CONSTITUTIONALITY OF THE 

 APPALACHIAN BILL 



BY 

 Harvey N. Shepard, Attorney-at-Law, Boston, Mass. 



MR. CHAIRMAN AND GENTLEMEN : This claim, says the Supreme Court, 

 The Supreme Court of the United involves the question whether the re- 

 States gave a decision May 13, clamation of arid lands is one of the 

 1907, in a cause brought by the State powers granted to the General Govern- 

 of Kansas against the State of Colora- nient. Certainly it is not, for, in the 

 do which some people fear may affect enumeration of the powers granted to 

 the constitutional position of the pend- Congress by the eighth section of the 

 ing bill for acquiring National Forests first article of the Constitution, we can 

 in the Southern Appalachian Moun- not find one which by any implication 

 tains and White Mountains. The refers to the reclamation of arid la:i< 

 charge made by Kansas is that Colo- The pending bill authorizes the Sec- 

 rado is depleting the flow of water in retary of Agriculture to acquire for 

 the Arkansas River, a river which National Forest purposes lands more 

 flows through both these States. The valuable for the regulation of stream 

 ' United States of America filed its pe- fl w than for other purposes and sit- 

 tition of intervention, and alleged uated on the watersheds of navigable 

 that within the watershed of the Ar- streams. Herein is the sharp distinc- 

 kansas River are 1,000,000 acres of tion from the Kansas-Colorado cause, 

 public lands, uninhabitable and un- In that cause the United States alleged 

 salable unless rendered so by the im- that the Arkansas River is not navig- 

 pounding of waters in this Watershed a t>le in the States of Colorado and 

 to reclaim this land, that legislation Kansas. But here the only lands which 

 of Congress has sanctioned the use of can be acquired are those on the wa- 

 these waters in this arid region, and tersheds of navigable rivers; and it is 

 that under the Reclamation Act of f r the protection of these navigable 

 June 17, 1902, $1,000,000 have been rivers that these forest areas are to be 

 expended in procuring sites for res- acquired. 



ervoirs and dams. No one questions the authority of 



This contention brought directly to the United States over navigable riv- 



the court the question whether the er s. Congress may prevent or remove 



amount of the flow of the waters of the obstructions in these rivers, and it may 



Arkansas River is subject to the take all needed measures to secure 



authority and control of the United their uninterrupted navigability. \Yhat 



States. The United States claimed these measures shall be depends en- 



that in and near the river, as it runs tirely upon the discretion of Congn 



through Kansas and Colorado, are a "d there is no other authority w; 



large tracts of arid lands; that the Na- ever which can question them. 



tional Government itself is the owner the days of Chief Justice Marshall 



of many thousands of acres ; and that this has been the rule of r 



it has the right to make such legisla- struction. 



tive provision as in its judgment is It is conceded by all that the r. 



needed for the reclamation of all these ernment of the I 'nitrd States is one of 



arid lands and for that purpose to ap- limited powers and that it can 



propriate the accessible waters. only such attrihuti ire confer 



*Rernarks Made at the Hearing before the House Committee on Agriculture 

 Washington, D. C., January 30, 1908. 



