june 17, 1902 the reclamation act [sec. 1. reclamation ... · june 17, 1902 the reclamation act an...

June 17, 1902

THE RECLAMATION ACT

An act appropriating the receipts from the sale and disposal of pubfic lands in certain Statesand Territories to the construction of irrigation works for the reclamation of arid lauds.(Act of June 17,1902, ch. 1093,32 Stat, 388)

[Sec. 1. Reclamation fund established from public land receipts except 5 per-cent for educational and other purposes, ]—All moneys received from the sale

and disposal of public lands in Arizona, California, Colorado, Idaho, Kansas,Montana, Nebraska, Nevada, New Mexico, North Dakota, Oklahoma, Oregon,South Dakota, Utah, Washington, and Wyoming, beginning with the fiscal yearendhg June tilrtieth, nineteen hundred and one, including the surplus of fees

and commissions in excess of allowances to registem and receivers, and excepting

the five per centum of the proceeds of the sales of Fublic lands in the above States

set aside by law for educational and other purposes, shall be, and the same are

hereby, reserved, set aside, and appropriated as a special fund in the Treasuv

to be known as the “reclamation fund;’ to be used in the examination and survey

for and the construction and maintenance of irrigation works for tie storage,

diversion, and development of waters for the reclamation of arid and semiarid

lands in the said States and Territories, and for the payment of all other expendi-

tures provided for in this act. (32 Stat. 388; 43 U.S.C. ~ 391)

EXPLANATORY NOTES

Codi6cation. The text of his section asit app-rs in 43 U.S.C. $ 391 differs fromthe above in the following substantive re-spects: ( 1) the phrase “officers designatedby the Secretary of the Interior” is sub-stituted for “registers and receivers” in viewof the Acts of March 3, 1925, 43 Stat. 1145,and October 28, 1921, 42 Stat. 208, whichconsolidated the offices of register and re-ceiver and provided for a single officer tobe known as register; and (2) the phrase“and in the State of Texas” is added after“said States and Territories,” in view of theAct of June 12, 1906, which is discussedbelow.

Proviso Relating to Support for Land-Grant Colleges. As originally enacted, theabove section also contained a proviso to theefiect that, if receipts from the sales of pub-lic lands were insufficient to fulfill the an-nual appropriations authorized by the Actof August 30, 1890, 26 Stat. 417, 7 U.S.C.$322, for the support of land-grant col-leges, the deficiency could be supplied fromany moneys in the Treasury not otherwiseappropriated. This provision was super-seded by the Act of March 4, 1907, 34 Stat.1281, which removed the requirement thatthe funds appropriated by the 1890 Act,as amended, are limited to those “arising

from the sale of public lands.” See 43 U.S.C.$391 note and 7 U.S.C. ~~ 321 not:, 322.

Supplementary Provisions: Extension toTexas. The Act of February 25, 1905, ex-tended the Reclamation Act to a portion ofthe State of Texas bordering the RloGrande, and the Act of June 12, 1906, ex-tended the Reclamation Act to the entireState. The 1905 and 1906 Acts appearherein in chronological order.

Supplementary Provisions: Advancm toReclamation Fund. The originaf conceptof the 1902 Act was that the entire reclama-tion program would be financed from thereclamation fund. It became apparent,however, that receipts to the fund were notadequate to finance completely a programof the scope desired. The Act of June 25,1910, and the Act of March 3, 1931,authorized $20,000,000 and $5,000,000,respectively, to be advanced to tie reclama-tion fund from the general funds of theTreasury. The so-called Hayden-O’Ma-honey amendment to the Ac! of May 9,1938, effected a complete reimbursementof these advances. Beginning with appro-priations in 1930 for the Boulder Canyonproject, the annual program has beenfinanced by appropriations in part from thereclamation fund and in part from the gen-

June 17, 1902

THE ~CLAMATION ACT—SEC. 1

era fund of the Treasury. The 1910, 1931and 1938 Acts appear herein in chrono-logical order.

Supplementary Provisions: AdditionalReceipts to Reclamation Fund. me follow-ing Acts, dl of which appear herein inchronological order, authorize additionalreceipts to the Reclamation Fund as fol-10WS: (1) Section 5 of the ReclamationAct, all moneys received from entrymen orapphcants for water rights; (2) Act ofMarch 3, 1905, proceeds from sale of cer.tain property and refunds from reclamationoperations; (3) Section 2, Act of April 16,1906, and section 3, Act of June 27, 1906,proceeds from sde of town lots; (4) Sec-tion 5, Act of April 16, 1906, and Hayden-OMahoney Amendment to Act of May 9,1938, proceeds from power operations;(5) Act of October 2, 1917, receipts fromlease of potassium deposits; (6) Act of

July 19, 1919, proceeds from lease of, andsale of products from, withdrawn lands;(7) Section 35, Act of February 25, 1920,proceeds under Mineral Leasing Act; (8)Act of May 20, 1920, premeds from saleof surplus lands; (9) Section 17, Act ofJune 10, 1920, charges arising from licensesfor occupancy and use of witidrawn publiclands; ( 10) Act of March +, 1921, and Actof January 12, 1927, contributions and ad-vances; (11 ) Act of June 6, 1930, moneycollected from defaulting contractors ortheir sureties; and (12) Hayden-O’Mahoney amendment to Act of May 9,1938, sdl moneys received from reclama-tion projects including incidental powerfeatures thereof.

Editor’s Note, Annotations. Miscellaneousannotations of opinions dealing with theReclamation Act generally are found atthe end of the Act.

NOTES OF OPINIONS

Deposits to fund &15Advances 9Leases 6MiieraI ieases 7Refunds 8

E~enditures authorized 1620Generallv 16Ultigatioi expenses 18Research 17Rewards 19

Reclamation fund 1-5Constmction with other laws 2Generally 1S-tes covered 3

1. Reclamation fund—GenerallyThe official reports show that, in 1902,

there were in 16 States and Territories535,486,731 acres of public land still heldby the Government and subject to entry.A large part of this land was arid, and itwas estimated that 35,000,000 acres couldbe profitably reclaimed by the constructionof irrigation works. The cost, however, wasso stupendous as to make it impossible forthe development to be undertaken byprivate enterprise< or, if so, only at theadded expense of interest and profit privatep~rsons would naturally charge. With aview, therefore, o! maing fiese arid landsavadab~ for agricultural purposes by anexpenditure of public money, it was pro-posed that the proceeds arising from thesale of all public lands in these 16 Statesand Territories should constitute a trustfund to be set aside for use in the construc-tion of irrigation works, the cost of eachproject to be assessed against the land irri-gated, and as fast as the money was paidby the owners back into the trust it was

again to be used for the construction ofother works. Thus the fund, without diminut-ion except for small and negligible sumsnot properly chargeable to any particularproject, would be continually invested andreinvested in the reclamation of arid land.Swigart v. Baker, 229 U.S. 187, 193-94(1913).\. ...,.

The reclamation fund is a special fund,but not a trust fund. 14 Comp. Dec. 361,364 (1907).

Since, in’ the absence of specific statutoryauthority, one department or branch of theGovernment is not authorized to enter intocontracts with another such depar~ent orbranch and to make payments thereunder,the General Land Office may not lawfullypay rent to the Reclamation Service for theuse of a part of a warehouse when thereclamation fund is not depleted by suchuse. However, any cost of maintenance ofthe warehouse may be apportioned properlybetween the Reclamation Service and theGeneral Land Office. 22 Comp. Dec. 684(1916).

2. —Construction with other IawsThe Act of June 27, 1906, 34 Stat. 518,

granting to the State of California 5 percent of the net proceeds of cash sales ofpublic lands in that State, including salesmade prior to its passage and since theadmission of the State, does not authorizethe withdrawal of any part of the prbceedsof public lands of said State carried to thereclamation fund prior to its passage. Fiveper cent of the net proceeds of cash salesof public lands in the State of Californiamade after the passage of the Act of June27, 1906, is set aside by that act for educa-

June 17, 1902

THE RECLAMATION ACTAEC. 1

tiond p~rposes and excepted from moneysappropriated after its passage to the recla-mation fund. 13 Comp. Dec. 289 (1906).

It is not the intent of Congress by theActs of April 16 and June 27, 1906, 34 Stat.116 and 520, to take away the right of theState of Idaho to the 5 per cent of the netproceeds of sde from public lands for thesupport of the common schools of the Statelying within said State. If, however, thewhole proceeds of said sales have been cov-ered into the “reclamation fund” and the5 per cent paid to the State out of thepermanent indefinite appropriation there-for, the reclamation fund should be chargedtherewith. 20 Comp. Dec. 365 ( 1913).

Moneys paid to the Treasurer of theUnited States in accordance with the pro-visions of section 4 of the Act of August 20,1912, 37 Stat. 321, authorizing the Attor-ney General to compromise suits involvinglands purchased from the Oregon & Cali-fornia Railroad Co., are not “moneys re-ceived from the sde and disposal of publiclands” within the purview of the reclama-tion act, but are “miscellaneous receipts?’Effecting a compromise of a suit does notconstitute a ssde of public lands. Where aconveyance by a grantee of public lands isdecreed void or is set aside if found void-able only, a forfeiture to the United Statesdoes not ipso facto result, and lands oncegranted by the United States cannot there-after be classed as Dublic lands so lon~ asany unextinguished. right or title the;einunder or through said grant exists. 20 Comp.Dec. 397 (1913).

Moneys received from royalties andrentals under the Act of October 2, 1917}40 Stat. 297. which authorizes explorationfor and disposition of potassium ;n publiclands, should not first be deposited to thecredit of sales of public lands, but shouldbe credited directiy to the reclamation fund.Comp. Dec., December 5, 1918.

3. Atates coveredBecause the emergency fund, established

by the Act of June 26, 1948? is derivedfrom the reclamation fund, it 1s limited inits application to the states named in section1 of the Reclamation Act. Consequently, itis not available for use in Alaska. Memoran-~~40f Deputy Soficitor Weinberg, Apd 14,

6. Deposits to fund—LeasesThe full 100 percent of the proceeds of

the lease is appropriated, without deduc-tion, to the reclamation fund by section 1of the Reclamation Act. Departmental deci-sion, in re Owl Creek Cod Co., August 31,1912.

Moneys derived by the Reclamation Serv-

ice from the lease of lands in the UintahIndian Reservation should be covered intothe Treasury to the credit of the rechuna-tion fund, the fiabihty of the ReclamationService to compensate the Indians for theuse of such lands not aff ectinz the disposi-tion of the proceeds derived f;om their-use.14 Comp. Dec. 285 (1907).

The First Assistant SecretaV, in mo&l-fying departmental instructions of Sept. 14,1936. with reference to leases of land underthe Taylor Grazing Act, held that the Secre-tary’s authority to lease lands withdrawnin connection with a reclamation projeckwas recognized by the Congress in subsec-tion I of the Act of Dec. 5, 1924, and thatW leases of land withdrawn for reclama-tion purposes should be made under theauthority of subsection I; that all such leasesshould be made in the form approvedJune 18, 1934; and that whatever moneysmay yet be received from leases of with-drawn reclamation lands made in accord-ance with prior instructions of September14, 1936, should be disposed of in accord-ance with subsection I. Instructions, M-29482 (October 8, 1937).

7. —MineralleasesLands withdrawnfor a reservoir site or

similar reclamation purposes wtilch are w-sential to the project, and lands acquired bypurchase or condemnation for the =clusiveuse of the project, may be developed fortheir mineral resources only by temporaryleases for periods not inconsistent with theneeds of the project, and the proceedstherefrom must be placed in the reclama-tion fund to the credit of the project. J. D.Men et al., 50 L.D. 308 ( 1924)

8, —RefundsThe amount of purchase money refunded

in reclamation States, in cases of erroneoussales of public land, under the protilonsof sections 2362 and 3689, Revised Statutes,should be deducted from the total sums re-ceived in said Stites in computing theamounts to be transferred to the reclama-tion fund by appropriation warrants. ~ssection does not authorize the transfer tothe reclamation fund of moneys paid to areceiver by an intended purchaser of publiclands unless the sale is confirmed and thelands are actu~y conveyed by the United~~~~ ~ the purchaser. 20 Comp, Dec. 415

Moneys erroneously paid to a receiver ofpublic moneys by a would-be purchaser ofpublic lands and which are required by lawto be refunded are not moneys received fromthe sde or disposal of public lands withinthe meaning of this act. 20 Comp. Dec. 597(1914).

34

June 17, 1902

THE RECLAMATION ACT—SEC. 1

9. —AdvancesWhere necessary canals, laterals, and

structures properly a part of a Federal irri-gation system cannot h constructed by theUnited States because funds are not avail-able, a landowner may advance the neededmoneys to the United States, and he maybe later reimbursed, without interest, bycredits upon his water charges as they be-come due. Departmental decision, October8, 1919, Milk River.

16. Expenditures authorized—GenerallyThe authority of the Secretary respecting

the use of the reclamation fund is to makepreliminary investigations to determine thefeasibility of any contemplated irrigationproject, to construct reservoirs and irrigationworks, and operate and maintain those thusconstructed, and to acquire “for the UnitedStates by purchase or condemnation underjudicial process” rights or property neces-sary for these purposes. California De-velopment Co., 33 L.D, 391 ( 1905).

In a decision rendered July 18, 1924(A-2537), in connection with work underarticle 6 of the treaty with Great Britainregarding St. Mary and Milk Rivers, theComptroller General ruled that the ap-propriation of $100,000 for investigationsof secondaW projects from the reclamationfund made by Act of January 24, 1923 (42Stat. 1207 ), could not be used on workunder said treaty, as the proposed work wasnot in connection with “examination andsurvey for the construction and maintenanceof irrigation work?, etc.,” and not withinthe purpose for which the reclamation fundwas established.

If a grantor of land to the United Statesfor a nominal consideration pays the stamptaxes provided for deeds of conveyance un-der the “Revenue act of 1918~’ approvedFebruary 24, 1919 (40 Stat. 1057 ), he mayproperly be reimbursed therefor from the;eciamation fund as a part of the considera-tion for the land conveyed. Comp. Dec.,April 22, 19.19.

17. —ResearchThe Bureau of Reclamation has basic au-

thority to conduct weather modification re-search. This authority sterns from the provi-sions of section 1 of the Reclamation Actof 1902 that the reclamation fund may beused “for the * * * development of watersfor the reclamation of arid and semiaridlands.” Letter of Solicitor Barry to SenatorJackmn, June 11, 1964.

The Bureau of Reclamation is authorizedunder reclamation law to expend appropria-tions made from the general funds of theTreasury under the heading “General In-vestigations-general engineering and re-

search” for atmospheric water resourcesresearch that is of primary benefit to Statesother than 17 Western States. Although ex-penditures from the Reclamation Fund maybe made only for the benefit of the 17 West-ern States, expenditures from general fundaPP;oPrlatlons are not :0 hmited becausesection 2 of the Reclamation Act and section8 of the Flood Control Act of 1944 evidencea Congressional intent to make the benefitsof reclamation law available to dl partsof the .Nation notwithstanding the limita-tions on the use of the Reclamation Fund.Memorandum of Associate Solicitor Hogan,July 13, 1966.

18. —Litigation expemesIn view of the fact that the Reclamation

Service must proceed in many c=es in con-formity with State laws, and it is necessaryto institute cases in State courts or intervenein those brought by others, the expense ofsuch proceedings in State courts in paymentof lawful costs, including expenses of neces-sary printing and costs of appeal bonds,should be charged to the reclamation fund.It is understood, of course, that such pro-ceedings on behalf of the United States willbe instituted by or with the authority of theAttorney General, and that it is not in-tended by this decision to include compen.sation to attorneys or counsel. Comp. Dec.,June 30, 1914, and December 6, 1916.

Costs in an action against an employeeof the Reclamation Service which is de-fended for said employee by the UnitedStates are payable out of the reclamationfund. Comp. Dec., in re Marley v. Cone(Salt River), December 6, 1916.

19. —RewardsThe reclamation fund may not be used as

a reward for the apprehension of an em-ployee of the Reclamation Service who mayhave been guiltv of a breach of trust. De-partmental deci~ion, January 28, 1910.

If, in the judgment of the Secretary of theInterior, the offering of a reward for thereturn of horses belonging to the Reclama-tion Service which have strayed away wouldbean appropriate means to be used to securetheir return, he is authorized to make theoffer under section 10 of the reclamationact. Comp. Dec., Nfay 19, 1911.

If it is deemed necessary to operate a tele-phone line in connection with the work au-thorized under the reclamation act, the Sec-retary of the Interior unquestionably has theauthority to take such action as may benecessary and proper to protect such tele-phone line from damage or interferencewhile in the possession of the United States.The means to be employed for such protec-tion is left largely in the discretion of the

June 17, 1902

THE RE~AMATION ACTAEC, 2 35

Secretary.If, in his judgment, the offering protect it from such damage or interference,of a reward for information leading to the payment from the reclamation fund of theconviction of any person willfully damaging reward so offered would be authorized whenor interfering with such telephone line satisfactory proof of the earning thereof haswould be a necessary and proper means to been presented. Comp. Dec., March 7,1913.

Sec. 2. [Authority to study, locate and construct irrigation works. ]—The

Secretary of the Interior is hereby authortied and directed to make examinations

and surveys for, and to locate and construct, as herein provided, irrigation works

for the storage, diversion, and development of waters, including artesian wells.

(32 Stat. 388; Act of August 7,1946,60 Stat. 866; 43 U.S.C. ~ 411)

EXPLANATORY NOTES

Provisions Repealed. The Act of August 7,1946, 60 Stat. 866, which appears hereinin chronological order, repealed those provi-sions of section 2 requiring annual reportsto Congress. Before repeal of the reportingprovisions, the section read as follows: “TheSecretary of the Interior is hereby author-ized md directed to make examinations andsurveys for, and to l-ate and construct, asherein provided, irrigation works for thestorage, diversion, and development of wa-ters, including artesian wells, and to reportto Congress at the beginning of each regularsession as to the results of such examina-tions and surveys, giving estimates of costof all contemplated works, the quantity andlocation of the lands which can be irrigatedtherefrom, and all facts relative to the prac-ticability of each irrigation project; also thecost of works in process of construction aswell as of those which have beencompleted.”

EditoFs Note. SDecial AuthorimtionsforStudies. From t{me- to time Congress ha au-thorized the Secretary of the Interior toundertake special studies of water resourcesdevelopments involving reclamation. Al-though some of fiese Acts are includedherein in chronological order and others arenoted below, no systematic effort has beenmade to include dl such authorizations.

Tri-County Project, Nebraska. The Actof Sept. 22, 1922, ch. 430, 42 Stat. 1057,authorized an additiond investigation of theTri-county project in Nebraska and an ex-tension of the investigations into Adams

County to ascertain whether it is practicableto convey for irrigation purposes flood watersfrom the Pbtte River onto the lands in thecounties comprising the project.

Palo Verde and Cibola Valleys. Engi-neering and economic investigations inPalo Verde and Cibola valleys on the Colo-rado River were authorized by the Act ofApril 19, 1930, ch. 192,46 Stat. 222.

Gila River Above San Carlos Reservoir.The Act of May 25, 1928, ch. 742, 45 Stat.739, authorized an appropriationof$12,500for surveys and investigations to determinethe best methods and means of utilizing thewaters of the Glla River and its tributariesabove San Carlos reservoir in New Meficoand Arizona, provided the States of Arizonaand .New Mexico cooperated by appro-priating an equal amount. Arizona by Actof its legislature November 28, 1926, ap-propriated $6,250 and New Mexico by Actof March 8, 1929, appropriated $6,250. Thework was covered by contract dated Au-gust 12, 1929,. with the State: of Arizonaand New Mexico, $12,500 having been ap-propriated by the Second Deficiency Act ofMarch 4, 1929, 45 Stat. 1643.

Cabinet Gorge. An authorization of $25,-000 to be appropriated to provide for stud-ies for the development of a hydroelectricpower project at Cabinet Gorge on theClark Fork of the Columbia River, for ir-rigation pumping or other uses was made bythe Act of August 14, 1937, ch. 619, 50Stat. 638.

NOTES OF OPINIONS

Examimtionsauthorized 1-5 1. E~inations authorized+enerdIyContributedfunds 3 The ReclamationService cannot, whileGenerally 1Research 2

construction of a project is in progress, and

Works authorized &10prior to the laying out of its canals, under-take to reexamine, at the instance of in-

Artesian wells 8 dividual claimants, particular tracts fallingDrainage works 7 within the project, to ascertain whether orGenerally 6 not such tracts are capable of service from

June 17, 1902

36 THE RECLAMATION ACT—SEC. 2

its projected canals. Lewis Wilson, 42 L.D.8 ( 1913). See also 48 L.D. 153, amendingparagraph 13 of general reclamation cir-cular of May 18, 1916.

When the Secretary of the Interior in theexercise of a reasonable discretion deter-mines as to the vdidlty of titie to and asto the value of a right to appropriate waterfor irrigation purposes to be acquired byhim under the provisions of the Act ofJune 17, 1902, his decision is conclusiveupon the accounting officers. 14 Comp.Dec. 724 ( 1908).

The drilling of wells for the purpose ofdetermining whether underground waterexisti that may be made available in connec-tion with a project comes within the powerconferred bv this section “to make examina-

contract, authorized similar investigationsby and on behalf of the United States andshould make sufficient appropriations there-for and for reimbursement of funds ad-vanced, then the Bureau would refund tothe city such advanced funds or the appro-priate share thereof. The sum of $50,283.35,from appropriations by Congress for the fis-cal years 1923 and 1924, for continued in-vestigations on the Colorado River, was notspent and reverted to the ReclamationFund. The city petitioned the Court ofClaims for reimbursement of its propor-tionate share of this money. The court heldthat the agreement was illegaf and unen-forceable since it violated Sections 3679 and3732 of the Revised Statutes (31 U.S.C.665? 41 U.S.C. 11). City of Los. Angeles o.

tions and ~uweYs * * + for the develop- Umted States. 107 Ct. Cl. 315, 68 F. Supp.ment of waters?’ Op. Asst. Atty. Gen., 34 974 (1946).L.D. 533 (1906).

2. —ResearchThe Bureau of Reclamation is authorized

under reclamation law to expend appro-priations made from the general funds of theTreasury under the heading “General In-vestigations—general engineering and re-searc~’ for atmospheric water resources re-search that is of primary benefit to Statesother than the 17 Western States. Althoughexpenditures from the Reclamation Fundmay be made only for the benefit of the 17Western States, expenditures from generaffund appropriations are not so limited be-cause section 2 of the Reclamation Act andsection 8 of the Flood Control Act of 1944evidence a Congressional intent to make thebenefits of reclamation law available to allparts of the Nation notwithstanding thelimitations on the use of the ReclamationFund. Memorandum of Associate SolicitorHogan, July 13, 1966.

3. <contributed fundsFor some years prior to 1922 the Rec-

lamation Service had been carrying on h-vestigations on the Colorado River in thevicinity of Black and Boulder Canyons.Funds appropriated for fiscal year 1922 notbeing sufficient to continue these investiga-tions, an arrangement was worked outwhereby the City of Los Angeles andthree other public bodies in Southern Cali-fornia interested in the proposed develop-ment on the Colorado River advanced thefunds necessa~ to permit the investigationto continue.

The City of Los Angeles sued the UnitedStates to recover the sum of $55,000, con-tributed by it for that purpose under a con-tract dated February 16, 1922. Article 18of the contract provided that, if the Con-gress, within two years of the date of the

6. Works authorized—GenerallyThe generaf statuto~ authority of the

Secretary for construction of irrigationworks is sufficiently broad to authorize pre-paratory work, such as land leveling, rough-ing in of farm distribution systems, and theplanting of cover crops on public landswithin an irrigation project. Solicitor WhiteOpinion, 59 I.D. 299 ( 1946).

7. —DrainageworksIt is well settledthat the United States

may construct drainage works as a partof its irrigation system; the necessity fordrainage and tie methods of conducting thework are in the sound discretion of the Sec-retary of the Interior, and such discretioncannot be reviewed by the courts. UnitedStates v. Ide, 277 Fed. 373 (8th Cir. 1921 ),afirmed 263 U.S. 497 (1924). See doWeymouth v. Lincoln Land Co., 277 Fed.384 (8th Cir. 1921).

The Secretary of the Interior has au-thority to provide for drainage as part of anirrigation project in order to prevent damageto property from the operation of the irriga-tion system. Nam+a @ Meridian Irr. Dtit. v.Bond, 283 Fed. 569 (D. Idaho 1922 ), 288~~i5~41 (9th Cir. 1923), 268 U.S. 50

The’ drainage system authorized by rec-lamation law is that which will providedrainage necessary to the successful opera-tion of the complete project, and as a gen-eral matter the acreage limitations of thelaw do not apply to it. Memorandum ofChief Counsel F&to Commissioner, May 12,1948.

8. —Artesian welfsThe phrase “inc!uding artesian welis” is

used to describe one class of irrigation worksto be constructed in carrying out the schemefor reclaiming arid lands provided for in

June 17, 1902

THE RECLAMATION ACT—SEC. 3 37

the act, and it is not contemplated by this sian well where it is befieved that if watersection that such wells may be sunk as a part is found it will not be suitable or needed orof the prelfilnary examinations authorized used for irr~ation purposes. Instructions,therein, nor is it permissible to sink an arte- 32 L.D. 278 ( 1903),

Sec. 3. [Withdrawal of lands for irrigation work=~thdrawal of lands

susceptible of irrigation-Homestead entrie+Determination whether project

is practicabl+Restoration and entry~ornmutation.] —The Secreta~ of the

Interior sh~l, before giving the public noti~ provided for in section 4 of this

act, withdraw from public entry the lands required for any irrigation works con-

templated under the provisions of this act, and shall restore to public entry any

of the lands so withdrawn when, in his judgment, such lands are not required for

the purposes of this act; and the Secretary of the Interior is hereby authorized,

at or immediately prior to the time of beginning the surveys for any contemplated

irrigation works, to withdraw from entry, except under the homestead laws, any

public lands believed to be susceptible of irrigation from said works: Provided,That all lands entered and entries made under the homestead laws within areas

so withdrawn during such withdrawd shall be subject to all the provisions, limi-

tations, charges, terms, and conditions of this act; that said surveys shall beprosecuted diligently to completion, and upon the completion thereof, and of

the necessary maps, plans, and estimates of cost, the Secretary of the Interior

shall determine whether or not said project is practicable and advisable, and if

determined to be impracticable or unadvisable he shall thereupon restore said

lands to entry; that public lands which it is proposed to irrigate by means ofany contemplated works shall be subject to entry only under the provisions ofthe homestead laws in tracts of not less than forty nor more than one hundred

and sixty acres, and shall be subject to the limitations, charges, terms, and condi-

tions herein provided: Provided, That the commutation provisions of the home-

stead laws shall not apply to entries made under this act. (32 Stat. 388; 43 U.S.C.

$$416,432, 434)

EXPLANATORY NOTES

Codification. The first part of Wls sec-tion through the first proviso and endingwith the words “and if determined to beimpracticable or unadvisable he shall there-upon restore said lands to entry” is codifiedas section 416, title 43, U.S. Code. Thebalance of the section, except for the words“in tracts of not less than forty nor morethan one. hundred and sixty,” is codified assection 432. The reference to the size ofthe tracts is incorporated in section 434.

Supplementary Provision: Entries ofUnits Less than Forty Acres; AdditionalEntries, Desert Land Entries. Section 1 ofthe Act of June 27, 1906, authorizes theSecretary of the Interior, under certain con-ditions, to estabHsh a unit of less than fortyacres as the” minimum entry. Section 2 au-thorizes one who has relinquished landscovered by a bona fide unperfected entry toma$e .an adtixtional entry. Section 5 dealswith the case of, a desert land entry on lands

subsequently withdrawn under the Recla-mation Act. The Act appears herein inchronological order.

Supplementary Provision: Entries ofIrrigable Lands Prohibited Until CertainActions Taken. Section 5 of the Act ofJune 25, 1910, 36 Stat. 836, provides thatno entry sha~ thereafter be permitted onlands withdrawn for irrigation purposes un-til the Secretary has established the unit ofacreage, fixed the water charges and thedate when the water can be applied, andmade public announcement of the same.The Act appears herein in chronologicalorder.

Additiond Supplementary Provisions.Additional supplementary provisions relat-ing to the subjects of withdrawals, entriesand farm units are referenced in the index.

Cross Reference, Homestead Laws. Rel-evant extracts from the homestead laws areincluded in the appendk.

June 17, 1902


NOTESOFOPINIONS1. ~TXDRAWALS

Landsand interests affected by withdrawals Generallv 41625

Contests 14Forest reserves 8Generally 6Indian lands 10Militiy resewatiom 9Minerals and mineral lands 11Mining claims 12National parks 7Railroad rights-of-way 20School lands 17Selected lands 18Settlers and entrymen 13Smith Act lands 15Timber and stone kti 19Water rights 16

Revocation of withdraw~s 41-50Contestant’s preference right of entryDesert land entries 44

Second-<lthd~awd 45When effective 42

Withdraws, generally” 1-5Discretion of Secretary 2First and second form withdrawals 3Procedures 4Pnrpose of 1

Withdrawn lands 2~0Generally 26Leases and permits 31Mineral leasing 29Mining locations 28NationA forests 33Rights of way 32Sand and gravel 34Selection 30Settlement and entry (other than nnder

43 Reclamation Act) 27

n. RECLAMATIONEN=IES

Reclamation entries 5140 Homestead laws, generally 52Additional entries 55 Preference right of Entry 54Desert iand entry 57 Relinquishment of entry 56Entryman’s interest 59 Residence 53Farm units and”area of ent~ 58 Rights of way 60Generally 51

I. WITHDRAWALS

1. W~thdrawals, generdly—Pu@ose ofThe authority to withdraw lands for ir-

rigation purposes conferred upon the Sec-retary of the Interior is a special authorityto make ~thdrawals for a pa~culm pur-pose and ?s hmlted to the speafic uses pr~vialed. for m the Act, or to uses incident toand in the furtherance thereof. Op. Asst.Atty. Gen., 33 L.D. 415 (lg05).

The Secretary of the Interior has no au-thority under this Act to withdraw landsfor resemoir sites with a view to the use ofthe waters impounded therein for domesticpurposes. Op. Asst. Atty. Gen., 33 L.D. 415(1905).

Public lands adjacen~ to reclamationwithdrawn lands border~ng Lake Havasumay be withdrawn pursuant to the Recla-mation Act and leased to’ the State of Ari-zona where the withdrawal will implementin part the Lower Colorado Land Use Planwith its conco+tant reclamation benefitssuch as facifitatmg the Bureau’s control overthe use of the lake waters and shores. Memo-randum of Associate Solicitor Hogan, Octo-ber 9, 1964.

The Reclamation Act authorizes the with-drawal of public lands from entry to providepasture for Government animals used in

carrying on operations under the act. De-partmental decision, March Z1, 1910, LowerYellowstone.

2. —Discretion of SecretaryThe discretion of the Secretary of the In-

terior in making first-form withdrawals oflands cannot be questioned, md no applica-tion to enter can be aflowed on the groundthat the land is not needed. Ernest Wood-cock, 38 L,D. 349 ( 1909).

The withdrawal of land for irrigationpurposes under this section is a matte; thatwas committed to the Land Department ex-dusivdy, and, in the absence of fraud on thepart of the offictis of that Department,could not be ,reviewed by the courts. Don-ley v. Weft, 189 Pac. 1052 (Cal. App.1920 ), reversed on rehearing on othergrounds, 193 Pac. 519 (Cd. App. 1920),error dismissed, 260 U.S. 697 (1922).

