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IMPERIAL IRRIGATION DISTRICT LANDS
December 31, 1964

For the same reason the requirement in section 6 for "satisfaction of present perfected rights" cannot be read as insulating the District lands from acreage limitation. It is not in plain terms an exemption from the limitations of reclamation law in connection with the obligation to repay the cost of Imperial Dam and the All-American Canal. We turn now to Secretary Wilbur's second contention, namely, that the Department had interpreted section 5 of the 1902 Act to permit the recognition of a water right for more than 160 acres in single ownership by allowing the continued flow of water covered by the right through federal project facilities.

This had been the position of the Department in the special situation where existing physical facilities were being acquired by the Government for incorporation in a project. In such cases, lands to which the water right was appurtenant were considered to be outside the project.

The first authority cited by Secretary Wilbur, Opinion of Assistant Attorney General, 34 L.D. 351 (January 6, 1906), serves to illustrate the limited nature of this practice. There, an entire irrigation system already partially completed and in service, owned by a private land and irrigation company, was proposed to be acquired by the United States at a purchase price of $15,000. It was to be incorporated into a larger federal reclamation project (East Umatilla). The agreement contemplated that some 8,000 to 9,000 acres of project land owned by the company would be placed in trust for sale to individuals in units conforming to the acreage limitations prescribed in accordance with sections 4 and 5 of the 1902 Act.

The company's water rights, held or claimed, were to be included in the conveyance to the United States except for the reservation by the company of a water right sufficient to irrigate 300 acres of land it proposed to retain. It was explained by the Director of the Geological Survey (of which the Reclamation Service was then-1905—a part) that to purchase the water right for the 300 acres would require a larger expenditure than could be justified.27 The government agreed to satisfy this right through project works. The company was not to pay any construction charges although it was to pay for operation and maintenance.

The Director pointed out that:

The furnishing of this water supply as part consideration is therefore a condition favorable to the United States. Besides, it is the usual practice in cases

Memorandum from Director, Geological Survey, to Secretary of Interior, November 16, 1905. See Appendix A.

where an existing irrigation system is purchased for enlargement, to agree to furnish a water supply to the prior owners, frequently without even reserving the right to make a charge for maintenance. This practice is founded on sound business principles for it is always cheaper to furnish the water when available than to buy the right to water which has already vested.

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If for instance the government were merely to recognize a vested right for water for 300 acres, the company could utilize the right only by building a canal system paralleling the government system or else the government would be required to forego the advantage of using the company's works now constructed. He viewed section 10 of the 1902 Act 28 as authorizing the arrangement.

Assistant Attorney General Campbell, to whom the matter was referred for consideration, thereupon issued the decision cited in the Wilbur letter. The Assistant Attorney General concluded that under the transaction, the 300 acres covered by the reserved right, "is not brought within the limits of [the] project," Supra at 354. He held that the agreement did not conflict with section 5.29

The cases of the Newlands (Truckee-Carson) and North Platte projects alluded to by Secretary Wilbur involved comparable purchases of existing private irrigation works.30

This practice referred to by Secretary Wilbur is not a precedent for the Imperial Valley situation. The United States acquired no preexisting facilities; the Imperial lands were not only a part of the project, they were the primary reason for the project; and finally, the lands in Imperial were not exempted from, but were expressly required to repay, construction charges for the All-American Canal, Imperial Dam, and appurtenant structures "in the manner provided by the reclamation law." Section 4(b) of the Project Act.

On the other hand, the practice of the Department in respect or the carriage of water through reclamation project facilities for the irrigation of desert land entries, shows an intention to apply excess

28 32 Stat. 390, 43 U.S.C. sec. 373. The section authorizes the Secretary "to perform any and all acts and to make such rules and regulations as may be necessary and proper" for the purpose of carrying the provisions of the Act into full force and effect.

