., supra, at 705. Congress intended "to recognize as valid the customary law with respect to the use of water which had grown up among the occupants of the public land under the peculiar necessities of their condition."
This Court has had an opportunity to construe the 1877 Desert Land Act before. In California Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142 (1935), Mr. Justice Sutherland
Unfortunately, this language, which had been hastily drafted and passed, had the practical effect of reserving all of the public lands in the West from settlement.
The Secretary of the Interior, unfortunately, interpreted the 1890 and 1891 Acts as reserving governmentally surveyed reservoir sites from use rather than for use. Congress rectified this interpretation in the Act of Feb. 26, 1897, ch. 335, 29 Stat. 599, which provided:
The final provision of the 1897 Act was proposed as a floor amendment by Representative, later Speaker, Cannon to expressly preserve States' control over reclamation within their borders. It was clearly the opinion of a majority of the Congressmen who spoke on the bill, however, that such an amendment was unnecessary except out of an excess of caution.
Congressman Lacey's statement found reflection in contemporaneous decisions of this Court holding that, with limited exceptions not relevant to reclamation, authority over intrastate waterways lies with the States. In United States v. Rio Grande Dam & Irrig. Co., for example, New Mexico's authority to adopt a prior appropriation system of water rights for the Rio Grande River was challenged. The Court unhesitatingly held that "as to every stream within its dominion a State may change [the] common law rule and permit the appropriation of the flowing waters for such purposes as it deems wise." 174 U. S., at 702-703. The Court noted that there are two limitations to the State's exclusive control of its streams—reserved rights "so far at least as may be necessary for the beneficial uses of the government property," id., at 703, and the navigation servitude. The Court, however, was careful to emphasize with respect to these limitations on the States' power that, except where the reserved rights or navigation servitude of the United States are invoked, the State has total authority over its internal waters. "Unquestionably the State . . . has a right to appropriate its waters, and the United States may not question such appropriation, unless thereby the navigability of the [river] be disturbed." Id., at 709.
It is against this background that Congress passed the Reclamation Act of 1902. With the help of the 1891 and 1897 Acts, private and state reclamation projects had gone far toward reclaiming the arid lands,
As a result of the public demand for federal reclamation funding, a bill was introduced into the 57th Congress to use the money from the sale of public lands in the Western States to build reclamation projects in those same States. The projects would be built on federal land and the actual construction and operation of the projects would be in the hands of the Secretary of the Interior. But the Act clearly provided that state water law would control in the appropriation and later distribution of the water. As originally introduced, § 8 of the Reclamation Act provided:
From the legislative history of the Reclamation Act of 1902, it is clear that state law was expected to control in two important respects. First, and of controlling importance to this case, the Secretary would have to appropriate, purchase, or condemn necessary water rights in strict conformity with state law. According to Representative Mondell, the principal sponsor of the reclamation bill in the House, once the Secretary determined that a reclamation project was feasible and that there was an adequate supply of water for the project, "the Secretary of the Interior would proceed to make the appropriation of the necessary water by giving the notice and complying with the forms of law of the State or Territory in which the works were located." 35 Cong. Rec. 6678 (1902) (emphasis added). The Secretary of the Interior could not take any action in appropriating the waters of the state streams "which could not be undertaken by an individual or corporation if it were in the position of the Government as regards the ownership of its lands." H. R. Rep. No. 794, 57th Cong., 1st Sess., 7-8 (1902). Thus, in response to the
As Representative Sutherland, later to be a Justice of this Court, succinctly put it, "if the appropriation and use were not under the provisions of the State law the utmost confusion would prevail." Id., at 6770. Different water rights in
A principal motivating factor behind Congress' decision to
Both sponsors and opponents of the Reclamation Act also expressed constitutional doubts as to Congress' power to override the States' regulation of waters within their borders. Congress was fully aware that the Supreme Court had "in
For almost half a century, this congressionally mandated division between federal and state authority worked smoothly. No project was constructed without the approval of the Secretary of the Interior, and the United States through this official preserved its authority to determine how federal funds should be expended. But state laws relating to water rights were observed in accordance with the congressional directives contained in § 8 of the Act of 1902. In 1958, however, the first of two cases was decided by this Court in which private landowners or municipal corporations contended that state water law had the effect of overriding specific congressional directives to the Secretary of the Interior as to the operation of federal reclamation projects. In Ivanhoe Irrigation District v. McCracken, 357 U.S. 275, the Supreme Court of California decided that
Five years later, in City of Fresno v. California, 372 U.S. 627 (1963), this Court affirmed a decision of the United States Court of Appeals for the Ninth Circuit holding that § 8 did not require the Secretary of the Interior to ignore explicit congressional provisions preferring irrigation use over domestic and municipal use.
