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was held not to bar the right of action for wrongful death on the theory that the decedent could not give away something which did not belong to him.10

A survey of agencies within this Department which operate airplanes reveals that four-Geological Survey, Bureau of Land Management, National Park Service and Bureau of Reclamation-require waivers in situations comparable to those covered by Reclamation Instructions 334.6.16; and that two-Bonneville Power Administration and Bureau of Sport Fisheries and Wildlife-do not. Among outside agencies, the militay departments (which, of course, have the largest volume of such situations) require waivers, whereas the Federal Aviation Agency does not.

The decisions cited in this memorandum illustrate some of the complexities that make it impossible to state a simple hard and fast rule as to when pre-flight waivers are enforceable and when they are not. The best which may be said is that they can, at times, help in the defense of a lawsuit-and cannot, in any event, hinder its defense.

EDWARD WEINBERG,

Deputy Solicitor.

APPLICABILITY OF THE EXCESS LAND LAWS
IMPERIAL IRRIGATION DISTRICT LANDS

Bureau of Reclamation: Excess Lands

Sections 1 and 4(b) of the Boulder Canyon Project Act (45 Stat. 1057, 1059; 43 U.S.C. secs. 617, 617 (c)), which require the costs of the main canal and appurtenant structures to connect with the Imperial Valley to be repaid pursuant to reclamation law, carry into effect the excess land provisions of section 46 of the Omnibus Adjustment Act of May 25, 1926 (44 Stat. 649; 43 U.S.C. sec. 423e).

Bureau of Reclamation: Construction-Statutory Construction: Generally Where a federal statute provides that the reclamation laws shall govern the construction, operation, and management of project works, the excess land provisions of the reclamation laws are thereby carried into effect unless the terms of the statute provide otherwise.

Bureau of Reclamation: Excess Lands-Bureau of Reclamation: Water Right Applications

The provision in section 5 of the Reclamation Act of June 17, 1902 (32 Stat. 388, 389; 43 U.S.C. sec. 431) that "no right to the use of water for land in private ownership shall be sold" for more than 160 acres means that the 10 Montellier v. United States, supra note 3. But cf. Van Sickel v. United States, 285 F. 2d 87 (9th Cir. 1960) (personal representatives of deceased serviceman whose death was not within purview of the Federal Tort Claims Act, since it occurred while the serviceman was on active duty, are not entitled to recover for his wrongful death even under a nonderivative statute).

IMPERIAL IRRIGATION DISTRICT LANDS

December 31, 1964

use of project facilities shall not be made available to a single owner for service to more than 160 acres. Sections 4 and 5 of the 1902 Act, read together, indicate that the "sale" referred to is not merely a commercial transaction, but 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.

Bureau of Reclamation: Generally-Bureau of Reclamation: Excess LandsWater and Water Rights: Generally

Nothing in the Reclamation Act of 1902 (32 Stat. 388) 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. Water and Water Rights: Generally-Bureau of Reclamation: Excess Lands Neither the existence nor nonexistence of a vested water right is itself determinative of whether the excess land laws are applicable in any given

case.

Statutory Construction: Legislative History

The legislative history of the Boulder Canyon Project Act (45 Stat. 1057, 1066; 43 U.S.C. secs. 617, 617t) does not reveal that Congress intended to exempt, by implication or otherwise, the private lands within Imperial Valley from the federal excess land laws.

Administrative Practice

The letter from Secretary of the Interior Ray Lyman Wilbur to the Imperial Irrigation District, February 24, 1933, which informally ruled that the excess land laws did not apply to lands in the Imperial Irrigation District, was based upon clearly erroneous conclusions of law.

Administrative Practice

Administrative practice, no matter of how long standing, is not controlling where it is clearly erroneous.

Statutory Construction: Administrative Construction

The departmental regulation, currently found at 43 CFR 230.70, which provides that section 5 of the Act of June 17, 1902 (32 Stat. 388, 389; 43 U.S.C. sec. 431), does not prevent the recognition of a vested water right for more than 160 acres and the protection of same by allowing the continued flowing of the water covered by the right through works constructed by the Government under appropriate regulations and charges, applies only to special situations where existing physical facilities or water rights are acquired under the authority of section 10 of the 1902 Act (32 Stat. 389, 390; 43 U.S.C. sec. 373) for incorporation in a project and where the lands to which the water right appertains are not included within that project. This regulation was intended as a codification of the Opinion of Assistant Attorney General, 34 L.D. 351 (January 6, 1906).

Statutory Construction: Generally

The language of section 1 of the Boulder Canyon Project Act (45 Stat. 1057; 43 U.S.C. sec. 617) does not by its plain terms create or recognize a water right.

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

Under departmental regulations (May 31, 1910, 38 L.D. 646, para. 78; currently, 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 unmistakable 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 judgment of a state court in proceedings held to confirm a repayment contract.

M-36675

To: SECRETARY OF THE INTERIOR

December 31, 1964

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.1

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

See

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

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

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).

owned lands in the Imperial Irrigation District, assuming they have appurtenant water rights, subject to the excess land laws?

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

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