3. —First and second form withdraw~There are two classes of withdraw~ au-

thorized by the Act, one commordy knownas “withdrawsds under the first form,” whichembraces lands that may possibly be neededin the construction and maintenance of ir-rigation works, and the other, conunosdy

June 17, 1902


known as “withdrawals under the secondform;’ which embraces lands not supposedto be needed in the actual construction andmaintenance of irrigation works but whichmay possibly be imigated from such works.General Land Office Circdar, June 6, 1905,33 L.D. 607.

Two classes of withdraws are providedfor by this section, and the exception ofhome;tead entry from the second does notapply to the first; ~lthdrawals and reserva-tions thereunder being necessafiy absolute.United States v. Hanson, 167 Fed. 881, 93C.C.A. 371 (Wash. 1909)..

The proviso of section 5 of the Act ofJune 25, 1910, as amended, making landsreserved for irrigation purposes andrelinquished from prior entries subject toentry under this section, applies only tolands withdrawn under t~ls section as sus-ceptible of irrigation under a proposedproject, and not to lands witidrawn. as req-uired for the construction of lrrngationworks. United States v. Fall, 276 Fed. 622,57 App. D.C. 100 (1921).

Where the Secretaw of the Interior byapproval of farm unit “plats under the pro-visions of the Act of June 17, 1902, hereto-fore or hereafter given, has determined, ormay determine, that the lands designatedthereon are irrigable, the filing of such platsin the office of the Commissioner of the Gen-eral Land Office and in the local land officesshall be regarded as equivalent to an orderwithdrawing such lands under the secondform under said Act, and as an orderchanging to the second form any withdrawalof the first form then effective as to any suchtracts. Department decision, 37 L.D. 27(1908).

The distinction between “forms of with-drawals;’ that is, between “first form with-draws” (for irrigation works) and “secondform withdraws” (for irrigable land), wasmade administratively to recognize the dl-tinction that in. the latter case, irfigablelands so withdrawn under section 3 of theReclamation Act codd be entered underthe homestead laws in advance of the add-ability of water from the project. TKIS dis-tinction was no longer pertinent after theenactment of section 5 of the Act of June25, 1910, 36 Stat. 835, which precludedentry unti after the SecretaW had estab-lished the unit of acreage, fixed the watercharges and the date of water avtiabili~,and made public announcement of the same.For this reason, the Bureau of Reclamation-has abandoned the use of second form with-drawals. Associate Solicitor Fisher Opinion,M-36433 (Aprfl 12, 1957), in re dsposaf oflands, Guernsey Reservoir, North PlatteProject.

4. —ProceduresAny withdrawal otherwise valid shall not

be affected by failure to note same on tractbook or otherwise follow the usual procedure. Instructions, 42 L.D. 318 ( 1913). See48 L.D. 153, amending paragraphs 13, 14,and 16, and revoking paragraph 15 of gen-eral reclamation circtiar of May 18, 1916.

Under existing departmental proceduresand regtiations approved by the President,orders withdrawing public lands for recla-mation purposes are effective when ap-proved by the Commissioner of Reclamationand concurred in by the Bureau of LandManagement, and are effective to constitutevalid notice as to persons not having actualknowledge thereof when filed with the Divi-sion of the Federal Register, NationalArchives. Associate Solicitor Soiler opinion,M-36382 (October 24. 1956).

6. Lands and interes~s tie~ted by with-drawal—Generdly

Under this sectio~, the Secretary of theInterior had authority to withdraw frompublic entry lands constituting a reservoirsite sought to be appropriated by a waterand power company, and the laws of. tieUnited States in reference to the disposi-tion of public lands of the United Statesbeing paramount and exclusive, a waterand power company codd not acquire aneasement on lands of a reservoir site, with-drawn from entry by the Secretary of theInterior, by virtue of any compliance withCiv. Code 191.3, para. 5337, 5338, VerdeWater @ Power Co. v. Salt River ValleyWater Users’ Assn.i 197 Pac. 227, 22 Ariz.305, cert. denied, 257 U.S. 643. ,

The withdrawal authority of section 3 ofthe Reclamation Act must be construedbroadly. Accordingly, withdrawal orders areeffective as to public lands which werenot technically open to “public entry” atthe time of the order, such as forest reservesand school lands reserved for the benefit ofa Territory but not granted to it. AssistantSecretary Davidson Opinion, 59 I.D. 280(1946).

7. —National parksThe Secretary of the Interior has the same

right to withdraw lands within the YosemiteNational Park, created by the Act of Octo-ber 1, ~890, 26, Stat. 650, for the uses andpurposes contemplated by the Act ofJune 17, 1902, that he has to withdrawlands for such purposes witiln forest re-servation created under authority of the Actof March 3, 1891, 26 Stat. 1095. Op. Asst.Atty. Gen., 33 L.D. 389 (1904).

8. —Forest reservesUnder the Act of February 15, 1901,

31 Stat. 790, lands in forest reserves created

June 17, 1902


under authority of the Act of March 3,1891, 26 Stat. 1095, may be appropriatedand used for filgation works constructedunder authority of the Act of June 17, 190?,as well as. for works constructed by indi-viduals. Op. Asst. Atty. Gen., 33 L.D. 389(1904).

9. —MiEtary reservationsCongress having by the Act of July 5,

1884, 33 Stat. 103, provided for the dis-posal of lands in abandoned mifitary reser-vations, the Secretary of the Interior iswithout authority to Flspose of such landsin any other manner or to segregate themfor use in connection with an irrigationproject. Instructions,. 33 L.D. 130 ( 1904).

Lands formerly within the Fort BufordMilitary Reservation were by the Act ofMay 19, 1900, 31 Stat. 180, restored to thepublic domain and made subject to exist-ing laws relating to disposaf of the pubficlands, except such laws as are not specifi-cally named therein, and are subject towithdrawal under the Reclamation Act asother portions of the public domain subjectto entry under the general land laws; anda withdrawal of such lands for reclamationpu+oses is effective as to all of the landsfor which entry was not made within threemonths from the filing of the township platand prior to the withdraw~. Op. Asst. Atty.Gen., 34 L.D. 347 ( 1905).

The fact that the Act of Aprif 18, 1896,29 Stat. 95, provides that the lands in theabandoned portion of the Fort AssiniboineMilitary Reservation, thereby opened toentry, shall be disposed of only under thelaws therein specifically named, does notprevent a withdrawal under the Act ofJune 17, 1902, of any of said lands as towhich no vested right has attached. MaryC. Sands, 34 L.D. 653 ( 1906).

10. —Indian landsWhere under the Act of March 3, 1905,

33 S@t. 1069, lands of the Uintah IndianReservation have been set apart and re-served as a reservoir site for general agri-cultural development and subsequentlyhave been withdrawn, under section 3 of theReclamation Act, from all forms of sale andentry, the United States is liable upon animplied contract to the Indians of saidreservation. for the occupancy and use ofsaid lands to the extent that the use madeof them is inconsistent with the rights ofthe .Indians to use and OCCUPY them or leavethem open to sale and entry for their bene-fit, and the reclamation fund is applicableto the payment thereof. .14 Comp~ Dec. 49(1?Q7),. - .,,..

~ The Sec~etary’~ }he. Interior, by depart-‘mental: orders of January 31 and Septem-

ber 8, 1903, withdrew for flowage purposesunder the Reclamation Act of June 17,1902, land in sections 4, 6, 8, 16, 20, 22, 28and 34, T. 16 N., R. 21 W., and in section12, T. 16 N.. R. 22 W.. G. & S. R. M.Executive Order of February 2, 1911, sub-sequently withdrew these lands as an addi-tion to the Fort Mohave Indian Resema-tion. Congress by Act of May 23, 1934, 48Stat, 795, recognized Indian ownership ofthe lands and confirmed the ExecutiveOrder of February 2, 1911. The Depart-ment held that the reclamation withdrawalsof January 31 and September 8, 1903, wereineffective and that title to said lands beingin the Fort Mohave Indian Reservation, theIndians are entitled to compensation forland required by the Bureau of Reclama-tion for flowage purposes on account of theconstruction of Parker Dam, Arizona.Solicitor Margold Opinion, M–28589(August 24, 1936) .

The Chemehuevi Indians claimed com-pensation for lands to be flooded by theParker Reservoir, Parker Dam project, butthe Metropolitan Water District, which wasacquiring the right of way for the reservoirunder contract with the United States, con-tended that it was not necessary to purchasethe lands since fiey had been withdrawnfor reclamation purposes by departmentalorders of July 2, August 26 and Septemb-er 15, 1902, and February 5 and Septem-ber 8, 1903. On February 2, 1907, the landswere withdrawn from settlement and entrypending action by Congress authorizing theaddition of the lands to various missionIndian reservations. The Department heldthat at most the reclamation withdrawalsestablished the right of the Bureau ofReclamation to utilize the land for reclama-tion purposes as and when the need arose,but that the Indians must be paid for theland, their occupation of which long ante-dated the reclamation withdrawals, andwas subsequently recognized by the order ofFebruary 2, 1907. Solicitor Margold Opin-ion, M–30318 (December 15, 1939).

11. —Minerals and mineral IandsThe right of the Government to appro-

priate public land for use in the construc-tion and operation of irrigation works underthe Act of June 17, 1902, is not affected bythe fact that the land is minerai in charac-ter. Instructions, 35 L.D. 216 (1906).Loney v. Scott, 57 Or. 378, 112 Pac. 172(1910).

The authority of the Secretary of the‘Interior to withdraw “lands” for reclama-tion purposes includes within its scope theauthority to withdraw the minerals inlands wkere the surfac{ has been patentedby the Government but the title to themin-

June 17, 1902


erals is retained by the Government.Soficitor White Opinion, M–36 142 ( Octo-ber 29, 1952), in re lands of Ute IndianTribe.

12. —Mining claimsUnpatented mining claims were subject

to order of the Secr~tary of the Interiorpursuant to this section withdrawing cer-tain land except any ‘tract “title” to whichhad passed out of the United States, ~~mpublic entry,. and therefore the mmmgclaims were not subject to relocation on al-leged, default by locators after the with-drawal order. Walkeng Mining Co. v.Cov~y, 352 P. 2d 768 (Ariz: 1960).

A mining claim as to which the claimantwas in default in the performance of an-nual assessment work at the date of a with-drawal for the construction of irrigationworks under the Reclamation Act does notexcept the land from the force and effectof the withdrawal. E. C. Kinney, 44 L.D.580 (1916).

A mineral location founded on actual.dis.c,overy of a valuable deposit of mineraIwithin the limits of the claim, and main-tained in accordance with the mining lawsand local regulations, excep~ the- landfrom the, operation of a withdrawal underthis Act, Instructions, 32 L.R. 387 (1904).

13. ~ettlers and mt~enBy the mere filing of an app~cation to en-

ter ,under the homestead law, upon whichaction is suspended, and tender of the neces-sary fees, the applicant acquires no vestedright to or interest in .Ae )and applied for,nor does such application have the effect.tosegregate the land from the pubfic domam,so as to prevent a wlthdrawd thereof forreclamation purposes. John ]. Maney, 35L.D. 250 ( 1906); Charles G. Carlisle, 35L.D. 649 (1907). Decision mdlfied; see48 L.D. 153; C.L. 1013, June 15, 1921.

The Reclamation Act contains no provi-sion for the recognition or protection of anyright of a settler on unsurveyed public landswtilch may be withdrawn and reservedthereunder for use in the construction ofirrigation works, nor is- there any such pro-vision in the Act of June 27, 1906, 34 Stat.519,, or other statute of the United States,and such settler has no right which he canoppose to the taking of the lad for suchpurpose. UnitedStates v. Hanson, 167 Fed.881, 93 C.C.A. 371 (Wash. 1909).

An application to make soldiers’ addi-tional entry, although filed ~rior to thepassage of the act and pen$lng at the date.of ap order withdrawing the lands coveredthetiby unger the “prtiisions of said act, isnot effective to ‘except the lands frorn’’such

withdrawal. Naticy C. Yaple, 34 L.D. 31 I(1905).

Even though approved by the Cornrnis-sioner of the General Land Office, an aD-pfication to make soldiers’ additional en;~till not, prior to the allowance of entrythereon, prevent a withdrawd of the Iandcovered thereby. Charles A. Guernsey, 34L.D. 56n /1 Qnfil

Orc“-” \.-- ””,.

der withdrawing land from entry un-der this section did not refieve ent~anfrom the duty of claiming land and comply-ing with Homestead Law as to residence andcultivation prior to amendment of 1912,where the land officials made a publicannouncement that the withdraws of landswere not permanent, but were for the pur-pose of enabling preliminary investigationsto be made as to the feasibility of irrigationproject. Boweti v. Hickev. 200 Pac. 46. 53Ca~ App. 250 ( 1921 ),” ~ert. denied.” ’257U.S. 656.

By a successful contest against a desert-Iand entry the contestant does not acquiresuch a preference right of entry as will,prior to its exercise, except the land fromthe operation of a withdrawal made under;~:02~ Emma H. Pike, 32 L.D. 395\. .._.,

The regulations of 1909 purporting toextinguish a statutory preference right ofentry to lands covered by a reclamationwithdrawal are without force and effect.Wells v. Fisher, 47 L.D. 288 ( 1919).

Where homestead or desert-land entrie5are included within first-form reclamationwithdraws, they should not be suspended,but allowed to proceed to find proof, cer-ticate, and patent, and the land, if there.after needed by the United States for recla-mation purposes, reacquired by purchase orcondemnation. Instructions, 43 L.D. 374(1914), overruling Op. Asst. Atty. Gen., 34L.D. 421, and Agnes C. Pie@er, 35 L,D. 459(1907).

Upon the cancellation of a homesteadentry covering lands embraced within a sub-sequent withdrawd made under the Act,the withdrawal becomes effective as to suchlands without further order. Cornelius ].MacNamarat 33 L.D. 520 (1905).

No such rights are acquired by settlementupon lands embraced in the entry ‘of anotheras will attach upon cance~ation of such en-try, where at that time the lands am -with-drawn for use in connection with an irriga-tion project; nor is there any aufiority forpurchase by the Government of., the set-tler’s claim or of the improvements placedupon t~e land by him.. George AnderFo-n,,34“L.D: 478 ( 1906). “.’ ““’

Where -1ands subject’to an existing home-stead entry are w’ithdrati under tie

267–067—72—YoI. I—6

—

June 17, 1902

42 THE RECLAMATION ACT—SEC, 3

Reclamation Act, the withdrawal becomeseffective as to such land without any fur-ther order as soon as the existing entry is

canceled, ?nd the land is thereafter nolon~~ subJect to homestead entry while re-mamlng so withdrawn. James F. Rapp, A-25284,60 I.D. 217 (1948).

Where land in a desert-land entry iswithdrawn under the Reclamation Act andthe entry is subsequently canceled, thewithdrawal becomes effective as to such landupon the cancellation of tie entry. GeorgeB. Willoughby, 60 I.D. 363 ( 1949).

14. —ContestsContests will be allowed of. entries em-

bracrng lands within a reclamation with-drawal even though the successful contest-ant’s preferred right of entry may be futileunless and until the withdrawal is revoked.Instructions, 41 L.D. 171 (1912).

A protest by one’claiming under a placerlocation against a conflicting desert-hindentry, will be allowed, even though the landwas withdrawn under this section, in orderto clear the record of one of. the antagonistic

claims. New Castle Co. v. Zanganella, 38L.D. 314 (1909), overru~ng Fairchild v.Eby, 37 L.D. 362 (1908).

15. —Smith Act landsA first form withdrawal is effective as to

unentered public lands notwithstanding thefact that the lands previously were approvedby the Secretary as being subject to theSmifi Act. McDonald, 69 I.D. 181 ( 1962),overrulingBi{lFult:; 61 I.D. 437 ( 1954), inre desert land entries within Imperifl Irri-gation District.

Where assessmerits were levied by m irri-gation district under. the Smith Act ofAugust 11, 1916, against unpatented Iandin an etisting desert-hind entry, the irriga-tion district can, enforce the hen arising from3uch assessment by a sale of the land in ac-cordance with the provisions of the act, de-spite the cancellation of the entry and thewithdrawal of the, land under the Reclama-tion Act during the intervening period,because the right of the district to enforceits lien by sale of the ,lands is a ‘%did ex-isting right” not @ected by the withdrawal.The purchaser of the land at such a salemay obtain a patent to the land only if hesubmits proof of the reclamation and irriga-tion of the land, as required by the Reclama-tion Ac~ and pays to the United States the:-ounts required under that act. George B.Willoughby, 60 I.D. 363 ( 1949).

16. —Water rightsThere is no authority to make such execu-

tive withdrawal of pubfic lands in a States win reserve the waters of a stream flowing

over the same from appropriation under thelaws of the State, or wili in any manner in-terfere with its laws relating to the control.appropriation, use, or distribution of water:Op. Asst. Atty. Gen. 32 L.D. 254 ( 1903).But cf. Arizona v. California, 373 U.S. 546,595-601 (1963).

17. Achool landsLands resewed for school purposes to

the State of Arizona, even after survey, weresubject to reclamation withdrawal undersection 3 of this A“ct if withdrawn at thetime of Ae admission of the Territory ofArizona to statehood. Assistant SecretaryDavidson Opinion, 59 I.D. 280 ( 1946).

18. -Selected land3Where. the affidavit as to the character

and ~on~xtion of the land accompanying anapphcation to make selection under theexchange provisions of the Act of June 4,1897, 30 Stat. 36, is executed ‘before theselector acting as’ notary pubfic, such affi-davit is void, and the apphcation cantherefore have no effect to except the landscovered thereby from a subsequent with-drawal embracing the same in accord~cewith the provisions of section 3 of this Act.Peter M. Collim,. 33 L.D. 350 ( 1904).

A first-form withdrawal under the Recla-mation Act does not defeat the equitabletitle of the selector acquired under an in-demnity school selection if the selection waslegal and completed prior to withdrawd.State of California and Overland Trust& Realty Company, 48 L.D. 614 (1921).

The location of Valentine scrip upon un-surveyed public land. in conformity withthe law and departmental regulations issuch an appropriation of the land as cannotbe defeated by a subsequent reclamationwithdrawal, po~ithstanding the sdectionhad not been adJusted to an official survey,and the selector cannot thereafter be de-prived of his rights thus acquired mcept inthe manner prescribed by the ReclamationAct. Edward F. Smith, ct al., 51 L.D. 454(1926).

19. —Timber and stone IawsA withrfrawaf of lands under this Act will

defeat a prior application to purchase thesame under the timber and stone lawswhere, at the date of withdrawd, the appE-cant had acquired no vested right to thelands embraced in his application. Board ofControl, Canal No. 3, State of Colorado u.Torrence, 32 L.D. 472 (1904).

20. —Railroadrights-of-wayNo suchrightis acquiredby virtue of an

application for right-f-way for a raifroadunder the Act of March 3, 1875, 18 Stat

June 17, 1902


482, before the approval thereof, and priorto tie construction of the road, as will pre-vent the Secreta~ of the Interior from with-drawing the. lands covered thereby for useas a reservoir under the Reclamation Act.Op. Asst. Atty. Gen., 32 L.D. 597 ( 1904).

The Southern Pacific Company in 1916filed a general map of the station groundsat Mohawk, Ariz., adjoining its right-of-way and in 1936 filed for approval a mapgiving the exact location points, In 1929the Bureau withdrew the land under a firstform reclamation withdrawal for the Gfiaproject. The General Land Office, as a con-dition precedent to approval of the map,requested that a stipulation be signed mak-ing cer{ain reservations to the United [email protected] First Assistant Secretary in decisionA-20886, of July 24, 1937, held that theexecution of the stipulation could not law-fully be required since the station groundswere private property at the time of thereclamation withdrawal and were not af-fected thereby. The station grounds wereheld to be subject to the provisions ofthe act of August 30, 1890, 26 Stat. 391,ma~lng reservations ior ditch and canalrights-of-way.

26.. Withdrawn Iands+enerallyWithdrawals madi by the Secretary of

the Interior under the first form, of landswhich are required for irrigation workshave the force of legislative withdrawalsand are effective to withdraw from otherdisposition all lands within the designatedlimits to which a right has not” vested. In-structions, 32 L.D. 387 ( 1904).

Reclamation withdrawn lands are ‘pre-served lands” and therefore are not sub-ject to Executive Order No, 691O ofNovember 26, 1934, and Executive OrderNo. 6964 of February 5, 1935. G.L,O.Circular No. 1351,55 I.D. 247 (1935).

The State of Utah appealed from de-cision of the General Land Office, datedJanuary 14, 1930, that the rights of thestate of Utah did not attach to certain landm sec. 16, T. 3 S., R. 25 E., S. L. M., be-cause of a phosphate reserve. The Depart-ment ruled that inasmuch as the landswere embraced in a reclamation with-drawal and later a phosphate reserve, theywere not subject” to section 6 of the UtahEnabling Act (granting, witi other land,a~l sections 16 to the state, unless in a reser-vation ) and would “not be until the reser-vations, including the reclamation with-drawal, were extinguished and the landsrestored to and become a part of the pubficdomain. Decision of Assistant Secretary,Aprif 18.1931.

‘Accretions to withdrawn land becamepart of that land and subject to the with-

drawal. Solicitor Barry Opinion 72 I.D. 409,411 ( 1965), in re Palo Verde Valley colorof title claims. Accord: Beaver v. UnitedStates, 350 F. 2d 4 (9th Cir. 1965), cert.denied 383 U.S. 937 ( 1966) ; Myrtle White,56 I.D. 300 (1938).

Pubfic lands on the east side of the Colo-rado River which were withdrawn for rec-lamation purposes remain subject to thewithdrawal after artificial cuts in the riverchannel place them on the west side of theriver. This fo~lows from the rule of law thatwhere the channel of a river changes byavulsion, title to the avulsed land is notlost by the former owner. Solicitor BarryOpinion, 72 I.D. 409 ( 1965): in re PaloVerde Valley color of title clalms.

Land included iti a reclamation with-drawal is subject to disposition under theRecreation and Public Purposes Act, 43U.S.C. $869 et seq. Carl’ F. Murray andClinton D. Coker, A–28188, 67 I.D. 132(1960).

27. +ettlement and entry (other thanunder Reclamation Act )

Withdrawal from entry of public landsrequired for irrigation work:, under thissection, is absolute, and, untd its restora-tion to entry, land so withdrawn is not sub-ject to entry, and no right thereto can beinitiated by any settIer thereon. Donley v.West, 189 Pac. 1052 (Cal. App, 1920), re-versed on rehearing on other grounds, 193Pac. 519, 49 Cal. App. 796 ( 1920), errordismissed, 260 U.S. 697 (1922) ; Donleyv. Van Horn, 193 Pac. 514, 49 Cal. App.383 ( 1920), cert. dismissed, 258 U.S. 634,error dismissed. 260 U.S. 697.

Occupancy by private individual of pub-lic lands during time order of withdrawa!from entry under this section is in forceconstitutes trespass, and occupant’s im-provements are made at his own risk.Ga@ron v. Van Horn, 258 Pac. 773201 Cal.486 (1927).

No righ~s accrue from an alleged setde-ment on lands covered by a first-form with-drawal under section’ 3 of the ReclamationAct. Noah Kesterson, A-21260 (February2. 1939).

A h~mestead application cannot beallowed on land covered by a first-forereclamation withdrawal at the time of entry.fro, .Dondero, A-25582 (November 29,

An application to make homestead entryfor land embraced within a first form with-drawal should not be allowed nor receivedand suspended to await the possible restora-tion of the lands to entry, but should berejected. Ernest Woodcock, 38 L.D. 349(1909).

Lands withdrawn from entry, except un-

June 17, 1902


der the homestead laws, in accordance withthis ac~, are not, during the continuance ofsuch withdrawal, subject to entry under thedesert land laws. lames Page, 32 L.D. 536(1904). - -

By the provision that lands susceptible ofirrigation under a project shall be with-drawn “from entry. except under the home-stead laws”, Congress intended to inhibitany mode of private appropriation of suchlands except by such entry under the home-stead laws as requires settlement, actual~esidence, improvement, and cultivation;hence such lands are not subject to sol-diers’ additional entry under section 2306,Revised Statutes. Corrselius 1. MacNamara,33 L.D. 520 ( 1905) ; Wil~am M. Wood:ridge, 33 L.D. 525 (1905) ; Mary C. Sands,34 L.D. 653 (1906).

28. —Mining locationsWithdrawals under the first clause are

not subject to location for mining purposes,being reserved for Government use, whilelands withdrawn under the second clauseare disposed of only for homesteads, and asall lands open to homestead entry are sub-ject to minins location, lands withdrawnunder the second clause are so subject.Loney v. Scott, 112 Pac. 172, 57 Or. 378(1910).

Lands valuable for mineral deposits andemb~aced within a withdrawal of lands sus-ceptible of irrigation by means of a reclama-tion project are not thereby taken out ofthe operation of the minirrs laws, but con-tinue open to exploration and purchaseunder such laws. Instructions. 35 L.D. 216

Department may properly decfine, underthe Act of A~ril 23. 1932. to oDen them tomineral loca~lon. M. W.’ Bo b;, et al., A-26613 (Ju1y 13, 1953).

A petition for }hc restoration to mineralentry of land withdrawn for reclamationpurposes under section 3 of the Reclama-tion Act and subsequently also withdrawnby Presidential Executive Order as part ofthe Imperial National Wildlife Refuge, isproperly denied when minins operationswould interfere with the purposes of therefuse, even though the Bureau of Rec-lamation has no objection to such restora-tion, and even thoush the Executive Ordercites the Act of June 25, 1910, which ex-tends the mining laws to lands withdrawnthereunder. The President has inherent au-thority to withdraw public lands for” pub-fic purposes apart from the statutory au-thority vested in him by the 1910 Act.P&G Mining Company, A-27829, 67 I.D.217 (1960).

29. —Mineral IeasissgWithdrawals under the second form do

not affect coal lands. Albert M. Crafts, 36L.D. 138 ( 1907). overruling John Hopkins,32 L.D. 560 (1904).

The Secretary of the Interior has discre-tionary authority under section 13 of theMineral LeasinS Act of .February 25, 192.0,to deny an application for oil and gas pros-pecting permit embracing lands wittiln areclamation withdrawal, which, thoughowned by the United Statesj have beendedicated to purposes authomed by law,if the permit may not be granted except atthe risk of serious impairment or DerhaDs(1906). t

Lands covered by a first-form reclama- complete loss of their” use’ for the ‘purpdsetion withdrawal are not open to mining lo- to which dedicated. Martin Wolfe, 49 L.D.

625 (1923).cations where they have not been opened tomineral entry by the Secretary of the In-terior. Harry A. Schultz, et at., A-26917,61 I.D. 259 (1953).

Neither the Atomic Energy Act of 1946,m amended, 42 U.S.C, $$2011, et seq., northe Mining Claims Restoration Act of1955, 30 U.S.C. $621, et seq., open rec-lamation withdrawn land to location un-der the mining laws. A. W. Kimball, et al,,A-27526, 65 I.D. 166 ( 1958).

Where lands which are subject to a rec-lamation withdrawal appear to be of great-er value for business purposes than formineral development, an application to re-store the lands to location and entry underthe mining laws will be denied. Arthur G.Ktinger, A-26195 (June 2?, 1951).

Lands dedicated for pubhc park purposesunder section 3 of the Gila Project Act ofJuly 30, 1947, subject to a mineral reserva-tion to the United States. remain subjectto’- the ‘reclamation withdrawal, and the

Public lands withdrawn for a reservoirsite, which cannot be restored to the pub-lic domain without damage to the project,or. which have, because of improvementsplaced thereon, become lands that may besold only for the benefit of the reclamationfund, are not subject to the operation ofthe Mineral Leasing Act of February 25,1~20. J. D. Men, Znc., 50 L.D. 308 (1924).

30. —SelectionLand withdrawn under this section can-

not be selected as lieu land by the State ofCalifornia under the Act of May 2, 1914,38 Stat. 372, granting the right t? select“vacant” and “unreserved’ land IQ lieuof certain scho,ol lands. Donlep v. Vanflorn, 193 Pac. 514, 49 Cd. App. 383( 1920), cert.. dimissed, 258 U.S. 634, errordismissed, 260 U.S. 697. “

Lands ‘withdrawn under the second formare not subject ‘to sekction under the. m-

June 17, 1902


change provisions of the Act. of June 4,1897,30 Stat. 26. Santa Fe Pactfic R.R. CO.,33 L.D. 360 ( 1904).

Public land which is included in a firstform reclamation withdrawal is not open.to selection and disposal under the privateexchange provisions of section 8 of theTaylor Grazing Act, Perley M. Lewis, A-26748 (June 9, 1954).

31 . —Leases and permitsThe Secretary of the Interior may es-

tabfish rules as to the use of withdrawnlands whale not needed for the purpose forwhich they are reserved, and may leasethem for grazing, the revenue going intothe reclamation fund. Clyde v. Cummings,101 Pac. 106, 35 Utah 461 (1909).

The Secretary of the Interior has au-thority to make temporary leases of landsreserved or acquired by purchase for usein connection with an irrigation projectcontemplated under the provisions of theReclamation Act where use under the pro-posed lease will not interfere with the useand control of the lands when needed forthe purposes contemplated by the reserva-tion or purchase. Op. Asst. Atty. Gen., 34L.D. 480 (1906).

Whenever it is reasonably necessary forthe preservation of the buildings, works, andother property, or for the proper protectionand efficiency of any reclamation prolec~or where special conditions make it advis-able, first form withdrawn or purchasedlands may be leased to the highest bidderfor a term to be decided upon by the Rec-lamation Service as the conditions may arise.Reclamation decision, March 23, 1917.

On July 8, 1933, the Secretary of theInterior approved the leasing of lands untilthey were needed regardless of the form inwhich they were withdrawn.

Leases for grwing lands should beawarded to the high bidder, even if theprevious lessee of the land is low. Decisiony~3irst Assistant Secretary, January 30,

The Secretary of the Interior has au-thority to lease first and second form with-drawn lands without advertisement, and toprescribe method of determining the leasevalue by such plan as he deems expedientand for the best interests of the UnitedStates and the project. Solicitor Opinion,M–27790 (December 18, 1934).

Both the National Park Service and theBureau of Reclamation, in administeringtheir respective areas withdrawn under thefirst form in connection with the BoulderCanyon project, may grant leases for landand permifi to engage in business activitiesto private individuals without advertisingfor proposals or securing competitive Nlds,

Solicitor Margold Opinion, M-28694 (Oc-tober 13, 1936).

When a lease of grazing lands is canceledfor failure to pay the agreed rental but thelessor stil continues occupancy and latersubmits a bid for a new lease upon the sameland, accompanied by a deposit of the firstyear’s rent under the new lease, it is properto apply such deposit against the indebted-ness to the United States arising out of theold lease. Dec. Comp. Gen., A-58113 (De-cember 3, 1934).

If land under first form reclamationwithdrawal is leased under the Recreationand Public Purooses Act. 43 U.S.C. S 869et seq,, the Secretary may require, as a con-dition of the lease, that the lessee pay theannual water charges for the lands involvedon account of the reclamation project.Memorandum of Associate Solicitor Soiler,in re Worland Saddle Club application,Hanover Bluff Unit, Missouri River BasinProject, September 24Z 1957,

All leases of knds withdrawn for reclamat-ion purposes should be made under sub-section I of the Act of December 5, 1924,as Congress by that subsection recognizedthe authority of the Secretary of the Interiorto lease such lands. First Assistant Secret~Opinion, M-29482 (October 8, 1937),

On February 3, 1928, the Commissioner,Bureau of Reclamation, recommended tothe Secretary of the Interior the adoptionof a policy of permitting the water userson the projects transferred to them foroperation, to lease for grazing and agri-cultural purposes, fll withdrawn or acquiredlands where such lease wouid not interferewith the purposes for which withdrawn oracquired, the water users to make the leases,collect the charges, and handle all details inconnection with such transactions. The rec-ommendation was returned to the bureauwithout approval by First Assistant SecretaryE. C. Finney under date of February 21,1928, with the statement that such proce-dure would be illegal.

