43 Usc 373

June 17, 1902

THE RECLAMATION

ACT

An act appropriating the receipts from the sale and disposal of pubfic lands in certain States
and 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 perfor 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 year
endhg June tilrtieth, nineteen hundred and one, including the surplus of fees
cent

and commissions

in excess

the five per centum
set aside
hereby,

by law

for

and

diversion,

for educational

reserved,

to be known

of allowances

of the proceeds
set aside,

as the “reclamation

the construction
and

and

and

development

other

appropriated
fund;’

and

for in this act.

and receivers,

of waters

purposes,

of irrigation

fund
works

for the reclamation
and for the payment
43 U.S.C.

EXPLANATORY

NOTES

States

shall be, and the same

as a special

(32 Stat. 388;

Codi6cation.
The text of his section as
it app-rs
in 43 U.S.C. $ 391 differs from
the above in the following substantive respects: ( 1) the phrase “officers designated
by the Secretary of the Interior” is substituted for “registers and receivers” in view
of the Acts of March 3, 1925, 43 Stat. 1145,
and October 28, 1921, 42 Stat. 208, which
consolidated the offices of register and receiver and provided for a single officer to
be known as register; and (2) the phrase
“and in the State of Texas” is added after
“said States and Territories,” in view of the
Act of June 12, 1906, which is discussed
below.
Proviso Relating to Support for LandGrant Colleges. As originally enacted, the
above section also contained a proviso to the
efiect that, if receipts from the sales of public lands were insufficient to fulfill the annual appropriations authorized by the Act
of August 30, 1890, 26 Stat. 417, 7 U.S.C.
$322, for the support of land-grant colleges, the deficiency could be supplied from
any moneys in the Treasury not otherwise
appropriated.
This provision was superseded by the Act of March 4, 1907, 34 Stat.
1281, which removed the requirement that
the funds appropriated by the 1890 Act,
as amended, are limited to those “arising

and excepting

lands in the above

are

in the Treasuv

to be used in the examination

maintenance

lands in the said States and Territories,
tures provided

to registem

of the sales of Fublic

for

of arid

and survey
tie
and

storage,
semiarid

of all other expendi-

~ 391)

from the sale of public lands.” See 43 U.S.C.
$391 note and 7 U.S.C. ~~ 321 not:, 322.
Supplementary Provisions: Extension to
Texas. The Act of February 25, 1905, extended the Reclamation Act to a portion of
the State of Texas bordering
the Rlo
Grande, and the Act of June 12, 1906, extended the Reclamation Act to the entire
State. The 1905 and 1906 Acts appear
herein in chronological order.
Supplementary Provisions: Advancm to
Reclamation
Fund. The originaf concept
of the 1902 Act was that the entire reclamation program would be financed from the
reclamation
fund. It became apparent,
however, that receipts to the fund were not
adequate to finance completely a program
of 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 reclamation fund from the general funds of the
Treasury.
The so-called
Hayden-O’Mahoney amendment to the Ac! of May 9,
1938, effected a complete reimbursement
of these advances. Beginning with appropriations in 1930 for the Boulder Canyon
project,
the annual program
has been
financed by appropriations in part from the
reclamation fund and in part from the gen-

June 17, 1902

THE ~CLAMATION
era fund of the Treasury. The 1910, 1931
and 1938 Acts appear herein in chronological order.
Supplementary
Provisions:
Additional
Receipts to Reclamation Fund. me following Acts, dl of which appear herein in
chronological
order, authorize additional
receipts to the Reclamation Fund as fol10WS: (1) Section 5 of the Reclamation
Act, all moneys received from entrymen or
apphcants for water rights;
(2) Act of
March 3, 1905, proceeds from sale of cer.
tain property and refunds from reclamation
operations; (3) Section 2, Act of April 16,
1906, and section 3, Act of June 27, 1906,
proceeds from sde of town lots; (4) Section 5, Act of April 16, 1906, and HaydenOMahoney
Amendment to Act of May 9,
1938, proceeds from power operations;
(5) Act of October 2, 1917, receipts from
lease of potassium deposits;
(6) Act of

July 19, 1919, proceeds from lease of, and
sale 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 sale
of surplus lands; (9) Section 17, Act of
June 10, 1920, charges arising from licenses
for occupancy and use of witidrawn public
lands; ( 10) Act of March +, 1921, and Act
of January 12, 1927, contributions and advances; (11 ) Act of June 6, 1930, money
collected from defaulting contractors or
their
sureties;
and
(12)
HaydenO’Mahoney amendment to Act of May 9,
1938, sdl moneys received from reclamation projects including incidental power
features thereof.
Editor’s Note, Annotations. Miscellaneous
annotations of opinions dealing with the
Reclamation
Act generally are found at
the end of the Act.

NOTES OF OPINIONS
Deposits to fund
&15
Advances
9
Leases
6
MiieraI ieases 7
Refunds
8
E~enditures
authorized
1620
Generallv
16
Ultigatioi expenses
18
Research
17
Rewards
19
Reclamation fund
1-5
Constmction with other laws
Generally
1
S-tes covered
3

2

1. Reclamation fund—Generally
The official reports show that, in 1902,
there were in 16 States and Territories
535,486,731 acres of public land still held
by the Government and subject to entry.
A large part of this land was arid, and it
was estimated that 35,000,000 acres could
be profitably reclaimed by the construction
of irrigation works. The cost, however, was
so stupendous as to make it impossible for
the development
to be undertaken
by
private enterprise< or, if so, only at the
added expense of interest and profit private
p~rsons would naturally charge. With a
view, therefore, o! maing fiese arid lands
avadab~ for agricultural purposes by an
expenditure of public money, it was proposed that the proceeds arising from the
sale of all public lands in these 16 States
and Territories should constitute a trust
fund to be set aside for use in the construction of irrigation works, the cost of each
project to be assessed against the land irrigated, and as fast as the money was paid
by the owners back into the trust it was

again to be used for the construction of
other works. Thus the fund, without diminution except for small and negligible sums
not properly chargeable to any particular
project, would be continually invested and
reinvested 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 statutory
authority, one department or branch of the
Government is not authorized to enter into
contracts with another such depar~ent
or
branch and to make payments thereunder,
the General Land Office may not lawfully
pay rent to the Reclamation Service for the
use of a part of a warehouse when the
reclamation fund is not depleted by such
use. However, any cost of maintenance of
the warehouse may be apportioned properly
between the Reclamation Service and the
General Land Office. 22 Comp. Dec. 684
(1916).
2. —Construction with other Iaws
The Act of June 27, 1906, 34 Stat. 518,
granting to the State of California 5 per
cent of the net proceeds of cash sales of
public lands in that State, including sales
made prior to its passage and since the
admission of the State, does not authorize
the withdrawal of any part of the prbceeds
of public lands of said State carried to the
reclamation fund prior to its passage. Five
per cent of the net proceeds of cash sales
of public lands in the State of California
made after the passage of the Act of June
27, 1906, is set aside by that act for educa-

June 17, 1902
THE RECLAMATION
tiond p~rposes and excepted from moneys
appropriated after its passage to the reclamation fund. 13 Comp. Dec. 289 (1906).
It is not the intent of Congress by the
Acts of April 16 and June 27, 1906, 34 Stat.
116 and 520, to take away the right of the
State of Idaho to the 5 per cent of the net
proceeds of sde from public lands for the
support of the common schools of the State
lying within said State. If, however, the
whole proceeds of said sales have been covered into the “reclamation fund” and the
5 per cent paid to the State out of the
permanent indefinite appropriation
therefor, the reclamation fund should be charged
therewith. 20 Comp. Dec. 365 ( 1913).
Moneys paid to the Treasurer of the
United States in accordance with the provisions of section 4 of the Act of August 20,
1912, 37 Stat. 321, authorizing the Attorney General to compromise suits involving
lands purchased from the Oregon & California Railroad Co., are not “moneys received from the sde and disposal of public
lands” within the purview of the reclamation act, but are “miscellaneous receipts?’
Effecting a compromise of a suit does not
constitute a ssde of public lands. Where a
conveyance by a grantee of public lands is
decreed void or is set aside if found voidable only, a forfeiture to the United States
does not ipso facto result, and lands once
granted by the United States cannot thereafter be classed as Dublic lands so lon~ as
any unextinguished. right or title the;ein
under or through said grant exists. 20 Comp.
Dec. 397 (1913).
Moneys
received
from royalties
and
rentals under the Act of October 2, 1917}
40 Stat. 297. which authorizes exploration
for and disposition of potassium ;n public
lands, should not first be deposited to the
credit of sales of public lands, but should
be credited directiy to the reclamation fund.
Comp. Dec., December 5, 1918.
3. Atates
covered
Because the emergency fund, established
by the Act of June 26, 1948? is derived
from the reclamation fund, it 1s limited in
its application to the states named in section
1 of the Reclamation Act. Consequently, it
is not available for use in Alaska. Memoran~~40f Deputy Soficitor Weinberg, Apd 14,
6. Deposits to fund—Leases
The full 100 percent of the proceeds of
the lease is appropriated, without deduction, to the reclamation fund by section 1
of the Reclamation Act. Departmental decision, in re Owl Creek Cod Co., August 31,
1912.
Moneys derived by the Reclamation Serv-

ACTAEC.

