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. Further, it may be significant to note that the 1932 Imperial water contract was amended in 1952 after extensive negotiation to accommodate the Imperial Dam and All-American Canal operations to the Mexican Water Treaty of 1944. The amendatory contract of 1952 in no way seeks to revive or treat with the application of the 160 acre limitation. Quite apart from the timeliness of now probing anew the application of the 160 acre limitation, I believe there are other pertinent aspects of the matter which warrant careful consideration. I have in mind particularly the relevance of the 160-acre limitation to the primary issue of determining as between Arizona and California their respective entitlements to water, the position of the Government regarding the validity of its water contracts and perhaps the standing of Arizona to inject the question of the application of the 160 acre limitation. I shall discuss these matters briefly in the order mentioned. Under section 4 of the Boulder Canyon Project Act and the California Self-Limitation Act, California is entitled to the beneficial use of 4,400,000 acre-feet of III (a) water, plus one-half the surplus. This has always been the view of this Department; see 54 I.D. 593 (1934). What lands that water is delivered to is a matter first, of internal California law and second, and of more importance, of contracts between the California interests and the United States. The failure of the parties, if it be a failure, to include all necessary provisions in the Imperial contract cannot operate to enlarge the Arizona entitlement. She must stand on the strength of her own title and not the weakness of her opponent's title. Accordingly, we believe the 160acre limitation issue is not one relevant to the rights of the states under the law of the river. In its Petition of Intervention (Paragraph XXXI, pages 27 and 28) the United States asserts that its water contracts are valid and binding and denies "each and every allegation of the parties to the cause in their respective pleadings with reference to these treaties, conventions, compacts, documents, laws and contracts which in any way contravenes, contests, or challenges the validity of them or any IMPERIAL IRRIGATION DISTRICT LANDS December 31, 1964 *” provision or provisions of them; ***." As previously indicated, I believe we cannot take a different view at this time. The water delivery contract between the United States and the State of Arizona, dated February 9, 1944, clearly recognizes the right of the United States to contract with the agencies of the State of California for the storage and delivery of water from Lake Mead. Article 7(h) of that contract reads: (h) Arizona recognizes the right of the United States and agencies of the State of California to contract for storage and delivery of water from Lake Mead for beneficial consumptive use in California, provided that the aggregate of all such deliveries and uses in California from the Colorado River shall not exceed the limitation of such uses in that State required by the provisions of the Boulder Canyon Project Act and agreed to by the State of California by an Act of its Legislature (Chapter 16, Statutes of California of 1929) upon which limitation the State of Arizona expressly relies. Since the Imperial water contract was nearly 12 years old and wellknown to the State of Arizona at the time the Arizona water contract was executed, it would appear reasonable to conclude that the abovequoted language was, at least so far as Arizona is concerned, a recognition of the right of a Secretary to have executed the Imperial water contract of December 1, 1932. In keeping with your request I am attaching a copy of the document requested entitled "Land Ownership Survey on Federal Reclamation Projects." There is also attached for your information a copy of Secretary Krug's letter of April 27, 1948, from which I have heretofore quoted. We shall be glad to discuss the subject of your inquiry if that seems desirable. Sincerely yours, ELMER F. BENNETT, Solicitor. APPENDIX K IN THE SUPREME COURT OF THE UNITED STATES NO. 10 ORIGINAL October Term 1957 STATE OF ARIZONA, COMPLAINANT v. STATE OF CALIFORNIA, PALO VERDE IRRIGATION DISTRICT, ET AL., DEFENDANTS, UNITED STATES OF AMERICA and STATE OF NEVADA, INTERVENERS, STATE OF UTAH and STATE OF NEW MEXICO, IMPLEADED DEFENDANTS. Before the Honorable Simon H. Rifkind, Special Master MEMORANDUM IN BEHALF OF THE UNITED STATES WITH RESPECT TO RELEVANCE OF NON-COMPLIANCE WITH ACREAGE LIMITATIONS OF RECLAMATION LAW 4 for Imperial County, California, on July 1, 1933,3 found and concluded that, without distinguishing between privately owned and public lands which might be opened for entry, there is no limit on the quantity of lands in single ownership which might be served with irrigation water from the All-American Canal; and that by opinion No. M-33902 dated May 31, 1945 the Solicitor for the Department of the Interior, with Secretarial approval, repudiated the conclusion reached in the Wilbur letter of 1933 and concluded that the acreage limitation provisions of the reclamation law were fully applicable to lands under the All-American Canal within the Coachella Valley County Water District. But, we submit, the Special Master's disposition of the Arizona request and of the California objections thereto neither requires nor justifies a resolution of the question whether the acreage limitation provisions of the reclamation law apply to lands in the Imperial Irrigation District or the question whether the decree in Hewes, et al. v. All Persons, et al. precludes further consideration of that question. For even though an affirmative answer to the first of those questions and a negative answer to the second be assumed, the California objec 3 California Exhibit No. 207. Arizona Exhibit 249 for identification. IMPERIAL IRRIGATION DISTRICT LANDS A tions to the Arizona request should nevertheless be sustained. demonstration of the reasons why this is believed to be so is the principal burden of this memorandum. It is not the purpose of the United States to avoid taking a position on these questions, but simply to avoid unnecessary argument. Briefly, it may be stated that for the reasons stated in Solicitor Harper's opinion, as