32. —Klghts of wayA withdrawal under the Reclamation Act

will not bar the aliowance of an applicationfor right-of-way for private irrigation canalunder the Act of March 3, 1891, over thewithdrawn lands, where the allowance ofthe application will not interfere with theuse of the lands by the United States inconnection with the administration of thereclamation act and where the water pro-posed to be conveyed over such right-of-wayhas not been appropriated and is not claimedby the United States. Boughner v. Magen-heimer, et al., 42 L.D. 595 ( 1913),

The Under Secretaryon December 10,1938, held that the Federal Water Power

46

June 17, 1902THE RECLAMATION ACT—SEC. 3

Act of June 10, 1920, as amended by sec-tion 201 of the Act of August 26, 1935, 49Stat. 838, covers lands held or acquired inconnection with reclamation projects, andapplications for licenses for the transmissionof hydroelectric power across the projectlands should be made to the Federal PowerCommission. Letter of Under Secretary,December 10, 1938, in re Yakima-Sunny.side project.

On December 18, 1941, the Under Sec-retary approved procedure for grantingrights of way for electrical transmission,telegraph and telephone fines over landsacquired or withdrawn for reclamationpurposes.

The General Railroad Right of Way Actof March 3, 1875, 18 Stat. 482, 43 U.S.C.$3934, et seq., does not apply to landswithdrawn through a first-form withdrawal.Southern Pacific Railroad Company,A-26143 (August 20, 1951 ).

33 . —Natiod forestsReclamation withdrawals within the na-

tional forests are dominant, but until neededby the Reclamation Service, the lands willremain for administrative and protectionpurposes under control and direction of theForest Service. Departmental decision,Februarv 27. 1909.

Whfi~ tie’ Secretary of the Interior maydetermine what lands within nationalforests withdrawn for reclamation purposesare necessary for the proper protection ofreservoirs constructed under the Reclama-tion Act, he has no power to lease suchlands, since authority in that regard is spe-cifically granted to the Secretary of Agricul-ture. But in recognition of the needs of theReclamation Service and to forestall anycontracts detrimental to a reclamation proj-ect, dl leases should be subject to the priorapproval of the Secretary of the Interior.31 Op. Atty, Gen. 56 ( 1916). But see Act ofJuly 19, 1919, conferring certain jurisdic-tion on the Secretary of the Interior.

34. —Sand and grave]Removal of gravel from first form lands is

unauthorized, as it contemplates a diminu-tion in the freehold estate. Departmentaldecision, July 21, 1916, Hundey project.

The removal of solace rock on first-forelands may be permitted when such removalmakes available for use of the service of thebetter class of rock in the interior of thedeposit. Departmental decision, January 25,1917, Rattlesnake Hill, Truckee-Carson.

The removal of sand and gravel for pri-vate purposes from land withdrawn underthe first form is authorized, provided theprivilege is granted under competitive con-ditions and on terms adequately protecti~

the rights of the United States. Depart-mental decision, April 13, 1929, BodderCanyon project.

41. Revocation of withdrawal+GenerdlyA homestead entry, which was void when

made, because the land was withdrawn asrequired for reclamation construction, is notvalidated by a subsequent order of theSecretary of the Interior declaring the landnot needed for construction purposes.United States v. Fall, 276 Fed. 622 (App.D.C. 1921).

The Act of April 21, 1928, as amended,provides that the holder of a t= title on areclamation homestead entry is entitled tothe benefits of an assignee of such an entryunder the Act of June 23, 191 O; and theprivileges under the Act of June 23, 1910,which are granted to the holder of a taxtitle under the Act of Aprfi 21, 1928? asamended, are not extinguished by the elimi-nation of the entry from the reclamationwithdrawal after the interest of the holderof the tax title was acquired. Ralph O.Baird, A-26773 (November 3, 1953).

A settlement upon public lands, with-drawn at date of settlemen~, is valid againsteveryone except the Umted States, andwhere one settles prior to survey, upon with-drawn lands embraced wit~ln a school sec-tion, the right of such settler to make entryupon approval of the survey and vacation ofthe withdrawal is paramount to the right ofthe State under its school land grant. Stateof Idaho v. Dilley, 49 L.D. 644 (1923).

Where revocation of order which with-drew land fmm entry in connection withreclamation project under this section, andapProval of selection of patentee of partof such land in Heu of school land weresimultaneous acts, approval of Eeu selec-tion took place before land became “unre-served’ and “vacant” public land, sub-ject to disposal under the Act of May 2,1914, 38 Stat. 372, and gave patentee norights therein except as a~ainst UnitedStates on expiration of period of lti]tationon patent under 43 U.S.C. ~ 1166. Capron;i ~~. Horn, 258 Pac. 77, 201 Cal. 486

‘ - Th~ugh entry on pubfic land wu rsnau-thorized, occupancy at time of revo-tionof order withdrawing land from entry underthis section, became lawful, especially whersoccupant had applied for desert land entry,and made improvements, and land on rev-ocation of ~tithdrawal order ceased to be“vacant” or “unreserved” land under theAct of May 2, 1914, 38 Stat. 372. Ca$ron v.Van Horn, 258 Pac. 77, 201 CA. 486(1927).

In action by patentee to quiet tide againstperson who had possession and made im-

June 17, 1902


provernents while land was withdrawn fromentry under this section, and who had ap-p~ed for desert land entry, evidence wasinsufficient to support finding that defend-ant’s unauthorized Possession was not ingood faith. Capron ~. Van Horn~” 258 Pac.77,.201 Cal. 486 (1927].

Where lands formerly in Ute Reserva-tion. which were withdrawn under this sec-tion: were subsequently restored to publicdomain, the Indians were not deprived oftheir interest therein. Confederated Bandsof Ute Indians v. United States, 112 Ct.Cl.123 (1948).

Lands formerly in the Ute Reservation.listed in the Sec;etary’s return to the call;which were withdrawn for public purposesprior to June 28, 1938, under authority ofthis section, and which remained so with-drawn on June 28, 1938, were held for dis-posal for the benefit of the Indians on thatdate, since under tils section, the landshad not been assigned to use or actua~yused, and had been subsequently restoredto public use. Confederated Bands of UteIndians v. United States, 112 Ct. Cl, 123(1948).

42. —When effectiveWhere lands which have been withdrawn

from all disposition are r~stored to ent~, noappiic?tion wi!l. he received or any rightsrecogmzed as lnltlated by the tender of anaPP~ication for any such lands until theorder of restoration is received at the localland office. Geoyge B. Pratt, et al., 38 L.D.146 (1909).

43, —Contestant’s preference right ofentry

Under the Act of May 14, 1880, 21 Stat.140, providing that where any person hascontested and procured the cancellation ofany homestead entry he shall be allowed 30days to enter the lands, where the Depart-ment of the Interior entertained a contestwhtie the land involved was withdrawn fromentry under the Reclamation Act, it prop-erly permitted the successful contestant toenter the lands witiin 30 days after restora-tion of such lands to entry. Edwards v. Bod-kin, 241 Fed. 931 (D. Cal. 191 7), affirmed265 Fed. 621 (9th Cir. 1920). Accord:McLaren v. Fleische7, 185 Pac. 961, 181Cal. 607 (1919), affirmed 256 U.S. 477( 1921) ; Culpefiper v. Ocheltree, 185 Pac.971 (Cal. 1919), affirmed 256 U.S. 483(1921).

Any right under regulation 7 of June 6,1905, issued by the Secretary of the In-terior, which successful contestant of home.stead -entry on land withdrawn as susceptibleof irrigation might have had, was lost bypromulgation of regulation 6 of January 19,

1909, as land before termination of contestor entry by contestant was witidrawn forirrigation works. Edwards v. Bodkin, 249Fed. 562, 161 C.C.A. 488 (Cd. 1918),overruling 42 L.D. 172; affirmed 267 Fed.1004 (D. Cal. 1919), firmed 265 Fed.621 (9th Cir. 1920), affirmed 255 U.S. 221(1921).

Where it did not appear that a contestwas duly instituted, so as to give the landoffice jurisdiction to determine rights to theland, there being no question of fraud onthe Government, the decision of the land of-fice as to rights to arid land withdrawn afteren~y under this section, but later released,is not binding. Edwards v. Bodkin, 267 Fed.1004 (D. Cal. 1919), affirmed 265 Fed. 621,affirmed 255 U.S. 221.

Where land embraced in a homesteadentry was withdrawn for use in connectionwith a reclamation” project pending a con-test which resulted in cance~ation of theentry, the successful contestant upon restora-tion of the land is entitied to a period of 30days from the date of such restorationwithin which to exercise his preferenceright to entry, Beach v. Hanson, 40 L.D.607 ( 1912) ; Wright v. Francis, et al., 36L.D. 499 [1908).

A successful ~ontestant cannot be per-mitted to make entry in exercise of hispreference right while the lands he seeks toenter are embraced in a first form with-drawal under the Reclamation Act; butunder the regulations of August 24, 1912,41 L.D. 171, and September 4? 1912, 41L.D. 421, he may exercise that right at anytime within 30 days from notice that thelands involved have been released fromwithdrawal and made subject to entry.John T. Slaton, 43 L.D. 212 (1914).

44. —Desert land entriesIn view of this section, section 5 of the

Act of June 27, 1906, as amended, is ap-plicable to a homestead entry, and thefailure of an entryman on arid lands with-drawn under this section to continuouslyreside or cultivate the same cannot, thelands being later released, be deemed anabandonment. Edwards v. Bodkin, 267 Fed.1004 (D. Cal. 1919), affirmed 265 Fed.621, affirmed 255 U.S. 221.

In action to recover real property andquiet title, defendant holding possession ofGovernment land and making improvementsunder application for desert land entry dur-ing pendency of order withdrawing landfrom entry under this section and at andafter time of revocation of such order, wasentitled to land as against patentee whoseselection thereof in lieu of school land un-der Act of May 2, 1914, c. 75, 38 Stat. 372,was approved at time of revocation of order,

48

June 17, 1902

THE RECLAMATION ACT+EC. 3

as defendant in possession and making im-provements became rightful occupant whenland was thrown open to entry. Capron v.~1&27p 258 Pac. 77, 201 Cal. 486

45. +econd withdrawalAll entries of lands withdrawn under the

Act are subject to the conditions imposedby this section, and a revocation of thewithdrawal operates to remove those con-ditions and leaves the entries in the samesituation as entries made prior to the with-drawal, and such conditions cannot, byforce of a second withdrawal, be reimposeduPon such of the entries made during theperiod of the first withdrawal as had notbeen perfected at the date of the secondwithdrawal. Op. Asst. Atty. Gen., 34 L.D.445 (1906).

IL RECLAMATIONENTRIES

51. Recbation entrie+GeneraIlyCongress, in establishing a limitation on

the size of entries on public lands undersection 3 of the Reclamation Act of 1902,and on the maximum acreage. for wK1ch awater-right could be acquired under section5 of that Act, had as its purpose to providehomes on the arid lands of the West. theprevention of land monopoly, and the a~oid-ance of land speculation. Solicitor BarryOpinion, 68 I.D. 372, 378 ( 1961), in reproposed repayment contracts for Kings andKern River projects.

52. —Homestead laws, generallyIn the withdrawd of lands under the

second form there W= an exception in favorof homestead; that is to say, such landswere not withdrawn from public entry un-der the homestead laws, but were continuedto be open to such entry, “subject to all theprovisions, limitations, charges, terms, andconditions” of the Act. Edwards v. Bodkin,249 Fed. 562 ( 1918); affirmed Edwards v.Bodkin 267 Fed. 1004 (D.C.. Cal. 1919);decree affirmed, Bodkin v. Edwards, 265Fed. 621 (C.C.A. 1920); decree affirmed,255 U.S. 221 (1921).

Although an ent~ is made under the pro-visions of the Reclamation Act of 1902, it issubJect to the same requirements as entfiesmade under the homestead laws. Daniel H.Simkins, A–26274 (March 11, 1952).

Entrv of lands within a reclamationproject” can be initiated by settlement. Insection 3 of the Reclamation Act the word“only,” in the provision that “public landswhich it is proposed to irrigate by meansof any contemplated works shall be subjectto entry only under the provisions of thehomestead laws: applies to and qualifies the

clause “under the provisions of the home-s~ad law?’ Cha4man v. Peruier, 46 L.D.113-(1917). -

A homestead entry of a farm unit withina reclamation project, regardless of the areaembraced therein, is the equivalent of ahomestead entw for 160 acres outside of aproject; but in fixing the area that should becharged against the entryman by reason ofsuch entry, under the provision in the Actof August 30, 1890, 26 Stat. 371, that notmore than 320 acres in the aggregate maybe acquired by any one person under. theagricultural public-land laws, the reclama-tion entry should be taken into account atits actual area and not charged as 160 acres.Henry C. Taylor, 42 L.D. 319 ( 1913).

Entrymen on lands expected to be ir-rigated from a reclamation project mustcomply with all requirements of the home-stead laws even though it is impossible tocultivate the land without irrigation fromthe project. Instructions, 32 L.D. 633(1904) ; Jacob Fist, 33 L.D. 257 (1904).

A settler on unsurveyed land in a schoolsection who after survey and after with-drawal of the land under the ReclamationAct as susceptible of reclamation under anirrigation project was permitted to makeentry for the full area of 160 acres, acquiresrights by such settlement and entry whichbar the attachment of any rights to the landon behalf of the State under its school grant.He must, however, conform his entry toa farm unit. Sarah E. Allen, 44 L.D. 331( 1915), modifying Sarah E. Allen, 40 L.D.586 ( 1912) and l~illiam Boyle, 38 L.D. 603(1910).

A homesteader whose entry is within theirrigable area of an irrigation project, butnot subject to the restrictions, limitations,and conditions of the Act, cannot under thelaw, prior to the acquisition of title to theland, enter into an agreement to conwy toa water users’ association any portion of theland embraced in his entry, to be held intrust and sold for the benefit of the home-steader to persons competent to make entryof such lands. Op. Asst. Atty. Gen., 34 L.D.532 (1906).

53. —ResidenceTemporary withdrawal order does not

suspend the requirements as to residence andirrigation until the lands are restored toentry, particularly where the Departmentnotifies entrymen that it does not so construethe withdrawal. Bowen v. Hickey, 200 Pac.46, 53 Cal. App. 250 ( 1921), cert. denied,257 U.S. 656 (1921).

A reclamation homestead entry may becanceled where it is shown that the statuto~requirement of the homestead laws withrespect to the maintenance of residence has

June 17, 1902


not been met. Kind v. Seltiad, 60 I.D. 382(1949).

A homestead entry is subiect to cancella-tion where the en~man has not residedupon the entry for the minimum length oftime required by the homestead law. Visitsof a transitory and temporary characterto a hom~stead entry by tie entryman arenot sufficient to constitute actual residence.United States v. Jesse J. Shaw, A–26247(December 29, 1951 ).

The requirement of the homestead lawthat the entryman must establish residenceon his entry within a maximum period of12 months from the allowance of his entryis not satisfied by clearing and leveling theland and cultivating itj where the entrymanhas lived with his famdy in rented premisesin the vicinity of the entry and has nevereaten, slept, or kept any possessions on theentry. Boyd L. Hulse v. William H. Griggs,A-28288, 67 I.D. 212 ( 1960).

Where an entryman fails to establishresidence on hls entry within 12 monthsfrom the allowance of his entry, the entrymust be canceled. Boyd L. Hulse v. WilliamH. Griggs, A-28288, 67 I.D. 212 ( 1960).

Where an entryman spent most of hiswaking hours upon the homestead, and hada habitable house thereon in which he atesome of his meals, took daytime naps, andentertained visitors, but slept every nightin his son’s home two miles from the home-stead, he was not actually residing upon thehomestead within the meaning of the home-stead laws. Daniel H. Simkirss, A-26274(March 11, 1962).

54. —Preference right of entryA successful contestant in exercising his

preference right of entry upon lands withina reclamation project is limited to one farmunit, although such unit may embrace lessthan the area covered by the entry he con-tested. Joseph F. Gladieux, 41 L.D. 286(1912).

Lands subject to entry within reclamationprojects are no exception to the rule of lawthat an outstanding preference right of entryof certain lands is not, of itself, a bar tosettlement thereupon, the settlement bein~subject, however, to the preference right lfexercised. Cha@man v. Pervier, 46 L.D. 113(1917).

55. —Additional entriesThe right of additional homestead entry

granted by section 6 of the Act of March 2,1889, 25 Stat. 854, cannot be exercisedupon Iands within a reclamation project.Gjerlu~ Harsson, 40 L.D. 234 (1911).

An entry of lands subject to the provi-sions of the Reclamation Act will not beallowed as additional to a prior entry sub-

ject only to the provisions of the generalhomestead law. Charles 0, Hanna, 36 L.D.449 (1908).

A person who has made homestead entryfor any area within a reclamation projectcannot make an additional entry for landsoutside a project. Bert Scott, 48 L.D. 85,87 (1921); see also 48 L.D. 113.

56. —Relinquishment of entryAn applicant who has been granted a

water right in connection with a reclama-tion homestead application for land withina petroleum reseme is entitled, upon with-drawal of the application rather than accepta surface patent, to repayment of the watercharges, where he had no knowledge of thepetroleum withdrawal and the public noticepursuant to which he made payment failedto state that any of the land was within a~[~~4~ Dorsey L. Rouse, 50 L.D. 379

57. —Desert hnd entryA desert entryman whose land is included

within a reclamation project may elect toproceed with the reclamation thereof onhis own account, and thus acquire title toa~l, or so much of, the land included withinh~s entry as he can secure water to irrigateor accept the conditions of the ReclamationAct and acquire title thereunder to 160acres; but he cannot avail himself of boththe reclamation project and other means ofreclamation and thus acquire title to morethan 160 acres of land. Robert J. Slateq, 39L.D. 380 (1910).

58. —Farm units and area of ent~The Secretary of the Interior is em-

powered to fix the limit of area for eachhomestead entry under the same projectaccording to the quality and character ofthe land with reference to its productivevalue, whether the areas of the entries areuniform or not. Instructions, 32 L.D. 237(1903).

Every entry of lands within the limits ofa withdrawal under this Act is subject toreduction to a farm as thereafter establishedby the Secretary of the Interior, and im-provements placed upon the different sub-divisions by the entryman prior to suchreduction are at his risk. Jerome M. Hig-man, 37 L.D. 718 (1909).

Rule applied to reclamation homesteadentries coming within the provisions of theReclamation Act, that when the excess areain an entry above 160 acres is less than thedeficiency would be if the smallest subdivi-sion were excluded, it may be included inthe entry; where it is greater it must beexcluded. General Land Office Instructions,38 L.D, 513 (1910).

June 17, 1902

50 THE RECLAM,4TION ACT—SEC. 3

Where a portion of a homestead entrymade subject to the provisions of the Rec-lamation Act is subsequently eliminatedfrom the project, and the portion remain-ing within the project is designated as afarm unit, the entryman may retain eitherthe farm unit or the portion lying withoutthe limits of the project, at his election, andthe entry will be canceled as to the re-mainder. In view of the equities in this par-ticular case, direction is given that if theentryman so desires the portion of theentry eliminated from the project may beagain brought thereunder and added to thefarm unit with a view to permitting himto complete entry for the entire tract. LaurelL. Shell, 39 L.D. 502 (1911).

A successful contestant in exercising hispreference right of entry upon lands withina reclamation project is limited to one farmunit, although such unit may embrace lessthan the area covered by the ent~ he~~~~d. ]oseph F. Gladieux, 41 L.D. 286

‘ settlement upon any portion of a farmunit entitles the settler to claim, by virtueof such settlement, only lands contained inthat farm unit. McDonald v. Rizor, 42 L.D.554 (1913).

Where an entryrnan of lands wit~ln a rec-lamation project fails, after notice, to con-form his entry to an established farm unit,the Secretary of the Interior has the powerto so conform the entry. Mangus Mickelson,43 L.D. 210 (1914).

Where a farm u~lt which has been sur-veyed without segregation of a railroadright-of-way contains lands on both sidesthereof, disposition of such unit under thereclamation homestead act will be made inaccordance with the survey without anydeduction from the purchase price as todiminution in area caused by the right-of-way, but the water charges will be basedon the irrigable area only. James A. Power,et al., 50 L.D. 392 ( 1924).

Under the Act of June’ 25, 1910, as subse-quently amended, lands reserved for irriga-tion purposes are not subject to settlementor entry until the Secretary of the Interiorshall have established the unit of acreageper entry and announced that water isready to be delivered, and no exception tothe rule can be made in favor of an ap-plicant who seeks to make an additionalentry of such lands in the exercise of a pref-erence right acquired by contest. The priorholding in Henry W. Williamson, 38 L.D.233 ( 1909), that a person holding an orig-inaf homestead entry for less than 160 acrescould be permitted to make additional

homestead entry for land embraced in asecrrnd-fom withdrawal where farm unitshad not been established is no longer appli-cable under the Act of June 25, 1910. BertScott, 48 L.D. 85 (1921) ; see also 48L.D. 113.

59. —Entm’s interestUpon the death of a homestead~r, having

an entry witiln an irrigation proJ ect, leav-ing a widow, and only minor h~irs, his rightmay, under section 2292, Revised Statutes,be sold for the benefit of such heirs. If insuch case the land has been subdivided intofarm units, the purchaser takes title to theparticulm unit to which the entry has beenfimited; but if subdivision has not beenmade, he will acquire an interest in only theland which would have been allotted tothe entryman as his farm unit; in either casetaking subject to the payment of the chargesauthorized by the Reclamation Act andregulations thereunder and free from all re-quirements as to residence and cultivation.Heirs of Frederic C. De Long, 36 L.D. 332(1908).

A homestead entry, wit~ln a reclamationproject, upon which the ordinary require-ments of the homestead laws have been com-pleted, is a property subject to mortgagewhich cannot be defeated by acts of theentryman or his assignee, and such entrycannot be cancelled upon contest in der-ogation of the right of the mortgagee tocomply with the further provisions of thelaw loo~lng to completion of title. Watsonu. Barney, et al, 48 L.D. 325 ( 1921).

Issuance of a patent to a reclamationhomestead entryman is mandatory (assum-ing no pending contest) under the provisoto section 7 of the Act of March 3, 1891,26 Stat. 1095, twoyears after he has com-pleted all requirements for entry, that is,conforms his entry to a farm unit, showsreclamation of one-half the irrigable areaof the unit, assumes the payment of a waterright, pays all the water-right charges whichhave accrued, makes proof of these facts,and pays the required final commissions, forwhich receipt issues. Instructions, 50 L.D.506 (1924).

60.—Rights of wayHomesteaders without patents, but law-

fully in possession of lands withdrawn forirrigation under a reclamation project, maygrant rights of way over their settlementsto a railroad company, and approval of theSecretary of the Interior is not required,Minidoka @ S. W.R.R. Co. v. United States,235 U.S. 211 (1914), reversing 190 Fed.491 and affirming 176 Fed. 762.

June 17, 1902


Sec. 4. [Contracts for construction— Public notice of irrigable lands, limit of

area, charges per acre, and method of pa~ent. ] —Upon the determination bythe Secretary of the Interior that any irrigation project is practicable, he maycause to be let contracts for the construction of the same, in such portions orsections as it may be practicable to construct and complete as parts of thewhole project, providing the necessary funds for such portions or sections areavailable in the reclamation fund, and thereupon he shall give public notice ofthe lands irrigable under such project, and limit of area per entry, which limitshall reprment the acreage which, in the opinion of the Secretary, may bereasonably required for the support of a family upon the lands in question;also of the charges which shall be made per acre upon the said entries, and uponlands in private ownership which may be irrigated by the waters of the saidirrigation project, and the number of annual installments, not exceeding ten,in which such charges shall be paid and the time when such payments shallcommence, The said charges shall be determined with a view of returning to thereclamation fund the estimated cost of construction of the project, and shallbe apportioned equitably: Provided, That in all construction work eight hoursshall constitute a day’s work. (32 Stat. 389; Act of May 10, 1956, 70 Stat. 151;43 U.S.C. $$419,461 )

EXPLANATORY NOTES

Cdlfication. All of the first sentencertilating to contracts for construction andpublic notice of charges, together withthe proviso providing for an eight-hourday, is codified as section 419, title 43of the U.S. Code, with the omission ofthe phrase “in the reclamation fund”,in reference to the availability of funds,and the phrase “not exceeding ten”, inreference to the number of installments.The substance of the second sentence, re-lating to the basis for establishing theamount of the charges, is codified as section461.

1956 Amendment. The Act of May 10,1956, 70 Stat. 151, eliminated the words!ormerl~ at the end of the proviso “and noUongohan labor shall be employedthereon.”

Supplementary Provisions: Time andManner of Repayment. The ReclamationExtension Act of 1914 intended the repay-ment period from ten to twenty years, pay-~ble in one initial installment and fifteen~dditional installments beginning with the;ixth year. Section 46 of the Omnibus Ad-justment Act of 1926 substituted repayment>y an irrigation district for payment by in-dividual water right applicants, and ex-:ended the repayment period to forty years.jection 9(d). of the Reclamation Projectict of 1939 authorizes the Secretary to es-:ablish speciaf rates for an Wltiaf develop-ment period not to exceed ten years beforehe reguIar forty-year repa~ent period

cormnences, and section 9(e) authorizes theexecution of a water service contract in lieuof the forty-year repayment contract, Addi-tionsdIy, a large number of general andspecial acts authorize a moratorium on an-nual payments, amendment of existing con-tracts, extension of the repayment period,waiver of certain charges, variations in tieamount of each annuaf payment, or otherforms of relief.

Supplementary Provision: PresidentialApproval of New Projects. Section 4 ofthe Act of June 25, 1910, 36 Stat. 836, pro-vides that no new reclamation projects maybe started thereafter unless approved bydirect order of the President. The Act ap-pears herein in chronological order.

Supplementary Provisions: Amount ofConstruction Costs Repaid by Irrigators.The original concept of the ReclamationAct was that the projects constructed there-under would serve the single purpose ofirrigation, and the second sentence of sec-tion 4 therefore contemplates that the irri-gators would repay all of the constructioncosts. As the program evolved, however, itwas recognized that other purposes werealso served, and that construction costswould be allocated to these otier purposes.This principle was fomally recognized asgeneral law in sections 9 (a) and 9 (b) ofthe Reclamation Project Act of 1939.

Supplementary Provision: Whhdrawal ofPublic Notice. The Act of February 13,

June 17, 1902

52 THE RECLAMATION ACT—SEC, 4

1911, authorizes the Secretary of the Intc- the large mass of litigation iuvolvin con-nor to withdraw any public notice issued ftract disputes or matters that fall sm er thetheretofore and to modify any water right traditional subject of Government procure-appficationor contract made on the basis ment poficies and contracts. Also omittedthereof. The Act appears herein in chrono-logical order.

are opinions deafing with the eight-hourwork day, as this subject is covered by

Editor’s Note, Annotations. Annotations other statutes of general application to Wof opinions are not included that deal wifi Government agencies.

NOTES OF OPINIONS

Charges 3&45Apportionment 40Collection 43Contracts 37Generally 36Increase 38Items included 39Payment 41Waiver, extension and other relief 42

Construction of projects 1-10Availability of funds 3Discretion of Secretary 2Generally 1Lands, exclusion of 4Status pending completion 5

Public notice 2&35Amendment of 29Generally 26What constitutes 27When required 28

Water service 11-25Carey Act lands 18Conditions 19Goqoratians 12Desert land entries 16Equitable owner of land 17Generally 11Quantity of water 20Reinstatement 21Rentals of water 22Servicemen 14States and other public bodies 13Water users’ association 15

1. Construction of projects—GenerdIyIrri~ation works for the reclamation of

arid and semi-arid lands perfectly and com-prehensively fill the idea of “public worksof the United States?’ 26 Op. Atty. Gen.64 f1906).

This A’ct contemplates the irrigation ofprivate lands as well as lands belonging tothe Government, and the fact fiat a schemecontemplates the irrigation of private aswell as a large tract of Government landdoes not render the project illegal, so as toprevent the condemnation of land necessaryto carry it out. Burlev v. United States, 179Fed. 1,-102 C.C,A. 429 (Ida. 1910), affirm-ing 172 Fed. 615.

Under the authority conferred upon theSecretary by the Act he may, in his dis-cretion, enter into contracts for the con-

struction of irrigation works or constructsuch works by labor employed and operatedunder the superintendence and direction ofGovernment ‘officials. Op. Asst. Atty. Gen.,34 L.D. 567 ( 1906).

The contra~t with the Orchard Construc-tion Company, owners of the stock of theGrand Mesas Company, which had certainrights of irrigation in the Grand Valley,whereby the Government abandoned a cer-tain part of its project and permitted thecompany to consfxuct a private irrigationditch through an area south of the GrandRiver, the company transferring one-half ofits stock to the United States to secure itagainst any claim on the part of the com-pany or its associates for an excessive use ofthe waters of Grand Mver, the stock to bereturned if the United States did not pro-ceed with its Grand Valley project, may beregarded as void, and the stock should bereturned. 27 Op. Atty. Gen. 360 ( 1909).

2. —Discretion of SecretaWThe Secretary of the Interior is not re-

quired to proceed with the construction ofthe Baker project, Oregon, even thoughCongress has appropriated funds therefor, ifhe is unable to find that the project isfeasible and that the costs will be repaid tothe United States, as required by subsec-tion B, section 4, of the Act of December 5,1924, 43 Stat. 702, and section 4 of the Actof June 17, 1902, 32 Stat. 389, and unless acontract has been executed and confirmed asrequired by the Act of May 10, 1926, 44Stat. 479.35 Op. Atty. Gen. 125 ( 1926); 34Op. Atty. Gen. 545 ( 1925). See alscSolicitor’s Opinions dated June 11, 1926:and July 20, 1925.

3. —Availability of fundsThe National Irrigation Act of June 17

1902, gives the Secretary of the Interio:authority to let contracts for the construetion of reclamation works only when “th(necessary funds * * * are available in thfreclamation fund,” and if these funds ar{not available and sufficient, no such authority exists. 27 Op. Atty. Gen. 591 ( 1909).

Regulations authorizing the engineers othe Reclamation Service to enter into contracts with water users or water users’ asso

June 17, 1902


eiations, or with representative committeesof the settl~rs to advance moneys and per-form work m the construction of irrigationworks, certificates to be issued tierefor, re-deemable at face value in part or full pay-ment of the charges against the lands of theholders of the certificates, were unauthorizedby Act of Ju?e 17, 1902, and the Secretaryof the Interior had no authority to enterinto such contracts, and certificates so issued,cannot be used by the original payee ortransferee as a discharge pro tanto of hisindebtedness upon the land, but the cer-tificates are evidence of work performed,and the work may be paid for, as upon aquantum meruit, if the money is availablein the reclamation fund. 27 OP. AtW. Gen.360 (1909).

-.

The obiection raised in 27 0~. Attv. Gen.360, was hot that the money ~ubscr[bed bythe water users’ association was not in thereclamation fund, but that the fund con-templated by the Act of June 17, 1902, wasto be created from the proceeds of the saleof Government land~, and there was noprovision for augmentmg it by private enter-prise, and that the power of the Secretaryof the Interior to let contracts for reclasnd-tion projects was specifically restricted tothe amount of monev available in the recla-mation fund as constituted by law. 27 Op.Atty. Gen. 591 (1909).