While the Wilbur letter does not cite it, the 1906 ruling was followed on May 31, 1910, by a departmental regulation (38 L.D. 637, para. 45), which is currently found at 43 CFR 230.70:

The provision of section 5 of the act of June 17, 1902 (32 Stat. 389; 43 U.S.C. 381, 392, 431, 439), limiting the area for which the use of water may be sold, does not prevent the recognition of a vested right for a larger area and protection of the same by allowing the continued flowing of the water covered by the right through works constructed by the Government under appropriate regulations and charges.

As is apparent from comparison of its text with a headnote to the 1906 decision, this regulation was evidently intended as no more than a codification thereof.

20 See Department of the Interior Second Annual Report of the Reclamation Service, 1902-3, at 368-69 (1904), and Fourth Annual Report of the Reclamation Service, 1904–5, at 236 (1906).

Anna M. Wright, 40 L.D. 116 (1911), also referred to in the Wilbur letter, merely cited the 1910 regulation. It has no relevance to the question here involved.

IMPERIAL IRRIGATION DISTRICT LANDS
December 31, 1964

land limitations of reclamation law if project benefits are received. This situation is analogous to that presented by the privately owned lands in the Imperial Irrigation District.

To obtain a desert land entry, an entryman must demonstrate the fact and legal sufficiency of his water right. If the claim is one of an appropriative right, he must show that he has taken all necessary steps to perfect that right as one of the requirements of making final proof. Instruction, November 16, 1906, 35 L.D. 305, 43 CFR 2226.1-5(h).

By section 5 of the Act of June 27, 1906 (34 Stat. 520, 43 U.S.C. sec. 448) a desert land entryman is permitted under certain circumstances to bring his entry under a reclamation project and obtain a water supply through the project if he complies with reclamation law and relinquishes that part of his entry in excess of 160 acres. The Department's regulation under this act states, however, that

Special attention is called to the fact that nothing contained in the act of June 27, 1906, shall be construed to mean that a desert-land entryman who owns a water right and reclaims the land embraced in his entry must accept the conditions of the reclamation act of June 17, 1902, but he may proceed independently of the Government's plan of irrigation and acquire title to the land embraced in his desert-land entry by means of his own system of irrigation."

In short, the desert land entryman, who for this purpose is treated like the owner of patented lands, has a choice. He can rely on his own efforts to convey his water to his entry without assistance from the government project, thereby avoiding the requirements of the reclamation law, or he can participate. In the latter case he must observe the law's requirements including land limitation.

It is evident that 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. Where, as here, the claimants of existing water rights 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 federal law.

Administrative Practice

Subsequent to the Wilbur Letter

As soon as the Wilbur letter was issued representatives of the District expressed concern that reliance had been placed exclusively on section 5 of the 1902 Act whereas the principal problem was the

Regulations, May 31, 1910, 38 L.D. 646, para. 78; currently, 43 CFR 230.110.

effect of section 46 of the 1926 Act. Assistant Commissioner and Chief Counsel Dent replied 22 to this suggestion by stating that section 46 was only an incorporation of section 5 of the 1902 Act as construed by the Wilbur letter. Dent conceived, albeit "with reluctance," that section 5 precluded application of the excess land laws to lands having a vested water right. We have already disposed of this argument and have analyzed section 5 of the 1902 Act and the Acts supplementary thereto, including section 46 of the 1926 Act.

Mr. Dent also argued that the Boulder Canyon Project Act was complete in itself and did not incorporate reclamation law. This argument completely ignores the import of sections 1, 4(b), and 14 of the Project Act.

In 1944, William E. Warne, Assistant Commissioner of Reclamation, testifying before a Senate subcommittee, stated that acreage limitation provisions relative to private lands were not carried into effect by the Boulder Canyon Project Act and had not been applied to Imperial Valley.33 The following day, the Assistant Commissioner qualified this testimony by linking the exemption not to the law but directly to the Wilbur letter, thereby revealing that his statements were not based on new and independent legal research.