1

ice from the lease of lands in the Uintah
Indian Reservation should be covered into
the Treasury to the credit of the rechunation fund, the fiabihty of the Reclamation
Service to compensate the Indians for the
use of such lands not aff ectinz the disposition of the proceeds derived f;om their-use.
14 Comp. Dec. 285 (1907).
The First Assistant SecretaV, in mo&lfying departmental instructions of Sept. 14,
1936. with reference to leases of land under
the Taylor Grazing Act, held that the Secretary’s authority to lease lands withdrawn
in connection with a reclamation projeck
was recognized by the Congress in subsection I of the Act of Dec. 5, 1924, and that
W leases of land withdrawn for reclamation purposes should be made under the
authority of subsection I; that all such leases
should be made in the form approved
June 18, 1934; and that whatever moneys
may yet be received from leases of withdrawn reclamation lands made in accordance with prior instructions of September
14, 1936, should be disposed of in accordance with subsection I. Instructions, M29482 (October 8, 1937).

7. —Mineralleases
Lands withdrawnfor a reservoir site or
similar reclamation purposes wtilch are wsential to the project, and lands acquired by
purchase or condemnation for the =clusive
use of the project, may be developed for
their mineral resources only by temporary
leases for periods not inconsistent with the
needs of the project, and the proceeds
therefrom must be placed in the reclamation fund to the credit of the project. J. D.
Men et al., 50 L.D. 308 ( 1924)
8, —Refunds
The amount of purchase money refunded
in reclamation States, in cases of erroneous
sales of public land, under the protilons
of sections 2362 and 3689, Revised Statutes,
should be deducted from the total sums received in said Stites in computing
the
amounts to be transferred to the reclamation fund by appropriation warrants. ~s
section does not authorize the transfer to
the reclamation fund of moneys paid to a
receiver by an intended purchaser of public
lands unless the sale is confirmed and the
lands are actu~y
conveyed by the United
~~~~ ~ the purchaser. 20 Comp, Dec. 415
Moneys erroneously paid to a receiver of
public moneys by a would-be purchaser of
public lands and which are required by law
to be refunded are not moneys received from
the sde or disposal of public lands within
the meaning of this act. 20 Comp. Dec. 597
(1914).

June 17, 1902
34

THE RECLAMATION

9. —Advances
Where necessary canals, laterals, and
structures properly a part of a Federal irrigation system cannot h constructed by the
United States because funds are not available, a landowner may advance the needed
moneys to the United States, and he may
be later reimbursed, without interest, by
credits upon his water charges as they become due. Departmental decision, October
8, 1919, Milk River.
16. Expenditures authorized—Generally
The authority of the Secretary respecting
the use of the reclamation fund is to make
preliminary investigations to determine the
feasibility of any contemplated
irrigation
project, to construct reservoirs and irrigation
works, and operate and maintain those thus
constructed, and to acquire “for the United
States by purchase or condemnation under
judicial process” rights or property necessary for these purposes. California Development Co., 33 L.D, 391 ( 1905).
In a decision rendered July 18, 1924
(A-2537),
in connection with work under
article 6 of the treaty with Great Britain
regarding St. Mary and Milk Rivers, the
Comptroller
General ruled that the appropriation of $100,000 for investigations
of secondaW projects from the reclamation
fund made by Act of January 24, 1923 (42
Stat. 1207 ), could not be used on work
under said treaty, as the proposed work was
not in connection with “examination and
survey for the construction and maintenance
of irrigation work?, etc.,” and not within
the purpose for which the reclamation fund
was established.
If a grantor of land to the United States
for a nominal consideration pays the stamp
taxes provided for deeds of conveyance under the “Revenue act of 1918~’ approved
February 24, 1919 (40 Stat. 1057 ), he may
properly be reimbursed therefor from the
;eciamation fund as a part of the consideration for the land conveyed. Comp. Dec.,
April 22, 19.19.
17. —Research
The Bureau of Reclamation has basic authority to conduct weather modification research. This authority sterns from the provisions of section 1 of the Reclamation Act
of 1902 that the reclamation fund may be
used “for the * * * development of waters
for the reclamation of arid and semiarid
lands.” Letter of Solicitor Barry to Senator
Jackmn, June 11, 1964.
The Bureau of Reclamation is authorized
under reclamation law to expend appropriations made from the general funds of the
Treasury under the heading “General Investigations-general
engineering and re-

ACT—SEC.

1

search” for atmospheric water resources
research that is of primary benefit to States
other than 17 Western States. Although expenditures from the Reclamation Fund may
be made only for the benefit of the 17 Western States, expenditures from general fund
aPP;oPrlatlons are not :0 hmited because
section 2 of the Reclamation Act and section
8 of the Flood Control Act of 1944 evidence
a Congressional intent to make the benefits
of reclamation law available to dl parts
of the .Nation notwithstanding the limitations on the use of the Reclamation Fund.
Memorandum of Associate Solicitor Hogan,
July 13, 1966.
18. —Litigation expemes
In view of the fact that the Reclamation
Service must proceed in many c=es in conformity with State laws, and it is necessary
to institute cases in State courts or intervene
in those brought by others, the expense of
such proceedings in State courts in payment
of lawful costs, including expenses of necessary printing and costs of appeal bonds,
should be charged to the reclamation fund.
It is understood, of course, that such proceedings on behalf of the United States will
be instituted by or with the authority of the
Attorney General, and that it is not intended 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 employee
of the Reclamation
Service which is defended for said employee by the United
States are payable out of the reclamation
fund. Comp. Dec., in re Marley v. Cone
(Salt River), December 6, 1916.
19. —Rewards
The reclamation fund may not be used as
a reward for the apprehension of an employee of the Reclamation Service who may
have been guiltv of a breach of trust. Departmental deci~ion, January 28, 1910.
If, in the judgment of the Secretary of the
Interior, the offering of a reward for the
return of horses belonging to the Reclamation Service which have strayed away would
bean appropriate means to be used to secure
their return, he is authorized to make the
offer under section 10 of the reclamation
act. Comp. Dec., Nfay 19, 1911.
If it is deemed necessary to operate a telephone line in connection with the work authorized under the reclamation act, the Secretary of the Interior unquestionably has the
authority to take such action as may be
necessary and proper to protect such telephone line from damage or interference
while in the possession of the United States.
The means to be employed for such protection is left largely in the discretion of the

June 17, 1902
THE RE~AMATION
Secretary.If, in his judgment, the offering
of a reward for information leading to the
conviction of any person willfully damaging
or interfering with such telephone line
would be a necessary and proper means to
Sec.

2.

Secretary

[Authority

and surveys

388;

diversion,
Act

locate

is hereby

for, and to locate

for the storage,
(32 Stat.

to study,

of the Interior

and

of August

ACTAEC,

35

protect it from such damage or interference,
payment from the reclamation fund of the
reward so offered would be authorized when
satisfactory proof of the earning thereof has
been presented. Comp. Dec., March 7,1913.
and

authortied

and construct,
development
7,1946,60

2

construct

irrigation

and directed
as herein

provided,

of waters,
Stat.

866;

works. ]—The

to make

including

43 U.S.C.

examinations

irrigation
artesian

works
wells.

~ 411)

EXPLANATORY NOTES
Provisions Repealed. The Act of August 7,
1946, 60 Stat. 866, which appears herein
in chronological order, repealed those provisions of section 2 requiring annual reports
to Congress. Before repeal of the reporting
provisions, the section read as follows: “The
Secretary of the Interior is hereby authorized md directed to make examinations and
surveys for, and to l-ate and construct, as
herein provided, irrigation works for the
storage, diversion, and development of waters, including artesian wells, and to report
to Congress at the beginning of each regular
session as to the results of such examinations and surveys, giving estimates of cost
of all contemplated works, the quantity and
location of the lands which can be irrigated
therefrom, and all facts relative to the practicability of each irrigation project; also the
cost of works in process of construction as
well
as of
those
which
have
been
completed.”
EditoFs Note. SDecial Authorimtionsfor
Studies. From t{me- to time Congress ha authorized the Secretary of the Interior to