There is no statute authortilng the Sec-retary of the Interior to enter int~ contractscontemplating a cooperative plan wherebythe United States enters into an agreementwith a water users’ association, by which theassociation undertakes to perform. certainwork within certain maximum prices, thework to become the property of the UnitedStates upon acceptance? payment thereforto be made by the ‘msoclation in certificatesof work performed, which certificates are tobe accepted by the United States in reduc-tion of charges against particular tracts, asan equitable apportionment thereof. 27 Op.Atty. Gen. 591 ( 1909).

Where necessary canals, latds, andstructures, properly a part of a Federalirrigation system, cannot be constructed bythe United States because funds are notavailable, a landowner may advance theneeded moneys to the United Statesz and hemay be later reimbursed, without interest,by credits upon his water charges as theybecome due. Departmental decision, Octo-ber 8, 1919, Milk River project,

4. —Lands, exchssiou ofUnder this section, articles of incorpo-

ration of Sdt River Valley Water Users’Association an+ its contract with the UnitedStates in construction of the Salt Riverproject, Secretary of the Interior had au-

thority to exclude lands lying wit~ln recla-mation district and to cancel stock of ownersthereof in the association, on determiningthat area of lands included in district wasgreater than could be watered from supplystored and developed by works constructedor to be constructed. Salt Rive? VssZleyWater Users’ Ass’n v. Spicer, 236 Pac. 728,28 Ariz. 296 (1925).

Determination of the Secretary of theInterior, in approving survey board’s ex-clusion of certain lands within Sdt RiverReclamation District, after determiningthat area of land included in District wasgreater than could be watered from sup-ply stored and developed by works con-structed or to be constructed, was not aministerial act, but exercise of discretion,and not subject to review by the courts. Zbid.

Secretary of the Interior’s approvai ofsurvey board’s exclusion of certain landswithin Salt Mver Reclamation District,whose owners had subscribed for stockin association, formed to co-operate withUnited States in construction of the proj-ect, and who had paid all assessmentslevied, until their lands were excluded,after determining that area of land in-cluded in District was greater than muldbe watered from supply stored and de-veloFed by works then constructed or tobe constructed, was valid, since: underassociation’s articles of incorporation andits contract with the United States govern-ment, discretion of Secretary in excludingland was to be based on water to be im-pounded and raised by works specificsdlybuilt or definitely determined to be builtat time of his action. Ibid.

5. 4tatus pending completionDuring the construction of a Government

project the temporary use of the canals ofan irrigation system purchased by the Gov-ernment for conveying to lands water thatwould otherwise be allowed to go to waste,is not incompatible witi the purpose, butis directIy in pursuance of the object forwhich the property was acquired. Depart-mental decision, December 6, 1906.

The Reclamation Service cannot, whileconstruction of a project is in progress, andprior to the laying out of its canals, under-take to reexamine, at the instance of in~l-vidual claimants, particular tracts faflingwithin the project to ascertain whether ornot such tracts are capable of service fromits projected canals. Lewis Wilson, 42 L.D.8 (1913). See also 48 L,D. 153. amendinaparagraph 13 of Generaf Reclamation C;:cuiar of May 18, 1916.

Contracts by a water users’ association toreceive additional subscriptions to stock andto grant water rights were not unauthorized,

June 17, 1902


on the ground that the reclamation projecthad been completed, and that the landsproposed to be taken into the project werenot included in the area fixed and limitedby the Secretary of the Interior, under thissection, where the capacity of the projectto supply water for irrigation had been sub-stantially enlarged, and such contracts hadbeen approved by the Secretary of the In-terior under this section. Bethune v. SaltRiuer Valley Water Users’ Ass’n., 227 Pac.989,26 Ariz. 525 ( 1924).

11. Water servic+GenerallyThe provision in section 5 of the Rec-

lamation Act of 1902 that “no right to theuse of water for land in private ownershipshall be sold” for more than 160 acres meansthat the use of project facilities shall not bemade available to a single owner for serv-ice to more than 160 acres. Sections 4 and5 of the 1902 Act, read together, indicatethat the “sale” referred to is not merelya commercial transaction, but is the con-tract by which the government secures re-payment and the water user obtains bene-fits resulting from construction of thefederal project. Solicitor Barry Opinion, 71I.D. 496, 501 ( 1964), in re application ofexcess land laws to ~rivate lands in Im-perial Irrigation Dist;ict.

It is not optional with an entryman oflands within a reclamation project to takeor refuse water service from the project;but he is compelled to take the water serv-ice and to pay the charges fixed therefor.Mangus Mi.kelson, 43 L.D, 210 ( 1914).

Agreements for the purchase of lands,for water rentals, for conveyance of wa-ter rights, and similar instruments, con-tractual in form, relating to the adjus~entof vested water rights, executed in behalfof the United States by some officer of theReclamation Service for purposes withinthe purview of Act of June 17, 1902, are un-lawful when a member of Congress is aparty to or interested therein. 26 Op. Atty.Gen. 537 !1908).

12. —CorporationsNo applications will be received from cor-

porations on reclamation projects. ThatCongress did not intend that the reclaimedlands upon which the Government is ex-pending the money of all the people shouldbe the subject of corporate contract is con-clusively established by the fact that theSecretary is authorized to fix the farm uniton the basis of the amount of land that willsupport a family. These lands are to bethe homes of families. But existing corpora-tions to which water rights have heretoforebeen granted should be permitted to con-tinue without interference, and in view of

past departmental decisions applications bycorporations pending at this date may beallowed. Departmental decision, July 11,1913, 42 L.D. 250. Pleasant Valley FarmCo,, 42 L.D. 253 (1913).

Religious, edu~tional, charitable, andeleemosynary corporations are exceptedfrom the decision of July 11, 1913. Depart-mental decision, December 5, 1916.

If an individual owns lands for whichhe makes water-right application duly ac-cepted by the United States and the land islater in good faith transferred to a corpora-tion, the corporate owner is entitled there-after to the same treatment as other land-owners on a project. Departmental decision,December 6, 1916, in re The SantaqumLime and Quarry CO., Truckee-carson.

There is no statute which prohibits a cor-poration from taking a reclamation entryby assignment and there would be no objec-tion to accepting the water-right applicationof the corporation in such a case where itsintention is to protect its security in a loantransaction and not to hold and cultivatethe land in com~etition with families. GreatWestern Insura;ce Co., A–16335 (FebmaW8, 1932).

13. —States and other public bodiesAgencies of a State government are en-

titled to become takers of water under areclamation project for the lands benefited.Departmental decision, May 12, 1909.

An incorporated town orgamzed as a cityof the sixth class under the laws of the Stateof California (General Laws, 1909, ch. 7,p. 843) is entitled to make water-right ap-plication on the usual form to secure waterfrom a Federaf reclamation project for ir-rigating and beautifying a small tract of landwhich it owns, located outside the city limitsand occupied by the septic tanks of themunicipality. Departmental decision, July13, 1917, Orland.

14. —ServicemenThe status of one qualified to make water-

tight application under the reclamation actof June 17, 1902 (32 Stat. 388), is notchanged by a temporary service away fromhome in the Army, Navy, or Marine Corpsof the United States, and a water-rightapplication executed by any such person atany point where he may be engaged in theline of duty may be received and approvedif othe~ise found acceptable. Depart-mental decision, December 22, 1917, C.L.720.

15. —Water users’ associationWhere defendants over whose land cer-

tain irrigation ditches belonging to a gov-ernment irrigation project were located

June 17, 1902


became m;mbers of a water. users’ asso-ciation which owned the project prior toits incorporation in the government .wo.rk,and one of the by-laws of the associationprovided that such rules and regulations asthe Secretary of the Interior might pro-mulgate relating to the administration anduse of the water should be binding on thestockholders of the association, and theSecretq put into effect certain rules pro-hibiting water users from cutting the banksof any canals or laterals and from takingwater therefrom except at places designatedby the gove~nment, defendants wereestopped to clam the right to break downthe bmks of a lateral ditch and take watertherefrom at a point not so designated, onthe ground that, because they owned thefee in the soil of the ditch, they were en-titled to take water at whatever point theydesired. United States v. Bunting, 206 Fed.341 (D. Ore. 1913).

Where a water users’ association orga-nized for the purpose .of guaranteeing pay-ment of the construction cost of a Federafirrigation project, having executed a con-tract with the United States for that pur-pose, makes assessments against its mernhemto raise a fund with which to conduct litiga-tion to avoid paying project costs, ~heLTnited States will not assist the associ?t?onin collecting such assessment by requlrmgprospective water users to show as a con-dition precedent to acceptance of waterright applications that such assessmentshave been paid. Departmental decision,May 4, 1918, Boise.

Subscriptions to water users’ associationstock were construed in Michelson v. Mil-ler, 26 P. 2d 378 (Idaho 1933) which out-lines the history of the Payette-Boise WaterUsers’ Association, Boise project. Michels-on was the receiver of the association andbrought actions against various stockholdersof the association to foreclose liens. createdby assessments under stock subscription con-tracts to meet corporate expenses (not in-debtedness to the United States). The de-fendants had refysed to sign. the “courtform” of water-right application contractprescribed as a result of Payette-Boise WaterUser< Assn. v. Cole, 263 Fed. 734 (D. Idaho191 9) and alleged that by so doin= theyhad lost their s~atus as stoekholders~ Thiscontention was not sustained, and the lienswere enforced, together with deficiencyjudgments where the land failed to sell forsufficient to pay the assessments.

16. —Desert land entriesLands held by virtue of a desert-land entry

are held in private ownership within themeaning of the act, and the entryman or hisassignee is entitled to the same rights and

privileges and is subject to the same condi-tions and fimitations, so far as right to theuse of water is conccrne~, as any otherowner of lands within the lrrigable area ofan irrigation project. Instructions, July 14,1905, 34 L.D. 29. [See Act of June 27, 1906,34 Stat. 519.]

17. —Equitable owner of bndPersons holding contracts to purchase

lands from a Sta~e, on deferred payments, noconveyance of title to be made to the pur-chasers until full payment, are entitled, ifnot in default and their contracts are ingood standing, to subscribe for and purchasewater rights under the reclamation act forirrigation of such lands, subject to the pro-visions and limitations of that act. Instruc-tions, September llY 1911, W L.D. 270.

18. —Carey Act landsIndividual owners of lands acquired under

the provisions of the Carey Act may be sup-plied with such additional water from reser-voirs constructed under the reclamation actas may be necessa~ to fully develop andreclaim the irrigable po.r~ions of such lands,subject to all the conditions governing theright to the use of water under any particu-lar project. Op. Asst. Atty. Gen., 35 L.D.222 (1906).

19. —ConditionsThe provision in the form for water-right

appl~cation by private landowner requiringappllca.nt to agree t? grant and convey tothe Uruted States, or Its successors, all neces-sary rights of way for ditches, canals, ~tc.,for or in connection with the project, IS aproper requirement warranted by the spiritand intent of the reclamation act, and anapplicant for water right will be requiredto conform thereto as a condition to allow-ance of his application. C. M. Kirkpatrick,42 L.D. 547 (1913).

The provision ~n the form of water-rightappllcatl?n by. private landowner requiringhlm to bmd himself not to convey the landwluntarily to any person not qualified underthe reclamation law to purchase a waterright, upon condition that the applicationand any “freehold interest;’ sought to beconveyed shall be subject to forfeiture, is areasonable and proper requirement, and anapplica~io? from wtilch such provision hasbeen ehmmated wII1 not be accepted. Ibid.

The provision i.n the form of water-rightappl:catlonby privatelandowner requiringappllcant to agree that the Umted States,or Its successors, shall have full control overall ditches, gates, or other structures ownedor controlled by applicant and which arenecessary for the delivery of water, is in ac-cordance with ‘departmental regulations, andbeing a necessary incident to the proper

June 17, 1902


management and operation of the projectby the United States or its successors, isimpliedly authorized by the reclamation act,and a water-right applicant wifl be requiredto conform thereto. Ibid.

Whatever may be the extent of the dis-cretion of the Secretary of the Interior inthe case of a reclamation project, wherethe charge for water and conditions ofpurchase are announced in advance of con-struction as required by statute, he couldnot exercise unlimited power to deter-mine the conditions on which water wouldbe supplied, where the project was con-structed under the mutusd understandingthat landowners might procure water bypaying their ratable proportion of the costof construction and submitting to othereaual and reasonable conditions. Pavette-B~ise Water Users’ Ass’n v. Cole, 263 F: 734.(D. Idaho 1919).

20. —Quantity of waterAn application for water for land in a

reclamation project, providing that themeasure of the water right was that quantityof water which should be beneficially usedfor irrigation, not exceeding the share pro-portionate to irrigable acreage of the wateravailable as determined by the project man-ager or other proper officer during the irri-gation season for the irrigation of landsunder the land unit, did not authorize theproject manager or other officer to decidewhether a landowner needed water, butonly to determine the amount of water ac-tually available, but was too indefinite, andlandowners could not be required to executeit as a condition of obtaining water. Payette-Boise Water Users’ Association v. Cole, 263Fed. 734 (D. Idaho 1919).

21. —ReinstatementWhere a water-right application for land

held in private ownership has been canceledfor default in payment of building, opera-tion, and maintenance charges, such appli-cation may be reinstated upon fdl paymentof Al accrued charges. Departmental deci-sion, April 3, 1916,45 L.D. 23.

22. —RentA of waterWater in irrigation canals constructed and

operated under the reclamation act, whichh= not become appurtenant to any landand is not needed for irrigation?, may betemporarily disposed of by lease, m the dis-cretion of the Secretary of the Interior, theproceeds to become a part of the reclamationfund. Alhambra Brick @ Tile Co., 40 L.D.573 (1912).

As an emergency measure to save growingcrops, the director is authorized to supplysquatters upon withdrawn lands under the

reclamation projects with water on a rentalbaais, pending decision as to their rights tothe land, subject to the provision that watershall be furnished only to such settiers asfile a certain designated application therefor.Department decision, May 27, 1912.

Lands too rdkaline to produce profitablecrops may be’ supplied with water for anominal rental, in order to encourage wash-ing the alkali from the soil. Departmentaldecision, March 29, 1913, C,L. 88.

26. Public notic~enerallyThe requirement of this section, that the

cost of a project shrdl be estimated andapportioned before construction, may bewaived by setders and the Secretary ofthe Interior, and was waived where therewas no formal compliance with such re-quirement and dl parties understood thatultimately the settiers would reimbursethe government for its actuaf and neces-sw outlay. Payette-Boise Water User<Assn. v. Cole, 263 F. 734 (D. Idaho 1919).

The determination by the Secretary ofthe Interior of the practicability of a projectand the making of the canstructian contractsare conditions precedent to the estimateof Gost and the public mtice, under thissection. Yuma County Water Users’ Assn. v.Sch[echt, 262 U.S. 138 (1923).

Though there was a substantial and ma-terial difference between preliminary engi-neering estimates of the cost of an irrigationproject and a later estimate, the courts willnot interfere,. in the absence of some sub-stantial showing that the action of the Sec-retary of the Interior in publishing noticeof charges based on such original estimateswas fraudulent or arbitrary or so erroneousas to justify an inference of illegality orwrongdoing, especially where the increaedcost was due to unexpected physical difficul.ties, higher wages, change of plans, in-creased mileage of canals, etc. Yuma CountyWater Users’ Assn. v. Schlecht, 275 Fed. 885\~t~3~ 1921), affirmed 262 U.S. 138,----, .

A pubfic notice by the Secretary of theInterior, specifying lands for wtilch waterwould be furnished under an irrigationproject, the classes of charges themfor, andthe construction charge as $75 per acreof irrigable land, payable in installmentsas enumerated, was in accord with tKlssection, authorizing the SecretaW to givepublic notice of the number of annual in-stallments, to be determined with a view ofreturning to the reclamation fund the “esti-mated cost” of the project, by which ismeant, not the actual, exact final sums paidfor construction, but such sums as it is be-lieved after careful computation will coverthe expenses directly and fairly connected

June 17, 1902

THE RECLAMATION ACT—SEC. 4 5?

with the construction of the project. YumaCounty Water User< Assn. v. Schlecht, 275Fed. 885 (9th Cir. 1921). affirmed 262ti.S. 138 (1923). “-

The Secretary of the Interior has no gen-eral statutory authority to suspend, eventemporarily, public notices issued by hlmpursuant to section 4 of the Act of June 17,1902, of lands irrigable under reclamationprojects, nor does he possess supervisorypower to do so in the absence of a specificstatute authorizing it. Shoshone Irrigationproject, 50 L.D. 223 ( 1923). [But see Actof February 13, 1911, 36 Stat. 902, author-izing the Secretary of the Interior to with-draw public notices issued under section 4of the Reclamation Act.]

Contracts by water users’ association toreceive additional subscriptions to stock andto grant water rights were not unauthorized,on the ground that the reclamation projecthad been completed, and that the lands pro-posed to be taken into the project were notincluded in the area fixed and limited bythe Secretary of the Interior, under ~hissection. where the capacity of the proJectto supnly water for irrigation had been sub-stantially enlarged, and such contracts hadbeen approved by the Secretary of the Inte-rior under the Act of Februaq 13, 1911.Bethzne v. Salt River Valley Water Users’Assn., 227 P. 989,26 Ariz. 525 ( 1924).

Under date of July 31, 1929, the depart-ment approved a reoomrnendation of thecommissioner, Bureau of Reclarnati.on,@the effect that a new entryman t~mg upland under the Belle Fourche project wherea prior entry has been canceled after pay-ment of only one construction charge install-ment. would be reauired at the time ofmakl~g entry to paysuch first installmentand the remaining installments would becollect ed by the irrigation district under itscontract with the United States. TKIS plandispenses with a public notice.in cases wherea district has assumed the obhgation of pay-ing charges at fixed rates.

27. —What constitutesThis section contemplates a precise and

formal pubfic notic~, stating the lands irri-gable under a prolect, the Emit of areafor each entry, the charges per acre, thenumber of annual installments, and thetime when uavmen~ shafl commence. YumaCounty W~te~ User~ Assn. v. Schlecht, 262U:S. 138 (1923).

“Preliminary, tentative opinions of the costof constructing projected irrigation works,expressed by govertient engineers and of-ficials in official correspondence and instatements at a meeting of prospectivewater-users, do not constitute the estimateof cost, or the public notice, required by this

267–06 7+72 —vol. I— 7.

section, and, though relied upon by thewater-users m subjecting their lands to theproject, do not bind or estop the governmentfrom afterwards fixing the constructioncharges against the lands pursuant to thissection, in accordance with a higher esti-mate arrived at in the light of further inves-tigation and experience. Yuma CountyWater Users’ Assn. v. Schlecht, 262 U.S.138 (1923).

Under this section, correspondence be-tween the Secretary Qf the Interior and of-fitials of the Reclamation Service. relativeto estimates of the cost prior to the date ofa contract between the landowners and theUnited States, for the payment thereofcould not be regarded as a public notice tothe former, nor as binding on the Govern-ment. Yuma County Water Users’ Assn. v.Schlecht, 275 Fed. 885, (9th Cir. 1921),affirmed 262 U.S. 138 (1923).

28. —When requiredThe time within which the notice may be

given, after determination of the practica-bility of the project and the making of con-struction contracts, is left to the sounddiscretion of the Secretary; and he maydelav the notice while the auestion of costrem~ins in doubt. Yuma ‘County WaterUsers’ Assn. v. Schlecht, 262 U.S. 138{ ~~?~ ), affirming 275 Fed. 885 (9th Cir.lYLIJ.

The time of giving public notice ofcharges under section 4 of the ReclamationAct after the letting of the contracts is leftto the discretion of the Secretary of theInterior, and notice might reasonably bedelayed until the completion of the project.Moreover, when a contract fixing theamount and terms of payment of instruc-tion costs is entered into with an irrigationdistrict pursuant to the Act of May 15,1922, there was no purpose to be sewed byissuing the public notice. Lincoln Land Co.v. Goshen Irr. Dist., 42 Wyo. 229, 293 Pac.373,376, 378–79 ( 1930).

29. —Amendment ofWhere after application for water rights

for the irrigable area of a farm unit, underthe terms and for the acreage fixed in thepublished notice, a second notice is givenshowing an increased irrigable area in thefarm unit and fixing a different rate peracre, the applicant is entitled to completepayment for the area originally fixed at therate specified in the first notice, but as towater right for the additiona 1 irrigableacreage shown by the second notice, he willbe required to pay at the rate fixed in thelatter notice, Walter L. Minor, 39 L.D. 351(1910).

Upon the issuance of public notices pur-

June 17, 1902

58 THE RECLAMATION ACT+EC. 4

suant to section 4 of the Reclamation Act ofJune 17, 1902, the construction chargesspecified in the notices become fixed chargesagainst the lands, and the acceptance andapproval Of water-right applications in asense create a contractual relation betweenthe applicants and the United States forthe payment of the charges by the waterusers and the furnishing of irrigation waterby the Government &at cannot be changedexcept with the oonsent of both parties.~~~2~)ne irrigation project, 50 L.D. 223

36. Charg-enerdlyThe Department of the Interior is with-

out authority to charge interest on the re-turn of costs allocated to irrigation becauseCongress h= not specifically autborbedsuch charge. Letter of Acting CommissionerLineweaver to Mr. William A. Owen, Feb-ruary 12, 1952.

The SecretaV of the Interior can ordymake such charges to reimburse reclamationfund for construction of a project as areprovided for in this section. Fox u. Ickes,137 F.2d 30, 78 U.S. App. D.C. 84 (1943),cert. denied 320 U.S. 792,

The practice of the department in finga definite charge per acre in each projectto cover this cost of construction, and toassess annually a specific amount per acrefor operation and maintenance, collectingthe same from the landowners, is correct.27 Op. Atty. Gen. 360 (1909).

Settlers on lands within an irrigationproject, with the understanding that watershall be supplied to their lands and thatthe cost of the works wfll be assessed againstthem, are not concluded by the decision ofthe Secretary of the Interior as to what theirinterest in the works shall be nor as to whatsum shall be assessed against their lands forcost of construction, but have rights whichmay be judicially determined. Payette-Boise Water Users’ Assn. v. Bond, 269F. 159 (D. Idaho 1920).

In decision A–32702, of September 14,1935, the Comptroller General held that thereclamation fund could not be reimbursedfor expenditures made over a period ofprior years for surveys and investigations ofthe All-American canal, California, as theallotment for construction of this canaf wassecured under the N. I. R.A., an emergencyrelief measure to quickly increase employ-ment, and that most of this preliminary workseemed to be general investigations charge-able only to the reclamation fund.

The revolving fund features of section 4are not applicable to nonreimbursable fundsexpended in connection with a reclamationproject (Deschutes project). Letter of Act-

ing Attorney General to Secretary of theInterior, September 7, 1937.

In letter dated February 18, 1918, theUnited States Commissioner of InternalRevenue holds that payments covering theconstruction charges on Federd reclama-~ion projects are not allowable deductions inincome-tax returns as the water rightssecured by the payment of such charges areperpetual in nature, and the amount sopaid should be added to the capital invest-ment in order to determine the gain or lossresulting from the transaction upon sub-sequent disposaf of the land and waterrights, As to the operation and maintenancecharges the commissioner holds them to bean ?rdinary and necessary expense of doingbusiness, and that the amounb so paid aredeductible in the income-tax returns.

In case the actual cost of a reclamationproject exceeds the estimated cost of con-struction,. it is the duty of the Secretary ofthe Interior to revise the estimate and makethe charges sufficient to reimburse the rec-lamation fund for the cost of construction.Mangus Mickelsen, 43 L.D. 210 ( 1914).

37. —ContractsWhere a reclamation project was con-

structed with the mutual understanding thatsettlers would reimburse the Governmentfor the actual outlay, and contracts hadbeen made to supply irrigation districtsand others with water, settlers were en-titled to some authoritative description ofthe property to which their rights related,and a definition of the extent of their in-terest in the project, before they could berequired to pay and to have from an author-itative source and of record a declarationof the cost of the project and of the por-tion of wtilch it was intended they shouldbecome the beneficial owners, and could berequired to pay the cost only of such por-tion of the works, or such interest thereinas was set apart for the use of their lands.Payette-Boise Water Users’ Assn. v. Cole,263 F. 734 (D. Idaho 1919).

Where instead of estimating and appor-tioning the cost of a reclamation ~roiectbefor~ construction, it was mutually ‘un~er-stood that the setflers would reimburse theGovernment for the actual cost, they werechargeable with the actual cost onl~, andthe Secretary of the Interior was withoutdiscretion in fixing the charge, the actualcost of the project being a matter for judi-cial investigation and determination.Payette-Botie Water Users’ Assn. v. Cole,263 F. 734 (D. Idaho 1919).

Under a ~ontract by which the gover-nment took over the canal system of an ir-rigation company for the purpose of in-corporating it in a larger government

June 17, 1902

THE RECLAMATION ACT-EC. 4 59

project, and providing that “an equitableproportion of the cost of maintaining andoperating the system of irrigation workswhich may be constricted by the UnitedStates on the south side of the Boise Va-lley, as may be determined by the Secre-tary of the Interior, shsdl be paid to theUnited States by the holders of saidcertificates of stock,” the fact that duringthe construction of the government projectthe manager made charges for water fur-nished such stockholders on a differentbasis d~d not affect the right and dutyof the Secretary, after completion of theproject, to make the apportionment as ex-pressly provided in the contract. New YorkCanal Co. v. Bond, 273 F. 825 (D. Idaho1921).

Where a contract between a water users’associationand the United Statesprovidesthat the associationwill promptly collector require payment for that part of thecost of a reclamationproject which shtibe apportioned by the Secretaryof theInterior to its shareholders,and also thatpaymentsfor the water rights will be madeand enforced by proper means, the factthat the cost is greater than was estimatedcannot be urged as a ground for equitablerefief, Yuma ~oursty Water users’ Assn. v.Schlecht, 275 F. 885, (9th Cir. 1921), af-firmed 262 U.S. 138 (1923).

38. I— ncreaaeUnder tKIs section, the cost is to be es-

timated and apportioned before construc-tion, and in case of settlement under suchconditions the price cannot be later in-creased though the published estimate isinsufficient to cover the actuaf cost. Payette-Boise Water Userti Assn. v. Cole, 263 F. 734(D. Idaho 1919).

Where the Secretirv of the Interior inthe exercise of his dis~tion withdrew cer-tain hinds from an irrigationproject andconfined it to the area described in thepubfic notice to the landownersfiected,the latter, who contractedto pay for thatpart of the cm,t which should be appor-tioned to themby the Secretary,could notrestrainthe local reclamationofficersfromturningoff the water for failure to pay anassessmentin excess of the original esti-mateand of theactuafvafueof workto beconstructed,on the ground the system wasnot completed when the suit was fled.Yuma County Water UserY Assn. v.Schlecht, 275 F. 885 (9th Cir. 1921),affirmed 262 U.S. 138 (1923).

Action to enjoin the Secretary of theInterior from carrying out his intention asexpressed in notice, to make charge forwater distributed to land which was overand above amount determined to be within

obligations of contract signed by waterusers’ predecessors in interest, was notrendered “moot” by Secre~s revocationof notice, where Secretary stilI intended toimpose such charge. Fox v. Ickes, 137 F. 2d30, 78 U.S. App. D.C. 84 ( 1943), cert.denied 320 U.S. 792.

Where a new reservoir was constructedinviolation of the provisionsof reclamationlaw regardingconstructioncharges,wateruserswereentitledto injunctionrestrainingSecretaryof the Intersor from imposmgrend charge on any water which Secre-tary determinesmight be used on plaintiffusers’ land, in order to pay constructioncosts in tie reservoirsystemof the projectabove the constructionchargeauthorizedlyfixed. Fox v. Ickes, 137 F. 2d 30, 78 U.S.App. D.C. 84 ( 1943), cert. denied 320Us. 792.

39.—Items includedThe United States may assess operation

and maintenance charges against waterusers as well as construction charges. Tohold otherwise woufd greatiy deplete, if notentirely consume, the Reels mation Fund,thus diverting the proceeds of the publicdomain to the payment of local expenses.This interpretation of the Reclamation Acthas been recognized by Congress. Swigart v.Baker, 229 U.S. 187 (1913).

The purpose of t~ls Act is to encouragethe settlement and cdtivation of publiclands, and it contemplates that such landsmay be entered on as soon as the irrigationsystem is so far completed that water maybe furnished thereon for irrigation pur-poses; and when the act empowers theSecretary of the Interior to fix and deter-mine the charges against the land, it musthave intended that he should cover tie costof maintenance and operation wtie in con-trol of the United States as wdl as construc-tion. United States v. Cantrall, 176 F. 949(G.C. Ore. 1910).

The provision’ in forms for the water-tight applications requiring payment by ap-plicant of “betterment” or maintenancecharges is a proper requirement under thereclamation laws, and tie fact that at thetime entry was made there was no specificmention of “betterment” charges in thewater-right application forms then in usewill not relieve the entrysnan from paymentof betterment charges legally assessedagainst his land. C. M. Kirkpatrick, 42 L.D.547 (1913).

The cost of drainage work done for thebenefit of lands in the project, or to protectother lands from conditions resufting fromthe construction and operation of the proj-ect, was chargeable against the project

June 17, 1902


lands. Payette-Boise Water Users’ Assn. v.Cole, 263 F. 734 (D. Idaho 1919).

While administrative mpenses of thereclamation service, such as s~ries of theadministrative officers and of those whoassisted them in the performance of admin-istrative duties, are. not chargeable as partof the cost of a proJect, the cost of servicesrendered to that particular project, such asthe keeping of its accounts, preparation ofengineering specifications, or purchasingand forwardingsupplies,whethersuchserv-ices are renderedat the place of the proj-ect or elsewhere,or for such project doneor in connectionwith others,in such caseprorative,is properlychargeableas a Partof its cost.Payette-Boise Water User< Assn.v. BOnd, 269 F. 159 (D. Idaho 1920).

The full amount of the claim of a con-tractor on an irrigation project, which isbeing contested by the Government in beCourt of Claims, cannot properly becharged to the settlers as a part of the costof the project. “It is a matter of commonknowledge that such $laims are usuallysusceptible to compromise and adjustment,and if the settlers are to be charged witha specific amount, the best settlement pos-sible should have been made. * ~ * If thereclamation officials and the plaintiff can-not agree as to the proper amount to becharged on account of the contingentliability, or if a settlement agreeable to allparties cannot be made with the claimants,the fdl claim should be permitted to standas a charge only upon condition and withthe understanding that, in case the Gov-ernment is successful in defeating it,appropriate credit be given the settlers.”Payette-Boise Water Users’ Assn. v. Bond,269 F. 159 (D. Idaho 1920).

40. —ApportionmentWhere the irrigable area of a legal sub-

division embraced in an entry within areclamation project is shown on the duly ap-proved farm-unit plat to be greater than theentire area of such Iegsd subdivision shownon the prior township plat, applications forwater rights and payments therefor shouldbe made on the basis of the actual irrigablearea, and not on the basis of the acreageshown on the township plat. ]. E. Enman, 40L.D. 600 (1912).

An applicant for water rights under areclamation project is required to pay forwater for the entire irrigable area of hisentry as shown on the plat upon wKlch theconstruction charges were apportioned; andwhere mistake in the plat is alleged as tothe irrigable area of the entw, applicationfor correction thereof should be made to the

local officer of the Reclamation Service.Williston Land Co., 39 L.D. 2 ( 1910).[But see Regulations for Minidoka project,approved March 6, 1916.]

No deduction from the irri~able areasubject to water charges will be made “on ac-count of easements for Klghways or irrigat-ing ditches. Williston hnd Co., 39 L.D. 2( 1910). [But see Reclamation CireufarLetter No. 569, July 11, 1916.]