34

Doubts as to the legal validity of the Wilbur opinion were expressed in December of 1944 in connection with negotiations for a supplemental contract between the United States and the Coachella Valley County Water District. Commissioner of Reclamation Bashore advised the Secretary on December 15, 1944, that—

Probably because of an informal decision of the then Secretary of the Interior, Ray Lyman Wilbur ****, the Coachella contract of October 15, 1934, contained no provision for enforcement of the excess-land provisions * * *. The correctness of the 1934 contract's disregard of the excess-land laws is doubtful, in the opinion of the Chief Counsel of the Bureau; and he is of the opinion that the proposed contract is subject to the excess-land laws ***. Because the applicability of a Departmental ruling is involved, and perhaps the soundness of that ruling, I recommend that this matter be referred to the Solicitor for an opinion on the applicability of the excess-land laws to the proposed contract. The matter was referred to Solicitor Fowler Harper, who rendered a formal opinion holding that the Wilbur letter was not intended to apply to Coachella lands. But this limited finding did not prevent the Solicitor from raising serious doubts as to the validity of the Wilbur opinion. In contrast to the Wilbur letter, Fowler Harper's

36

See Appendix F.

33 Letter from Porter W. Dent to Richard J. Coffey, March 1, 1933. 33 Hearings on H.R. 3961 before the Subcommittee of the Senate Committee on Commerce, 78th Cong., 2d Sess., pt. 5, at 599 (1944). See Appendix G.

34 Id. at 764.

35 Memorandum from Commissioner Bashore to Secretary Ickes, December 15, 1944. 36 Solicitor's Opinion, M-33902 (May 31, 1945). See Appendix H.

IMPERIAL IRRIGATION DISTRICT LANDS

December 31, 1964

opinion construed the Project Act as incorporating the excess land provisions of the reclamation law.

The apparent inconsistency in administrative treatment on excess lands accorded the Imperial and Coachella districts gave rise to an inquiry from the Veterans of Foreign Wars to the Secretary in March of 1948. In reply, then Secretary Julius A. Krug confirmed the fact that different administrative practices were followed with regard to the two districts:

Concerning *** the substantive questions which relate alike to both districts, we have concluded that inasmuch as the Secretary of the Interior then charged with the administration of law construed the acreage limitation as not being applicable to lands of the Imperial Irrigation District under the facts as he then understood them, and it being clear that the then owners and subsequent purchasers of irrigable lands in the Imperial Irrigation District were entitled to rely upon advice from the Secretary and thus establish an economy in the district consistently with that advice, they should not now be abruptly advised that the economy of the project is to be changed under a contrary ruling of the present officer charged with the administration of the law.

To the extent, therefore, that the actual fact situation with respect to lands and water rights may be identical in the two districts in question, and to the extent that the advice furnished in the Coachella case would otherwise be applicable in the Imperial case, we feel that we must allow that inconsistency, if such there be, to continue. I think that you will understand the position which the Department must take in this matter in fairness to those who have relied on its action, even though that action might now be subject to valid question.* It is pertinent to observe that Secretary Krug does not purport to give a legal interpretation of the Imperial question in the above entry. Solely in deference to considerations of economic reliance, the Secretary elected to continue the practice of exempting the Imperial lands from acreage limitations.

In 1958 the question of acreage limitation in Imperial Valley was raised outside the Department of Interior in proceedings held before the Hon. Samuel H. Rifkind, Special Master of the Supreme Court, in the case of Arizona v. California. In its oral argument the State of Arizona sought certain admissions relative to Imperial Irrigation District's noncompliance with the excess land provisions of the reclamation law. The Special Master asked that memoranda be submitted on the question of whether a motion for admission ought to be granted. Pursuant to this request the Solicitor General of the United States, Hon. J. Lee Rankin, sought the views of the Solicitor of the Department of Interior, Elmer F. Bennett.39 Solicitor Bennett, while

Letter from Secretary Krug to H. C. Herman, April 27, 1948. See Appendix I. Record, vol. 94, pp. 15, 550-15, 601, Arizona v. California, 373 U.S. 546 (1968). *Letter from the Hon. J. Lee Rankin to Elmer F. Bennett, January 24, 1958.

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