Like dictum was repeated in City of Fresno, supra, at 630, and in this Court's opinion in Arizona v. California, 373 U.S. 546 (1963), where the Court also said:
While we are not convinced that the above language is diametrically inconsistent with the position of petitioners,
But because there is at least tension between the above-quoted dictum and what we conceive to be the correct reading of § 8 of the Reclamation Act of 1902, we disavow the dictum to the extent that it would prevent petitioners from imposing conditions on the permit granted to the United States which are not inconsistent with congressional provisions authorizing the project in question. Section 8 cannot be read to require the Secretary to comply with state law only when it becomes necessary to purchase or condemn vested water rights. That
Indeed, until recently, it has been the consistent position of the Secretary of the Interior and the Bureau of Reclamation, who are together responsible for executing the provisions of the Reclamation Act of 1902, that in appropriating water for reclamation purposes the Bureau must comply with state law. The Bureau's operating instructions, for example, provide:
With respect to the Central Valley Project, the Bureau advised Congress that "`[r]eclamation law . . . recognizes State water law and rights thereunder'" and that "Bureau filings on water are subject to State approval." 95 Cong. Rec. A961 (1949).
Indeed, until the unnecessarily broad language of the Court's opinion in Ivanhoe, both the uniform practice of the Bureau of Reclamation and the opinions of the Court clearly supported petitioners' argument that they may impose any condition not inconsistent with congressional directive. In holding that the United States was not an indispensable party in Nebraska v. Wyoming, 295 U.S. 40 (1935), this Court observed:
Ten years later, in its final decision in Nebraska v. Wyoming, 325 U.S. 589 (1945), the Court elaborated on its original observation:
The United States suggests that, even if the Congress of 1902 intended the Secretary of the Interior to comply with state law, more recent legislative enactments have subjected reclamation projects "to a variety of federal policies that leave no room for state controls on the operation of a project or on
Because the District Court and the Court of Appeals both held that California could not impose any conditions whatever on the United States' appropriation permit, those courts did not reach the United States' alternative contention that the conditions actually imposed are inconsistent with congressional directives as to the New Melones Dam. Nor did they reach California's contention that the United States is barred by principles of collateral estoppel from challenging the consistency of the permit conditions. Assuming, arguendo, that the United States is still free to challenge the consistency of the conditions, resolution of their consistency may well require additional factfinding. We therefore reverse the judgment of the Court of Appeals and remand for further proceedings consistent with this opinion.
Reversed and remanded.
MR. JUSTICE WHITE, with whom MR. JUSTICE BRENNAN and MR. JUSTICE MARSHALL join, dissenting.
Early in its opinion, the majority identifies the critical issues in this case as to the "meaning and scope" of § 8 of the Reclamation Act of 1902. In quest of suitable answers, the majority launches on an extensive survey of 19th- and 20th-century statutory and judicial precedents that partially delineate the relationship between federal and state law with respect to the conservation and use of the water resources of the Western States. At the end of this Odyssean journey, the conclusion seems to be that under the relevant federal statutes containing the reclamation policy of the United States, the intention of the Congress has been to recognize local and state law as controlling both the "appropriation and distribution"
Straightaway, however, and with obvious reluctance, it is conceded in a footnote that § 8 does not really go so far and that Congress, after all, "did not intend to relinquish total control of the actual distribution of the reclamation water to the States." Ante, at 668 n. 21. Where following state law would be inconsistent with other provisions of the Reclamation Act or with congressional directives to the Secretary contained in other statutes, § 8 and local law must give way.
Meanwhile, the opinion has also concluded that because of § 8, the United States may not acquire water rights by appropriation or condemnation except in accordance with state law. If, for example, particular water rights are not subject to condemnation under state law by private interests, neither may they be taken by the United States. This issue, going to the acquisition by the United States of water rights
Four of the five major cases bearing on the construction of § 8 have arisen out of the Central Valley Reclamation Project, a massively expensive reclamation undertaking which aimed at redistributing the water in California's Central Valley, which the State was unable to finance and which the Federal Government eventually undertook.
Since the closing of the Dam would terminate the annual inundation of the lands involved, the inquiry became whether there had been a taking of any water rights defined and recognized by state law. After an extensive inquiry, the Court determined that the Court of Claims had properly understood state law, and the compensation awards were affirmed.