The Reclamation Act provides that thecost of the project shall be imposed upon theland benefited equitably, which is to sayratably. No authority exists in the Reclama-tion Act, either in express terms or bynecessary implication, that some of the landsbenefited might be required to contributeone sum and other lands a greater or lesssum., for such rule of apportionment wouldbe inequitable and not ratable. Op. Asst.Atty. Gen., October 25, 1910, In re PresserFalls L. @ P. Co. (Yakiia) ; WillistonLand Co., 37 L.D. 42a. [But see Op. Atty.Gen., May 1, 1911 (Lower Yellowstone),with accompanying papers, in effect to thecontrary.] - - -

Where landowners within a reclamationproject outside of an irrigation district arecharged $aO per acre, while those within thedistrict are charged only $70, because of thepossibility that all those outside the districtwill not take water, those paying such higherprice are entitled to the additional servicefor which they pay, and if seven-eighths ofthe acreage takes water, they are entitled tothe water rights for the entire acreage.Payette-Boise Water Userd A.ssn. v. Cole,263 F. 734 (D.C. Idaho 1919).

In computing the acreage on which thecost of an irrigation project was to becharged, a general deduction from thelands within the limits of the project of10,000 acres, because it was “estimated”that such quantity would prove incapableof irrigation, because rough or sandy orfrom seepage, was not justified, where noland was described and excluded, and afllands within the project were equally en-titled to water if demanded, and wherespecific tracts had already been excludedas non-irrigable. ~ayette-Boise Water Users’Assn. v. Bond, 269 F. 159 (D. Idaho 1920).

41. —PaymentA successful contestant of an entry with-

in a reclamation project will be required, inmaking entry in exercise of his preferenceright, to pay the building charge obtainingat the time his application is filed, and is’not entitled to the rate in effect when theformer entry was made nor to credit forthe payments made by the former ent~-,

June 17, 1902


man. Henry A. Schroeder, 40 L.D. 458(1912).

Where after entry of a farm unit withina reclamation project the farm-unit plat isamended and the entryman in conforminghis entry to the amended pIat retains onlypart of the land originally entered he isentitled to have the payments theretoforemade on account of building charges andon account of the Indian price for the landcredited to the retained portion, but is notentitled to have the payments on accountof operation and maintenance so credited.Eugene F. Windecker, 41 L.D. 389 ( 1912).

There is nothing in the act to prohibit agraduated scale of the annual payments re-quired of users of water from projects con-structed thereunder, and in all cases whereit is deemed advisable this plan of paymentmay be adopted. Instructions, August 16,1905, 34 L.D. 78.

42. —Waiver, extension and other reliefWater may be furnished without opera-

tion and maintenance charge for theirrigation of the grounds about countryschoolhouses upon reclamation projects, De-partmental decisions, January 11, 1912, andOctober 24, 1919.

When the Secretary of the Intezior hasfixed the number of installments to be paidfor a ,water right and the time of payment,he is without authority to suspend paymentof same in case the alkali has risen to thesurface of the soil and interfered with tiecrop returns from the land. Departmentaldecision, In re Sam Hammond (Truckee-Carson), September 24, 1909. See regula-tions of the Secretary, August 11, 1915,governing extension of relief to water userswhose lands are temporarily affected byseepage, alkafi, etc., to such an extent as torender them impracticable of profitableCultivation.

Water cannot be furnished from a rec-lamation project to a State experiment‘farm free of charge. Departmental decision,September 15, 1909, In re Zdaho StateExperiment Farm.

The relinquishment of a homestead en-try within the irrigable area of an irrigationProject, where the eutryman is in defaultin the payment of any annual installment,does not refieve the land of such charge,and a succeeding entryman takes it subjectthereto. Instructions, July 16, 1906, 35L.D. 29.

Except where specifically authorized bylaw, the Secretary of tie Interior is not em-powered to grant extensions of time, eitherdirectly or indirectly, for the payment ofcharges accruing from individud water

users upon reclamation projects. Shoshoneirrigation project, 50 L.D. 223 ( 1923).

43. <ollectionA corporation with wtilch, as the rep-

resentative of its shareholders, who areparties accepted by the United States asholders of water rights in a project underthe Reclamation Act of June 17, 1902, theUnited States makes a contract for thebenefit of such shareholders relative to thesupply of water to and the dues to be paidby the shareholders, and which covenantsin the contract to collect dues for theUnited States and guarantees the paymentthereof, is a proper party plantiff in asuit to enjoin officers of the United Statesfrom collecting unlawful charges from theshareholders, turning the water from theirlands, and canceling their wawr rights andhomestead rights because they faii to paysuch charges. Magruder v. Belle FourcheValley Water Users’ Assn., 21g F. 72, 133C.C.A. 524 (8th Cir. 1914).

A suit was brougbt by the United Statesin the Wyoming Federal District Court torecover maintenance charges, includingcharges for 1922, 1923, and 1924. The de-fendant had failed to pay charges for prioryears or for the years 1922 to 1924, and thewater had been shut off. Defendant” main-tained that for 1922, 1923, and 1924 hedid not receive water, and therefore that forthese three years he could not be chargedfor the use of it. The court tied that theSecretary, being authorized to make’ rulesand regulations for the government of irri-gation projects, and fix maintenancecharges, providing the manner in whichthey shall be paid, the obligating of the de-fendant became fixed and definite and isrecoverable in an action brought for fiatpurpose. United States v. Parkins, 18 F. 2d643 ( 1926), Wind River (Indian) project.

Where the Secretary of the Interior inthe exercise of his discretion withdrew cer-tain land from an irrigation project andconfined it to the area described in thepublic notice to the lando~ers affected,the latter, who contracted to pay for thatpart of the cost which should be apportionedto them by the Secretary, could not re.strain the local reclamation officers fromturning off the water for failure to pay anassessment in excess of the original estimateand of the actual value of work to be con-structed, on the ground that the system wasnot completed when the suit was filed.Yuma County Water Userf Assn. v.Schlecht, 275 F. 885 (9th Cir. 1921),firmed 262 U.S. 138 (1923).

June 17, 1902


Sec. 5. [Reclamation requirements for entrymen-No water for more than160 acres of private lands in one ownershipResidence of landowner-Receiptsto reclamation fund. ]—The entryman upon kds to be irrigated by such worksshall, in addition to compliance with the homestead laws, reclaim at least one-half of the total irrigable area of his entry for agricultural purposes, and beforereceiving patent for the lands covered by his entry shall pay to the Governmentthe charges apportioned against such tract, as provided in section 4. No rightto the use of water for land in private ownership shall be sold for a tract exceed-ing 160 acres to any one landowner, and no such sale shall be made to anylandowner unless he be an actual bona fide resident on such land, or occupantthereof residing in the neighborhood of said land, and no such right shall per-manently attach until all payments therefor are made, All moneys received fromthe above sources shall be paid into the reclamation fund. (32 Stat. 389; $1,Act of December 16, 1930, 46 Stat. 1029; $8, Act of September 6; 1966, 80Stat. 639; 43 U.S.C. $$392,431, 439)

EXPLANATORY NOTES

Codification. So much of the first sen-tence as states the requirement for an entry-man to reclaim one-half of the irrigable areafor agricultural purposes is codified in sec-tion 439, title 43 of the U.S. Code. Thesecond sentence is codified as section 431,and the last sentence as section 392.

1966 Asnendsnenti Commissions. Section8 of Public Law 89–554, the Act of Sep-tember 6, 1966, 80 Stat. 639, repealedwhat was originally the fifth and last sen-tence of the section, which read as follows:“Re@sters and receivers shall be allowedthe usual commissions on dl moneys paidfor lands entered under this act.” The sen-tence was previously codified as section 381,title 43 of the U.S. Code. Public Law 89-554 codified title 5 of the U.S. Code re-lating to Government Organization andEmployees.

1930 Amendment Payment and For-feiture. Seetion 1 of the Act of December 16,1930, 46 Stat. 1029, repealed what wasoriginally the tilrd sentence of the sectionwhich read as follows: “The ann:af in-stallments shall be paid to the receiver ofthe local land office of the district in whichthe land is situated, and a failure to makeany two payments when due shall renderthe entry subject to cancellation, with theforfeiture of dl rights under this Act, aswell as of any moneys already paid hereon.”The sentence was previously codified as

section 476, title 43 of the U.S. Code. Thefirst part of the sentence was superseded bysection 4 of the Act of August 9, 1912, whichauthorized the Secret~ to designate fiscalagents to whom shall be paid sums due onreclamation entries and water nghfi. Thelast part of the sentence, relating to can-cellation and forfeiture for nonpayment, wassuperseded by section 3 of the ReclamationExtension Act of 1914. Both the 1912 and1914 Acts appear herein in chronologicalorder.

1914 Supplementary Provision: Recbma-tion and Cultivation, Section 8 of theReclamation ,Extension Act of 1914, whichapp~ars herein in chronological order, au.thorues the Secretary to require reclama-tion and cultivation of one-fourth the ir-rigable area within three years, and one-halfthe irrigable area within five years, of thefiling of the water-right application orentry.

1912 Supplemental Provision: Pay-ments for Patents and Water-Right Certif-icates. The Act of August 9, 1912, providesthat a patent and a final water-right certif-icate may be issued upon payment of allcharges due at the time, with a lien infavor of the United States attaching to theland and water rights for the payment of allsums due or to become due the UnitedStates. The Act appears herein in chrono-logical order.

NOTES OF OPXNKONS

Reclamation of entry 1-10 Excess land laws 11-30Generally 1 Assessment of excess lands 15Homestead laws 3 Constitutionality 12Interest of entryman 2 Construction with other kws 13Minerals 4 Defivery of water 18

June 17, 1902


Generally 11Standing to sue 16State faws 14Vested water rights 17

Ownership of excew lands 31A0Coalescence of holdings 32Corporations 34Fed&ral government 35Generally 31Hmband and wife 33Joint operations 36

Residency of landowner 41-45Generally 41

Payment of charges 4&55Generally 46Litigation to enjoin co~ection 49Nonirr&able lands 48Overdu~ payments 47

1. Reclamation of entry-Gener~yOrder withdrawing land from entry under

section 3, reclamation act, did not refieveentryman from the duty of reclaiming ladunder section 5, reclamation act, and com-plying with homestead law as to residenceand cultivation under Revised Statutes,United’ States, sections 2289-2291, 2297,prior to amendment of 1912, where theland officials made a public announcementthat the withdrawals of lands were not per-manen:, but were for the purpose of enablingprelirmnary investigations to be made asto feasi~llity of irrigation project. Bo wen v.Hickey, 53 Cd. App. 250, 200 Pac. 46( 1921), cert. denied 257 U.S. 656 (1921).

2. —Intereat of entrymanUnder provisions of this section that

entrymau upon lands in a reckunation proj-ect before receiving patent shall, in addi-tion to compliance with the homestead laws,reclaim at least one-half of total irrigablearea and pay charges, an apphcation tomake reclamation homestead entry and theacceptance of it by the United States con-stitute a “contract” to the effect that when.entryman has complied with legal require-ments as to residence on and cultivationand reclamation of his land, and made ac-ceptable proof of his comp~inc~, govern-ment will issue a patent evidencing entry-man’s ownership of the land. ]olley v. Mini-.doka County, 106 P. 2d 865, 61 Idaho 696(1940).\----, -

Under the Act of April 21, 1928, 45 Stat.-439, lands of a homestead entryman aftercompliance with all requirements of home-stead laws as to residence, improvementand cultivation, but before final proof ofrecltiation of land is made, are subject tot=ation by state and pofitical subdivisions,regardless of when homestead entry wasmade, Jolley u. Minidoka County, 106 P. 2d%65, 61 Idaho 696 ( 1940).

Lands entered within a reclamation proj-ect are not subject to State taxation beforethe equitable title has passed to the entry-man; and that title does not pass until theconditions of reclamation and payment ofwater charges due at time of final proof,imposed by the amended reclamation act,have been fulfilled in addition to the re-quirements of the homestead act. Irwin v.Wright, 258 U.S. 219 ( 1922), overrulingUnited States v. Canyon County, 232 Fed.985 (D. Idaho 1916) ad Cheney v. Mini-doka County, 26 Idaho 471, 144 Pac. 343( 1914), which held that the entryman hasa t=able interest after compliance with therequirements of the homestead laws butbefore compliance with the additional re-quirements of the reclamation act. Accord:Wood v. Canyon County, 253 P. 839, 43Idaho 556 ( 1927). Casey u. Butte Co., 217N.W. 508 (S. Dak. 1927). But see Act ofApril 21, 1928.

3. —Homestead lawsThe provisions of the three-year home.

stead act of June 6, 1912, 37 Stat. 123, re-specting cultivation, have no application toentries made under the reclamation act; butthe reclamation laws require, as a prere-quisite to the issuance of final certificate andpatent, that the entryman shall have re-claimed, for agricultural purposes, at leastone-half of the total irrigable area of hisentry and paid all reclamation charges atthat time due. Wilbur Mills, 42 L.D. 534(1913).

The provisions of the three-year home-stead law respecting cultivation do not applyto entries made subject to the reclamationact. Rosa Voita, 43 L.D. 436 ( 1914).

Upon the death of an entryman who hasmade satisfactory homestead finaf proof ona reclamation farm unit, the homestead be-comes a part of his estate and as such sub-ject to distribution, and is not an unper-fected entry subject to the provisions ofsection 2291, Revised Statutes. The condi-tions imposed by the reclamation act as toreclamation, payment of charges, and filingof water-right application me conditions notof homestead law or proof but arising out ofreclamation and imposed as a further re-quirement. Heirs of Wm. L. Natzger, 46L.D, 61 ( 191 7). See also Edward Pierson,47 L.D. 625 (1921).

4. —MineralsWhen land within a reclamation home-

stead entry upon which final reclamationproof has not been submitted is reported asprospectively valuable for oil and gas, theowner of the entry is correctly required tofile consent to a reservation in the UnitedStates of the oil and gas in the land covered

64

June 17, 1902


by the entry. L.S. Strahan, A–26716 (Au-gust21, 1953).

When land within a reclamation home-stead entry upon which final reclamationnroof has not been submitted and final ePr-... . ---tlficate has not issued is repofied as prospec-tively valuable for oil and gas, the claimantto the Iand is correctly required to fileconsent to a reservation in the UnitedStates of the oil and gas in the I?nd in-cluded within the entry. Jean W. Rzchards,A-26718 (June 30, 1953).

Where a person applies for the reinstate-ment of his cance!ed homestead entry andit then appears upon the basis of the avail-able geological data that the land coveredby the entry is not valuable for oil and gas,the applicant should not be required toexecute an oil and gas waiver as a conditionprecedent to the reinstatement of the entry.Carl O. Olsen, A-26432 (October 7, 1952).

11. Excess land laws-GenerallyNothing in the Reclamation Aet of 1902

or its legislative history suggests that privatelandowners with water rights could par-ticipate in a. project, pay their share of itscost, but be exempt from acreage limitation.Sohcitor Barry Opinion, 71 I.D. 496, 502( 1964), in re application of excess landkws to private Iands in Imperial IrrigationDistrict.

‘The provision in section 5 of the Recla-mation Act of 1902 that “no right to the.-tise of water for land in private ownersh-ipshall be sold” for more than 160 acres meansthat the use of project facilities shall not bemade available to a single owner for serviceto more than 160 acres. Sections 4 and 5 ofthe 1902 Act, read together, indicate thatthe “sale” referred to is not merely a com-mercial transaction, but is the contract bywhich the government secures repaymentand the water user obtains bene~ts resul}ingfrom construction of the federal proJect.Solicitor Barry Opinion, 71 I.D. 496, 501( 1964), in re application of excess land lawsto private lands in Imperial IrrigationDistrict.

Congress, in establishing a limitation onthe size of entries on public lands under sec-tion 3 of the Reclamation Act of 1902, andon the maximum acreage for which a water-tight could be ?cquired under section 5 ofthat Act, had as lts purpose to provide homeson the arid lands of the West, the preventionof land monopoly, and the avoidance of landspeculation. Solicitor Barry Opinion, 68I.D. 372, 378 (1961 ), in re proposed repay-ment contracts for Kings and Kern Riverprojects.

The drainage system authorized by recla-mation law is that which will provide drain-age necessary to the successful operation of

the complete project? and as a general mat-ter the acreage limitations of the law donot apply to it. Memorandum of Chief~(;~l Fix to Commissioner, May 12,

12. —ConstitutiontiltyThis section providing that no right to use

of water should be sold for lands in excessof 160 acres in single ownership is not un-constitutional as a denial of due process andequal protection of the law, and does notamount to a taking of vested property rightsboth in land and irrigation district wateror discriminate between nonexcess and ex-cess landowners. Ivanhoe Irr. Dist. v.M. Cra.ken, 357 U.S. 275 ( 1958).

13. —Construction with other lawsThe provisions of reclamation law of gen-

eral application dealing with land limita-tions include section 5 of the Act of June 17,1902, sections 1 and 2 of the Warren Actof. 1911, section 3 of the Act of August 9,1912, section 12 of the Reclamation Exten-sion Act of 1914, and section 46 of theOmnibus Adjustment Act of 1926. SoiicitorBarry Opinio?, 71 I.D. 496, 501 ( 1964).,in re application of excess land laws to pri-vate lands in Imperial Irrigation Dish-ict;Solicitor Harper Opinion, M–33902 (May31,,1945 ), in re applicability of excess landprovisions to Coachella Valley lands.

Section 46 of the 1926 “Act and section 12of the 1914 Act deal specifically with thebreakup of pre-existing holdings, while the1902 and the 1912 Acts are relevmt to theissue of the effect of excess land limitationson the coalescence of holdings. SolicitorBarry Opinion, 68 I.D. 372, 375, 376, 390j404 ( 1961), in re proposed repayment con-tracts for Kings and Kern River projects.

The excess land limits of generaf recla-mation law do not apply to projects estab-lished under the Water Conservation andUtilization Act. The farm units establishedby the Secretary maybe greater or less than160 acres. Solicitor Harper Opinion, M–34062 (August 9, 1945), in re Bahnorheaproject.

14. —State lawsSection 8 of the 1902 Act does not over-

ride the excess land provisions of section 5,nor compel the United States to deliverwater on conditions imposed by the State.It merely requires the United States to com-ply with state law when, in the constructionand operation of a reclamation project, itbecomes necessary for it to acquire waterrights or vested interests therein. But theacquisition of water rights must not be con-fused with the operation of Federal projects.Ivanhoe Irr. D&t. v. J!cCTacken, 357 U.S.275, 291-2 (1958).

June 17, 1902


15. —Assessment of excess kdsA corporate landowner which, as required

by section 12 of the Reclamation ExtensionAct of 1914, agreed to dispose of its excesslands, could not, after construction of theproject, escape assessment of such lads byan irrigation district under state law on thegrounds that its lands were not benefited.Lincoln Land Co. v. Goshen Irr. Dist., 42Wyo. 229,293 Pac. 373 (1930).

Irrigable lands in excess of 160 acres, inthe sole ownership of a corporation, whichare shown by the general trend of the evi-dence to be benefited by an irrigation proj-ect so that their value becomes enhancedthereby, are properly included within theirrigation district and assessable accordingly,notwithstanding the inability under theFederd laws of the owner to receive waterfor more than 160 acres, as the basis ofspecial improvement taxation is propertybenefit independent of ownership conditions.Shoshone ITT. Dist. v. Lincoln Land Co., 51F. 2d 128 (D. WYO. 1930).

There is no merit to the contention bydefendant, in an action contesting the out-come of an election of governor of a districtof the Sdt River Valley Water Users Asso-ciation, that landowner’s constitutionalrights will be invaded by granting fiemwater rights for only 160 acres while sub-j ecting their entire acreage to assessmentsaccording to benefits. Saylor v. Gray, 41Ariz. 558, 20 P. 2d 441 ( 1933).

In an action of foreclosure brought by theEnterprise Irrigation District against theEnterprise” Land & Investment Co. t~ fore-close delinquency-assessment certificatesissued for delinquent assessments over aperiod of several years, the defendant com-pany, owner of more than 160 acres of‘irrigable land within the district, interposeda defense of fraud on the part of the districtdirectors, These officers were charged withconstructi~e fraud in assessing benefits to“lands which could not receive water forirrigation from works constructed by theUnited States because of the ineligibilityof the owner to receive water under rulesimposed by section 5 of the act of June 17,1902, limiting the furnishing of water fromsuch works to lands in single ownership inexcess of 160 acres. The defense was deniedby the trial court, whose decision was re-versed by the .Supreme ~ourt of Oregon,the latter holding that the answer stated avalid defense to the foreclosure action.Enterprise Irrigation Dist. v. EnterpriseLand & Investment Co., 300 Pac. 507 (Ore.193 1). But see Klamath County v. ColonialRealty Co., 7 P. 2d 976, 139 Ore. 311( 1932) in which the same court under a31ightly different state of facts, reached adifferent conclusion, and in which s~d

court now appears to be in harmony in thismatter with the courts of the other aridstates and with its own earlier decisions.

16. —Standing to sueThere is nothing in the excess land stat-

utes to indicate that Congress intended toconfer a fitigable right upon private personsclaiming injury from the Secretary of theInterior’s failure to discharge his duty tothe pubfic. Turner v. Kings River Conser-vation Dist,, 360 F. 2d 184, 198 (9th Cir.’1966).

17. —Vested water rightsIn connection with the purchase of a

partially completed canal system from a pri-vate company as part of the Umatdla recla-mation project, the provision of section 5of the Act of June 17, 1902, restricting thesale of a right to use water for land in pri-vate ownership to not more than one hun-dred and sixty acres, does not prevent allow-ing the continued flowage through the canalto be constructed under the project of waterfor 300 acres covered by a vested waterright which is not acquired for the project,inasmuch as no sale of such water is in-volved. Op. Asst. Atty. Gen., 34 L.D. 351(1906).

The departmental regulation, currently.found at 43 ,CFR 230.70, which providesthat section 5 of the Act of June 17, 1902,does not prevent the recognition of a vestedwater right for more than 160 acres andthe protection of same by allowing the con-tinued flowing of the water covered by theright through works constructed by theGovernment under appropriate regulationsand charges, applies only to special situa-tions where existing physical facilities orwater rights are acquired under the author-ity of section 10 of the 1902 Act for incor-poration in a project and where the landsto which the water right appertains arenot included within that project. Thiiregulation was intended as a codification ofthe. Opinion of Assistant Attorney General,34. L.D. 351 (1906). Soficitor Barry Opin-ion, 71 I.D. 496, 511-12, note 29 ( 1964),in re application of excess land laws to pri-vate lands in Imperial Irrigation District.

18. —Defivery of waterThe fimitation intended by *e reclama-

tion law, as set forth in section 5 of theReclamation Act of 1902 and as supportedby the plain language of section 3 of theAct of August 9; 1912, relates to the areain private ownership to which water may bedelivered, and not to the quantity of water.A private owner will not be supphed withwater, whether a full or supplemental sup-ply, for use upon a tract exceeding 160

June 17, 1902


acres. The language in section 2 of tieWarren Act referring to “an amount suffi-cient to irrigate 160 acres” is not intendedto change this rule. Soficitor PattersonOpinion, M-21 709 (March 3, 1927), inre proposed contract concerning Gravity Ex-tension Uni\, Minidoka project.

The restriction in the reclamation lawsagainst furnishing project water to an acre-age greater than 160 acres in a single own-ership does not permit tie furnishing ofwater alternately or in rotation to two ormore 160-acre parcels of a larger singleholder. Memorandum of Chief Counsel Fixto Commissioner, May 12, 1948.

31. Ownership of excess IanMenerallyA qualified water-right applicant may,

after having disposed of a previously ac-quired water-right, make another applica-tion, and as to the latter,. maybe consideredin the petition of an original applicant. AIandower may be the purchaser of theright to the use of water for separate tractsat the same time, provided he can properlyqualify and the tracts involved do not ex-ceed 160 acres in the aggregate. Depart-mental decision, In re Wm. B. Bridgman(Sunnyside), November 20, 1909.

Congress is without power to control orregulate the sale or acreage of lands in pri-vate ownership within reclamation projects;but, so long as the projects are under Gov-ernment control, may determine the acre-age for which water may be suppliedthrough such projects to any one landowner.Amasiah Johnson, 42 L.D. 542 ( 1913).

32. +odescence of holdingsA widow who succeeds to her husband’s

unperfected homestead entry by operationof law is entitled to complete it upm thesame terms and conditions as were requiredof her husband. Therefore, tie fact that shehad previously acquired a water right forlands held by her in private ownership, theacreage of which, when added to tie acre-age of the entry, exceeds 160 acres. does notprevent her from completing the ;ntry un-der the reclamation act. Anna M. Wright,40 L.D. 116 (1911).

A person who ho~ds a farm unit sh~l notbe permitted before full payment has beenmade on the appurtenant water right, to ac-quire other lands with appurtenant waterrights unless the water-right charges on thelatter have been ftily paid. A person mayhold private lands with appurtenant waterrights up to the limit of single ownersNlpfixed for the project in one or more parcelsbefore full payment of the water-rightcharge, but may not acquire other landswith appurtenant water rights unless thewater-right charges thereon have been paid

in full. The ~iit of area of the farm unitsand of single private-land holdings to whichwater rights are appurtenant, and as towhich water-right &arges have not beenpaid in full, shall in no case exceed 160acres. Departmental decision, July 22? 1914,43 L.D. 339. Departmental instructions ofJuly 1, 1920, amend paragraph 41 of gen-eral reclination circular of May 18, 1916,45 L.D. 385. See C.L. 911, July 6, 1920, or47 L.D. 417. See Act of August 9, 1912, 37Stat. 265, and notes thereunder. See amend-ment of section 23, regulations of May 18,1916, 43 CFR 230.21.

On. who acquires lands of a reclawtion-. .. ..homestead enfian at a tax sale pursuantto the Act of April 2 ~,. 1928, as amended,is subject to the provisions of reclamationlaw including the excess lands previsions.This result follows from the provisions ofthe 1928 Act that the holder of such taxdeed or tax title is entitled to the rightsand privileges of an assignee under the Actof June 23, 1910; and the latter Act makes.the assignee “subject to the limitations,charges, terms md conditions of the recla-mation act.” James P. Balkwill, 55 I.D. 241(1935).

33. —Husband and wifeAn administrative determination that 320

acres of itigable land can be held in com-munity ownership is a reasonable construc-tion of the excess land provisions of theFederal .Reclamation Laws. In the practica~aPP1l$atiOn of such a determination, techni.cal differences m the quality and extent of awife’s interest in community property mayproperly be disregarded. Solicitor HarperOpinion, M-34172 (August 21, 1945).

34. —CorporationsThere is no legal objection to the acquisi-

tion of a water right by a water users asso-ciation or other corporation if it is not other-wise disqua~fied under the excess land laws.by reason of ownership of other lands onwhich there exist unpaid betterment andbuilding charges. However, the Departmenthas ruled as a matter of policy that waterappficafions will not be accepted from cor-porations, Instructions, 42 L.D. 250 ( 1913 )YPlemant Valley Farm Co., 42 L.D. 253( 1913), unless the corporation acquires a.patent and water right solely to protectits security in a loan transaction andwith the intention of reselling it at morepropitious times, Great Western InsuranceCo., A-16335 (Februa~ 8, 1932). Conse-quently, under this policy, where the GrandValley Water Users Association hm at-.quired several farm units at tax des to pr~tect its lien, it may receive a patent to onefarm unit for security purposes and may bid

June 17, 1902


at tax sales for unlimited acreage for thepurpose of protecting its lien and with theintent of reassigning its interest to qutifiedpersons within a reasonable time. James P.Balkwill, 55 I.D. 241 ( 1935).

35. —Federal governmentThe Fedeti Subsistence Homesteads

Corporation, being wholly financed andcontrolled by the United Stites Govern-ment and serving no function other thanaiding in the purchase of subsistence home-steads by individuals as provided by sec-tion 208 of the National Recove~ Act,does not fall within the category of cor-porations which it was the intention ofCongress should be barred from aquir~ngor controlling lands within Reclarnatlonprojects; nor does the statutory Emitationof individud holdings to 160 acres applyto such a corporation. Solicitor MargoldOpinion, 54 I.D. 566 ( 1934).

36. —Joint operationsA landowner may deed K;s excess acreage

to one of his children, or anyone else forthat matter, and arrange to operate thealienated property with his own as one unit,provided he has divested himself of owner-ship in good faith and the child or otherrecipient of the property receives the fullbenefits of the operation of his own acreage.Letter from Commissioner Straus to Sena-tor Joseph C. O’Mahoney, December 29,1948.

Several farmers each holding 160 acresmay farm their lands jointiy as a unit undera proper mutual agreement, assuming dlother requirements of Reclamation law havebeen met. Letter from Commissioner Strausto Senator Joseph C. O’Mahoney, Decem-ber 29, 1948.

41. Residency of landowner~neraflyTo entitle an applicant for the use of

water for lands held in private ownershipwithin the irrigable area of an irrigationproject under this Act to the benefits of thisAct, he must hold the title in good faith,and his occupancy must be bona fide adin his own individual right. Instructions,May 21, 1904, 32 L.D. 647.

The term “in the neighborhmd” held tomean within 50 miles. Departmental deci-sion, January 20, 1909.

Where a ~act of land under a reclama-tion project IS owned by two or more per-sons jointly, unless each is a “resident” oran occupant on the land, no right to usewater to irrigate the same can be acquiredunder this section. Departmental decision,January 12, 1910.

The residence requirements protided forin section 5 of the Reclamation Act of June

17, 1902, apply to all persons acquiringby assignment water-right contracts withthe United States, unless prior to suchassignment the final water-right cetica~contemplated by section 1 of the Act ofAugust 9, 1912, has been issued, in whichevent the land may be freely tienated, sub-ject to the lien of the United States. H. G.Colton, 43 L.D. 518 (1915).

The residence requirement of this sectionin reference to private lands is fully com-plied with if, at the time the water-rightapplication is made, the applicant is a bonafide resident upon the land or within theneighborhood. After approval of the ap-plication further residence is not requiredof such app~cant, and final proof mayfierefore be made under tie Act of August9, 1912, without the necessity of provingresidence at the time proof is offered. De-partmental decision, April 19, 1916.

Paragraph 105 of the general reclama-tion circular approved May 18, 1916, 45L.D. 385, 43 C.F.R. 230.102 provides thatin case of the sale of dl or any part of theirrigable area of a tract of land in privateownership covered by a water-right applica-tion which is not recorded in the countyrecords, the vendor will be required to havehis transferee make new water-right ap-plication for the land transferred. Hel~,that in making the new application it 1simmaterial whether or not the transferee be“an actual bona fide resident on such landor occupant thereof residing in the neigh-borhood.” Reclamation decision, July 25,1917, In re ]. W. Mertitt, Truckee-Carson.

46. Payment of charg~enerallyOne holding a mortgage against only a

part of a tract of land in private ownershipupon a Federal reclamation project forwhich entire tract a water-right applicationhas been made, may pay up from time totime the charges on that portion of thetract covered by the mortgage in the eventthe landowner fails to pay. Departmentaldecision, July 13, 1917.

Fiscal agents upon United States re-clamation projects are authorized to acceptfrom water users money tendered in pay-ment of an accrued installment of eitherconstruction, operation and maintenance,or rental charges, for any year, even thoughinstallments for a previous year remain un-paid. Reclamation decision, August 6,1917 ; C.L. No. 680.

In cases where the title to lands underwater-right application upon a Federd re-clamation project is in dispute, and theland is in possession of one other than therecord owner, the Reclamation Service maydeliver water to the party in possession, uponpayment in advance of the operation and

June 17, 1902


maintenance charges. Reclamation decision,.August 24, 1917, In re Wood v. Eggleston,‘Truckee-Carson.

