8 



CONSERVATION 



A partial inventory was made and an 

 account of stock taken at the last confer- 

 ence, and it would be out of place at this 

 time to indulge in detail, because the Na- 

 tional and State Conservation Commissions 

 are now engaged in making a complete in- 

 ventory of all natural resources. 



The question, it seems to me, which 

 ought to engage the attention of the present 

 conference is, what policy ought to be 

 adopted for the future with respect to the 

 conservation of the natural resources of the 

 countri\ 



One of two policies must be adopted in 

 order to succeed — and that policy must be 

 either National, or State. 



Whatever policy is adopted must be en- 

 tered upon with a vigorous determination, 

 a strong hand and under intelligent direc- 

 tion. 



And first as to a JSIational policy: 



As to tlfe authority and jurisdiction of 

 the Federal government over the undis- 

 posed-of portions of the public domain, 

 there can be no question. There the power 

 of Congress is unquestionably supreme with 

 respect to the soil, the mine, the forest and 

 the streams tributary to the navigable 

 waterways and their use, certainly insofar 

 as such use might interfere with naviga- 

 tion. 



Again, the Federal government, under the 

 interstate clause of the Constitution, has 

 jurisdiction over the navigable waterways 

 of the country. About this, too, there can 

 be no question. 



In the exercise of jurisdiction over the 

 navigable waterways, how far can Congress 

 or the courts go in the matter of the con- 

 trol of streams whidh, though non-navi- 

 gable, are nevertheless tributary to the 

 sources of supply, and so affect the uni- 

 formity of the flow of, waters in the navi- 

 gable highways? 



In the case of the United States v. Rio 

 Grande Dam and Irrigation Company, 174 

 U. S., 690, the court discussed this ques- 

 tion in connection with the appropriation of 

 water for irrigation and other purposes as 

 affecting the navigability of a river, and in 

 the course of the opinion said : 



"Although this power of changing the 

 common law rules as to streams within its 

 domain undoubtedly belongs to each State, 

 yet two limitations must be recognized ; 



"First, that in the absence of specific au- 

 thority from Congress, a State cannot, by 

 its legislation, destroy the right of the 

 United States, as the owner of lands border- 

 ing on a stream, to the continued flow of 

 its waters ; so far at least as may be neces- 

 sary for the beneficial uses of the govern- 

 ment property. 



"Second, that it is limited by the superior 

 powers of the general government to secure 

 the uninterrupted navigability of all naviga- 

 ble streams within the limits of the United 

 States. In other words, the jurisdiction of 



the general government over interstate 

 commerce and its natural highways vest in 

 that government the right to take all needed 

 measures to preserve the navigability of the 

 navigable water-courses of the country, 

 even against any State action. It is true, 

 there have been frequent decisions recogniz- 

 ing the powers of the State, in the absence 

 of Congressional legislation, to assume con- 

 trol of navigable waters within its limits 

 to the extent of creating dams, booms, 

 bridges and other matters which operate 

 as obstructions to navigability. The power 

 of the State to thus legislate for the in- 

 terests of its own citizens is conceded, and 

 until in some way Congress asserts its su- 

 perior power, and the necessity of preserv- 

 ing the general interests of the people of all 

 the States, it is assumed that State action, 

 although involving temporarily an obstruc- 

 tion to free navigability of a stream, is not 

 subject to challenge." 



And again in the same case the court 

 said: 



"It does not follow that the courts would 

 be justified in sustaining any proceeding by 

 the Attorney General to restrain any ap- 

 propriation of the upper waters of a naviga- 

 ble stream. The question is always one of 

 fact, whether such appropriation substan- 

 tially interferes with the navigable capacity 

 within the limits) where navigation is a 

 recognized fact. In the course of the argu- 

 ment this suggestion was made, and it seems 

 to us not unworthy of note, as illustrating 

 this thought. 



"The Hudson River runs within the limits 

 of the State of New York. It is a navigable 

 stream and a part of the navigable waters 

 of the United States, so far at least as from 

 Albany southward. One of the streams 

 which flows into it and contributes to the 

 volume of its waters is the Croton River, 

 a non-navigable stream. Its waters are 

 taken by the State of New York for domes- 

 tic uses in the City of New York. Un- 

 questionably the State of New York has a 

 right to appropriate its waters, and the 

 United States may not question such ap- 

 propriation, unless thereby the navigability 

 of the Hudson be disturbed. On the other 

 hand, if the State of New York should, 

 even at a place above the limits of naviga- 

 bility, by appropriation for any domestic 

 purposes, diminish the volume of waters 

 which flow into the Hudson, a navigable 

 stream, to such an extent as to destroy its 

 navigability, undoubtedly the jurisdiction of 

 the National government would arise and its 

 power to restrain such appropriation be un- 

 questioned ; and within the purview of this 

 section it would become the right of the 

 Attorney General to institute proceedings 

 to restrain such appropriation." 



Numerous other cases might be cited to 

 show that Congress has not only jurisdic- 

 tion of the navigable waterways, but over 

 tile tributary streams as well, so as to pre- 



