Veto of a Bill Concerning Title to Malheur and Harney Lakes in Oregon.

Note: The House of Representatives referred the veto message to the Judiciary Committee, and no further action was taken.

The text of Attorney General William D. Mitchell's letter, dated June 6, 1930, follows:

My dear Mr. President:

I have the honor herewith to return H.R. 1198, a bill "To authorize the United States to be made a party defendant in any suit or action which may be commenced by the State of Oregon in the United States District Court for the District of Oregon, for the determination of the title to all or any of the lands constituting the beds of Malheur and Harney Lakes in Harney County, Oregon, and lands riparian thereto, and to all or any of the waters of said lakes and their tributaries, together with the right to control the use thereof, authorizing all persons claiming to have an interest in said land, water, or the use thereof to be made parties or to intervene in said suit or action, and conferring jurisdiction on the United States courts over such cause."
I recommend that this bill be disapproved.

There appears to be a controversy between the State of Oregon and the United States as to whether these lakes are navigable. If navigable the title to the beds was vested in the State upon its admission to the Union. If non-navigable, the title to the beds of the lakes remained in the United States and is still the property of the United States unless it has passed to grantees of the United States. Lands adjacent to the lakes formerly constituting part of the public domain have been patented by the United States to various individuals. These patentees claim that the lakes are non-navigable and that the title did not pass to the State upon its admission to the Union. They also contend that patents issued by the United States carry title to the beds of the lakes. There is a controversy between these patentees and the United States and between patentees and the State. The purpose of this bill seems to be to provide a tribunal by which all the parties to this three-cornered controversy may have their rights determined in one suit.

The bill purports to confer jurisdiction on the United States District Court to entertain a controversy between a state and its own citizens for the decision of questions as to riparian rights and as to rights in the waters of these lakes which are local in character and are to be determined by local law. The constitutional jurisdiction of the federal courts does not include such a controversy, and it is doubtful, to say the least, whether such jurisdiction would be constitutionally conferred upon the district courts by this act.

The bill provides that the suit may be instituted by the State of Oregon. It also provides that once the suit is instituted persons claiming interests in the lands and who may not have been made parties defendant by the State may intervene and in effect became plaintiffs against the State, asserting claims against it. The effect of the initiation of the suit by the State would therefore be to subject it to what amounts to suits by intervening plaintiffs. The effect of the institution of the suit by the Attorney General of Oregon would be to waive the sovereign immunity of the State to suits by intervenors. My attention has not been called to any statute of the State of Oregon which clearly authorizes the Attorney General of that State on behalf of the State to waive its sovereign immunity in this way, and the question exists whether state legislation may not be necessary to make this act effective.

There is still another objection to the bill and that is that it turns over to the State the initiative and conduct of litigation involving water rights and public lands in which the United States is interested. I know of no reason why that should be done. It has not been the practice of the past, and if the principle of this bill is adopted it would result in legislation applicable to other cases turning over to others the initiative and conduct of suits involving controversies over riparian rights and water rights in which the United States is interested. Tribunals already exist having jurisdiction to determine these controversies. The Supreme Court of the United States has jurisdiction to entertain suit by the United States against the State of Oregon to try the title to the beds of these lakes and to determine whether they are navigable and whether the title passed to the State upon its admission to the Union. The United States District Court also has jurisdiction to entertain suit by the United States against individuals holding under patents from the United States and which would determine whether any part of the beds of the streams passed to the patentees if the lakes are non-navigable. There might be some advantage if a tribunal existed in which all of the parties might appear in one suit, but because of these questions as to the validity and effect of this bill, instead of avoiding confusion and simplifying litigation this bill if it becomes a law would raise new controversies and increase the confusion. If the existing facts are such as to show a substantial controversy over these matters, the proper course in my opinion is for the United States to bring a suit against the State of Oregon in the Supreme Court to try the question as to navigability. Even though the individual patentees or others claiming an interest in the beds of the lakes or in the waters thereof are not parties to such a suit, the practical effect of the decision of the Supreme Court would be to settle the question of navigability. So far as the controversy between the patentees and the United States is concerned, following the determination of such a suit in the Supreme Court or pending it, suit could be brought in the United States District Court against the individuals involved. The wise course for all concerned is to disapprove this bill and leave initiation of the litigation to the United States and let it be determined in tribunals which now have jurisdiction.
Respectfully,
WILLIAM D. MITCHELL

Attorney General

[The President, The White House]