The Federal statutes rdative to the pay-ment of debts and demands due the UnitedStates do not require the acceptance ofmoney only in the settlement of such debtsand demands, and accordingly the properadministrative official representing theU-nited States may, where it would be tothe interest of the United States, accept a“call” warrant for indebtedness of an ir-rigation district under its contract with theUnited States Reclamation Service fordrainage construction and reservoir storagecapacity, such warrant to be held by theUnited States until paid. Pioneer Irriga-tion District, 54 I.D. 264 (1933).

47. —Overdue paymentsThe provision in section 5 of the Rec-

lamation Act that failure to make pay-ment of any two annual installments whendue shall render the entry subject to can-cellation, with forfeiture of dI rights underthe act, is not mandato~, but it rests inthe sound discretion of the Secretary of theInterior whether the entryman in such casemay thereafter be permitted to cure his de-fault by payment of the water charges, wherehe has continued to comply with the pro-visions of the homestead law; and in eventan entry has been canceled for such failure,the Secretary may; in the absence of ad-verse claim, authorize reinstatement thereofwith a view to permitting the entryman tocure his de fauIt. Marquis D. Linsea, 41L.D. 86 (1912).

Inasmuch a; the Acts of June 17, 1902,and August 13, 1914, did not peremptorilydeclare in mandatory language that for-feitures must be declared, or that they willnecessarily result by operation of law as soonas defaults in payments by water users onreclamation projects have occurred, it restswithin the sound discretion of the Secre-tary of the Interior to determine whetheran entryman may thereafter be permitted tocure the default by payment of the charges.Shoshone irrigation $roject, 50 L.D. 223.(1923).

The Department on December 24, 1935,cancelled water right application of J. W.Thompson, Yuma irrigation project, fornonpayment of construction charges morethan one year in arrears. Pablo Franco lateracquired the land and applied for rein-statement of the water right application.The Under Secretary, in letter of May 9,1936, rejected France’s application, statingthat the Department was without authorityto grant the application for reinstatementbecause the money previously paid byThompson on this water right application,

under section 5 of the Reclamation Act,had been forfeited to the Unitd States.

No power exists in the Secretary of theInterior to formally grant specfic extensionof time for payment of overdue water-rightcharges. Deuartmentaf decision, April 22,1909: -

The provisions of section 5 of the Rec-lamation Act and of sections 3 and 6 ofthe Reclamation Extension Act of August 13,1914, regarding one year of grace for theDavment of overdue water charges referbnjy to the drastic remedies of cancellationand forfeiture and not to the right to bringsuit in a court for collection of a watercharge past due and unpaid. Redarnationdecision, December 4, 1917, U.S. v. EdisonE. Kil~ore. Shoshone. See Secreta~’s regu-lation~of February 27, 1909, regarding de-linquent payments, 37 L.D. 468.

Where entries and water-right applica-tions have been held for cancellation forfailure to pay the building charges, pendingfinal action, water may be furnished for theland upon proffer of the portion of the in-stallments for operation and maintenance.Departmental decision, February 9, 1909.

Where a water-right application for landheld in private ownership has been canceledfor default in payment of buil~lng, opera-tion, and maintenance charges, such applica-tion may be reinstated upon fuH payment ofall accrued charges. Instructions, 45 L.D.23 (1916).

48. —Nonirrigable landsThe director is authorized to assent to the

release from stock subscription of any andall lands in any and all projects heretoforeor hereafter shown by official survey or bythe onginaf or amended farm unit plats tobe nonirrigable; also, to assent to the re-duction of stock subscription for any suchlands to the acreage so shown as irrigable.Department decisions, March 11, 1912, andSeptember 16, 1912.

49. —Litigation to enjoin collectionA corporation with which, as the rep-

resentative of its shareholders, who areparties accepted by the United States asholders of water rights in a project underthe reclamation act, t~e Utited Statesmakes a contract for the benefit of suchshareholders relative to the supply of waterdue and the dues to be paid by the share-holders and which covenants in the contractto collect dues for the United States andguarantees the payment thereof, is a properparty plaintiff in a suit to enjoin officemof the United States from collecting unlaw-ful charges from the shareholders, turningthe water from their lands, and cancelingtheir water rights and homestead rights be-

June 17, 1902


cause they fail to pay such charges. Magru-der et al. v. Belle Fourche Valley WaterUsers’ Association, 219 Fed. 72, 133 C.C.A.524 (1914).

An injunction will not Ke against theproject manager of the Flathead Indian Rec-lamation project to restrain the shutting offof water to enforce the payment of chargesdue under orders of the Secretary of theInterior (a) unless the Secretq of the In-terior were joined as a party defendant

where the United States conceded the ex-istence of the water supply claimed bythe plaintiff below or (b) udess the Secre-tary of the Interior and the United Stateswere joined as parties defendant, where theUnited States disputed the plaintiff’s claimof a water supply, and where the allowanceof the plain~s claim would affect tie Gov-ernment water supply avaibble for theFlathead project. Moody v. Johnson, 66 F.2d 999 (9th Cir. 1933).

Sec. 6. [Reclamation fund to be used for operation and maintenan~Man-agement of works to pass to landowner+Title. ]—The Secretary of the Interioris hereby authorized and directed to use the reclamation fund for the operationand maintenance of all reservoirs and irrigation works constructed under theprovisions of this act: Provided, That when the payments required by this actare made for the major portion of &e lands irrigated from the waters of anyof the works herein provided for, Men the management and operation of suchirrigation works shaIl pass to the owners of the lands irrigated thereby, to bemaintained at their expense under such form of organization and under suchrules and regulations as may be acceptable to the Secretary of the Interior:Provided, That the title to and the management and operation of the reservoirsand the works necessary for their protection and operation shall remain in theGovernment until otherwise provided by Congress. (32 Stat. 389; 43 U.S.C.8$491,498)

EXPLANATORY NOTES

Codification. The first clause, down to charges for, and transfer of, operation andthe proviso, relating to operation and main- maintenance, have been enacted and aretenance, is codified as section 491, tide 43, referenced in the index. Statutes of generalU.S. Code. The balance of the section IS a.PP1ication inchsde the Reclamation Exten-codified as section 498. slon Act of 1914 and the Fact Finders’ Act

Supplementary Provisions. A nuber of of 1924, which appear herein in chrono-generd and specific provisions relating to logical order.

NOTES OF ORINXONS

Operation and maintenance 1-10Charges for 2GeneraI1y 1Negligence actions 4Transfer of 3

Title to property 11-20Generally 11

1. Operation and maintenanc~enersdiyThe Attorney General for New Mexico

ruled July 5, 1917, that persons fishing inthe Elephant Butte dam, Rio Grande proj-ect, must have a State license, On August 3,1917, the Bureau held that persons fishingin said reservoir must comply with Statelaw but must also have the consent of theUnited States.

The Secretary of the Interior is an in-dispensable party to a suit by water users toenjoin the project manager of the Yaklmaproject from refusing to deliver quantities

of water to which they claimed they wereentitled under contracts with the UnitedStates, when such refusal was done at thedirection of the Secretary. Moore v. Ander-son, 68 F. 2d 191 (9th Cir. 1933).

2. Aharges forThe United States may assess operation

and maintenance charges against waterusers as well as construction charges. TOhold otherwise would greatiy deplete, if notentirely consume, the Reclamation Fund,thus diverting the proceeds of the publicdomain to the payment of Iocd expenses.This interpretat~on of the Reclamation Acthas been recogn=ed by Congress. Swigart v.Baker, 229 U.S. 187 (1913).

The Secretary of the Interior. being ali-–“ ——

thorized to tax ‘and determine the charges,is authorized to divide the same into twoparts—one for construction and the other

June 17, 1902

70 THE RECLAMATION ACTAEC. 6

for maintenance and operation; and hencehe is authorized to impose reasonable assess-ments on land irrigated prior to the timewhen payment of the major portion of thecost of construction had been made andthe works passed under management of theowners of the irrigated land. United Statesv. Cantrall, 176 Fed. 949 (C.C: Ore. 1910).

Where by a contract between the UnitedStates and landowners tributary to a Federalirrigation system, such landowners agreedto pay to the United States the charges dulylevied against their lands for the construc-tion and maintenance of the system, they~~,ereonly liable for such reasonable chargesas the Government was authorized to col!ectproportionate to their share of the costof maintaining and operating the system,and not such as might be arbitrarily fixed inadvance by such Secretary or other govern-mental officer. Ibid.

3. —Transfer ofThe Secretary of the Interior is not au-

thorized by the Reclamation Act to turn overthe operation and maintenance of com-pleted reclamation projects, in whole or inpart, or to any extent, to water users’ as-sociations before the payments by such waterusers for water rights are made by the majorportion of the lands irrigated by such works.30 Op. Atty. Gen. 208 (1913) ; but see sec-tion 5 of the Act of August 13, 1914, wKlchauthorizes the Secretary to transfer the care,operation and maintenance of all or any partof a project to a water users’ association orirrigation district.

4. —Negligence actionsA petition for damages against a State

irrigation district for negligent maintenanceof a canal was held to be no cause of action,in view of the State statutes and the contractmatilng the district merely a fiscal agent forthe United States, which operated and main-tained the works. Malone v. El PWO CountyWater Improvement Dist. No. 1, 20 S.W.2d 815 (Tex. Cir. App. 1929).

Where alleged negligence of federal gov-ernment. while in control of maintenanceand operation of irrigation system? couldnot be imputed to irrigation distict, de-fendant in suit by district to foreclose landfor delinquent assessments could not main-tain a claim for affirmative relief againstdistrict by way of recoupment, set-off orcounterclaim based on such negligence.Klamath Irr. Dist. v. Carlson, 157 P. 2d514, 176 Ore. 336 (1945).

11. Title to property-GenerallyThe gravity wtension unit (Gooding divi-

sion ) of the Minidoka project was con-

structed by the United States under a re-payment contract with American FallsReservoir District No. 2. It diverts waterfrom the Snake River below Minidoka damin an area of slack water caused by Milnerdam, which was built in 1903 by the TwinFalls Land and Water Company, and isoperated and maintained by the Twin FallsCanal Company. The latter brought suitagainst the American Falls Reservoir Dis-trict No. 2 for a proportionate share of thecosts of construction and operation of Mil-ner dam. The suit was dismissed on thegrounds: ( 1 ) that the United States, notthe reservoir distric~ was the proper partydefendant, notwithstanding a provision inthe repayment contract that the districtwould hold the United States harmlessagainst claims in favor of the owners ofMilner dam, because under section 6 ofthe Reclamation Act title to and manage-ment and operation of the works remainedin the Government; and ( 2 ) that the Wav-ity diversion works were not damagingplaintiffs water rights or its use of Milnerdam. Twin Falls Canal Co. v. AmericanFalls Reservoir Dist. No. 2, 59 F. 2d 19(9th Cir. 1932); affirming 49 F. 2d 632 (D.Idaho 1931 ) ; see also 45 F. 2d 649 (D.Idaho 1930 ) overruling demurrer toamended complaint.

The United States is not an indispensableparty to a suit by a landowner ;eceivingwater from the Yakima project to enjointhe Secretary of the Interior from imposingadditional charges for water delivery, rep-resenting part of the cost of the new CleElum reservoir, beyond those stated in arepayment contract with a water users’association and in the pubfic notice issued bythe Secretary, because the landowner, notthe United States, is the owner of the waterright under Federd and State law andunder contract with the Secretary. Thisowne~ship is wholly distinct from the p~operty right of the Govermnent in the irriga-tion works. The suit is to enjoin the Secre-ta~ from enforcing an order, the wron~ulfiect of which wi~ be to deprive the land-owner of vested property rights, and maybemaintained without the presence of theUnited States. Ickes v. Fox, 300 U.S. 82( 1937). See also Fox u. Ickes, 137 F. 2d 30(D.C. Cir. 1943), cert. denied, 320 U.S.792.

In suit by irrigation district to foreclosefor delinquent taxes and assessments, evi-dence adduced by defendant under claimfor affirmative relief by way of recoupmen~set-off or counterclaim was insufficient tosustain allegation that alleged federal con-trol, which would defeat defendant’s rightto affirmative relief against district, was a

June 17, 1902

THE RECLAMATION ACT+EC. 7 71

subterfuge and fraud, in that district hadpaid major portion of cost of project. Kla-math Irr. Dist. v. Carlson. 157 P. 2d 514,176 Ore. 336 (1945).

Irrigation district, by instituting suit toforeclose certificates of delinauencv in irri-gation assessments, was not ;stopped frommeeting defendant’s allegations, which werefoundation of defendant’s plea for =rma-tive relief, that district had paid major por-tion of cost of project and that federaloperation was a fraud and subterfuge byproof that aggregate payments were notsufficient to entitle plain~ to take controlof operation of irrigation project, and thatno subterfuge or fraud had been practiced.Klamath Irr. Dist. v. Carlson, 157 P. 2d514, 176 Ore. 336 (1945).

The United States is an indispensableparty to a suit by the City of Mesa, a muni-cipal corporation, to condemn a portion ofthe electrical plant and system operated bythe Sdt River Project Agricultural and Im-provement District as an integraf part ofthe Sdt River reclamation project; andthe United States not having consented tothe sni~, the court is without jurisdiction toentertain the action. C{t~J of Mesa v. SaltRiver Project Agricultural Improvement andPower District, 101 Ariz. 74, 416 P. 2d 187(1966).

In the construction of the American FalkReservoir of the Minidoka project, Idaho,the Secretary of the Interior, pursuant toact of Congress of Mar. 4, 1921, 41 Stat.1367, 1403, acquired by purchase or con-demnation the fee simple title to certain lotsadjacent to the town of American Falls.Power County, Idaho, assessed these lots asthe property of the American Falls Reser-voir District. The United State!, clati~ngthat’ the District had no equity m the lots,and that the placing of the lots on the assess-ment roll would constitute a cloud on thetitle of the United States, brought proceed-ings to have the assessments dedared void.The Court held that when the Secr~ta~ ofthe Interior, under authority of the Congresspurchases lands, the fee simple title is inthe United States unti the United Statesdisposes of them; that neither the States northeir subdivisions have the power to t=property of the United States; that the lotswhen acquired by the United States becamea necessary and proper part of the reservoirenterprise and incidental thereto, and thatthe only interest the District has in thereservoir is the right to receive water de-livered to it by the United States therefrom.The taxing uroceedinas were decreed void.United St;t~s v. Powe~County, Idaho, et al.,21 F. SUPP. 684 ( 1937).

Sec. 7. [Authority to acquire property-Attorney General to institute con-demnation procadings.] —Where in carrying out the provisions of this act itbecomes necessary to acquire any rights or property, the Secret~ of the Interioris hereby authorized to acquire the same for the United States by purchase or bycondemnation under judicial process, and to pay from the reclamation fundthe sums which may be needed for that purpose, and it shall be the duty ofthe Attorney General of the United States upon every application of tie Secre:tary of tie Interior, under this act, to cause proceedings to be commenced forcondemnation within thirty days from the receipt of the application at theDepartment of Justice. (32 Stat. 389; 43 U.S.C. $421 )

EXPLANATORY NOTES

Supplementary Provision: Exchanges. 55, 42 Stat. 147. The land was conveyedSection 14 of the Reclamation Project Act to the United States by deed dated Sep-of 1939 authorizes the SecretaW to acquire tember 12, 1921, and recorded in Goshenland? for the relocation of property in con- County, Wyoming, October 10, 192 1.’Patentnectlon with the construction or operation issued February 15, 192 24heyenne No.and maintenance of any project, and to enter 849041.into contracts for the exchange of Editor’s Note? Annotations. Annotationswater, water rights, or electric energy. The of op~~i?ns deahng with aspects of propertyAct appears herein in chronological order. acqu}sltlon including condemnation pro.

Exchange of Lands, North Platte Project. ceedmgs which are common to all Govern-.4n exchange of lands on the North Platte ment agencies, such as valuation of prop-project between the United States and the erty, payment of interest, ~ceptability ofSwan Land and Cattle Company was au- title, and so forth, are not included.thorked by the Act of August 9, 1921, ch.

June 17, 1902


NOTES OF OPINIONS

Purpose of acquisition 1-10Discretion of Secretary 2Generally 1Related hds 4Relocation of property 3Research and development 5

Property or interest involved 11-30Easements and rights-of-way 19Existing irrigation system 12Generally 11Indian lands 13Leasehold 18Municipal property 15Noncompensable claims 21Personal property 17Power sites 20School lands 14Water rights 16

Condemnation proceedings 31Phvsical seizure (inverse condemnation)

36Avaibbility of funds 41Exchanges 42Option to purchase 43State laws 44

1. Purpose of acquisition~enerallyThe Act of June 17, 1902, does not au-

thorize the use of the reclamation fund forthe purchase of any land except such asmay ~ necessary in. the construction andoperat]on of irrigation works. Cal~forniaDevelopment Co., 33 L.D. 391 (1905).

The United States has constitutional au-thority to organize and maintain an irriga-tion project within a State where it ownsarid lands whereby it will associate withitself other owners of like Iande for thepurpose of reclaiming and improving them,and for that purpose it exercises the rightof eminent domain agtinst other land ownersto obtain land necessary to carry tie preposed project into effect. Burley v. UnitedState$, et d., 179 F. 1, 102 C.C.A. 429, 33L.R.A. (N. S.) 807 (Idaho 1910), affirming172 F. 615 (C.C. 1909). See also Magrude~v. Belle Fourche Valley Water Users’ Assn.,219 F. 72, 133 C.C.A. 524 (S. Dak. 1914).

The fact that a scheme contemplates theirrigation of private as well as governmentland does not prevent condemnation of landnecessary to carry it out. Burley v. UnitedStat~~, 179 F. 1, 102 C.C.A. 429, 33 L.R.A.(N.S.) 807 (Idaho 1910).

Lands condemned bv the United Statesunder the Reclamation ‘Act for right of wayfor a cansd or ditch required in the carryin~out of an irrigation project are taken for anublic use. United States v. O’Neill, 198 F.677 (D. CO]O. 1912).

The Department of the Interior had rightto condemn 277.97 acres of land in the

County of Madera, Cfllfornia, for naviga-tion, reclamation, and storage of waters ofthe S?n Joaquin and Sacramento Rivers,irrigation and power purposes, since thosepurposes were “public purposes.” UnitedStates v. 277.97 Acres of Land, 112 F. Supp.159 (D. Cal. 1953).

2. —Discretion of SecretaryIn a proceeding by the United States to

condemn land for reservoir purposeswhether a more feasible plan of irrigationthan the one adopted might be detised, orsome other site selected for the reservoir,is immaterial, the determination of thepnoper Government authorities bein~ con-clusive. United States v. Burley, 172 ~. 615(C.C. Idaho 1909), afirmed 179 F. 1, 102C.C.A. 429, 33 L.R.A. (N. S.) 807 (1910).

Where @ngress ieft determination ofneed for particular realty for navigation,reclamation and storage of waters of rivers,and for irrigation and power purpose? toSecretary of the Interior, courts had no rightto question manner in which the Secretaryof the Interior exercised the delegatedpower. United States v, 277.97 Acres ofLand, 112 F. Supp. 159 (D.C. Cal. 1953).

When the Secretary of the Interior in theexercise of a reasonable discretion deter.mines as to the validity of title to and as tothe value of a right to appropriate waterfor irrigation purposes to be acquired byhim under the Provisions of the act ofJune 17,-1902, ~is decision is conclusiveupon the accounting officers, 14 Comp. Dec.724 [1908).

—Relocation of property3.Where establishment ofm remrvoir under

the Reclamation Act” involved flooding partof the town, the United States had consti-tutional. power to take by mndemnationother private la~d near by, in the only prac-ticable and ava]lable place, as a new townsite to which the buildings @ected couldbe moved at the expense of the UnitedStates and new bts be provided in full orpart satisfa~tion for those flooded. .The factthat, as an incident of such a readjustment,there may be some surplus lots of the newtown site which the Government must selldoes not characterize the condemnation asa ttiln~ of one man’s property for sde toanother. Brown V. United States, 263 U.S.78 (1923), affirming United States v.Brown, 279 F. 168 ( 1922). See aho section14 of the Reclamation Project Act of 1939.

4. —Related landsThe Reclamation Act permits the United

States to acquire strips of land, aggregating10 per cent of the irrigable area of a project,

June 17, 1902


and establish and maintain thereon plan@-tions of trees and shrubs w serve as wind-breaks, in order to facilitate and protect theagricultural development of the adjacentirrigable lands and to protect irrigationcanals and laterals. Departmental decision,July 24, 1912 (Umatilla).5. —Research and development

The Secretary of the Interior is author-ized to purchase or leme lands for a “devel-opment farm” in the nature of a field labora-tory where this is an appropriate methodof developing data relevant to such factorsas classification of lands, syit~iity of crops,and repayment ability of lrngators. Acting~li~~~)Burke Opinion, M-36219 (May

,

11: Property or interest involved—Generafly

The Secretary of the Interior has no au-thority under the provisions of the Act ofJune 17, 1902, to embark upon or committhe Government to any irrigation enterprisethat does not contemplate the absolutetransfer of the properiy involved to theUnited States. California Development Co.,33 L.D. 391 (1905).

The Act mntemplates that the UnitedStates shall be the full owner of irrigationworks constructed thereunder, and ;learlyinhibits the acquisition .of prop~rty, for. usein connection with an irrigation project,subject to servitudes or perpetual obligationto pay rents to a landlord holding the legaltitle. Op. Asst. Atty. Gen., 34 L.D. 186(1905).

In the acquisition of interests in redproperty, if not administratively objection-able, title may be acquired subject to (a)any existing coal or mineral rights resemedor outstanding in third parties and (b) anyexisting rights of way in favor of the publicor third parties for road?, railroads, tele-phone lines: transmission lines, ditches, con.duits or pipe lines, on over or across theproperty, although the property is undercontract, to be conveyed to the UnitedStates in fee sim~le free of lien or encum-brance. Central - Valley project, letter ofTulv 9.1940.

“,>

There is no authority for the use of thereclamation fund, either directly by theSecretary or indirectly by advancement toothers, for the purchase of lands or otherproperty outside of the territorial limib ofthe United States. California DevelopmentCo., 33 L.D. 391 (1905).

The Secretary of the Interior may not,in tie acquisition of land needed for a reser-voir to be constructed by the Bureau ofReclamation, agree that as a part of the‘consideration the landowner shsdl have the

M7-067—72-voI. I—8

perpetual right to utilize any power facili-ties afforded by the reservoir. Decision ofFirst Assistant Secretary, December 15,1936, in re Truckee Storage project, Bocaresetioir.

The Secretarv has full authori~ to ~ur-. .chase lands necessary for reservoir purposes,to arrange the terms of purchase, and toallow the vendor to retain possession untilthe land may be actually needed where byso doing the purchase may be more advan-tageously made; but he has no authorityunder said act to lease such purchased landsafter the Government has taken possessionthereof. Instructions, 32 L.D. 416 (1904).

12. —Existing irrigation systemWhere an irrigation system already con-

structed and in operation may be utiiized inconnection with a greater system to be con-structed under the provisions of the Act ofJune 17, 1902, its purchase for such purposecomes within the purview of the act. Cali-~[~~, Development Co., 33 L.D. 391

The’ Act affords authori~ for the pur-chase of an incomplete irrigation system tobe used in connection with and to becomea part of a larger system contemplated bythe Government. Op. Asst. Atty. Gen., 34L.D. 351 (1906).

13. —Indian landsThe United States has authority to con-

demn tribal lands of the Crow Tribe forconstruction of Yellowtail Dam, under sec-tion 9(c) of the Flood Control Act of 1944and the Federaf Rcclamation Laws; underthe gcneral condemnation act of August 1,1888, 55 Stat. 357, 40 U.S.C. ~ 257; andunder the several acts appropriating moneyfor preconstruction work and for initiationof construction. United States v. 5,677.94Acres of Land, 162 F. Supp. 108 (D. Mont.1958) ; ibid, 152 F, Supp. 861 (D. Mont.1957 ) ; Opinion of Solicitor Davis, M-36148 (Supp,) (February 3, 1954).

Under the provisions of the RedarnationAct, the Secr;tary of the Interior has powerto acqulrc the rights and property necessarytherefor, including tiose of allottee Indians,by paying for their improvements, and giv-ing them the right of selecting other lands.The restrictions on alienation of lands al-lotted to Indians witiln the area of the MilkRiver irrigation project do not extend toprohibiting an allottee Indian from sellinghis improvements to the United States andselecting other lands so that the UnitedStates could use the lands selected for pur-poses of an irrigation project m provided byAct of Congress. Henkel v. United States,237 U.S. 43- (1915), affirming 196 F. 345;116 C.C.A. 165 (1912).

74

June 17, 1902


14. —school landsU-ntil so authorized by Congress, neither

the Department nor the Territorial Gov-ernment of Arizona has power to dedicatefor use in connection with an i~rigationproject, lands in said territory which, bysection 2 of the Act of February 2, 1863,~2 Stat. 664, sec. 1946, R. S., have beenreserved for school purposes to the futurestate to be erected, including the same.Instructions, 32 L.D. 604 ( 1904).

35. —Municipfl propertyAlthough land owned by a municipality

was being devoted to pubfic use, the Secre-tary of the Interior had authority to con-demn such land for Missouri River Basinproject. United States v. 20.53 Acrfs ofLand in O~borne County, Kansas, CZtY of?owns, 263 F. Supp. 694 (D. Kansas 1967).

16. —Water rightsThe United States had power to acquire

through exe~cis~of eminent domain waterrights of rlparlan owners and overlyingowners on river below Government dam.~tate of California v. Rank, 293 F. 2d 340(9th Cir. 1961), modified on other grounds307 F. 2d 962 affirmed in part 372 U.S.627, affirmed m part, reversed in part on,other grounds sub. nom. Dugan v. Rank,372 U.S. 609 (1963).

17. —Personal propertyAn engine necessary for the purpose of

,carrying out the provisions of this Act maybe acquired under this section. United States~. Buffalo Pitts Co., 234 U.S. 228 (1914).

18. —LeazeholdThe Secretary is authorized by this sec-

tion to acquire a leasehold interest. Acting$olicitor Burke Opinio~, M–36219 (May12, 1954), in re authority to lease or pur-chase lands for development farms on rec-lamation projects.

19. —Easements and rights-of-wayWhere the United States acquired a pri-

mary easement to construct an irrigationditch on the land of defendant, it alsoacquired the right, as a secondary easement,lo go upon land to maintain, repair, andclean ditch, but such seconda~ easementcan be exercised only when necessa~~ and insuch reasonable manner as not to increasethe burden upon defendant’s land. Mosheru. Salt River Valley Water Users’ Assn., 209P. 596, 24 Ariz. 339 (1922).

20. —Power sitesIn proceedings by the Federal Govern-

ment to condemn land located at KettleFalls on the Columbia River in the State..of Washington, uplands which power com-

pany had purchased and devel?ped as apower site could not be disassociated frombed of river and flow of stream in creatinga value for power site purposes, ad com-pany could not introduce evid~nce showingvalue of uplands for power site purposes,separate from use of bed of river and flowof stream. Washington Water Power CO. v.United States, 135 F. 2d 541 (9th Cir.1943).

In condemnation proceedings for theacquisition of lands for the Grand Couleedam, the defendant Continental Land Com-pany claimed compensation for the in-herent adaptability of its uplands fordam-site purposes for the production of elec-trical power. On appeal the Circuit Courtaffirmed the lower court holding that theColumbia River was a navigable streamand that the Company had no inherentright in the uplands for speciaf use asagainst the Government’s dominant right tothe river bed for navigation; that the Com-pany was limited to the reasonable marketvalue of the upland for any purpose towhich the lands may reasonably be adaptednow or in a reasonable time in the future,and that the Continental Land Cornp+yhad produced no proof of any posslblhty,reasonably near or remote, or at any time,that the land would be or could be used fordam-site purposes. Continental Land Co. v.United States, 88 F. 2d 104 ( 9th Cir. 1937 ).

21. —Noncompensable clahnsThe Secretary has no authority under

the seventh section of this Act to compensatesettlers upon lands wittiln the limits of awithdrawal made in connection with anirrigation project, unless they have in goodfaith acquired an inchoate right to theland by complying with the requirementsof law up to the date of the withdrawal andhave such a claim as ought to be respectedby the United States. Op. Asst. Atty. Gen.,34 L.D. 155 (1905).

Where a lease provides that the lessorcan terminate it on 30 days’ written noticeand that lessee’s improvements remainingon the premises after expiration of the 30day period shall become the property ofthe lessor, its successors or assigns, andwhere lessor after conveying the propertyto the United States, gives the requirednotice of termination, which is formally ac.cepted by the lessee, the United States,after the expiration of the notice period,cannot compensate lessee for moving of im-provements. Dec. Comp. Gen., A-14629(June 24, 1926). [Ed. note: Relief was sub-sequently granted the lessee throu,gh aprivate relief act dated March 3, 1927, 44Stat. 1844.]

The United States does not impliedly

June 17, 1902

THE RECLAMATION ACT—SEG. 7 75

promise to compensate persons engaged instock raising for the destruction of theirbusiness, or the loss sustained through theenforced sale of their cattle, the result of theinundation of their lands by the construc-tion of a dam which arrests flood waters.Bothwell u. United States, 254 U.S. 231(1920).

Where, in proceedings by the UnitedStates to condemn land overflowed by theconstruction of a dam, damages for lossfrom a forced sde pf the landowners’cattle and the destruction of their businesswere denied, and the landowners broughtsuit in the Court of Claims, they were in nobetter position in respect to such damagesthan if no condemnation proceedings hadbeen instituted. Bothwell v. United States,254 U.S. 231 ( 1920), affirming 54 Ct. Cl.203 (1918).

31. Condesrmation procee~lngsIn proceedings by the United States to

condemn right of way for a ditch underthe Reclamation Act which provides a fundfrom which the damages assessed shall bepaid, it is not necessary that the damagesshall be asessed and paid before the Gov-ernment may be allowed to take possession.United States v. O’Neill, 198 F. 677 (D.Colo. 1912). See dso 5 Com~. Gen. 907(1926). ‘

Where land is condemned pursuant tosection 7, for reclamation projects, the judg-ment is not required to be certified to theCongress, but may be paid from applicablereclamation funds. Such judgments are re-quired by the Act of Februa~ 18, 1904, 33Stat. 41, to be paid on settlements by theGeneral Accounting Office. 5 Comp. Gen.?37 (1926).

The fact that the taking of realty by theSecretary of the Interior ;as for construc-tion of distribution system did not requirethat c~tract with an irrigation districtprecede the taking. United States v. 277.97Acres of Lund, 112 F. Supp. 159 (D. Cal.1953).

Government may dismiss or abandonpetition in condemnation proceedings atany time before taking property, notwith-standing owners claim for damages was inexcess of district court jurisdiction. Owen n.United States, 8 F. 2d 992 (C.C.A. Tex.1925).

36. Physi4 seizure (inverse condemnation)(Editor’s Note: See also opinions an-

notated under the Fifth Amendment, theSundry Civil Expenses Appropriation Actof March 3, 1915, and the Federal TortClaims Act as codified June 25, 1948. )

The authorization in section 7 of theReclamation Act of 1902 that the Secretary

of the Interior may “acquire any rights orproperty, “ “by purchase or by condemna-tion under judicid proces:,” extends to thetding of private water rights by physicalseizure as well as by purchase or formalcondemnation. Turner v. Kings River Con-servation Dist., 560 F. 2d 184, 192 (9thCir. 1966).