undertake special studies of water resources
developments
involving
reclamation.
Although some of fiese Acts are included
herein in chronological order and others are
noted below, no systematic effort has been
made to include dl such authorizations.
Tri-County
Project, Nebraska. The Act
of Sept. 22, 1922, ch. 430, 42 Stat. 1057,
authorized an additiond investigation of the
Tri-county project in Nebraska and an extension of the investigations into Adams
NOTES

County to ascertain whether it is practicable
to convey for irrigation purposes flood waters
from the Pbtte River onto the lands in the
counties comprising the project.
Palo Verde and Cibola Valleys. Engineering and economic
investigations
in
Palo Verde and Cibola valleys on the Colorado River were authorized by the Act of
April 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$12,500
for surveys and investigations to determine
the best methods and means of utilizing the
waters of the Glla River and its tributaries
above San Carlos reservoir in New Mefico
and Arizona, provided the States of Arizona
and .New Mexico
cooperated
by appropriating an equal amount. Arizona by Act
of its legislature November 28, 1926, appropriated $6,250 and New Mexico by Act
of March 8, 1929, appropriated $6,250. The
work was covered by contract dated August 12, 1929,. with the State: of Arizona
and New Mexico, $12,500 having been appropriated by the Second Deficiency Act of
March 4, 1929, 45 Stat. 1643.
Cabinet Gorge. An authorization of $25,000 to be appropriated to provide for studies for the development of a hydroelectric
power project at Cabinet Gorge on the
Clark Fork of the Columbia River, for irrigation pumping or other uses was made by
the Act of August 14, 1937, ch. 619, 50
Stat. 638.

OF OPINIONS

Examimtionsauthorized 1-5
Contributedfunds 3

1. E~inations authorized+enerdIy
The Reclamation Service cannot, while

Generally
1
Research
2
Works authorized
&10
Artesian wells
8
Drainage works
7
Generally
6

construction of a project is in progress, and
prior to the laying out of its canals, undertake to reexamine, at the instance of individual claimants, particular tracts falling
within the project, to ascertain whether or
not such tracts are capable of service from

June 17, 1902
36

THE RECLAMATION

its projected canals. Lewis Wilson, 42 L.D.
8 ( 1913). See also 48 L.D. 153, amending
paragraph 13 of general reclamation circular of May 18, 1916.
When the Secretary of the Interior in the
exercise of a reasonable discretion determines as to the vdidlty of titie to and as
to the value of a right to appropriate water
for irrigation purposes to be acquired by
him under the provisions of the Act of
June 17, 1902, his decision is conclusive
upon the accounting
officers. 14 Comp.
Dec. 724 ( 1908).
The drilling of wells for the purpose of
determining
whether underground
water
existi that may be made available in connection with a project comes within the power
conferred bv this section “to make examinations and ~uweYs * * + for the development of waters?’ Op. Asst. Atty. Gen., 34
L.D. 533 (1906).

2. —Research
The Bureau of Reclamation is authorized
under reclamation law to expend appropriations made from the general funds of the
Treasury under the heading “General Investigations—general
engineering and researc~’ for atmospheric water resources research that is of primary benefit to States
other than the 17 Western States. Although
expenditures from the Reclamation
Fund
may be made only for the benefit of the 17
Western States, expenditures from generaf
fund appropriations are not so limited because section 2 of the Reclamation Act and
section 8 of the Flood Control Act of 1944
evidence a Congressional intent to make the
benefits of reclamation law available to all
parts of the Nation notwithstanding
the
limitations on the use of the Reclamation
Fund. Memorandum of Associate Solicitor
Hogan, July 13, 1966.
3. y an irrigation district for payment by individual water right applicants, and ex:ended the repayment period to forty years.
jection
9(d).
of the Reclamation
Project
ict of 1939 authorizes the Secretary to es:ablish speciaf rates for an Wltiaf development period not to exceed ten years before
he reguIar forty-year repa~ent
period

cormnences, and section 9(e) authorizes the
execution of a water service contract in lieu
of the forty-year repayment contract, AdditionsdIy, a large number of general and
special acts authorize a moratorium on annual payments, amendment of existing contracts, extension of the repayment period,
waiver of certain charges, variations in tie
amount of each annuaf payment, or other
forms of relief.
Supplementary
Provision:
Presidential
Approval of New Projects. Section 4 of
the Act of June 25, 1910, 36 Stat. 836, provides that no new reclamation projects may
be started thereafter unless approved by
direct order of the President. The Act appears herein in chronological order.
Supplementary
Provisions:
Amount of
Construction
Costs Repaid by Irrigators.
The original concept of the Reclamation
Act was that the projects constructed thereunder would serve the single purpose of
irrigation, and the second sentence of section 4 therefore contemplates that the irrigators would repay all of the construction
costs. As the program evolved, however, it
was recognized that other purposes were
also served, and that construction
costs
would be allocated to these otier purposes.
This principle was fomally
recognized as
general law in sections 9 (a) and 9 (b) of
the Reclamation Project Act of 1939.
Supplementary Provision: Whhdrawal of
Public Notice. The Act of February 13,

June 17, 1902
52

THE RECLAMATION

1911, authorizes the Secretary of the Intcnor to withdraw any public notice issued
theretofore and to modify any water right
appficationor contract made on the basis
thereof. The Act appears herein in chronological order.
Editor’s Note, Annotations. Annotations
of opinions are not included that deal wifi

ACT—SEC,

4

the large mass of litigation iuvolvin
contract disputes or matters that fall sm f er the
traditional subject of Government procurement poficies and contracts. Also omitted
are opinions deafing with the eight-hour
work day, as this subject is covered by
other statutes of general application to W
Government agencies.

NOTES OF OPINIONS
Charges
3&45
Apportionment
40
Collection
43
Contracts
37
Generally
36
Increase
38
Items included
39
Payment
41
Waiver, extension and other relief
Construction of projects
1-10
Availability of funds
3
Discretion of Secretary
2
Generally
1
Lands, exclusion of 4
Status pending completion
5
Public notice
2&35
Amendment of 29
Generally
26
What constitutes
27
When required
28
Water service
11-25
Carey Act lands
18
Conditions
19
Goqoratians
12
Desert land entries
16
Equitable owner of land
17
Generally
11
Quantity of water
20
Reinstatement
21
Rentals of water
22
Servicemen
14
States and other public bodies
13
Water users’ association
15

42

1. Construction of projects—GenerdIy
Irri~ation works for the reclamation of
arid and semi-arid lands perfectly and comprehensively fill the idea of “public works
of the United States?’ 26 Op. Atty. Gen.
64 f1906).
This A’ct contemplates the irrigation of
private lands as well as lands belonging to
the Government, and the fact fiat a scheme
contemplates the irrigation of private as
well as a large tract of Government land
does not render the project illegal, so as to
prevent the condemnation of land necessary
to carry it out. Burlev v. United States, 179
Fed. 1,-102 C.C,A. 429 (Ida. 1910), affirming 172 Fed. 615.
Under the authority conferred upon the
Secretary by the Act he may, in his discretion, enter into contracts for the con-

struction of irrigation works or construct
such works by labor employed and operated
under the superintendence and direction of
Government ‘officials. Op. Asst. Atty. Gen.,
34 L.D. 567 ( 1906).
The contra~t with the Orchard Construction Company, owners of the stock of the
Grand Mesas Company, which had certain
rights of irrigation in the Grand Valley,
whereby the Government abandoned a certain part of its project and permitted the
company to consfxuct a private irrigation
ditch through an area south of the Grand
River, the company transferring one-half of
its stock to the United States to secure it
against any claim on the part of the company or its associates for an excessive use of
the waters of Grand Mver, the stock to be
returned if the United States did not proceed with its Grand Valley project, may be
regarded as void, and the stock should be
returned. 27 Op. Atty. Gen. 360 ( 1909).
2. —Discretion
of SecretaW
The Secretary of the Interior is not required to proceed with the construction of
the Baker project, Oregon, even though
Congress has appropriated funds therefor, if
he is unable to find that the project is
feasible and that the costs will be repaid to
the United States, as required by subsection B, section 4, of the Act of December 5,
1924, 43 Stat. 702, and section 4 of the Act
of June 17, 1902, 32 Stat. 389, and unless a
contract has been executed and confirmed as
required by the Act of May 10, 1926, 44
Stat. 479.35 Op. Atty. Gen. 125 ( 1926); 34
Op. Atty. Gen. 545 ( 1925).
See alsc
Solicitor’s Opinions dated June 11, 1926:
and July 20, 1925.
3. —Availability
of funds
The National Irrigation Act of June 17
1902, gives the Secretary of the Interio:
authority to let contracts for the construe
tion of reclamation works only when “th(
necessary funds * * * are available in thf
reclamation fund,” and if these funds ar{
not available and sufficient, no such author
ity exists. 27 Op. Atty. Gen. 591 ( 1909).
Regulations authorizing the engineers o
the Reclamation Service to enter into con
tracts with water users or water users’ asso

June 17, 1902
THE RECLAMATION
eiations, or with representative committees
of the settl~rs to advance moneys and perform work m the construction of irrigation
works, certificates to be issued tierefor, redeemable at face value in part or full payment of the charges against the lands of the
holders of the certificates, were unauthorized
by Act of Ju?e 17, 1902, and the Secretary
of the Interior had no authority to enter
into such contracts, and certificates so issued
,cannot be used by the original payee or
transferee as a discharge pro tanto of his
indebtedness upon the land, but the certificates are evidence of work performed,
and the work may be paid for, as upon a
quantum meruit, if the money is available
in 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 by
the water users’ association was not in the
reclamation fund, but that the fund contemplated by the Act of June 17, 1902, was
to be created from the proceeds of the sale
of Government land~, and there was no
provision for augmentmg it by private enterprise, and that the power of the Secretary
of the Interior to let contracts for reclasndtion projects was specifically restricted to
the amount of monev available in the reclamation fund as constituted by law. 27 Op.
Atty. Gen. 591 (1909).
There is no statute authortilng the Secretary of the Interior to enter int~ contracts
contemplating a cooperative plan whereby
the United States enters into an agreement
with a water users’ association, by which the
association undertakes to perform. certain
work within certain maximum prices, the
work to become the property of the United
States upon acceptance? payment therefor
to be made by the ‘msoclation in certificates
of work performed, which certificates are to
be accepted by the United States in reduction of charges against particular tracts, as
an equitable apportionment thereof. 27 Op.
Atty. Gen. 591 ( 1909).
Where necessary canals, latds,
and
structures, properly a part of a Federal
irrigation system, cannot be constructed by
the United States because funds are not
available, a landowner may advance the
needed moneys to the United Statesz and he
may be later reimbursed, without interest,
by credits upon his water charges as they
become due. Departmental decision, October 8, 1919, Milk River project,
4. —Lands, exchssiou of
Under this section, articles of incorporation of Sdt River Valley Water Users’
Association an+ its contract with the United
States in construction
of the Salt River
project, Secretary of the Interior had au-

ACT—SEC.

4

53

thority to exclude lands lying wit~ln reclamation district and to cancel stock of owners
thereof in the association, on determining
that area of lands included in district was
greater than could be watered from supply
stored and developed by works constructed
or to be constructed. Salt Rive? VssZley
Water Users’ Ass’n v. Spicer, 236 Pac. 728,
28 Ariz. 296 (1925).
Determination
of the Secretary of the
Interior, in approving survey board’s exclusion of certain lands within Sdt River
Reclamation
District,
after determining
that area of land included in District was
greater than could be watered from supply stored and developed by works constructed or to be constructed, was not a
ministerial act, but exercise of discretion,
and not subject to review by the courts. Zbid.
Secretary of the Interior’s approvai of
survey board’s exclusion of certain lands
within Salt Mver
Reclamation
District,
whose owners had subscribed for stock
in association, formed to co-operate with
United States in construction of the project, and who had paid all assessments
levied, until their lands were excluded,
after determining
that area of land included in District was greater than muld
be watered from supply stored and develoFed by works then constructed or to
be constructed,
was valid, since: under
association’s articles of incorporation
and
its contract with the United States government, discretion of Secretary in excluding
land was to be based on water to be impounded and raised by works specificsdly
built or definitely determined to be built
at time of his action. Ibid.
5. 4tatus
pending completion
During the construction of a Government
project the temporary use of the canals of
an irrigation system purchased by the Government for conveying to lands water that
would otherwise be allowed to go to waste,
is not incompatible witi the purpose, but
is directIy in pursuance of the object for
which the property was acquired. Departmental decision, December 6, 1906.
The Reclamation
Service cannot, while
construction of a project is in progress, and
prior to the laying out of its canals, undertake to reexamine, at the instance of in~lvidual claimants, particular tracts fafling
within the project to ascertain whether or
not such tracts are capable of service from
its projected canals. Lewis Wilson, 42 L.D.
8 (1913). See also 48 L,D. 153. amendina
paragraph 13 of Generaf Reclamation C;:
cuiar of May 18, 1916.
Contracts by a water users’ association to
receive additional subscriptions to stock and
to grant water rights were not unauthorized,

June 17, 1902
54

THE RECLAMATION

on the ground that the reclamation project
had been completed, and that the lands
proposed to be taken into the project were
not included in the area fixed and limited
by the Secretary of the Interior, under this
section, where the capacity of the project
to supply water for irrigation had been substantially enlarged, and such contracts had
been approved by the Secretary of the Interior under this section. Bethune v. Salt
Riuer Valley Water Users’ Ass’n., 227 Pac.
989,26 Ariz. 525 ( 1924).
11. Water servic+Generally
The provision in section 5 of the Reclamation Act of 1902 that “no right to the
use of water for land in private ownership
shall be sold” for more than 160 acres means
that the 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 benefits resulting from construction
of the
federal project. Solicitor Barry Opinion, 71
I.D. 496, 501 ( 1964), in re application of
excess land laws to ~rivate lands in Imperial Irrigation Dist;ict.
It is not optional with an entryman of
lands within a reclamation project to take
or refuse water service from the project;
but he is compelled to take the water service 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 water rights, and similar instruments, contractual in form, relating to the adjus~ent
of vested water rights, executed in behalf
of the United States by some officer of the
Reclamation
Service for purposes within
the purview of Act of June 17, 1902, are unlawful when a member of Congress is a
party to or interested therein. 26 Op. Atty.
Gen. 537 !1908).
12. —Corporations
No applications will be received from corporations on reclamation
projects. That
Congress did not intend that the reclaimed
lands upon which the Government is expending the money of all the people should
be the subject of corporate contract is conclusively established by the fact that the
Secretary is authorized to fix the farm unit
on the basis of the amount of land that will
support a family. These lands are to be
the homes of families. But existing corporations to which water rights have heretofore
been granted should be permitted to continue without interference, and in view of

ACT—SEC.

4

past departmental decisions applications by
corporations pending at this date may be
allowed. Departmental decision, July 11,
1913, 42 L.D. 250. Pleasant Valley Farm
Co,, 42 L.D. 253 (1913).
Religious, edu~tional,
charitable, and
eleemosynary corporations are excepted
from the decision of July 11, 1913. Departmental decision, December 5, 1916.
If an individual owns lands for which
he makes water-right application duly accepted by the United States and the land is
later in good faith transferred to a corporation, the corporate owner is entitled thereafter to the same treatment as other landowners on a project. Departmental decision,
December 6, 1916, in re The Santaqum
Lime and Quarry CO.,
Truckee-carson.
There is no statute which prohibits a corporation from taking a reclamation entry
by assignment and there would be no objection to accepting the water-right application
of the corporation in such a case where its
intention is to protect its security in a loan
transaction and not to hold and cultivate
the land in com~etition with families. Great
Western Insura;ce Co., A–16335 (FebmaW
8, 1932).
13. —States and other public bodies
Agencies of a State government are entitled to become takers of water under a
reclamation project for the lands benefited.
Departmental decision, May 12, 1909.
An incorporated town orgamzed as a city
of the sixth class under the laws of the State
of California (General Laws, 1909, ch. 7,
