|
<br />0006
<br />
<br />.
<br />
<br />.
<br />
<br />A
<br />
<br />-2-
<br />
<br />:f;7~~
<br />
<br />The plenary power that Congress has under the Pro~erty Clause 2/ by
<br />vIrtue of federal ownership of these lands Includes the power to con-
<br />trol the disposition and use of water on, under, flowing through or
<br />appurtenant to such lands. See United States v. Grand River Dam
<br />Authority, 363 U.S. 229, 235(1960) (Because the "Federal Government
<br />was the Initial proprietor In these western lands, , . any claIm by a
<br />state or by others must derive from this title."); sf..., Klepoe v. New
<br />Mexico, 426 U.S. 529, 539-41 (1976). _Congress may exercise Its power to
<br />manage or d1spose of all the lands and waters on the public lands, togeth-
<br />er or separately. California Orecon Power Co. v. Beaver Portland Cement
<br />Co., 295 U.$, 152, 162 (1935); see also United Sta,es v, California.
<br />332 U. S. 19, 27 (f 947) . No I nterest I n the prooerty of the Un I ted
<br />States may be acquired In the absence of an exprp~~ or~nt from Congress;
<br />and, absent that grant or consent, It continues to be held by the United
<br />States. United States v. Grand River D"m Authority, suora; utah PoY!er
<br />and Licht Company v. UniTed States, 243 U.S, 389, 404-05 (1917). Such
<br />grants and disposals to the states are not lightly Inferred; I.e.,
<br />"nothing passes but that which Is conveyed In cle ex licit
<br />language -- Inference be ng no aga ns but for the government."
<br />~aldwe' I v. United States, 250 U.S. 14, 30-21 (1918); see also Andrus
<br />v, Charlestone Stone Products, 436 U.S, 604, 617 (1978~----
<br />
<br />It fol lows that to the extent Congress has not clearly granted author-
<br />Ity. to the states over waters which are In, on, under or a purtenant
<br />to federal lands, the Federal Government malntalQs I s soverel n r ghts
<br />In such waters and may' Rut tne;;;-'fo use Irrespective of state law.
<br />
<br />:.:::_~
<br />
<br />The adm I ss I on of a state I nto the Un I nn and t.he "equa I foot I ng" doctr 1 ne
<br />did 0 Ivest the United States of Its lenary control over such water.
<br />-Capoaert v. United States, 426 U.S, 128, 144-45 (197 ; ArIzona v.
<br />California, 373 U.S, 546, 599 (1963). The Supreme Court has, however,
<br />l recent I y noted the ex I stence of one schoo I of I ega I thought that tld s
<br />doctrine vested Western states, upon admission to the Union, with
<br />"exclusive sovereignty" over the unappropriated waters In their streams,
<br />
<br />~/ U. S. CONST. art. I V, ~ 3, c I. 2 P rov I des:
<br />
<br />The Congress shal I have Power to dIspose of and
<br />make al I needful Rules and RegulatIons respect-
<br />Ing the Territory or other Property belonging
<br />to the United States; and nothing in this
<br />Constitution shal I be so construed as to
<br />Prejudice any Claims of the United States,
<br />or of any particular State.
<br />
<br />~/ See,~, Morreale, "Federal-State RIghts and Relations," 2 Waters
<br />and Water Rlahts, 51-52, 81 (R. Clark ed. 1967).
<br />
|