The next case before this Court involving the Central Valley Project was Ivanhoe, supra. That case arose out of proceedings in the state courts, required by federal statute, to confirm contracts for the use of water entered into between state irrigation districts and a state water agency, on the one hand, and the United States on the other. The contracts contained provisions against the use of project water on tracts in excess of 160 acres, a provision specified by § 5 of the Reclamation Act of 1902 and substantially re-enacted in the Omnibus Adjustment Act of 1926, 44 Stat. 650, as amended, 70 Stat. 524, 43 U. S. C. § 423e.
This Court unanimously reversed the judgment of the California Supreme Court. It first ruled: "[T]he authority to impose the conditions of the contracts here comes from the power of the Congress to condition the use of federal funds, works, and projects on compliance with reasonable requirements. And . . . if the enforcement of those conditions impairs any compensable property rights, then recourse for just compensation is open in the courts." 357 U. S., at 291. The Court also rejected the argument that § 8 required the Secretary to follow state law that was inconsistent with § 5. As the Court understood § 8, "it merely requires the United States to comply with state law when, in the construction and operation of a reclamation project, it becomes necessary for it to acquire water rights or vested interests therein." 357 U. S., at 291. (Emphasis added.) The United States would be obliged to pay for any water rights which were vested under state law and which it took, "[b]ut the acquisition of water rights must not be confused with the operation of federal projects." Ibid. (Emphasis added.) The Court could find nothing in § 8 that "compels the United States to deliver water on conditions imposed by the State," 357 U. S., at 292 (emphasis added), and quoted with approval from Nebraska v. Wyoming, 325 U.S. 589, 615 (1945): "`We do not suggest that where Congress has provided a system of regulation for federal projects it must give way before an inconsistent state system.'" Accordingly,
Like Gerlach, the Dugan and Fresno cases involved the consequences of the Friant Dam on those dependent on the first 60 miles of the San Joaquin downstream from the project. These cases arose from the judgment of the Court of Appeals for the Ninth Circuit entered in a suit brought by water-right claimants below the Friant Dam, including the city of Fresno, for an injunction to prevent the storing and diverting of water at the Dam until a satisfactory remedy for the deprivation of their rights had been achieved. State v. Rank, 293 F.2d 340 (1961). The defendants were local officials of the United States Reclamation Bureau, a number of irrigation and utility districts, and later the United States itself. The District Court overruled the claim that the suit was an unconsented suit against the United States and ordered that the injunction issue unless the Government effected a "physical solution" adequate to satisfy plaintiffs' water rights, which it held the United States was obligated to respect. The Court of Appeals dismissed the United States from the action and then inquired whether the suit against the officials and the districts was also a suit against the United States. This depended in the first instance on whether these officers were acting within their statutory and constitutional authority. If they were not, the suit could go forward. Plaintiffs contended, among other things, that Congress had not conferred any right to condemn water rights along this stretch of the river and that in any event plaintiffs had rights under California's county-of-origin and watershed-of-origin statutes that were not subject to condemnation under state law and hence, pursuant to § 8, were not seizable by the United States.
The case was brought to this Court where the public officers continued to claim that they were acting legally and were not subject to suit. Plaintiffs argued, among other things,
Disagreeing, however, with the Court of Appeals as to the taking issue, the Court ruled that the power to take had actually been exercised, and properly so, and that the suit against the officers was therefore a suit against the United States and should be dismissed. The remedy of the plaintiffs, as it was in Gerlach, was in the Court of Claims.
The Court also granted the petition for certiorari filed by the city of Fresno and dealt separately with the city's case. 372 U.S. 627 (1963). Fresno, as a riparian, overlying landowner, had vested rights to underground waters from a source fed by the San Joaquin River. These rights were threatened by the anticipated diminishment of the San Joaquin below Friant Dam. Among other things, the city claimed that the water necessary to satisfy its rights was being diverted to areas beyond the limits permitted by the county-of-origin and watershed-of-origin statutes of the State of California; under these statutes the city's rights were preferred and were not
The Court rejected each of these claims. The United States had authority, despite § 8 and state law, to acquire Fresno's riparian rights, and had done so. To that extent, the city's recourse was in the Court of Claims, as in Dugan. Section 8 "does not mean that state law may operate to prevent
Fresno was decided on April 15, 1963, having been argued on January 7 of that year. The opinion and judgment in Arizona v. California, 373 U.S. 546, were announced on June 3, 1963, the case having been argued for the second time in November 1962. In Arizona, the Special Master had concluded that in choosing between users within each State and in settling the terms of his contracts with them, the Secretary was required to follow state law by virtue of §§ 14 and 18 of the Project Act and by reason of § 8 of the Reclamation Act. The Court expressly disagreed, relying on Ivanhoe and Fresno and saying with respect to § 8:
The Court thus held again that § 8 did not require the Secretary to follow state law in distributing project water because § 8 dealt with acquisition, not distribution, of reclamation water.
