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Desert Land Entry: Water Right-Bureau of Reclamation: Excess Lands

Administrative Practice Under departmental regulations (May 31, 1910, 38 L.D. 646, para. 78; cur

rently, 43 CFR 230.110), a desert land entryman who owns a water right can rely on his own efforts to convey his water to his entry without assistance from a government project, thereby avoiding the requirements of the reclamation law, or he can participate in the project. In the latter case he

must observe requirements of the reclamation law, including land limitations. Bureau of Reclamation: Excess Lands Where the claimants of existing water rights covering lands in the Imperial

Irrigation District have sought and obtained the construction of a federal reclamation project to eliminate the hazards of drought, flood and silt and to obtain a canal entirely within the United States, they must accept the

conditions imposed by the reclamation law, including land limitations. Statutory Construction: Generally-Bureau of Reclamation: Excess Lands Where Congress has deemed it proper to waive or modify the excess land laws

in certain projects, it has always found it appropriate to enact positive legislation setting forth the exemption or other modification in unmistak

able terms. Statutory Construction: Generally Statutes which grant privileges or relinquish rights of the public are to be

strictly construed against the grantee.

Bureau of Reclamaion: Excess Lands

Privately owned lands in the Imperial Irrigation District, even those assumed

to have vested Colorado River water rights, are subject to the excess land laws.

United States—Res Judicata

The United States, not having intervened as a party and not being suable

without its consent, is not bound by either the finding, the decision, or the final judginent of a state court in proceedings held to confirm a repayment contract.

M-36675

December 31, 1964

To: SECRETARY OF THE INTERIOR

Subject : Excess LAND LAWS: IMPERIAL IRRIGATION DISTRICT

On August 7, 1961, the Chairman of the Senate Committee on Interior and Insular Affairs reported that complaints had been made that the excess land laws were not being enforced by the Bureau of Reclamation in Imperial and Coachella Valleys in California. He requested advice as to whether the excess land laws applied there, and if so what the status of land ownership was.'

See

1 Letter from Senator Clinton P. Anderson to Secretary Udall, August 7, 1961. Appendix L.

IMPERIAL IRRIGATION DISTRICT LANDS

December 31, 1964

You replied on May 15, 1962, stating that lands in Coachella Valley County Water District are subject to, and in compliance with, the excess land laws. You indicated, however, that while Secretary Wilbur in 1933 had ruled that the excess land laws do not apply to Imperial Irrigation District, there is some reason to suggest he may have been mistaken. You expressed the hope that time and staff would permit a study of this matter in the future.2

This question arose again at the Senate hearings on S. 1658 last April when Senator Kuchel of California asked if the excess land laws apply under the Boulder Canyon Project Act. The Senator stated that the question was, in his view, an important one.3

You have therefore asked me as Solicitor to make a careful study of the problem and advise you. After consideration of all issues I have concluded that, as a matter of law, the excess land laws do apply to lands in the Imperial Irrigation District.

The Imperial Irrigation District embraces about 530,000 irrigable acres of desert land in Southern California. Approximately 430,000 acres are now irrigated by Colorado River water which is stored at Hoover Dam and diverted at Imperial Dam to the All-American Canal for distribution within the District. The Hoover and Imperial Dams and the All-American Canal are federal projects authorized by the Boulder Canyon Project Act (the act of December 21, 1928, 45 Stat. 1057, 43 U.S.C. secs. 617-617t).

The federal government did not construct and does not own the system of canals and laterals through which water is distributed to individual farms after its discharge from the All-American Canal.

If the land limitation provisions of the reclamation law (herein sometimes referred to as the excess land laws) apply to privately owned lands in the Imperial Irrigation District, it is by virtue of terms of the Boulder Canyon Project Act.

Section 9 of the Project Act expressly applies the 160 acre limitation to public lands in the project. Hence, we are only concerned here with privately owned lands. Since Secretary Wilbur's ruling was limited to lands then irrigated from the Colorado River, this opinion considers lands to which an antecedent water right was assumed to be appurtenant. Thus, the question considered here is: Are privately owned lands in the Imperial Irrigation District, assuming they have appurtenant water rights, subject to the excess land laws?

Letter from Secretary Stewart L. Udall to Senator Anderson, May 15, 1962. See Appendix M.

3 Hearings on s. 1658 Before the Subcommittee on Irrigation and Reclamation of the Senate Committee on Interior and Insular Affairs, 88th Cong., 1st Sess., pt. 2, at 349-351 (1964).

Boulder Canyon Project Act Section 1 of the Act states the purposes of the project, and authorizes the construction of a storage dam on the Colorado River and of a diversion dam and main canal to divert water to the Imperial and Coachella Valleys in California. While Section 1 provides that "no charge shall be made for water or for the use, storage, or delivery of water for irrigation or water for potable purposes in the Imperial or Coachella Valleys * * *,” it also requires that the "expenditures for * * * [the] main canal and appurtenant structures [are] to be reimbursable, as provided in the reclamation law ***.” Since Congress does not purposely enact contradictory provisions in the same act, we must conclude that reimbursement for the main canal and appurtenant structures was not regarded by Congress as a charge for water or for its use, storage or delivery.

Section 4(b) of the Act outlines the terms under which the United States will be repaid for its investment. With respect to the “* * * main canal and appurtenant structures to connect *** with the Imperial and Coachella Valleys in California * * *,” the Secretary is instructed to "make provision for revenues, by contract or otherwise, adequate in his judgment to insure payment of all expenses of construction, operation, and maintenance * * *

* * * in the manner provided in the reclamation law."