well as for others, no conclusion seems permissible other than that the limitations of the reclamation law upon the quantity of privately owned lands which might receive irrigation water under the All-American Canal are applicable in the Imperial Valley just as are the similar limitations relating to public lands opened for entry within the District. (See, e.g., section 9 of the Boulder Canyon Project Act, 43 U.S.C. § 617h.) Clearly, the All-American Canal is a reclamation project (36 Op. Atty. Gen. 121, 130, 138, Dec. 26, 1929), subject to all the provisions of "Reclamation law," as defined in section 12 of the Boulder Canyon Project Act (43 U.S.C. § 617k), except as such provisions are by the Project Act made inapplicable. Section 1 of the Project Act (43 U.S.C. § 617) reads "the expenditures for said main canal and appurtenant structures to be reimbursable, as provided in the reclamation law." Section 14 (43 U.S.C. § 617m) is even more explicit. "This act shall be deemed a supplement to the reclamation laws, which said reclamation laws shall govern the construction, operation, and management of the works herein authorized, except as otherwise herein provided." (Italics supplied.) It is at best no more logical to argue, as the California defendants have, that the omission to include in the Project Act an express limitation with respect to lands in private ownership indicates a Congressional intent that no such limitation should apply than it is to argue that the express provision was deleted because it was thought section 14 was entirely adequate to accomplish the purpose. The express limitation with respect to public lands contained in section 9 is not inconsistent with such an assumption. For the express provision of section 9 with respect to the opening of public lands for entry made necessary the accompanying limitation on the size of the tracts. We think the reasoning whereby the conclusion of non-applicability was reached in Appendix A to the "King Report" (quoted at page 47 et seq. of the Brief of Imperial Irrigation District on this question) is utterly devoid of logic and of any other basis for support. Other references to the controlling effect of the provisions of reclamation law are to be found throughout the Project Act. In addition to Secretary Wilbur's failure to consider all of the possibly applicable provisions of the various supplements to the Reclamation Act of 1902, there are other inadequacies in his premises for the conclusion he stated. Among them are his assumption, without analysis, that "lands now cultivated" in the District had as against the United States vested water rights, and his assumption that those lands would receive through the works constructed by the Government only "the continued flowage of the water covered by the right** *.” With respect to the Superior Court's findings and conclusions in Hewes, et al. v. All Persons, et al., we shall limit our comments at this point (1) to the statement that the United States had not, and has not, consented to be sued in cases of that kind and that its officers could therefore not have submitted the United States to the jurisdiction of the Court even had they attempted to do so-which they did not, and (2) to the observation that the Superior Court's attempted determination of the applicability to lands in the District of the acreage limitation provisions went far beyond the direction of Congress "That no contract with an irrigation district under this act shall be binding on the United States until the proceedings on the part of the district for the authorizaion of the execution of the contract with the United Staes shall have been confirmed by decree of a court of competent jurisdiction **.” (Act of May 15, 1922, section 1, 42 Stat. 541; 43 U.S.C. § 511. See also Act of May 25, 1926, § 46; 44 Stat. 649, 650; 43 U.S.C. § 423e.) The question of the general applicability in California of the acreage limitation provisions of the reclamation law and the question whether the United States can be a party defendant to "validation" proceedings such as Hewes, et al. v. All Persons, et al., are now pending before the Supreme Court of the United States in the case of Ivanhoe Irrigation District v. All Persons, et al., 47 Cal. 2d 597, 306 P. 2d 824, 355 U.S. 803, and related cases. Although the United States did not appear in the State court proceedings in the case except as amicus curiae in support of the State's petition to the California Supreme Court for rehearing, it is planned that an amicus curiae brief will be filed with the United States Supreme Court. None of the briefs on that appeal has yet been filed. For this reason it is believed inappropriate, as well as unnecessary for the reasons stated in the text, to argue at length here the question adverted to in this footnote. APPENDIX L August 7, 1961 Honorable Stewart Udall Secretary of the Interior Washington 25, D.C. Dear Mr. Secretary: I have had some complaints from Southern California that the acreage limitation provisions of the Reclamation law have not been enforced in Bureau of Reclamation Projects in the Coachella and Imperial Valleys. Would you kindly advise me if these areas are subject to acreage limitation provisions, and if so, the status of land ownership within them? Sincerely yours, CLINTON P. ANDERSON, Chairman. APPENDIX M May 15, 1962 Hon. Clinton P. Anderson Chairman, Committee on Interior and Insular Affairs Dear Mr. Chairman: On August 7, 1961, you made inquiry as to whether lands in the Coachella and Imperial Valleys are subject to acreage limitation provisions of the Federal Reclamation laws and, if so, the status of land ownership within them. Unfortunately, your letter was misplaced. The Coachella Valley County Water District is in compliance with the land limitation provisions of the Federal Reclamation laws. The Coachella distribution system contract of December 22, 1947, includes provisions implementing the acreage limitation provisions through recordable contracts as specified in section 46 of the Act of May 25, 1926. No acreage limitation provisions were included in the Coachella All-American Canal contract of October 15, 1934, whereby the Coachella County Water District contracted for capacity in the Imperial Dam and the All-American Canal and for the repayment of a propor |