The majority reads Ivanhoe as holding that § 5 and similar explicit statutory directives are exceptions to § 8's otherwise controlling mandate that state law must govern both the acquisition and distribution of reclamation water. This misinterprets
It is also beyond doubt that both Fresno and Arizona considered Ivanhoe to contain a holding that § 8 was limited to water-right acquisition and did not reach the distribution of reclamation water. But whatever the proper characterization of the Court's pronouncement in Ivanhoe might be, Fresno itself held that in distributing project water the United States, despite state law and § 8, not only was not bound by the municipal-preference laws of California, which were contrary to a specific federal statute, but also could export water from the watershed without regard to the county- and water-shed-of-origin statutes. The Court held the latter even though no provision of federal law forbade the federal officers from complying with the preferences assertedly established by those state laws.
Much the same is true of Arizona, where the Court heard two arguments totaling over 22 hours and considered voluminous briefs that dealt with a variety of subjects, including the important issue of the impact of § 8 on the Secretary's freedom to contract for the distribution of water. In its opinion, the Court not only dealt with both Ivanhoe and Fresno as considered holdings that § 8 did not bear on distribution rights, but also expressly disagreed with its Special Master and squarely rejected claims that the Secretary could not contract for the sale of water except in compliance with the priorities
The short of the matter is that no case in this Court, until this one, has construed § 8 as the present majority insists that it be construed. All of the relevant cases are to the contrary.
Our cases that the Court now discards are relatively recent decisions dealing with an issue of statutory construction and with a subject matter that is under constant audit by Congress. As the majority suggests, reclamation project authorizations are normally accompanied by declarations that the provisions of the reclamation laws shall be applicable. Here, the New Melones Dam, which was and is a part of the Central Valley Project, was first authorized in 1944, 58 Stat. 901, and again in 1962, 76 Stat. 1191. The latter legislation provided for construction of the Dam by the Army Corps of Engineers but for operation and maintenance by the Secretary of the Interior "pursuant to the Federal reclamation laws . . . ." Those laws included § 8, which by that time had been construed in Ivanhoe as set out above. There were no amendments to § 8, which is now codified in 43 U. S. C. §§ 372 and 383, when the project was reauthorized in 1962.
Furthermore, in amending the reclamation laws in 1972, Congress provided that except as otherwise indicated in the amendments, "the provisions of the Federal reclamation laws, and Acts amendatory thereto, are continued in full force and effect." 43 U. S. C. § 421d (1970 ed., Supp. V). More specifically, § 421g stated that nothing in the amendments "shall be construed to repeal or limit the procedural and substantive requirements of sections 372 and 383 of this title."
Only the revisionary zeal of the present majority can explain its misreading of our cases and its evident willingness to disregard them. Congress has not disturbed these cases, and until it does, I would respect them. In contrast to Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1978), there is no problem here of reconciling inconsistent lines of cases or of correcting an error with respect to an issue not briefed or argued and raised by the Court sua sponte. All of the relevant cases are contrary to today's holding, and in none of them was the Court on a frolic of its own. The courts below were quite right in holding that the State was without power under the reclamation laws to impose conditions on the operation of the New Melones Dam and on the distribution of project water developed by that Dam, which would be undertaken with federal funds.
Even less explicable is the majority's insistence on reaching out to overturn the holding of this Court in Fresno, which reflected the decision in Dugan and was in turn grounded on a similar approach in Ivanhoe, that state law may not restrict the power of the United States to condemn water rights. The issue was squarely presented and decided in both Dugan and Fresno. In both cases it was claimed—and State Attorney General's opinions supported the claim—that some of the rights at issue were not condemnable under state law and that § 8 therefore forbade their taking by the Federal Government. In both cases, the claim was rejected by this Court, just as it was in the Court of Appeals. Without briefing and argument, the majority now discards these holdings in a footnote. See ante, at 671-672, n. 24.