The substantial reduction in the naturalflow of the San Joaquin Mver as the resultof the impoundment and diversion of theflow at Fnant Dam upstream constitutes aseizure or taking, in whole or in part, ofrights which may exist in the continued flowand use of the water; it does not constitutea trespass against such rights. This seizurewas authorized by Congress when itauthor-ized the project, and any relief to whichclaimants of the rights may be entided byreason of such taking is by suit against theUnited States under the Tucker Act, 28U.S.C. ~ 1346. Dugan v. Rank, 372 U.S.609 (1963 ). (Ed. note: The Tucker Act isthe Act of March 3, 1887, 24 Stat. 505. Itauthorized suits to be brought in the Courtof Claims against the United States in cer-tain cases? including claims founded uponthe Constitution. This includes claims basedupon the Fifth Amendment provision thatprivate property shall not be taken for pub-lic use without just compensation. 28 U.S.C.~ 1346 relates to the jurisdiction of the Fed-eral District Courts in such cases,. and 28U. SC. $1491 relates to the jurisdiction ofthe Court of Claims. These sections appearherein in the appendix. )

United States had right to acquire byphysical seizure water rights of riparianowners and overlying owners on river belowGovernment dam and was not required toresort to judiciaf condemnation proceed-ings. State of California v. Rank, 293 F. 2d340 (9th Cir. Cal. 1961), modified on otherqrounds 307 F. 2d 96. tirmed in Dart 372U.S. 627, affirmed in ‘part, reversed in parton other grounds sub. nom, Dugan v. Rank,372 U.S. 609 (1963) .

In actions in the Court of Claims fordamages resulting from an unforeseen flood-ing of claimants’ soda lakes following con-struction and operation of a Governmentirrigation pro ject by wtilch water wasbrought into the watershed, held (1) Thatallegations bat the water percolatedthrough the ground, due to lack of properlining k the Government’s canals andditches, the manner of their constructionand the natural conditions, were not in.tended to set up negligence, but merely toshow causal connection between the projectand the flooding, and hence did not charac-terize the cause of action as 6X delicto; (2)That, as no intentional taking of claimants’property could be implied, the Government

76 THE

was not liable ez contractu.

RECLAMATION ACT—SEC. 8

assuminz suchcausal relation. Horstmann, Co. v. UnitedStates and Natron Soda Co. v. UnitedState$, 257 U.S. 138 ( 1921), affirming 54Ct. Cl. 169, 214 (1919), 55 Id. 66 (1920).

An iniurv caused by the constructwn andoperatio; o’f a Government irrigation proj-ect? which by seepage and percolation neces-sar~ly influences and disturbs the groundwater table of the entire ~alley where plain-tiffs’ lands are situated, s damrsum absqueinjuria. Ibid.

(Editor’s note: The Horstmann andNatrona Soda cases are probably not goodlaw today. See cases noted under tie FifthAmendment. )

41. Availabilhy of fundsThe authority to purchase property given

by section 7 is an authority to make suchpurchases out of the reclamation fund avail-able therefor at the time such purchases aremade, and does not include authority tomake purchases on the credit of the reclama-tion fund or in anticipation of a futureincrement therein. 27 Comp. Dec. 662(1921).

42. ExchangesThe Secretary has no authority to permit

the owner of lands needed for a reservoir tobe constructed under said act to select otherlands of the same area witti]n the districtthat may be made susceptible of irrigationfrom the proposed reservoir, in mchange forthe lands so needed for reservoir purposes.Op. Asst. Atty. Gen., 32 L.D. 459 (1904).But see section 14 of the ReclamationProject Act of 1939.

43. Option to pur&aseThe act does not authorize the ex~ense

of procuring mere options to purchase ~ghtsof way, water rights, or lands. 9 Comp. Dec.569 (1903).

44. StatehwsA state, though it can bestow on citizens

property rights which the United Statesmust respect, cannot take from the UnitedStates power to acquire such propertyrights. State of California v. Rank, 293 F.2d 340, modified on other grounds 307 F.2d 96, affirmed in part 372 U.S. 627, af-firmed in part, reversed in part on othergrounds sub. nom. Dugan v. Rank, 3?2 U.S.609 (1963).

The power conferred on the Secretary ofthe Interior by the Reclamation Act tocondemn lands necessary for use in con-structing irrigation works is not subject tofimitation by State statutes relating to theexercise of the power of eminent domain ofthe State nor is its exercise governed by aState procedure requiring the necessity ofthe taking in each particular case to bedetermined by a local commission, but suchnecessity is a matter to be determined bythe Secretary, whose decision is not review-able by the courts. United States v. 0’Nei[l,198 F.677 (D. CO1O.lg12).

Where the Government acquires an irri-gation system held in private ownership,for use in connection with a reclamationproject under the Act of June 17? 1902, ittakes the same free from any obhgation orcontrol of State authority theretofore etist-ing. Op. Asst. Atty. Gen., 37 L.D. 6 ( 1908).

Sec. 8. [Irrigation laws of States and Territories not affected-Interstatestream*Water rights.] —Nothing in this aot shd be construed as affecting orintended to affect or to in any way interfere with the the laws of any State orTerrito~ relating to the control, appropriation, use, or distribution of water usedin irrigation, or any vested right acquired thereunder, and the Secretary of theInterior, in carrying out the provisions of this act, shall proceed in confotitywith such laws, and nothing herein shall in any way affect any right of anyState or of the Federal Government or of any landowner, appropriator, or userof water in, to, or from any interstate stream or the waters thereof: Provided,

That tie right to the use of water acquired under the provisiom of this actshall be appurtenant to the land irrigated and beneficial use shall be the basis,tie measure, and the fimit of the right. (32 Stat. 390; 43 U.S.C. $$372, 383)

EXPLANATORY NOTE

Codification. The proviso is codified in preceding portion of the section is codifiedsection 372, title 43 of tie U.S. Code. The in section 383.

June 17, 1902


NOTES OF OPINIONS

Stite laws 1-10Adoption of Federd law 5Generally 1Navigable waters 2Procedures 4Pubfic lands 3Rights-of-way to United States 6

Interstate conflic~nerdly 11Klghts of United States l&25

Generally 16Seepage 19Suits against the United States 18Suitsbv United States 17

R,gktz of’water users” 2&35Appurtenant to land 28Beneficial use 27Generally 26Power purposes 29Warren Act 30

1. State laQener*yIn choosing between users witi~n each

state and in settling the terms of his con-tracts for the use of stored Colorado Riverwater, the Secretary is not bound, eitherby section 18 of the Boulder Canyon Proj-ect Act, or by section 8 of the ReclamationAct, to follow State law. Although section18 allows the States to do things not in-consistent with the Project Act or withfederal control of the river, as for example,regulation of the use of tributary water andprotection of present perfected rights, thegeneral saving language of section 18 can-not bind tie Secretary by state law andthereby mdfify the contract power ex-pressly conferred upon him by section 5.Arizona v. California, 373 U.S. 546, 58%90 (1963).

Section 8 of the Reclamation Act doesnot mean that state law may operate toprevent the United States from exercisingthe power of eminent domain to acquirethe water rights of others. Rather, the effectof section 8 in such a case is to leave to~tate law the definition of the propertyinterests, if any, for which compensationmust be made. City of Fresno v. California,372 U.S. 627,630 (1963) .

Section 8 of the 1902 Act does not over-ride the excess land provisions of section5, nor compel the United States to deliverwater on conditions imposed by the State.It merely requires the United States tocomply with state law when, in the con-struction and operation of a reclamationproject, it becomes necessary for it to ac-quire water rights or vested interests there-in. But the acquisition of water rights mustnot be mnfused with. the operation of

Federd projects. Ivanhoe Irr. Dist. v.McCracken, 357 U.S. 275, 291-2 ( 1958).

Even though navigation is mentioned asone of the purposes of the Central ValleyProject, Congress realistically elected totreat Friant Dam not as a navigation proj-ect but as a reclamation project, with re-imbursement to be provided for the takingof water rights recognbed under State law,in accordance with section 8 of the Recla-mation Act, and this election is confirmedby administrative practice. Accordingly,the judgment of the Court of Claims willbe upheld granting compensation to theowners of so-called “uncontrolled grasslands” alons the San Joaquin River whichdepend for water upon suonal inunda- -tionz resultins from ovefiows of the river.United States v. Gerlach Live Stock Co.,339 Us. 725 (1950) .

Section 8 of the Reclamation Act of 1902requires federal officers to recosnize state-created water rishts and pay for them iftaken, but it does not Hmit the authority offederal officers to take such rishts for justcompensation. Turner v. Kings River Con-servation Dist., 360 F. 2d 184, 19+95 (9thCir. 1966).

Section 8 of the Reclamation Act of 1902does not compel the United States either toacquire or to deliver water on conditionsimposed by the State. Turner v. Kings RinerConservation Dist., 360 F. 2d 184, 197–98(9th Cir. 1966).

There is nothing in the IanguaSe of thissection to indicate that the intent of Con-gress was to go further than to recognizeand prevent interference with the laws ofthe State relatins to the appropriation, con-troi, or distribution of water. San Franciscov. Yosemite Power Co., 46 L.D. 89 (1917).

2. —Navigable watersWhere the Government has exercised its

right to regulate and develop the ColoradoRiver and has undertaken a comprehensiveproject for improvements of the river andfor the orderly and beneficial distribution ofwater, there is no room for inconsistent statelaws. Arizona v. California, 373 U.S. 546,587 (1963).

The privilege of the States throush whichthe Colorado River flows and their inhabit-ants to appropriate and use the water issubject to the paramount power of theUnited States to control it for the purposeof improvins navigation. Arizona v. Califor-nia, et al., 298 U.S. 558, 569 ( 1936), re-hearing denied, 299 U.S. 618 ( 1936).

The Secretary of the Interior is under no

June 17, 1902

78 THE RECLAMATION ACT—SEC. 8 (

obligation to submit the plans and specific-ationsfor Boulder Dam ?nd Reservoir to theState Engineer as required by Arizona lawbecause the United Stites may perform itsfunctio~s without conforming to the, policeregulations of a State. A7azona u. Cdzfornia,283 U.S. 423,451 (1931).

Where reclamation projects are involvedon navigable waters, even though powerelement is absent, federal government willnot brook interference by the States. UnitedStates v. Fallbrook Public Utility Dist., 165F. Supp. 806 (D. Cal. 1958).

Congress has control over navigablestreams and the waters thereof, and no claimbased upon appropriation of such watersfor irrigation purposes, made without thesanction of Congress, should be recognizedby the Secretary of the Interior as valid.~~~~)nia Development Co., 33 L.D. 391

3. —PubEc bndsIn a suit for the equitable apportionment

of the watersof the interstatenon-navigableNorth Platte River among three States, itis not necessaryto pass upon the contentionof the United Statesthat it owns all the un-appropri~t~d water in the river by virtueof lts orlgmal ownership of the water aswell as the Iand in the basin, where therights to the waters required for the recla-mation projects on the river have beenappr?pria}ed under State law pursuant tothe dlrect~ve of section 8 of the ReclamationAct, where the individual landowners havebecome the appropriators of the water rightsappurt~nant to their land, and where thedecree m the case is limited to natural flow,not storage water, and does not involve aconflict between a Congressionally providedsystem of regulation for Federal projects andan inconsistent State system. Neb7mka v.Wyoming, et al., 325 U.S. 589, 611-16,629-30 ( 1945).

There” is no authority to make such execu-ti~e withdrawal of public lands in a State asWll reserve the waters of a stream flowingover the same from appropriation under thelaws of the State, or will in any manner in-terfere with its laws reIating to the control,appropriation, use, or distribution of water.OP. Asst. Atty. Gen., 32 L.D. 254 ( 1903).But cf. Arizona v. California, 373 U.S. 546,595–601 (1963).

4. —ProceduresThe bureau made application for storage

of additional water in Arrowrock reservoir.The laws of the State of Idaho specificallyrequire that a bond be furnished in supportof such an application and provide thatfailure to file the bond would be an aban-donment of the permit. The Comptroller

Genersd held that since the furnishing of thebond and the continued validity of the per-mit were necessary in order to assure theGovernment its priority in the water rights,the premiums on the bond could be paidas a necessa~ incident to the constructionand operation and maintenance of the Boiseproject. Dec. Comp, Gen., B–10509 (Febrn-ary 3, 1941).

In order to conform as nearly as possibleto the laws of Wyoming, tie Farmers Irriga-tion District should submit to the UnitedStates proof of beneficial use of water deliv-ered to it by the United States under itsWarren Act contract, and the United States,acting *rough the Secretary of the Interior,should make such proof of beneficial use inNebraska of Pathfinder reservoir water asmay be required by the Wyoming laws, at-taching to such proof Warren Act contractsof all contractors who are entitled to theuse of any Pathfinder storage and any proofof beneficial use they may have submitted tothe United States. Soficitor’s decision, April17, 1936.

Under section 8 of the Reclamation Actof June 17, 1902, the 5-year period forcompletion of irrigation appropriations fiedby the State law for the development of awater supply for a reclination project inIdaho is applicable to the United States.Pionee7 lrri~ation District v. AmericanDitch Associ~tion, et al., 1 Pac. 2d 196, 52Idaho 732 (1931).

The Reclamation Act not ordy rec~nizesthe constitution and laws of the stat= pro-viding for the appropriation of its watersand the reclamation of its arid lands, putit requires that the Secreta~ of the Interior,in carrying out the provisions of thischapter, shrdl proceed in conformity withsuch laws. Burley v. United States, 179 F. 1,102 C.C.A. 429, 33 L.RA. (N. S.) 807(Idaho 1910).

5. —Adoption of Federal lawThe 160-acre fimitation is a basic part of

federal reclamation policy, and the statelegislaturehas adopted this concept as statepolicy for federd projects by authorizingirrigation districts to cooperate and contractwith the United States under reclamationlaw. Ivanhoe Irr, Dist. v. All Parties, 53Cal. 2d 692, 3 Cd. Rptr. 317, 330, 350 P.2d 69,82 (1960).

6. —Rights of way to United S~tes[Ed. Not*The Act of September 2,

1964, as amended by the Act of October 4,1966, authorizes the Secretary of the Inte-rior to pay just compensation for utitiationof rights of wav reserved to the UnitecState; under State law.]

Under a stitute of Wyoming (Laws 1905

June 17, 1902


ch. 85) granting rights of way over dlhinds of the State for ditches “constructedby or under the authority of the UnitedStates/’ and pr~viding that reservationsthereof sha~ be inserted in dl State con-veyances, patents of school land issued bythe State to private parties expressly subjectto rights of way “resemed to the UnitedStates: are subject to the right of theUnited States thereafter to cons-et andoperate irrigation ditches for a recbma-tion project over the lands conveyed bythe patents. This right may be mer-cised by straighte+ng and using as aditch, a natural ravine to collect waters ap-pertaining to the Federd project whichhave been used in irrigating its lands andare found percolating where they are notneeded. and to conduct them elsewhere forfurthe~use upon the project. Ide v. UnitedStates, 263 U.S. 497 ( 1924), firmingUnited States u. Ide, 277 Fed. 3?3 (C.C.A.Wyo. 1921).

Under Idaho Session Laws 1905. D. 373.granting right of way over State ia~ds fo~ditches constructed by authority of theUnited States, the United States was au-thorized to construct an irrigation canalacross land sold by State subsequent to theenactment of the statute. The contentionof the Iandowner that under the State Con-stitution, the Board of Land Commissioners,and not the legislature, was authorized todispose of State lands was admitted by thecourt, which, however, held tiat the con-stitutional provision related only to disposi-tion and sale and not to the mere grantof an easement which could be effectuatedby the State legislature, United States v.Fuller, 20 F. SUPD. 839 (D. Idaho 1937).

The right-of-~>y granted under Ut~law to the United States for ditches includesthe right to operate a fifty foot Klgh boomfor cleaning the canfl, and the cost to autility comQany in raising its transmissionlines to accommodate such bmm is not com-pensable. United States u. 3.08 Acres of~;[~{. etc., 209 F. Supp. 652 (D. Utah-__-,

A 1905 Washington statute providingthat in the dlsposd of lands granted by theUnited States, the State “shall reserve forthe United States” a right-of-way forditches, etc., for irrigation worke, consti-tuted a present, absolute grant to theUnited States, and such grant could not bedefeated by a subsequent conveyance of therights+f-way -d without actual notice tothe grantee. United States v. Anderson, 109F. Supp. 755 (E.D. Wash. 1953). Contra:United States v. Pruden, 172 F. 2d 503(10th Cir. 1949), construing an Oklahomastatute.

11. Interstateconflict~nerdlyAs to the words “and nothing herein shall

in any way affect any right of any state orof tie Federal Government or of any Iand-owner, appropriator, or user of water in, to,or from any interstate stream or the watersthereof” in this section, the U.S. SupremeCourt in Wyoming v. Colorado, 259 U.S.419 (1922) said: “The words * * * con-stitute the only instance, so far as we areadvised, in which the legislation of Con-gress relating to the appropriation of waterin the arid l?nd region has contained anydistinct mention of interstate streams. Theexplanation of this exceptional mention isto be found in the pendency in this courtat that time of the case of Kansas v. Colo-rado, wherein the relative rights of the twostates, the United States~ certain Kansasriparians and certain Colorado appropria-tors and users in and to the waters of theArkansas river, an interstate stream, werethought to be involved. Congress wassolicitous that all questions respecting inter-sbte streams ,tiought to be involved in thatlitigation should be left to judicid deter-mination untiected by the act—in otherwords, that the matter be left just as itwas before. The words aptly reflect thatpurpose.”

Nebraska brought suit against Wyomingin the Suureme Court for an eauitable aD-portionm~nt between the tw< States ~fwaters of the North Platte river, allegingthat the laws of both of these States recog-nize the doctrine of prior appropriation, andthat Wyoming, in spite of Nebraska’s pro-testations, neglected to control appro-priators, whose rights arise under the lawof Wyoming, from encroaching upon therights of Nebraska appropriators. Wyomingon Jan, 21, 1935, 294 U.S. 693, entered amotion to dismiss. The court, in denying themotion, held that Nebraska had cited nowrongful act by Colorado, and even thoughthe river rises and drains a Iarge area in thatState, Colorado is not an indispensableparty; that the Secretary of the Interior, asan appropriator under the irrigation laws ofWyoming? will be bound by the adjudicationof Wyommg’s rights, and is not an indis-pensable party; that the allegations of thebill are not vague and indefinite; and ifNebraska’s contention that there are notributaries of the North Platte and thePlatte rivers between the state line and theCity of Grand Island, Nebraska, supplyingany substantial amount of water, be not afact, Wyoming may make this an issue to bedetermined by proof. Nebrmka v. Wyoming,295 Us. 40 (1935).

In view of the Reclamation Act, theWarren Act, and the legislation of Wyoming

June 17, 1902


and Nebraska, an appropriation by theUnited States Reclamation Serv;ce for theirrigation of lands in Nebraska was valid,though the source of the supply was inWyoming. Ramshorn Ditch Co. v. UnitedState~, 269 F. 80 (8th Cir. 1920).

The North Side Canal Co. entered intoa contract with the United States for thepurchase of storage rights in the JacksonLake reservoir in Wyoming, the water storedtherein to be used in Idaho. The State ofWyoming assessed taxes against the inter-est of the canal company in the reservoir andthe canal company resisted the paymentof such taxes. The trial judge held that thetaxes were properly levied. No7thside CanalCo. v. State Board of Equalization, Wyomi-ng, 8 F. 2d 739 (D. Wyo. 1925). The casewas appealed to the Circuit Court of Ap-peals for the Eighth Circuit, whichreversed the decision of the DistrictCourt of the United States for the Districtof Wyoming and held that the attemptedtax is wholly null and void foq the reasonthat the water rights m question are ap-purtenant to the lands on which the waterhas been applied to beneficial use, whichlands are located in the State of Idaho andare therefore not within the jurisdiction ofTeton County, Wyoming, for” taxation pur-poses. 17 F. 2d 55 ( 1926), cert. denied 274L’.S. 740 ( 1927). Similar ru~mg in TwinFatl~ Canal Co. v. State of Wyoming.

Subsequently to this de~sio~ the ~egisla-ture of Wyoming passed an act (chapter36, Session Laws, of Wyoting, 1927), ineffect attempting to make water rights ac-quired under the laws of Wyoming taxable.Thereafter the State attempted to levytaxes upon the water rights, the taxability ofwhich was litigated in the foregoing suit.The district court, in Twin Falls Canal Co.v. Teton County, unpublished memorandumdecision dated November 14, 1928, heldthat the nontaxability of these water rightsby Wyoming was res judicata, and the taxeswere therefore annulled.

United States’ appropriation, from ter-ritory of New Mexico, of all unappropriatedwater in Rio Grande did not render suchwater as found its way to Texas untouch-able by poficy of water rights and appro-priations under Texas law, El Paso CountyWater Imp. Dist. No. 1 v. City of El Paso,133 F. Supp. 894 (D. Tex. 1955), affirmedin part, r{f~rmed in part on othir grmn.ds,243 F. 2d 927 (5th Cir. 1957), cert. demed355 U.S. 820.

16. Rights of United Stit~GenerallyThe United States, by filing with the

State of Oregon notices of intent to appro-priate and thereafter impounding watersfor the Klarnath project, pursuant to State

law, did not become the owner of the waterin its own right. Dec. Comp. Gen. W125866(September 4, 1956).

In view of the compact among the statesof Texas, New Mexico, and Colorado con-cerning use of RIO Grande water,. and inview of the United States’ appropriation ofwater for use of water improvement district,tie City of El Paso was not entitled to ap-propriate water already appropriated foruse of the district. El Paso County WaterImfi. Dist. No. 1 v. City of El Paso, 133 F.Supp. 894 (D. Tex. 1955), bed inDart. reformed in Dart on other grounds~43 ‘F. 2d 927 (5th ‘Cir. 1957), cert~denied355 U.S. 820.

By filing notices of intent to appropriateand thereafter imDoundinE water of RioGrande River, pursfiant to ;uthority grantedby this section, the United States did notbecome owner of water in its own right.Hudsfieth County Conservation and Rec-lamation Dist. No. 1 v. Robbins, 213 F. 2d425 (5th Cir. 1954), cert. denied, 348 U.S.833.

Under the Reclamation Act, tie right oftie United States as a storer and carrier isnot necessarily exhausted when it defiversthe water to grantees under its irrigationprojects. Nebrmka v. Wyoming, 325 U.S.589 f1945).

In’ cons~ructing reclamation project theproperty right in a water right is separateand distinct from the property right in res-ervoir:, ditches, or canals, in that waterright ~s appurtenant to the land owned bythe appropriator, and is acquired byperfecting an “appropriation”, that is, byan actual diversion followed by an applica-tion within a reasonable time of the waterto a beneficial use. Nebraska v. Wyoming,325 U.S. 589 (1945).

The scope of the appropriative waterrights in connection with a Federal reclamat-ion project must be regarded, under thelaw of Nebraskaj as the same as those in con-nection wifi any irrigation cansd. That is,although the right to the beneficial use ofthe water for irrigation is appurtenant tothe land and vested in the landowner, theowner of the irrigation project also has aninterest in such appropriative rights whichentitles hlm to representatively secure andprotect the full measure of beneficial usefor the landowners as well as to effectuatethe object of the project or canal asan enterprise. United States v. Tilley, 124F. 2d 850, 86041 (8th Cir. 1941), cert.denied, 316 IJ.S. 691 ( 1942).

Fedcrfl government’s diversion, storageand distribution of water at reclamationproject pursuant to Rechunation Act andoontracts with landowners @d not vest inUnited States ownership of water rights

June 17, 1902


which remained vested in owners as appur-tenant to land wholly distinct from propertyof government in irrigation work, whilegovernment remained carrier and distribu-tor of water with right to receive sums stip-ulated in contract for construction and an-nual charges for operation and maintenanceof work. Ickes v. Fox, 300 U.S. 82 ( 1937) ;Nebraska v. Wyoming, 325 U.S. 589(1945).

Under the Act of June 17, 1902, the Sec.retary of the Interior in operating an irr-igation project is in the position of a carrierof water to all entrymen in the project, andhe is not obligated to furnish any morewater than is available. Fox u, Zckes, 137 F.2d 30, 78 U.S. App: D.C. 84 ( 1943), cert.denied 320 U.S. 792.

Whatever rights the United States mayhave to divert waters from a stream in Ne-va,da under permits issued by the state en-gineer as against an irrigation company andthe extent hereof must be determined bythe law of Nevada. United States v. Hum-boldt Loveloek Irr. Light @ Power Co., 97F. 2d 38 (9th Cir. 1938), cert. denied 305U.S. 630.

The Government, like an individud, canappropriate only so much water as ii ap-prles to beneficial uses, and can only re-1strain a diversion which operates to its pre-judice. West Side Irr. Co. v. United States,246 Fed. 212, 158 C.C.A. 372 (Wash.191 7), affirming United States v. West SideZrr. Co., 230 Fed. 284 (D.C. 1916).

17. Auiti by United StatesIn view of this section, requiring Secre-

tary of the Interior to prmeed in conforsn-ity with state law in his administration ofthe Reclamation Act, the district court hadjurisdiction to review state engineefs deci-sion approving voluntary appliwtion ofUnited States for a change of the diversionplace of some of the irrigation waters of theUnited States notwithstanding that tie lawmay be different as applied to the UnitedStates as to payment of costs, estoppelz andabandonment. United States v. DzstrictCourt oj Fourth Judicial Dist. in and forCounty, 238 P. 2d 1132, 121 Utah 1(1951 ), rehearing denied 242 P. 2d 774,121 Utah 18.

In suit by the United States to enjoinan irrigation company from diverting irri-gation water allegedly purchased and ownedby the United States, the appointmentof a water master was unnecessary, since in-junction could enjoin company from inter-fering with diversion and storage of water bythe United Stites and cotid enjoin com-pany from diverting and storing water, andby such an injunction the District ,Courtcould protect the ~Jnited States against un-

lawful invasions of its rights by companywithout the auDointment of a water mas-ter. United Sj~tes v. Humboldt LovelockIrr. Light @ Power Co., 9? F. 2d 38 (9thCir. 1938), cert. denied 305 U.S. 630.

The rule of comity did not require that asuit by the United States in a federal courtto enj~n an irrigation company from divert-ing irrigation water allegedly purchased andowned by the United States should awaitdetermination of company’s suit in a Ne-vada court to enjoin others from interfer-ing with its diversion and storage of waterwhere the United States was not a party tothat suit, United States v. Humboldt Love-lock Irr. Light & Power Co., 97 F. 2d 3a(9th Cir. 1938) ~cert. denied 305 U.S. 630.

A suit, wherein a Nevada court adjudi-cated water rights allegedly owned by theUnited States and 4s0 the rights of an irri-gation company was no obstacle to a suitby tie United States in a federaf court toenjoin company from interfering with its.rights as against contention that suit con-templated an adjudication of water rightsand that they were in custodia legis. UnitedStates v. Humboldt Lovelock Zrr. Light @Power Co., 97 F. 2d 38 (9th Cir. 1938),cert. denied 59 S. Ct. 94, 305 U.S. 630.

In action. in shte court to determine wa-ter rights in which United States intervenedby leave and did not request removal tofederal court, state court had jurisdiction toenter decree fin~ priorities of UnitedStates, and the United States wou!d bebound by the decree. Pioneer IrrigationDist. v. American Ditch Assn., 1 P. 2d 196,50 Idaho 732 ( 1931).

In a suit by United States to enforceterns of contract entered into by defendant,a mutual irrigation company, wh:ch pro-vided that it should not divert more than80 cubic feet per second from stream andthe Government proceeded with a reclama-tion project based on such contract, defend-ant cannot defeat the contract on the theorythat it should not be construed as abandon-ment of rights of its stockholders. We~t SideIrrigation Co. v, United States, 246 Fed.212, 158 C.C.A. 372 (Wash. 1917). For sub-sequent suit involving these same limit ingagreements see Unite~ States v. Uniors Ga~Irr. Dist., 39 F. 2d 46 (9th Cir. 1930).

The government, me an individual!, canappropriate ody so much water as It ap-pfies to beneficial uses, and can only restraina diversion which operates to its prejudice.United States v. West Side Zrr. Co., 230F. 284 (D. Wash. 1916).

The fact that the United States has ap-propriated all of the unappropriated waterof a stream in a county for an irrigationproject, as permitted by a law of the State,

June 17, 1902


does not give it standing to maintain a suitto enjoin a prior appropriator from usingan excessive amount of water unless it isalleged and proved that it had acquired thetight to such water under its own appro-priation. United States v. Bennett, 207 Fed.524 (C.C.A. Wash. 1913).

The United State~, like an individual,can restrain a diversion which operates toits ?rejudice and where the United Stateshad examined, surveyed, located and had inoperation extensive irrigation works for thestorage, diversion and development of waterfrom the Yakima river for the reclamationof arid lands and it appeared that an irriga-tion company had appropriated and wasdiverting and using quantities of water inexcess of the amounts to which it was en-titled, thereby entailing great damage upontie United States, the United States wasentitled to an injunction to restrain the de-fendant from such use of the water in theriver above, as to materially lessen thequantity at complainant’s point of diversionwhich it had lawfully appropriated andwhich was necessary to the success of itsproject and fulfillment of its contracts.United States v. Union Gap. Irr. Co., 209F. 274 (D. Wash. 1913).

18. +uits against the United StatesA suit by riparian and overlying land-

owners to enjoin officials of the Bureau ofReclamation from impounding water at afederal darn on the San Joaquin River soas to protect plaintiffs’ vested water rightswas in fact a suit against the United Stabswithout its consent, in view of the fact thatthe decree granted by the lower court toenjoin tie action unless a physicaf solutionwas provided would have interfered withpublic administration, required expenditureof public funds, and would have requiredthe United States, contrary to the mandateof Congress, to dispose of irrigation waterand to deprive the United States of full useand control of reclamation facilities. Duganv. Rank, 372 U.S. 609 (1963).

The substantial reduction in the naturalflow of the San Joaquin River as the resultof the impoundment and diversion of theflow at Friant Dam upstream constitutes aseizure or taking, in whole or in part, ofrights wtilch may exist in the continued flowand use of the water; it does not constitutea trespass against such rights. This seizurewas authorized by Congress when it author-ized the project, and any relief to whichclaimants of the rights may be entitled byreason of such taking is by suit against theUnited States under the Tucker Act, 28U.S.C. $1346. Dugan v. Rank, 3?2 U.S. 609( 1963). (Ed. note: The Tucker Act is theAct of March 3, 1887, 24 Stat. 505. It au-

thorized suits to be brought in the Courtof Claims against the United States in cer-tain cases? including claims founded uponthe Constitution. This includes claims basedupon the Fifth Amendment provision thatprivate property shall not be taken for pub-lic use without just compensation. 28 U.S.C.$1346 relates to the jurisdiction of the Fed-eral District Courts in such cases,. and 28U.S.C. S 1491 relates to the jurisdictionof the Court of Claims. These sections ap-pear herein in the Appendix. )

Where nparian rights of landowners alongbranch channel of San Joaquin River weresubordinate to water rights of corporationwhich, with its subsidiary and affiliated com-panies, owned rights to use very substantialportion of flow of San Joaquin River, andUtited States, which, in carrying out Cen-tral Valley Project for irrigation purposes,formulated plan whereby waters of SanJoaquin River were diverted and waters ofSacramento River were substituted therefor,entered into contract with corporation andits subsidiaries for such substitution? andUnited States faithfully and fully ddlveredsubstitute waters, and landownem’ sufferedno actual damage because of substitution,any impairment of landowners’ rights be-cause of substitution was at most a tech-nicality, for which landowners could notrecover from United States, since UnitedStates could not with impunity take awaysubstitute waters. Wolfsen v. United Statesj162 F. SUPP. 403, 142 Ct. CIS. 383 ( 1958),cert. denied 358 U.S. 907.