p. 843) is entitled to make water-right application on the usual form to secure water
from a Federaf reclamation project for irrigating and beautifying a small tract of land
which it owns, located outside the city limits
and occupied by the septic tanks of the
municipality. Departmental decision, July
13, 1917, Orland.
14. —Servicemen
The status of one qualified to make watertight application under the reclamation act
of June 17, 1902 (32 Stat. 388), is not
changed by a temporary service away from
home in the Army, Navy, or Marine Corps
of the United States, and a water-right
application executed by any such person at
any point where he may be engaged in the
line of duty may be received and approved
if othe~ise
found
acceptable.
Departmental decision, December 22, 1917, C.L.
720.
15. —Water users’ association
Where defendants over whose land certain irrigation ditches belonging to a government irrigation project were located

June 17, 1902
THE RECLAMATION
became m;mbers of a water. users’ association which owned the project prior to
its incorporation in the government .wo.rk,
and one of the by-laws of the association
provided that such rules and regulations as
the Secretary of the Interior might promulgate relating to the administration and
use of the water should be binding on the
stockholders of the association, and the
Secretq
put into effect certain rules prohibiting water users from cutting the banks
of any canals or laterals and from taking
water therefrom except at places designated
by
the
gove~nment,
defendants
were
estopped to clam the right to break down
the bmks of a lateral ditch and take water
therefrom at a point not so designated, on
the ground that, because they owned the
fee in the soil of the ditch, they were entitled to take water at whatever point they
desired. United States v. Bunting, 206 Fed.
341 (D. Ore. 1913).
Where a water users’ association organized for the purpose .of guaranteeing payment of the construction cost of a Federaf
irrigation project, having executed a contract with the United States for that purpose, makes assessments against its mernhem
to raise a fund with which to conduct litigation to avoid paying project costs, ~he
LTnited States will not assist the associ?t?on
in collecting such assessment by requlrmg
prospective water users to show as a condition precedent to acceptance of water
that such assessments
right applications
have been paid. Departmental
decision,
May 4, 1918, Boise.
Subscriptions to water users’ association
stock were construed in Michelson
v. Miller, 26 P. 2d 378 (Idaho 1933) which outlines the history of the Payette-Boise Water
Users’ Association, Boise project. Michelson was the receiver of the association and
brought actions against various stockholders
of the association to foreclose liens. created
by assessments under stock subscription contracts to meet corporate expenses (not indebtedness to the United States). The defendants had refysed to sign. the “court
form” of water-right application contract
prescribed as a result of Payette-Boise Water
User< Assn. v. Cole, 263 Fed. 734 (D. Idaho
191 9) and alleged that by so doin= they
had lost their s~atus as stoekholders~ This
contention was not sustained, and the liens
were enforced,
together with deficiency
judgments where the land failed to sell for
sufficient to pay the assessments.
16. —Desert land entries
Lands held by virtue of a desert-land entry
are held in private ownership within the
meaning of the act, and the entryman or his
assignee is entitled to the same rights and

ACT—SEC.

4

55

privileges and is subject to the same conditions and fimitations, so far as right to the
use of water is conccrne~, as any other
owner of lands within the lrrigable area of
an irrigation project. Instructions, July 14,
1905, 34 L.D. 29. [See Act of June 27, 1906,
34 Stat. 519.]
17. —Equitable owner of bnd
Persons holding contracts to purchase
lands from a Sta~e, on deferred payments, no
conveyance of title to be made to the purchasers until full payment, are entitled, if
not in default and their contracts are in
good standing, to subscribe for and purchase
water rights under the reclamation act for
irrigation of such lands, subject to the provisions and limitations of that act. Instructions, September llY 1911, W L.D. 270.
18. —Carey Act lands
Individual owners of lands acquired under
the provisions of the Carey Act may be supplied with such additional water from reservoirs constructed under the reclamation act
as may be necessa~ to fully develop and
reclaim the irrigable po.r~ions of such lands,
subject to all the conditions governing the
right to the use of water under any particular project. Op. Asst. Atty. Gen., 35 L.D.
222 (1906).
19. —Conditions
The provision in the form for water-right
appl~cation by private landowner requiring
appllca.nt to agree t? grant and convey to
the Uruted States, or Its successors, all necessary rights of way for ditches, canals, ~tc.,
for or in connection with the project, IS a
proper requirement warranted by the spirit
and intent of the reclamation act, and an
applicant for water right will be required
to conform thereto as a condition to allowance of his application. C. M. Kirkpatrick,
42 L.D. 547 (1913).
The provision ~n the form of water-right
appllcatl?n by. private landowner requiring
hlm to bmd himself not to convey the land
wluntarily to any person not qualified under
the reclamation law to purchase a water
right, upon condition that the application
and any “freehold interest;’ sought to be
conveyed shall be subject to forfeiture, is a
reasonable and proper requirement, and an
applica~io? from wtilch such provision has
been ehmmated wII1 not be accepted. Ibid.
The provision i.n the form of water-right
appl:catlonby private landowner requiring
appllcant to agree that the Umted States,
or Its successors, shall have full control over
all ditches, gates, or other structures owned
or controlled by applicant and which are
necessary for the delivery of water, is in accordance with ‘departmental regulations, and
being a necessary incident to the proper

June 17, 1902
56

THE RECLAMATION

management and operation of the project
by the United States or its successors, is
impliedly authorized by the reclamation act,
and a water-right applicant wifl be required
to conform thereto. Ibid.
Whatever may be the extent of the discretion of the Secretary of the Interior in
the case of a reclamation project, where
the charge for water and conditions of
purchase are announced in advance of construction as required by statute, he could
not exercise unlimited
power to determine the conditions on which water would
be supplied, where the project was constructed under the mutusd understanding
that landowners might procure water by
paying their ratable proportion of the cost
of construction
and submitting to other
eaual and reasonable conditions. PavetteB~ise Water Users’ Ass’n v. Cole, 263 F: 734.
(D. Idaho 1919).
20. —Quantity of water
An application for water for land in a
reclamation
project,
providing
that the
measure of the water right was that quantity
of water which should be beneficially used
for irrigation, not exceeding the share proportionate to irrigable acreage of the water
available as determined by the project manager or other proper officer during the irrigation season for the irrigation of lands
under the land unit, did not authorize the
project manager or other officer to decide
whether a landowner needed water, but
only to determine the amount of water actually available, but was too indefinite, and
landowners could not be required to execute
it as a condition of obtaining water. PayetteBoise Water Users’ Association v. Cole, 263
Fed. 734 (D. Idaho 1919).
21. —Reinstatement
Where a water-right application for land
held in private ownership has been canceled
for default in payment of building, operation, and maintenance charges, such application may be reinstated upon fdl payment
of Al accrued charges. Departmental decision, April 3, 1916,45 L.D. 23.
of water
22. —RentA
Water in irrigation canals constructed and
operated under the reclamation act, which
h= not become appurtenant to any land
and is not needed for irrigation?, may be
temporarily disposed of by lease, m the discretion of the Secretary of the Interior, the
proceeds to become a part of the reclamation
fund. Alhambra Brick @ Tile Co., 40 L.D.
573 (1912).
As an emergency measure to save growing
crops, the director is authorized to supply
squatters upon withdrawn lands under the

ACT—SEC.

4

reclamation projects with water on a rental
baais, pending decision as to their rights to
the land, subject to the provision that water
shall be furnished only to such settiers as
file a certain designated application therefor.
Department decision, May 27, 1912.
Lands too rdkaline to produce profitable
crops may be’ supplied with water for a
nominal rental, in order to encourage washing the alkali from the soil. Departmental
decision, March 29, 1913, C,L. 88.
26. Public notic~enerally
The requirement of this section, that the
cost of a project shrdl be estimated and
apportioned
before construction,
may be
waived by setders and the Secretary of
the Interior, and was waived where there