Section 7 of the Reclamation Act, now 43 U. S. C. § 421, authorizes the Secretary to acquire any rights or property
Never has there been a suggestion in our cases that Congress, by adopting § 8, intended to permit a State to disentitle the Government to acquire the property necessary or appropriate
The Court's "disavowal" of our prior cases and of the Government's power to condemn state water rights, all without briefing and argument, is a gratuitous effort that I do not care to join and from which I dissent.
Although I do not join the Court in reconstruing the controlling statutes as it does, the Court's work today is a precedent for "setting things right" in the area of statutory water law so as to satisfy the views of a current Court majority. And surely the dicta with which the Court's opinion is laced today deserve no more or no less respect than what it has chosen to label as dicta in past Court decisions. Of course, the matter is purely statutory and Congress could easily put an end to our feuding if it chose to make it clear that local authorities are to control the spending of federal funds for reclamation projects and to control the priorities for the use of water developed by federal projects.
Three Western States have adopted constitutional provisions asserting absolute ownership over the waters in their States. See Colo. Const., Art. 16, § 5; N. D. Const., Art. 17, § 210; Wyo. Const., Art. 8, § 1. Other States have asserted ownership by statute. See, e. g., Idaho Code § 42-101 (1977). The courts of these States have upheld these provisions on the ground that the States gained absolute dominion over their nonnavigable waters upon their admission to the Union. See, e. g., Stockman v. Leddy, 55 Colo. 24, 27-29, 129 P. 220, 221-222 (1912); Farm Investment Co. v. Carpenter, 9 Wyo. 110, 61 P. 258 (1900).
"[T]he United States does not control the water. It controls only the reservoir sites in which the water may be collected. The water is under the control of the States." 29 Cong. Rec. 1948-1949 (1897) (Cong. Lacey). "It is the State alone that owns and controls the water, under the constitution of our States; and I suppose that is true under the laws of every State." Id., at 1951 (Cong. Bell). "The amendment which has been proposed by the gentleman from Illinois [Mr. CANNON], and adopted, really serves no purpose, because it merely reenacts the existing law. It would be the law even if the act of 1891 were not in existence. The waters belong to the States. The United States Government has always recognized that, and the States have enacted legislation directly controlling the use of the waters." Id., at 1952 (Cong. Shafroth). Only Congressman Terry, who unsuccessfully opposed the bill, suggested the contrary. In his view, the Federal Government could use its control of the land to regulate the price of the water stored. See id., at 1949-1950.
In response to Representative Mondell's statement, Representative Ray asked whether he had "forgotten . . . that they have in this bill a provision which purports to confer upon the Secretary of the Interior power to condemn water and water rights for the purpose of carrying out this scheme." Representative Mondell responded that the power existed only "[w]herever the State law gives him authority to do so." Id., at 6688.
Representative Sutherland also noted that the "Secretary must proceed in the condemnation proceedings under the laws of the State." Id., at 6769.
"The character of the water rights contemplated being clearly defined, the Secretary of the Interior would not be authorized to begin construction of works for the irrigation of lands in any State or Territory until satisfied that the laws of said State or Territory fully recognized and protected water rights of the character contemplated. This feature of the bill will undoubtedly tend to uniformity and perfection of water laws throughout the region affected." H. R. Rep. No. 794, 57th Cong., 1st Sess., 6 (1902).
Some support for this interpretation of the congressional intent can also be found in contemporaneous administrative material of the Department of the Interior. See, e. g., Department of the Interior, Proceedings of First Conference of Engineers of the Reclamation Service 103 (1904) ("Before the filing of the first notice of appropriation of water in any State the matter of the advisability of making such filing should be submitted to the chief engineer, because some of the State laws may be such that it is impossible to comply with them in conducting operations under the reclamation act"); Department of the Interior, Second Annual Report of the Reclamation Service 33 (1904) ("[C]areful study must be made of the effect of State laws upon each project under consideration in that particular State. It appears probable that in some of the States radical changes in the laws must be made before important projects can be undertaken").