Where the United States in 1908 ap-propriated all the water of the Rio GrandeRiver above lands in Hudspeth CountyConservation and Reclamation District No.1, riparian rights of owners of land in Hud-speth District were destroyed in 1908, andtheir alleged right of action against theUnited States for the taking of riparianrights was barred by limitations in 1958.Bean v. United States, 163 F. Supp. 838,143 Ct. Cls. 363 ( 1958), cert. denied 358U.S. 906.

The United States is not an indispensableparty to a suit by a landowner receivingwater from the Yakima project to enjointhe Secretary of the Interior from imposingadditional charges for water dehvery,representing part of the cost of the newCle Elum reservoir, beyond those stated ina repayment contract with a water users’association and in the public notice issuedby the Secretary, because the landowner, notthe United States, is the owner of the waterright under Federal and State law andunder contract with the Secretary. Thisownership is wholly distinct from the property right of the Government in the irriga-tion works. The suit is to enjoin the Sec-

June 17, 1902


retary from enforcing an order, the wrong-ful effect of which wfil be to deprive thelandowner of vested property rights, andmay be maintained without the presenceof the United States. Ickes v. Fox, 300 U.S.82 ( 1937). See also Fox v. Ickes, 137 F.2d 30 (D.C. Cir. 1943), cert. denied, 320Us. 792.

A judicid apportionment of the unap-propriated waters of the Colorado Riveramong the states of the Colorado RiverBasin cannot be made without an adjudica-tion of the rights of the United States, tocontrol navigation and to impound andcontrol in Boulder reservoir the dispositionof surpl~s water in t+e stream not alreadyappropnat~d, as any right of Arizona to theunappropriated waters in the ColoradoRver is subordinate to and dependent uponthe right of the United States to such waters.Hence, the United States is an indispensableparty to such apportionment proceedings.Arizona v. California, 298 U.S. 558 ( 1936).

The United States made application onMarch 30. 1921. for a diversion ~ermit of8,000 acre feet of the waters of ~he SnakeKlver and for a stera~e permit of 3,000;000acre feet per annum m connection with theMinidoka project. From 1930 to 1932 theAmerican Falls District obttined water fromthe Government’s natural flow or diversionpermit, but in 1933 the United States re-quired the District to use storage flow inalternate years. The district brought anaction against the State Water Master. Thecourt ordered the suit dismissed on accountof the absence of the United States but onSeptember 28, 1936, in denying a petitionfor a rehearing, modified its opinion to statethat because the United States was not madea party to the suit, the court could not ad-judicate the water rights. American FallsReservoir District No. 2 v. Crandall, et al.,82 F. 2d 973, 85 F. 2d 864 (C.C.A. Idaho1936).

The word “control” in section 8 of theReclamation Act providing that nothingtherein shall be construed to affect or inter-fere with State laws relating to control, ap-propriation, use? or distribution of waterused in irrigation, or any vested rightacquired thereunder, held not to warrantinference that Congress thereby intended torelegate suit against United States or Secre-tary of the Interior involving right, tide, orinterest of United States, to State court fordetermination, or to deny United States orSecretarv the right of removal. North SideCanal Co. v. T~uin Falls Canal Co., 12 F.~d 311 (D. Ida. lg26).

19.—SeepageWhere the United States in 1906 and

i908 appropriated dl of tie unappropriated

water of the Rio Grande for operation ofthe Elephant Butte Project, the UnitedStates dso acquired the right to any inci-dental seepage of such waters. Hunter v.United States, 159 Ct. Cl. 356 (1962).

The abandonment of seepage watersfrom the Rio Grande reclamation projectin the past by the United States did notconstitute abandonment of the right to usesuch waters when needed in the future;and plaintiffs’ use of such seepage watersdid not create in them rights superior tothose of the United States to control andprescribe the use of these waters. Bean v.United States, 163 F. Supp. 838 (Ct. Cl.1958), cert. denied, 358 U.S. 906 (1958).

The United States’ rights as a storer andcarrier of project water-are not ehaustedwith a single application of the water toland, but the water may be recaptured andreused as developed water. Huds$ethCounty Conservation @ Reclamation Dtit.No. 1 v. Robbins, 213 F. 2d 425 (5th Cir.1954), cert. denied, 348 U.S. 833 ( 1954).Although the United States. as owner ofan irri~ation project, may ~etain controlover and re-use seepage waters from theproject, when return flows to the river areabandoned, they become subject to appro-priation down stream. Nebraska v. Wyo-ming, et al., 325 U.S. 589, 633-37 ( 1945).

The United States purchased, for the Valereclamation project, a one-half interest inthe reservoir of the Warrnsprings IrrigationDistrict. The district agreed, in a contractwith the United States, to accept returnflow, drainage or waste water escaping fromthe Vale project and being available fordiversion by the d~trict’s canals, as a partof the district’s share of the stored waterfrom Warmsprings reservoir. It was disputedwhether, under the contract, the districtmust give the United States credit in Warm-springs reservoir storage only for the waterleaving the Vde project above ground, oralso for the water leaving the project bydeep percolation, and bter finding its waymto the watercourses whence it might bediverted into the canals of the district. Itwas held by the Court, in construing thecontract? that both surface flow and deeppercolation water escaping from the Vdeproject and being available for diversioninto the canals of the district could be thebases of a contract claim by the UnitedStates for storage in the reservoir. As thecourt interpreted the law of Oregon, waterescaping from the Vale project by deeppercolation is of a public character, evenas against the United States. United Statesv. Warms firings Irr. Dist., 38 F. Supp. 239(D. Ore. 1941).

The right of the United States in waterappropriated generally for the lands of a

June 17, 1902


reclamation project is not exhausted byconveyance of the right of user to granteesunder the project and use of the water bythem in irrigating their parcels, but attachesto the seepage from such irrigation, tiord-ing the Government priority in the enjoy-ment thermf for further irrigation on theproject over strangers who seek to appro-priate for their lands. Ide v. United States,263 U.S. 497 ( 1924), affirming UnitedStates v. Idej 277 Fed. 373 (1921).

Under the Warren Act a contract be-~een the United States and a land com-pany for the delivery to the latter of waterwhich escaped by seepage from the canalof a reclamation project was a valid con-tract which gave the United States the rightto conserve and deliver water thereunder.Ramshorn Ditch Co. v. United States, 269Fed. 80 (8th Cir, 1920), affirming 254 Fed.842 (D. Neb. 1918). Accord: United Stateso. Tilley, 124 F. 2d 850, 858-63 (8th Cir.1941 ), cert. denied 316 U.S. 691 (1942).

Where waste water arising from a Federalirrigation project, after percolation, is re-covered by the Government by means ofdrainage ditches, with the intention of ‘wn-serving and applying it to a beneficial use,the Government has a superior right to thewater. Grifiths v. Cole, 264 Fed. 369 (D.Ida, 1919).

Landowners within a Federal irrigationproject cannot avail themselves of wasteand seepage water arising in connectionwith the operations of the project when such

. water is claimed by the Government. Mem-orandum decision June 26, 1918, by StateDistrict Judge Isaac F. Smith, in re petitionNampa-Meridian Irrigation District for con-firmation of contract with the United States.Boise project.

26.Nights of water use-nerdlyWhere interest of United States in pro-

ceedings to obt?in adjudication of waterrights for irrigation and other purposes wasonly that of carrieror trustee in behalf ofowners of water, title to which was soughtto be adj~dicated, United States immunityas sovere~gngovernment coyld not be ex-tended to the water users. Ctty and Countyof Denver v. Northern Colorado WaterConservancy Dist., 276 P. 2d 992, 130Colo. 375 ( 1954).

Where United States and water conserv-ancy district failed in their duty to take dlnecessary steps to protect rights of consum-ers of water of which United States wascarrier or trustee in behalf of water owners,beneficiaries of such trust became propernecessary parties to proceeding to obtainadjudication of water rights for irrigation“and other purposes and had right to appearand present their case in such proceedings.

City and County of Denver v. NorthervColorado Water Conservancy Dist., 276 P.2d gg2, 130 Colo. 375 (lg54).

Where water rights on which Federalwater project rested pursuant to this chap-ter had been obtained in compliance withstate law, and pursuant to government’saction individual landowners had becomethe appropriators of the water rights, theUnited States being the storer and carrier,the rights acquired by landowners were asdefinite and complete as if they were ob-tained by direct cession from the FederalGovernment, so that even if the governmentowned unappropriated rights, they were ac-quired by landowners in manner contem-plated by Congress. Nebraska v. Wyoming,325 U.S. 589 ( 1945).

In constructing a declamation project, theproperty right in water right is separate anddistinct from” property right in reservoir:,,ditches, or canals, in that water right 1$appurtenant t? land, th~ owner of which1s the appnoprlator, an~ Is acquire~ by per-fecting an “appropriatlon~ ttiat Is, by anactual diversion followed by an applicationwithin a reasonable time of the water to abeneficial use. Nebrmka v. Wyoming, 325U.S. 589 (1945).

Although the ‘doctrine of prior appropria-tion fixes priorities among individual ap-propriators in the use of water according tomaxim, qui prior in tempore, prior in jurees!, it confers no right to waste water uponprior appropriator whose right is qualifiedby limitation, made i: favor of subsequentapproprlato~s and widest pssible use ofwater on arid lands, that all of water he usesmust be beneficially applied and with rea.sonable economy in view of conditions underwhich application must be made. BurleyIrr. Dist. v. Ickes, 116 F. 2d 529, 73 App.D.C. 23 (1940), cert. denied 312 U.S. 687(1941).

The United States is not an indispensableparty to a suit by ? landowner receivingwater from the Yaklma proJect @ enjointhe S:cretary of the Interior fr:m imposingadditional charges for water dehvery, repre.senting part of the oost of the new Cle Elumreservoir, beyond those stated in a repayment contract with a water users’ associa.tion and in the public notice issued by thtSecretary, because the landowner, not thtUnited States, is the owner of the wate!right under Federal and State law ancunder contract with the Secretary. Thiownership is wholly distinct from the p:op.erty right of the Government in the irrlgation works. The suit is to enjoin thlSecretary from enforcing an order, thwrongful effect of which will be to deprivthe landowner of vested property righttand may be maintained without the present

June 17, 1902


of the United States. Zckes u. Fox, 300 U.S.82 (1937). See flso Fox v. Zckes, 137 F. 2d~~2(D.G. Cir. 1943), cert. denied, 320 U.S.

27.—Beneficial useA beneficial use of watersalone gives user

no vested right to them, and preceding $ebeneficial use there must have been a filingof a notice of intent to appropriate. Bean v.United States, 163 F. Supp. 838, 143 Ct.Cl. 363 ( 1958), cert. denied 358 U.S. 906.

Under this section, users of water fromRio Grande project have a d,efeasible inter-est, which is always at risk of loss by un-justifiable delay in m~ing or continuingbeneficial use. El Paso County Water Zmp.Dirt. No. I v. City of El Paso, 133 F. Supp.894 (D. Tex. 1955), affirmed in part, re-formed in part on other grounds 243 F. 2d927, cert. denied 355 U.S. 820.

N’otwithstandlng the quantities of waterstated in water right contracts, the measureof the water right of a water user on aFederal reclamation project is the amountthat can be put to beneficial use. Fox v.Zckes, 137 F. 2d 30 (D.C. Cir. 1943), cer-tiorari denied, ,320 U.S. 792.

There is an important distinction betweenbeneficial use and economical use of water..4 nroperty ri~ht once acquired by the bene-fic~al use of water is not burdened by theobligation of adopting methods of irriga-tion more expensive than those consideredreasonably efficient in the locality. Fox v.Zckes, 137 F. 2d 30, 35 (D.C. Cir. 1943),cert. denied, 320 U.S. 792.

Mere diversion and storage of water doesnot constitute appropriation thereof, butwater must be applied to beneficial use toconstitute appropriation. Zckes v. Fox, 85 F.2d 294, 66 App. D.C. 128 (1936), affirmed300 U.S. 82, rehearing denied, 300 U.S.640.

By the provisions of this section the rightto the use of water acquired must be ap-purtenant to the land and the beneficialuse is the basis, the measure, and the limitof the right. Zmfierial WateT Co. No. 5 v.Holabird, 197 F, 4, 116 C.C.A. 526 (Cal.1912 ). See also Gutierres v. AlbuquerqueLand & Irr. Co., 188 U.S. 545 ( 1903);United States u. Bennett, 207 F. 524, 525,125 C.C.A. 186 (Wash. 1913) ; UnitedStates v. Conrad Znv. Co., 156 F. 123 (C.C.Mont. 1907), affirmed 161 F. 829, 88C.C.A. 647; San Joaquin @ Kings RiverC. @ Z. Co. u. Stanislaus County, 191 F.875 (C.C. Cal. 1911), reversed on ,othergrounds 233 U. S.. 454; United States v,Union Gap Z7r. Co., 209 F. 274 (D.C.Wash. 1913).

There can be no beneficial use of water

for irrigation until it is actually applied toreclamation of the land. The final and onlyconclusive test of reclamation is production.This does not, perhaps, necessarily meanthe maturing of a crop, but certainly doesmean the securing of actual growth of acrop. Departmental decision, February 5,1909.

28. —Appurtenant to landThis section providing that Rio Grande

project water should be appurtenant to landirrigated must be construed consistently withprovision upholding the force of state laws.El Paso County Water Imp. Dist. No. 1 v.City of El Paso, 133 F. Supp. 894 (D.C.Tex. 1955), affirmed in part, reformed inpart on other grounds 243 F. 2d 927, cert.denied 355 U.S. 820.

In Nevada and in the states of the aridregion generally, water for irrigation isappurtenant to the land irrigated, and hence1s the property of the landowner, UnitedStates v. Humboldt, Lovelock Zrr. Light @Power Co., 19 F, Supp. 489 (D. Nev. 1937),reversed on other grounds 97 F. 2d 38, cert.denied 305 U.S. 630.

Water, appropriated by application there-of to beneficial use on appropriator’s land,becomes part of and appurtenant to theland. Z.kes v. Fox, 85 F. 2d 294, 66 App.D.C. 128 ( 1936), affirmed 300 U.S. 82, re-hearing denied 300 U.S. 640.

Upon the issuance of a water-right cer-tificate the right evidenced thereby becomesappurtenant. to the land, subject to for-feiture for falIure to pay the annual install-ments at the time and in the manner pre-scribed by law and the regulations, and asubsequent purchaser of the land succeedsto the rights and status of the originalowner, subject to the same charges and con-ditions. Fleming McLean, 39 L.D. 580(1911),

29. —Power purposesWhere a canal drop is not developed for

power purposes as a part of a Federal re-clamation project, the water users do notacquire a property interest in the energyof the fal~ng water either as an incident oftheir right to the use of project water or asan incident of their obligation to repaythe costs of the irrigation works which madethe power drop possible; and therefore theUnited States may make development of thesite available to a Warren Act contractorwithout the concurrence of the water usersor the irrigation district which executed therepayment contract. Sohcitor MargoldOpinion M–28725 (October 6, 1936), in reuse of power site at C drop, Klamathproject.

June 17, 1902


30.—Warren Act pursuant to contracts entered into underLand in the Hudspeth County Conserva- the Warren Act, between the Hudspeth

tion and Reclamation District No. 1 is not District and Bureau of Reclamation, anda part of the Rio Grande Irrigation Project such contracts gave landowners no vestedof the United States, and waters of the Rio rights to the use of the water, and land-Grande River d~livered to landowners in pwners codd not recover fmm Utitedthe Hudspeth District were delivered, not States for taking of alleged water rights.pursuant to notices of appropriation of 1906 Bean v. United States, 163 F. Supp. 838,and 1908 filed by the Bureau of Reclama- 143 Ct. Cl. 363 ( 1958), cert. denied 358tion of the Department of the Interior, but U.S. 906.

Sec. 9. [Allocation of finds to States and Territories of origin. ]—RePealed.

EXPLANATORY NOTE

Repealed. Section 9 was repealed by That the. Secretary may temporarily usesection 6 of the Act of June 25, 1910, 36Stat. 836, which appears herein in chro-

such portion of said funds for the benefitof arid or semiarid lands in any particular

nological order. As originally enacted, the Stite or Territory hereinbefore named assection read as follows: “That it is hereby he may deem advisable, but when so useddeclared to be the duty of the Secretary of the excess shall be restored to the fund asthe Interior in carrying out the provisions soon as practicable, to the end that ulti-of this act, so far as the same may be prac- mately, and in any event, within each 10-ticable and subject to the existence offeasible irrigation projects, to expend the

year period after the passage of this act,the expenditures for the benefit of the said

major portion of the funds arising from the States and Territories shall be equalizedsale of public lands within each State and according to the proportions and subject toTerritory hereinbefore named for the bene- the conditions as to practicability andfit of arid and semiarid lands within the feasibility aforesaid?’limits of such State or Territory: Provided,

Sec. 10. [Necessary and proper acts and regulations. ]-The Secretary of theInterior is hereby authorized to perform any and all acts and to make suchrules and regulations as may be necessary and proper for the purpose of carry-ing the provisions of this act into full force and effect. (32 Stat. 390; 43 U.S.C.~ 373)

EXPLANATORY NOTES

Administrative Organization. The Rec- tion shall be appointed by the President.lamation Service was established within the Previous Bills. A large volume of originalGeological Survey of the Depar~ent of bills were introduced in the Congress priorthe Interior in July, 1902. In March, 1907, to the enactment of the Reclamation Act—the Service was given bureau status under 22 Senate bills, 54 House bills, 2 Senatea director. The name of the ReclamationService was changed to Bureau of Reclama-

joint resolutions aud 2 House joint resolu-tions. Unpublished volume entitled “Rec-

tion on June 20, 1923, and the position of lamation Act, Original BUS, 1899-1901”,Commissioner of Reclamation was estab- Engineering files, Bureau of Reclamation.lished. The Ac! of May 26, 1926, which Legislative History. S. 3057, Pubfic Lawappears herein m chr?nologlcd order, pro- 161 in the 57th Congress. S. Rept. No. 254.vldes that the Commissioner of Reclama- H.R. Rept. No. 1468.

NOTESOF OPINIONS

Reclamation Act 1-5Constitutionality 2Generally 1

Powers of Secretary 615Generally 6Leasesand permits 7Overseasprojects 8

Rules and regulationsGenerally 16

1. Reclamation Act—GenerallyA reclamation project is desi~~~ to

benefit people, not land. Ivanhoev. McCracken, 357 U.S. 275, 29’

The history of the Reclamati(1902 shows that it was the intent of Con-

------- --! Irr. Di$t.‘7 (1958).on Act of

.qess that the cost of each irrigation projectshould be assessed against the propertybenefited and that the assessments as fast

June 17, 1902


as collected should be paid back into thefund for use in subsequent projects with-out diminution. This intent cannot be car-ried out without charging the expense ofmaintenance during the Government-heldperiod as well as the cost of construction.Swigurt V. Baker, 229 U.S. 187 ( 1913).

Subsequent legislative construction of aprior act may properly be examined as anaid to its interpretation. The repeated andpractical construction of the ReclamationAct of 1902 by both Congress and theSecretary of the Interior, in charging costof maintenance as well as construction,accords with the provisions of the act takenin its entirety and is followed by the court.Swigart v. Baker, 229 U.S. 187 ( 1913).

The Federal reclamation law is containedin the Reclamation Act of June 17, 1902,which, togetier with acts amendatory andsupplementary thereto, forms a completelegislative pattern in the, field. SolicitorHarper Opinion, M–33902, at 2 (May 31,1945 ), in re applicability of excess landprovisions to Coachella Valley Iands.

The irrigation systems on the FlatheadIndian Reservation do not constitute a rec-lamation project as contemplated by theReclamation Act of June 17, 1902, and theamendments thereto, Flathead Lands, 48L.D. 475 (1921).

The project “manager ( supetitendent)of a Federal irrigation project is the Gov-ernment representative through whom theproject is managed and carried on, He isengaged in the administration of a Federallaw and has the right to bring into the Fed-eral courts controversies to which he is madea party touching the validity or proprietyof acts done by him in his representativecapacity. When sued in a State court fordamages on account of his alleged negli-gence in operating a project canal, he canremove the cause to a Federal court, Whifinv. Cole, 264 Fed. 252 (D. Ida. 1919).

The Act contemplates the irrigation ofprivate lande as well as lands belonging tothe Government and the fact that a schemecontemplates the irrigation of private aswell as a large tract of Government landdoes not render the project illegal, so as toprevent the condemnation of land neces-sary to carry it out. Burley v. United States,179 Fed. 1, 102 C.C.A. 429 (Ida. 1910).

Whatever may be its maximum powerunder the Constitution, it is thought that>y the Reclamation Act Congress has cho-;en to confer authority upon the Secretary>f the Interior only to undertake projects:he primary or predominant purpose offfhich is to reclaim public lands. Grifiths). Cole, 264 Fed. 374 (D.C. Ida. 1919).

The Act of June 17, 1902, outlines acomprehensive reclamation scheme, and

provides for the examination and survey oflands and for construction and maintenanceof irrigation works for the storage, diver-sion, and development of water for the re-clamation of arid and semi-arid lands.Henkel v. United States, 237 U.S. 43(1915).

In the construction of works for the ir-rigation of arid pubfic lands, the UnitedStates is not exercising a governmentalfunction, nor even a strictly public function,but is promoting its proprietary interests.Twin Falls Canal Co. v. Foote, 192 F. 583(D. Ida. 1911).

The Reclamation Act is not a “revenuelaw” within the meaning of Revised Statutes,section 643, allowing removaf to FederalCourts of suits brought in state courts“against any officer appointed under or act-ing by authority of any revenue law of theUnited States.” Twin Falls Canal Co., Ltd.v.. Foote, 192 Fed. 583 (D. Ida. 191 1) .Ctty of Stan field v. Umatilla Water users;Assn., 192 Fed. 596 (D. Ore. 1911).

2. <onstititionalityThere can be no doubt of the Federd gov-

ernment’s general authority to constructprojects for reclamation and other internalimprovements under the general welfareclause, article 1, section 8, of the Constitu-tion as well as article IV, section 3, relatingto the management and disposal of federalproperty. Ivanhoe Irr. Dist. v. McCracken,357 U.S. 275.294 (1958).

In conferring power u’pon Congress totax “to pay the Debts and provide for thecommon Defense and general Welfare ofthe United States;’ the Constitution dele-gates a power separate and distinct fromthose later enumerated, and one not re-stricted by them; thus Congress has a sub-stantive power to tax and appropriate forthe general welfare, fimited only by therequirement that it shall be exercised for thecommon benefit as distinguished from somemere Iocal purpose. It is now clear that thisincludes the power of Congress to promotethe general welfare through large-scale proj-ects for reclamation, irrigation, or otherintemaf improvement. United States V.Gerlach Live Stock Co., 339 U.S. 725, 738(1950).

The United States has constitutional au-thority to organize and mainttin an irriga-tion project within a State where it ownsarid lands whereby it will associate withitself other owners of like lands for thepurpose of reclatilng and improving them,and for that purpose it exercises the rightof eminent domain agtinst other landowners to obtain land necessary to carry theproposed project into effect. Burley V.United States, et al., 179 Fed. 1, 102 C.C.A.

June 17, 1902


429 (Ida. 1910), affirming 172 Fed. 615(C.C. 1909). See also Magruder v. BelleFourche Valley Water Users’Assn.,219 Fed.72, 133 C.C.A. 524 (S.D. 1914).

The Reclamation Act is within the powerof Congress as to lands witKln the Statesas well as Territories, under Constitution,article 4, section 3, giving it power “to dis-pose of and make all needful rules and reg-ulations respecting the territory or otherproperty belonging to the United States”,and is not in violation of the Constitutionon the ground that it authorizes the ex-penditure of pubfic money. without an ap-propriation, since it is in itself an appro-priation of the proceeds of land sold, noras delegating legislative authority to theSecretary of the Interior. United States v.Hanson, 167 Fed. 881, g3 C.C.A. 371(Wash. 1909).

.6. Powers of Secretary-GenerallySection 10 of the Reclamation Act does

not authorize the Secretary to constructextra capacity in a sewerage systembeyondthe needs for project construction purposes,~nd make th~scapacity available to an ad-jacent town in return for the town’s agree-ment to operate and maintain the system.The proposed use would violate R.S. $3678,31 U.S.C. ~ 28, which limits the use of ap-propriated funds to the objects for which theappropriation is made, unless otherwiseprovided by law. 34 Comp. Gen. 5gg( 1955), in re Glendo, Wyoming.

In cases where, because of administrativelaxity in enforcing the excess land limita-tions of reclamation law, or because proj -ects were initiated prior to the enact-ment of section 46 of the 1926 Act, ownersof excess lands have been receiving watertherefor without having exec~ted record-able contracts, the Secretary, in the exer-cise of his authority to perform all acts neces-$ary and proper to carry the reclamationlaws into full force and effect (sec. 10 of theReclamation Act of 1902; sec. 15 of theReclamation Project Act of 1939), may per-mit the continued delivery of water to suchexcess lands on condition that the owner,by the execution of a recordable contract,agrees to dispose of such lands within areasonable time on reasonable .$?nditions.Associate Solicitor Cohen Opmlon, M-34999 (October 22, 1947 ). ‘

Secretary of the Interior had power toexecute a plan of conservation whereby hestopped winter flow of water through powerplant in irrigation district, ceased producingpower in nonirritating season for p.urp?seof conserving such wat~r for ir~gahngseason, contracted with prl~?te Power comp-any to supply commercial demand ‘ndistrict, and preserved the profitable com-

mercial power business which would other-wise have been lost through lack ofdependable source of power during irriga-tion season. Burley Irr. Dist. v. Ickes, 116F. 2d 529, 73 App. D.C. 23 ( 1940), cert.denied 312 U.S. 687.

Neither the Boulder Canyon Project Actnor the Reclamation laws generally au-thorize the Secretarv of the Interior toestablish a Federal reservation, in connec-tion with the construction of the dam andpowerplant, over which the United Stateswould have exclusive jurisdiction pursuantto a Nevada smtute generally cedingjurisdiction over lands acquired by theUnited States for public buildings. Six Com-panies, Inc. v. De Vinney, County Assessor,2 F. Supp. 693 (D. Nev. 1933).

The Secretary of the Interior has no gen.eral supervisory authority under section441,Revised Statutes, under section 10 of tieAct of June 17, 1902, or under section 15of the Act of August 13, 1914, to suspendpublic notices issued under the reclamationlaw. In re Shoshone irrigation project, 50L.D. 223 (1923).

See C.L. 818, May 12, 1919, regardingauthority of Secretarv of the Interior toprovide means for ex~ermination of grass-hoppers and other pests.

Under the Reclamation Act the Secretaryof the Interior has power to contract with anirrigation district to SUPPIY, or. PartiallYsupply, the district with water. Ptoneer Zrr.Dist. v. Stone, 23 Idaho 344, 130 Pac. 382( 1913); Hillcrest Irr. Dist. v. Brose, 24 Ida.376, 133 Pac. 663 (1913) ; Nam@a & Me-ridian Irr. Dist. v. Petrie, 153 Pac. 425( 1915). See dso Nampa @ Meridian Irr.Dist. v. Petrie, 223 Pac. 531, 37 Ida. 45(1924).

7.—Leases and permhsThe Secretary of the Interior may estab-

lish rules as to the use of witidrawn landswhile not ,needed for the purpose for whichthey are reserved, and may lease them forgrazing and limit anirnds to be grazed there-on; the revenue derived going into the rec-lamation fund. Clyde v. Cummings, 101Pac. 106, 35 Utah 461 (1909).

There is no general statuto~ authorityfor leasing Government;omed land, and theSecreta~ of the Intenor may adopt suchmethods as he deems in the best interestof the United States and the project. Inthe administration of the Boulder Canyonproject area, the Bureau of Reclamation andthe National Park Service may grant Ieasegfor lands and permits to engage in businessactivities to private indifiduds wi~hout ad-vertising for proposals or securing .c?m”petitive b:ds. Solicitor Margold OpmlonM-28694 (October 13, 1936 ).

June 17, 1902

THE ACT—SEC. 10 89

An easement for the wnstrnction andmaintenance of an electrical transmissionline over lands purchased under the rec-lamation law codd be granted for a maxi?mum period of 50 years on certain condi-tions adfitis@fively imposed. Soficibfso~inion. M–24897 (December 31, lg28),N~wlands project. ~

The Secretary of the Interior has au-thority to make temporary leases of landsreserved or acquired by. purchase for use inconnection with an imgation project con-templated under the provisions of the Rec-lamation Act where use under the pro-posed lease will not interfere with tie useand control of the lands when needed forthe purposes contemplated by the reserva-tion or purchase. Op. Asst. Atty. Gefi., 34L.D. 480 (1906).

Temporary leases for grazing and otheragricdtural purposes may be made of landsacquired through condemnation proceed-ings for reservoir or canal purposes in rec-lamation projects during such perids asmay elapse between the acquisition of titleand the actual use of the same for reservoirsand canals. All such leases should state thepurpose for which the lands were acquiredand that such purpose will not in any man-ner be interfered with or delayed by thelease; should specifically provide for theimmediat~, or speedy, termination ofthe lease m event it is desired to utilize theland or any part thereof for reclamationworks, or in event the work of reclamationis found to be hindered or delayed by rea-son thereof; and should be limited to oneyear, but may contain provision for renewalfor the succeeding year in event the landsshould not sooner be needed for reclamat-ion ~urooses. Instructions. 39 L.D. 525(191i). “

Whenever it is reasonably necessary forthe Preservation of the buildings. works. andoth;r property, or for the pro~e; protectionand efficiency of any reclamation project, orwhere special conditions make it advisable,~rst-form withdrawn or purchased landsmay be leased to the highest bidder for aterm to be decided upon by the Reclama-tion Service (Bureau of Reclamation) as

267-067—7>vol. 1——9

the conditions may arise. Reclamation deci.sion, March 23, 1917.

The Secretary has frdl authoritv to Dur-chase lands necissary for resq~oir purp~ses,to arrange the terms of purchases; andto allow the vendor to retain possessionafter the Government has taken possessionuntil the, land may be actually needed whereby so doing the purchase may be mQre ad-vantageously made; but he has no authorityunder said act to lease such purchased landsaft er the Government has taken possessionthereof. Instructions, 32 L.D. 416 (1904).

8.—Overseas projeckSection 10 of the Reclamation Act is to

be construed as relating only to projwts ofthe United States and does not authorizethe Bureau of Reclamation engineers to re-view designs for two dam projects in Ceylo?,and prepare supplemental plans and speci-fications therefor, with funds to be providedin advance by the Government of Ceylon.Dec. Comp. Gen. BA0382 (October 8,1946).

16. Rules and regufatio~eneraflyThis section gives the Secretary of the

Interior no authority or power that hewould not have if it were omitted. Op. Atty.P,en.. Anril 97. 190.5—-..., --=--- - , -----

Rules and regulations prescribed by theSecretary of the Interior under statutorvauthori~ have the effect of statutes and w~lbe judicially noticed by the courti. Alfordet al. v. Hesse, 279 Pac. 831 (Cdif. 1929).

While this section authorizes the Secre.tary of the Interior to make such regula-tions as maybe necessary and proper to carrythis act into full force and effect, he is notauthorized to amend, modify, or changestatutory provisions ting rights of a suc-cessful contestan~ who has secured cancel-lation of. any pre-emption homestead ortimber culture entry. Edwards v. Bodkin,249 Fed. 562, 161 C.C.A. 488 (Cal. 1918).

A rule by the Secretary of the Interior,the import of which is to carry into Wect theprovisions of an act relating to the publiclands, is valid? and has the same bindingforce as the law itself. Clyde u, Cummings,101 Pm. 106, 35 Utah 461 (1909).

june 17, 1902 the reclamation act [sec. 1. reclamation ... · june 17, 1902 the reclamation act an...

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