Finally, section 14 of the Project Act reads as follows: This Act shall be deemed a supplement to the reclamation law, which said reclamation law shall govern the construction, operation, and management of the works herein authorized, except as otherwise herein provided.

Section 1 provides that the expenditures for the construction of the main canal and appurtenant structures are to be reimbursable "as provided in the reclamation law.” Section 4(b) requires that the United States be repaid its expenses for construction, operation, and maintenance “in the manner provided in the reclamation law.”

The Act defines "reclamation law” in section 12 as "that certain Act of the Congress of the United States approved June 17, 1902 * * * and the Acts amendatory thereof and supplemental thereto."

On December 21, 1928, the date of the Project Act, and on June 25, 1929, the date when it became effective, the law prescribing the manner by which repayment was to be made for reclamation projects was section 46 of the Omnibus Adjustment Act of 1926 (act of May 25, 1926, 44 Stat. 649–50, 43 U.S.C. sec. 423e). Section 46 provides that

*

IMPERIAL IRRIGATION DISTRICT LANDS

December 31, 1964

no water is to be delivered * upon completion of "any new project” until repayment contracts have been entered into with irrigation districts organized under State law. Section 46 further requires that:

* Such contract or contracts with irrigation districts hereinbefore referred to shall further provide that all irrigable land held in private ownership by any one owner in excess of one hundred and sixty irrigable acres shall be ap praised in a manner to be prescribed by the Secretary of the Interior and the sale prices thereof fixed by the Secretary on the basis of its actual bona fide value at the date of appraisal without reference to the proposed construction of the irrigation works; and that no such excess lands so held shall receive water from any project or division if the owners thereof shall refuse to execute valid recordable contracts for the sale of such lands under terms and conditions satisfactory to the Secretary of the Interior * * The conclusion is inescapable, therefore, that the law, on December 21, 1928, required that the excess land laws apply to the Imperial Irrigation District.

This conclusion is reinforced by section 14 which provides that reclamation law "except as otherwise herein provided” shall govern “the construction, operation, and management" of the project works.

The provisions of reclamation law of general application dealing with land limitations include section 5 of the 1902 Act," Sections 1 and 2 of the Warren Act, Section 3 of the 1912 Act, Section 12 of the 1914 Act, and Section 46 of the 1926 Act, supra.

Section 5 of the 1902 Act forbids the sale of a water right for lands in private ownership for more than 160 acres. The "sale" can only be understood in the context of sections 4 and 5 of the Act. A reading of the two sections together reveals that the sale is not merely a commercial transaction involving the transfer of a water right. It is the contract by which the government secures repayment and the water user obtains the range of benefits resulting from the construction of the federal project.

In section 4 the Secretary is directed to estimate and announce the per-acre charge and the number of annual installments. This is his estimate of the consideration to be paid by the water user for the sale referred to in section 5. When section 5 states "no right to the use of water for land in private ownership shall be soldfor more than 160 acres, it obviously means that the use of project facilities

8

4 The Project Act in Sec. 4(b) modifies this to provide that "[b]efore any money is appropriated

the Secretary must make adequate provision for repayment. 5 Act of June 17, 1902, 32 Stat. 388, 389. 43 U.S.C. § 431.

Act of February 21, 1911. 36 Stat. 925–26. 43 U.S.C. $ 523–24. ? Act of August 9. 1912. 37 Stat. 265, 266. 43 U.S.C. $ 544. 8 Act of August 13, 1914, 38 Stat. 686, 689, 43 U.S.C. & 418.

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shall not be made available to a single owner for service to more than 160 acres.

The owner of private land may also own a water right. Clearly a water right will not be sold, in the conventional sense, to such an owner.

Sections 4 and 5 disclose a scheme by which all participants in a project share its cost. If a private landowner cannot be sold a waterright because he already owns one, he cannot be charged for it either and, since section 5 contains all the provisions of the Act for repayment, there is no way by which he can participate in the project.

Nothing in the 1902 Act or its legislative history suggests that private landowners with water rights could participate in a project, pay their share of its cost, but be exempt from acreage limitation.

In 1911, in the Warren Act, supra, Congress dealt directly with the situation where federal facilities may store or carry water owned by others. The use of federal facilities under the Warren Act is expressly conditioned on compliance with the excess land laws.

Section 3 of the 1912 Act provides that water shall not be “furnished under said [reclamation] acts nor a water right sold or recognized for such excess" over 160 acres. Here is manifested in the clearest manner possible that the ownership of a water right prior to the construction of a federal reclamation project would not entitle its owner to service from the federal project for more than 160 acres.

The 1914 Act, supra, extended the time for repayment under the 1902 Act and made other changes in the reclamation law. Repayment by private landowners was effected as before, by the making of a waterright application and the “sale” (in the sec. 5 sense) of a water right.

However, Section 12 of the 1914 Act provided that any owner of lands in excess of what should be determined to be sufficient to support a family could not be included in the project unless he agreed to sell his excess lands. Thus, as applied to the lands under the All-American Canal, the 1914 Act would require the landowners to agree to sell excess lands or not get any water through the Canal at all. When stated this way no distinction is possible between a landowner with and a landowner without a water right. Neither could get in the proj. ect without making the prescribed agreement.

The Act of May 15, 1922 (42 Stat. 541, 43 U.S.C. sec. 511), authorized joint liability contracts with districts in lieu of individual water-right applications. Section 46 of the Act of May 25, 1926, supra, made joint liability contracts mandatory for new projects. Such was the contract entered into with Imperial Irrigation District.

By Section 46 the mechanism of repayment by "selling” water rights to private landowners disappeared and was replaced by an undertaking by the district to repay construction charges.

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