In previous cases interpreting § 8 of the 1902 Reclamation Act, however, this Court has held that state water law does not control in the distribution of reclamation water if inconsistent with other congressional directives to the Secretary. See Ivanhoe Irrigation District v. McCracken, 357 U.S. 275 (1958); City of Fresno v. California, 372 U.S. 627 (1963). We believe that this reading of the Act is also consistent with the legislative history and indeed is the preferable reading of the Act. See n. 25, infra. Whatever the intent of Congress with respect to state control over the distribution of water, however, Congress in the 1902 Act intended to follow state law as to appropriation of water and condemnation of water rights. Under the 1902 Act, the Secretary of the Interior was authorized in his discretion to "locate and construct" reclamation projects. As the legislative history of the 1902 Act convincingly demonstrates, however, if state law did not allow for the appropriation or condemnation of the necessary water, Congress did not intend the Secretary of the Interior to initiate the project. Subsequent legislation authorizing a specific project may by its terms signify congressional intent that the Secretary condemn or be permitted to appropriate the necessary water rights for the project in question, but no such legislation was considered by the Court of Appeals in its opinion in this case. That court will be free to consider arguments by the Government to this effect on remand. See Part V, infra.
"Again, to be clear, the United States as to its public lands in a State is only an owner with the rights of private ownership, the same as those of an individual. When territory is admitted into the Union as a State the sovereignty of the United States is surrendered to the new State and the sovereignty of the State attaches and becomes paramount as to every foot of soil, unless expressly reserved to the General Government, and subject to the right of that Government to condemn for a public use of the United States necessary to the performance of its governmental functions or to its preservation." H. R. Rep. No. 794, 57th Cong., 1st Sess., pt. 2 (Minority Views), 16-17 (1902).
See also id., at 8; 35 Cong. Rec. 6687 (1902) (Cong. Ray).
The Court also concluded in a separate portion of its opinion: "§ 8 does not mean that state law may operate to prevent the United States from exercising the power of eminent domain to acquire the water rights of others. . . . Rather, the effect of § 8 in such a case is to leave to state law the definition of the property interests, if any, for which compensation must be made." Id., at 630. Because no provision of California law was actually inconsistent with the exercise by the United States of its power of eminent domain, this statement was dictum. It also might have been apparent from examination of the congressional authorization of the Central Valley Project that Congress intended the Secretary to have the power to condemn any necessary water rights. We disavow this dictum, however, to the exent that it implies that state law does not control even where not inconsistent with such expressions of congressional intent.
"[N]othing in this Act shall be construed as affecting or intended to affect or to in any way interfere with the laws of any State or Territory relating to the control, appropriation, use, or distribution of water used in irrigation, or any vested right acquired thereunder, and the Secretary of the Interior, in carrying out the provisions of this Act, shall proceed in conformity with such laws, and nothing herein shall in any way affect any right of any State or of the Federal Government or of any landowner, appropriator, or user of water in, to, or from any interstate stream or the waters thereof: Provided, That the right to the use of water acquired under the provisions of this Act shall be appurtenant to the land irrigated, and beneficial use shall be the basis, the measure, and the limit of the right."
"The California Supreme Court also erred in upholding the claim of denial of just compensation. Chief Justice Gibson correctly stated in his dissenting opinion below that `if there is any state-recognized vested right which, in fact, conflicts with the acreage limitation, that right may be taken and compensated for by the federal government under its power of eminent domain' (AJS 73, 79; cf. p. 48). The trust declared and applied by the majority of the court cannot have the effect of imposing a state restriction on the federal power of eminent domain. That power `is inseparable from sovereignty' because it permits `acquisition of the means or instruments by which alone governmental functions can be performed.' `It can neither be enlarged nor diminished by a State. Nor can any State prescribe the manner in which it must be exercised. The consent of a State can never be a condition precedent to its enjoyment.' Kohl v. United States, 91 U.S. 367, 371-372, 374. It makes no difference whether the property `sought to be condemned is held . . . in trust instead of in fee.' United States v. Carmack, 329 U.S. 230, 239. The beneficiaries may press their claims to compensation." Brief for United States as Amicus Curiae, O. T. 1957, Nos. 122-125, p. 56.
"The third contention of the plaintiffs is that California's County of Origin and Watershed of Origin statutes . . . (which under § 8 of the Reclamation Act . . . the United States is bound to respect), prevent diversion of waters of the San Joaquin beyond its watershed until the rights of these plaintiffs have been satisfied; that to condemn the rights of these plaintiffs for the purpose of such diversion is to disregard California law contrary to § 8." 293 F. 2d, at 354.
"`The legislative background of the priority makes it difficult to conceive that the Legislature intended that the authority could destroy the priority b[y] condemnation. Since the priority exists only as against the authority, such a construction would completely destroy the effect of Section 11460 and make its enactment an idle gesture.'" Brief for Petitioner, O. T. 1962, No. 51, pp. 148-149.