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<br />. <br /> <br />00257L~ <br /> <br />. <br /> <br />"From the standpoint o~ governmental power, the inter- <br />est of the United States in the flow of a navigable <br />stream originates in the oommeroe olause. That olause <br />speaks in terms of gov8X'nmental power, not of property. <br />There may be vested property intereSts in the use o~ <br />navigable water, but those interests are held, and <br />since 1?89 hav'e been held, sub3ect to the exeroise of <br />the oommerce power. Congress may by inaotion allow <br />the power to remain dormant, or it may exercise the <br />power in a variety of ways to less than its ~ull extent. <br />But it cannot surrender the power itself. I~ it <br />expressly decides to exercise the power to its fullest <br />extent all competing interests are displaced and the <br />flow of the rivgr is appropriated for the declared <br />public purpose. No matter how solemnly one Congress <br />may declare a policy against the exercise of the power, <br />it cannot bind a future Congress to the same decision. <br />It cannot even bind itself against contrary action <br />in the next five minutes. On the other hand, for so <br />long as it does not change its mind either particularly <br />or generally, it can provide compensation for the in- <br />fringement of private rights existing under state law. <br />This is the result reached in the GerlaCh,? <br />Niagara-Mohawk,8 and other such cases. and must be <br />accep1;eCl as 1;ne law." <br /> <br />I don't want to get too elementary before this group of <br />experts, but I would remind you that in the New River case9 <br />ana the First Iowa case,lO we in the West were disturbed by <br />the Supreme Court holding (1) that the commerce clause applied <br />not only to navigable streams but to non-navigable streams <br />that could be made navigable, and (2) that 1t applied also to <br />tributaries, which though non~navigable in themselves, sup- <br />plied rivers which were or could be made navigable. <br />Thus we got down to the proposition that, under the <br />commerce clause, as interpreted by the Supreme Court, any- <br />thing that could float a log might be considered "navigable." <br />It 1s stated that the federal government, under the <br />oommerce clause, could wipe out existing rights acquired <br />under state law without compensation, and to t is statement <br />I must concur. However, as the Ass1stant Attorney General <br /> <br />_4_ <br />