|
<br />UUll'rl
<br />
<br />.'
<br />
<br />1957]
<br />
<br />THE PELTON DECISION
<br />
<br />237
<br />
<br />(2) There were relatively few "reserved" lands in existence at the
<br />time the three acts were passed, Later, however, considerable tracts
<br />were set aside as national forests, military reservations, etc, At the
<br />time they were so set aside, Congress adopted the first in a series of
<br />legislative acts providing for rights of way over Federal "reserved"
<br />lands for the purpose of constructing ditches, canals, headgates, dams, i
<br />and reservoirs.M If, under the 1866, 1870, and 1877 laws, no water I
<br />rights could be secured where Federal reservations of some kind were
<br />involved, then why did Congress see fit to adopt right-of-way laws spell-
<br />ing out the rights of locators to enter said reservations and there locate I'
<br />and construct suitable works for the impoundment, storage, and dis-
<br />tribution of water? Only by some extraordinary feat of mentallegerde-
<br />main would it be possible to read into this statutory scheme some latent,
<br />unexpressed purpose on the part of Congress to reserve some general
<br />rights to the use of these waters, To the uninitiated, at any rate, the
<br />court speaks the language of judicial fiat, not of reason.
<br />
<br />(3) In the majority opinion in the Pelton case, it is pointed out that
<br />the distinction between "reserved" and "public" lands is preserved in
<br />the Federal Power Act56 But such a distinction has no application to
<br />any purported assertion of Congressional intent with respect to water
<br />rights appurtenant to public lands on the one hand and not appurtenant
<br />to reserved lands on the other. The purpose is merely to ensure that
<br />licenses may be issued for the construction of facilities on either kind of
<br />land, Provision is made for the withdrawal of land for purposes of the
<br />act and it is declared that the application for a license where unreserved
<br />public lands are involved operates ipso facto as a withdrawal.57 In the
<br />case of the use of Indian tribal lands, compensation must be paid to the
<br />Indians in such reasonable amounts as may be fixed by the commission,
<br />subject to the approval of the Indians,5s Beyond that, of course, the
<br />
<br />50 For discussion, see 1 \'\TIEL, op. cil. supra note 25, at 161 el seq, Examples
<br />of some of the statutes follow:
<br />Act of March 3, 1891 : "The right of way through the public lands and rescrva-
<br />t1'mlS of the United States is hereby granted to any canal or ditch company. . ," 26
<br />STAT. 1101 (1891),43 USe. see, 946 (1952) (emphasis added),
<br />Act of Feb, 15, 1901: "The Secretary of the Interior is authorized and em-
<br />powered, under general regulations to be fixed by him, to permit the use of rights
<br />of way through the public lands" , . and, , . reservations of the United States..,
<br />for water plants, dams, and reservoirs used to promote irrigation. . . or any other
<br />beneficial uses to the extent of the ground occupied by such canals, , ." 31 STAT.
<br />790 (1901), 43 U,S,e. see, 959 (1952), Where a military or Indian reservation
<br />was involved, it was necessary, under the 1901 act, that a finding be made that the
<br />structure would be in the public interest.
<br />Wiel states: "The Act of March 3, 1891 was intended to be cumulative to the
<br />act of 1866, which required no filings." (Filing of maps and plans was required
<br />under the 1891 act,) 1 WIEL, op. cil. supra note 25, at 161.
<br />56349 U ,S, at 443-44,
<br />5741 STAT, 1075 (1920),16 U.S,e. sec, 818 (1952),
<br />5s41 STAT. 1068 (1920), 16 USe. sec. 805(e) (1952),
<br />
|