was no formal compliance with such requirement and dl parties understood that
ultimately
the settiers would reimburse
the government for its actuaf and necessw
outlay. Payette-Boise
Water User<
Assn. v. Cole, 263 F. 734 (D. Idaho 1919).
The determination by the Secretary of
the Interior of the practicability of a project
and the making of the canstructian contracts
are conditions precedent to the estimate
of Gost and the public mtice, under this
section. Yuma County Water Users’ Assn. v.
Sch[echt, 262 U.S. 138 (1923).
Though there was a substantial and material difference between preliminary engineering estimates of the cost of an irrigation
project and a later estimate, the courts will
not interfere,. in the absence of some substantial showing that the action of the Secretary of the Interior in publishing notice
of charges based on such original estimates
was fraudulent or arbitrary or so erroneous
as to justify an inference of illegality or
wrongdoing, especially where the increaed
cost was due to unexpected physical difficul.
ties, higher wages, change of plans, increased mileage of canals, etc. Yuma County
Water Users’ Assn. v. Schlecht, 275 Fed. 885
\~t~3~
1921), affirmed 262 U.S. 138

,----,

.

A pubfic notice by the Secretary of the
Interior, specifying lands for wtilch water
would be furnished under an irrigation
project, the classes of charges themfor, and
the construction charge as $75 per acre
of irrigable land, payable in installments
as enumerated, was in accord with tKls
section, authorizing the SecretaW to give
public notice of the number of annual installments, to be determined with a view of
returning to the reclamation fund the “estimated cost” of the project, by which is
meant, not the actual, exact final sums paid
for construction, but such sums as it is believed after careful computation will cover
the expenses directly and fairly connected

June 17, 1902
THE RECLAMATION

ACT—SEC.

4

5?

with the construction of the project. Yuma
County Water User< Assn. v. Schlecht, 275
Fed. 885 (9th Cir. 1921). affirmed 262
ti.S. 138 (1923).
“The Secretary of the Interior has no general statutory authority to suspend, even
temporarily, public notices issued by hlm
pursuant to section 4 of the Act of June 17,
1902, of lands irrigable under reclamation
projects, nor does he possess supervisory
power to do so in the absence of a specific
statute authorizing it. Shoshone Irrigation
project, 50 L.D. 223 ( 1923). [But see Act
of February 13, 1911, 36 Stat. 902, authorizing the Secretary of the Interior to withdraw public notices issued under section 4
of the Reclamation Act.]
Contracts by water users’ association to
receive additional subscriptions to stock and
to grant water rights were not unauthorized,
on the ground that the reclamation project
had been completed, and that the lands proposed to be taken into the project were not
included in the area fixed and limited by
the Secretary of the Interior, under ~his
section. where the capacity of the proJect
to supnly water for irrigation had been substantially enlarged, and such contracts had
been approved by the Secretary of the Interior 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 department approved a reoomrnendation of the
commissioner, Bureau of Reclarnati.on,@
the effect that a new entryman t~mg up
land under the Belle Fourche project where
a prior entry has been canceled after payment of only one construction charge installment. would be reauired at the time of
makl~g entry to pay- such first installment
and the remaining installments would be
collect ed by the irrigation district under its
contract with the United States. TKIS plan
dispenses with a public notice.in cases where
a district has assumed the obhgation of paying charges at fixed rates.

section, and, though relied upon by the
water-users m subjecting their lands to the
project, do not bind or estop the government
from afterwards fixing the construction
charges against the lands pursuant to this
section, in accordance with a higher estimate arrived at in the light of further investigation and experience.
Yuma County
Water Users’ Assn. v. Schlecht, 262 U.S.
138 (1923).
Under this section, correspondence
between the Secretary Qf the Interior and offitials of the Reclamation Service. relative
to estimates of the cost prior to the date of
a contract between the landowners and the
United States, for the payment thereof
could not be regarded as a public notice to
the former, nor as binding on the Government. Yuma County Water Users’ Assn. v.
Schlecht, 275 Fed. 885, (9th Cir. 1921),
affirmed 262 U.S. 138 (1923).

27. —What constitutes
This section contemplates a precise and
formal pubfic notic~, stating the lands irrigable under a prolect, the Emit of area
for each entry, the charges per acre, the
number of annual installments, and the
time when uavmen~ shafl commence. Yuma
County W~te~ User~ Assn. v. Schlecht, 262
U:S. 138 (1923).
“Preliminary, tentative opinions of the cost
of constructing projected irrigation works,
expressed by govertient
engineers and officials in official correspondence
and in
statements at a meeting of prospective
water-users, do not constitute the estimate
of cost, or the public notice, required by this
267–06 7+72 —vol. I— 7.

29. —Amendment of
Where after application for water rights
for the irrigable area of a farm unit, under
the terms and for the acreage fixed in the
published notice, a second notice is given
showing an increased irrigable area in the
farm unit and fixing a different rate per
acre, the applicant is entitled to complete
payment for the area originally fixed at the
rate specified in the first notice, but as to
water right for the additiona 1 irrigable
acreage shown by the second notice, he will
be required to pay at the rate fixed in the
latter notice, Walter L. Minor, 39 L.D. 351
(1910).
Upon the issuance of public notices pur-

28. —When required
The time within which the notice may be
given, after determination of the practicability of the project and the making of construction contracts, is left to the sound
discretion of the Secretary; and he may
delav the notice while the auestion of cost
rem~ins in doubt. Yuma ‘County Water
Users’ Assn. v. Schlecht,
262 U.S. 138
{ ~~?~ ), affirming 275 Fed. 885 (9th Cir.
lYLIJ.

The time of giving public notice of
charges under section 4 of the Reclamation
Act after the letting of the contracts is left
to the discretion of the Secretary of the
Interior, and notice might reasonably be
delayed until the completion of the project.
Moreover,
when a contract
fixing the
amount and terms of payment of instruction costs is entered into with an irrigation
district pursuant to the Act of May 15,
1922, there was no purpose to be sewed by
issuing the public notice. Lincoln Land Co.
v. Goshen Irr. Dist., 42 Wyo. 229, 293 Pac.
373,376, 378–79 ( 1930).

June 17, 1902
58

THE RECLAMATION

suant to section 4 of the Reclamation Act of
June 17, 1902, the construction
charges
specified in the notices become fixed charges
against the lands, and the acceptance and
approval Of water-right applications in a
sense create a contractual relation between
the applicants and the United States for
the payment of the charges by the water
users and the furnishing of irrigation water
by the Government &at cannot be changed
except with the oonsent of both parties.
~~~2~)ne irrigation project, 50 L.D. 223
36. Charg-enerdly
The Department of the Interior is without authority to charge interest on the return of costs allocated to irrigation because
Congress h= not specifically
autborbed
such charge. Letter of Acting Commissioner
Lineweaver to Mr. William A. Owen, February 12, 1952.
The SecretaV of the Interior can ordy
make such charges to reimburse reclamation
fund for construction of a project as are
provided 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 fing
a definite charge per acre in each project
to cover this cost of construction, and to
assess annually a specific amount per acre
for operation and maintenance, collecting
the same from the landowners, is correct.
27 Op. Atty. Gen. 360 (1909).
Settlers on lands within an irrigation
project, with the understanding that water
shall be supplied to their lands and that
the cost of the works wfll be assessed against
them, are not concluded by the decision of
the Secretary of the Interior as to what their
interest in the works shall be nor as to what
sum shall be assessed against their lands for
cost of construction, but have rights which
may be judicially
determined.
PayetteBoise Water Users’ Assn. v. Bond, 269
F. 159 (D. Idaho 1920).
In decision A–32702, of September 14,
1935, the Comptroller General held that the
reclamation fund could not be reimbursed
for expenditures made over a period of
prior years for surveys and investigations of
the All-American canal, California, as the
allotment for construction of this canaf was
secured under the N. I. R.A., an emergency
relief measure to quickly increase employment, and that most of this preliminary work
seemed to be general investigations chargeable only to the reclamation fund.
The revolving fund features of section 4
are not applicable to nonreimbursable funds
expended in connection with a reclamation
project (Deschutes project). Letter of Act-

ACT+EC.

4

ing Attorney General to Secretary of the
Interior, September 7, 1937.
In letter dated February 18, 1918, the
United States Commissioner
of Internal
Revenue holds that payments covering the
construction charges on Federd reclama~ion projects are not allowable deductions in
income-tax
returns as the water rights
secured by the payment of such charges are
perpetual in nature, and the amount so
paid should be added to the capital investment in order to determine the gain or loss
resulting from the transaction upon subsequent disposaf of the land and water
rights, As to the operation and maintenance
charges the commissioner holds them to be
an ?rdinary and necessary expense of doing
business, and that the amounb so paid are
deductible in the income-tax returns.
In case the actual cost of a reclamation
project exceeds the estimated cost of construction,. it is the duty of the Secretary of
the Interior to revise the estimate and make
the charges sufficient to reimburse the reclamation fund for the cost of construction.
Mangus Mickelsen, 43 L.D. 210 ( 1914).
37. —Contracts
Where a reclamation project was constructed with the mutual understanding that
settlers would reimburse the Government
for the actual outlay, and contracts had
been made to supply irrigation districts
and others with water, settlers were entitled to some authoritative description of
the property to which their rights related,
and a definition of the extent of their interest in the project, before they could be
required to pay and to have from an authoritative source and of record a declaration
of the cost of the project and of the portion of wtilch it was intended they should
become the beneficial owners, and could be
required to pay the cost only of such portion of the works, or such interest therein
as 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 apportioning the cost of a reclamation ~roiect
befor~ construction, it was mutually ‘un~erstood that the setflers would reimburse the
Government for the actual cost, they were
chargeable with the actual cost onl~, and
the Secretary of the Interior was without
discretion in fixing the charge, the actual
cost of the project being a matter for judicial
investigation
and
determination.
Payette-Botie
Water Users’ Assn. v. Cole,
263 F. 734 (D. Idaho 1919).
Under a ~ontract by which the government took over the canal system of an irrigation company for the purpose of incorporating
it in a larger government

June 17, 1902
THE RECLAMATION

ACT-EC.

4

59

project, and providing that “an equitable
proportion of the cost of maintaining and
operating the system of irrigation works
which may be constricted
by the United
States on the south side of the Boise Valley, as may be determined by the Secretary of the Interior, shsdl be paid to the
United
States by the holders of said
certificates of stock,” the fact that during
the construction of the government project
the manager made charges for water furnished such stockholders on a different
basis d~d not affect the right and duty
of the Secretary, after completion of the
project, to make the apportionment as expressly provided in the contract. New York
Canal Co. v. Bond, 273 F. 825 (D. Idaho
1921).
Where a contract between a water users’

obligations
of contract signed by water
users’ predecessors
in interest, was not
rendered “moot” by Secre~s
revocation
of notice, where Secretary stilI intended to
impose such charge. Fox v. Ickes, 137 F. 2d
30, 78 U.S. App. D.C. 84 ( 1943), cert.
denied 320 U.S. 792.
Where a new reservoir was constructedin

associationand the United Statesprovides
that the associationwill promptly collect
or require payment for that part of the
cost of a reclamationproject which shti
be apportioned by the Secretary of the
Interior to its shareholders,and also that
paymentsfor the water rights will be made

Us. 792.
39.—Items included

and enforced by proper means, the fact
that the cost is greater than was estimated
cannot be urged as a ground for equitable
refief, Yuma ~oursty Water users’ Assn. v.
Schlecht, 275 F. 885, (9th Cir. 1921), affirmed 262 U.S. 138 (1923).
38. — I ncreaae
Under tKIs section, the cost is to be estimated and apportioned before construction, and in case of settlement under such
conditions the price cannot be later increased though the published estimate is
insufficient to cover the actuaf cost. PayetteBoise Water Userti Assn. v. Cole, 263 F. 734
(D. Idaho 1919).

Where the Secretirv of the Interior in
the exercise of his dis~tion

withdrew

cer-

tain hinds from an irrigation project and
confined it to the area described in the
pubfic notice to the landownersfiected,
the latter, who contractedto pay for that
part of the cm,t which should be apportioned to them by the Secretary,could not
restrainthe local reclamationofficersfrom
turningoff the water for failure to pay an
assessmentin excess of the original estimate and of the actuafvafueof work to be
constructed,on the ground the system was
not 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 the
Interior from carrying out his intention as
expressed in notice, to make charge for
water distributed to land which was over
and above amount determined to be within

violation of the provisionsof reclamation
law regarding constructioncharges,water
userswere entitledto injunctionrestraining
Secretary of the Intersor from imposmg
rend charge on any water which Secretary determinesmight be used on plaintiff
users’ land, in order to pay construction
costs in tie reservoirsystemof the project
above the constructioncharge authorizedly
fixed. Fox v. Ickes, 137 F. 2d 30, 78 U.S.
App. D.C. 84 ( 1943), cert. denied 320

The United States may assess operation
and maintenance
charges against water
users as well as construction charges. To
hold otherwise woufd greatiy deplete, if not
entirely consume, the Reels mation Fund,
thus diverting the proceeds of the public
domain to the payment of local expenses.
This interpretation of the Reclamation Act
has been recognized by Congress. Swigart v.
Baker, 229 U.S. 187 (1913).
The purpose of t~ls Act is to encourage
the settlement and cdtivation
of public
lands, and it contemplates that such lands
may be entered on as soon as the irrigation
system is so far completed that water may
be furnished thereon for irrigation purposes; and when the act empowers the
Secretary of the Interior to fix and determine the charges against the land, it must
have intended that he should cover tie cost
of maintenance and operation wtie in control of the United States as wdl as construction. United States v. Cantrall, 176 F. 949
(G.C. Ore. 1910).
The provision’ in forms for the watertight applications requiring payment by applicant of “betterment”
or maintenance
charges is a proper requirement under the
reclamation laws, and tie fact that at the
time entry was made there was no specific
mention of “betterment”
charges in the
water-right application forms then in use
will not relieve the entrysnan from payment
of betterment
charges
legally
assessed
against his land. C. M. Kirkpatrick, 42 L.D.
547 (1913).
The cost of drainage work done for the
benefit of lands in the project, or to protect
other lands from conditions resufting from
the construction and operation of the project, was chargeable against the project

June 17, 1902
60

THE RECLAMATION

lands. Payette-Boise Water Users’ Assn. v.
Cole, 263 F. 734 (D. Idaho 1919).
While administrative
mpenses of the
reclamation service, such as s~ries
of the
administrative officers and of those who
assisted them in the performance of administrative duties, are. not chargeable as part
of the cost of a proJect, the cost of services
rendered to that particular project, such as
the keeping of its accounts, preparation of
engineering
specifications,
or purchasing

and forwardingsupplies,whethersuchservices are renderedat the place of the project or elsewhere,or for such project done
or in connection with others,in such case
prorative,is properly chargeableas a Part
of its cost. Payette-Boise Water User< Assn.
v. BOnd, 269 F. 159 (D. Idaho 1920).
The full amount of the claim of a contractor on an irrigation project, which is
being contested by the Government in be
cannot
properly
be
Court
of Claims,
charged to the settlers as a part of the cost
of the project. “It is a matter of common
knowledge that such $laims are usually
susceptible to compromise and adjustment,
and if the settlers are to be charged with
a specific amount, the best settlement possible should have been made. * ~ * If the
reclamation officials and the plaintiff cannot agree as to the proper amount to be
charged
on account
of the contingent
liability, or if a settlement agreeable to all
parties cannot be made with the claimants,
the fdl claim should be permitted to stand
as a charge only upon condition and with
the understanding that, in case the Government
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. —Apportionment
Where the irrigable area of a legal subdivision embraced in an entry within a
reclamation project is shown on the duly approved farm-unit plat to be greater than the
entire area of such Iegsd subdivision shown
on the prior township plat, applications for
water rights and payments therefor should
be made on the basis of the actual irrigable
area, and not on the basis of the acreage
shown on the township plat. ]. E. Enman, 40
L.D. 600 (1912).
An applicant for water rights under a
reclamation project is required to pay for
water for the entire irrigable area of his
entry as shown on the plat upon wKlch the
construction charges were apportioned; and
where mistake in the plat is alleged as to
the irrigable area of the entw, application
for correction thereof should be made to the

ACT—SEC.

4

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 area
subject to water charges will be made “on account of easements for Klghways or irrigating ditches. Williston hnd Co., 39 L.D. 2
( 1910).
[But see Reclamation
Cireufar
Letter No. 569, July 11, 1916.]
The Reclamation Act provides that the
cost of the project shall be imposed upon the
land benefited equitably, which is to say
ratably. No authority exists in the Reclamation Act, either in express terms or by
necessary implication, that some of the lands
benefited might be required to contribute
one sum and other lands a greater or less
sum., for such rule of apportionment would
be inequitable and not ratable. Op. Asst.
Atty. Gen., October 25, 1910, In re Presser
Falls L. @ P. Co. (Yakiia)
; Williston
Land Co., 37 L.D. 42a. [But see Op. Atty.
Gen., May 1, 1911 (Lower Yellowstone),
with accompanying papers, in effect to the
contrary.]
- - Where landowners within a reclamation
project outside of an irrigation district are
charged $aO per acre, while those within the
district are charged only $70, because of the
possibility that all those outside the district
will not take water, those paying such higher
price are entitled to the additional service
for which they pay, and if seven-eighths of
the acreage takes water, they are entitled to
the 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 the
cost of an irrigation project was to be
charged, a general deduction
from the
lands within the limits of the project of
10,000 acres, because it was “estimated”
that such quantity would prove incapable
of irrigation, because rough or sandy or
from seepage, was not justified, where no
land was described and excluded, and afl
lands within the project were equally entitled to water if demanded, and where
specific tracts had already been excluded
as non-irrigable. ~ayette-Boise Water Users’
Assn. v. Bond, 269 F. 159 (D. Idaho 1920).
41. —Payment
A successful contestant of an entry within a reclamation project will be required, in
making entry in exercise of his preference
right, to pay the building charge obtaining
at the time his application is filed, and is’
not entitled to the rate in effect when the
former entry was made nor to credit for
the payments made by the former ent~-,

June

17, 1902
THE

RECLAMATION

man. Henry A. Schroeder, 40 L.D. 458
(1912).
Where after entry of a farm unit within
a reclamation project the farm-unit plat is
amended and the entryman in conforming
his entry to the amended pIat retains only
part of the land originally entered he is
entitled to have the payments theretofore
made on account of building charges and
on account of the Indian price for the land
credited to the retained portion, but is not
entitled to have the payments on account
of operation and maintenance so credited.
Eugene F. Windecker, 41 L.D. 389 ( 1912).
There is nothing in the act to prohibit a
graduated scale of the annual payments required of users of water from projects constructed thereunder, and in all cases where
it is deemed advisable this plan of payment
may be adopted. Instructions, August 16,
1905, 34 L.D. 78.
42. —Waiver,
extension and other relief
Water may be furnished without operation and maintenance
charge for the
irrigation of the grounds about country
schoolhouses upon reclamation projects, Departmental decisions, January 11, 1912, and
October 24, 1919.
When the Secretary of the Intezior has
fixed the number of installments to be paid
for a ,water right and the time of payment,
he is without authority to suspend payment
of same in case the alkali has risen to the
surface of the soil and interfered with tie
crop returns from the land. Departmental
decision, In re Sam Hammond
(TruckeeCarson), September 24, 1909. See regulations of the Secretary, August 11, 1915,
governing extension of relief to water users
whose lands are temporarily affected by
seepage, alkafi, etc., to such an extent as to
render them impracticable
of profitable
Cultivation.
Water cannot be furnished from a reclamation project to a State experiment
‘farm free of charge. Departmental decision,
September 15, 1909, In re Zdaho State
Experiment Farm.
The relinquishment of a homestead entry within the irrigable area of an irrigation
Project, where the eutryman is in default
in the payment of any annual installment,
does not refieve the land of such charge,
and a succeeding entryman takes it subject
thereto. Instructions,
July 16, 1906, 35
L.D. 29.
Except where specifically authorized by
law, the Secretary of tie Interior is not empowered to grant extensions of time, either
directly or indirectly, for the payment of
charges accruing from individud
water

ACT—SEC.

4

61

users upon reclamation projects. Shoshone
irrigation project, 50 L.D. 223 ( 1923).
43.

ACT—SEC.

7

73

perpetual right to utilize any power facilities afforded by the reservoir. Decision of
First Assistant Secretary, December
15,
1936, in re Truckee Storage project, Boca
resetioir.
The Secretarv has full authori~ . to ~ur.
chase lands necessary for reservoir purposes,
to arrange the terms of purchase, and to
allow the vendor to retain possession until
the land may be actually needed where by
so doing the purchase may be more advantageously made; but he has no authority
under said act to lease such purchased lands
after the Government has taken possession
thereof. Instructions, 32 L.D. 416 (1904).
12. —Existing irrigation system
Where an irrigation system already constructed and in operation may be utiiized in
connection with a greater system to be constructed under the provisions of the Act of
June 17, 1902, its purchase for such purpose
comes within the purview of the act. Cali~[~~,
Development
Co., 33 L.D.
391
The’ Act affords authori~ for the purchase of an incomplete irrigation system to
be used in connection with and to become
a part of a larger system contemplated by
the Government. Op. Asst. Atty. Gen., 34
L.D. 351 (1906).
13. —Indian lands
The United States has authority to condemn tribal lands of the Crow Tribe for
construction of Yellowtail Dam, under section 9(c) of the Flood Control Act of 1944
and the Federaf Rcclamation Laws; under
the gcneral condemnation act of August 1,
1888, 55 Stat. 357, 40 U.S.C. ~ 257; and
under the several acts appropriating money
for preconstruction work and for initiation
of construction.
United States v. 5,677.94
Acres of Land, 162 F. Supp. 108 (D. Mont.
1958) ; ibid, 152 F, Supp. 861 (D. Mont.
1957 ) ; Opinion
of Solicitor Davis, M36148 (Supp,) (February 3, 1954).
Under the provisions of the Redarnation
Act, the Secr;tary of the Interior has power
to acqulrc the rights and property necessary
therefor, including tiose of allottee Indians,
by paying for their improvements, and giving them the right of selecting other lands.
The restrictions on alienation of lands allotted to Indians witiln the area of the Milk
River irrigation project do not extend to
prohibiting an allottee Indian from selling
his improvements to the United States and
selecting other lands so that the United
States could use the lands selected for purposes of an irrigation project m provided by
Act of Congress. Henkel v. United States,
237 U.S. 43- (1915), affirming 196 F. 345;
116 C.C.A. 165 (1912).

June 17, 1902
74

THE

RECLAMATION

14. —school lands
U-ntil so authorized by Congress, neither
the Department nor the Territorial Government of Arizona has power to dedicate
for use in connection with an i~rigation
project, lands in said territory which, by
section 2 of the Act of February 2, 1863,
~2 Stat. 664, sec. 1946, R. S., have been
reserved for school purposes to the future
state to be erected, including the same.
Instructions, 32 L.D. 604 ( 1904).
35. —Municipfl
property
Although land owned by a municipality
was being devoted to pubfic use, the Secretary of the Interior had authority to condemn such land for Missouri River Basin
project. United States v. 20.53 Acrfs of
Land in O~borne County, Kansas, CZtY of
?owns, 263 F. Supp. 694 (D. Kansas 1967).
16. —Water rights

The United States had power to acquire
through exe~cis~of eminent domain water
rights of rlparlan owners and overlying
owners on river below Government dam.

~tate of California v. Rank, 293 F. 2d 340
(9th Cir. 1961), modified on other grounds
307 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 property
An engine necessary for the purpose of
,carrying out the provisions of this Act may
be acquired under this section. United States
~. Buffalo Pitts Co., 234 U.S. 228 (1914).
18. —Leazehold

The Secretary is authorized by this section to acquire a leasehold interest. Acting
$olicitor Burke Opinio~, M–36219 (May
12, 1954), in re authority to lease or purchase lands for development
lamation projects.

farms on rec-

19. —Easements and rights-of-way
Where the United States acquired a primary easement to construct an irrigation
ditch on the land of defendant, it also
acquired the right, as a secondary easement,
lo go upon land to maintain, repair, and
clean ditch, but such seconda~
easement
can be exercised only when necessa~~ and in
such reasonable manner as not to increase
the burden upon defendant’s land. Mosher
u. Salt River Valley Water Users’ Assn., 209
P. 596, 24 Ariz. 339 (1922).
20. —Power sites
In proceedings by the Federal Government to condemn land located at Kettle
Falls on the Columbia River in the State
..of Washington, uplands which power com-

ACT—SEC.

7

pany had purchased and devel?ped as a
power site could not be disassociated from
bed of river and flow of stream in creating
a value for power site purposes, ad company could not introduce evid~nce showing
value of uplands for power site purposes,
separate from use of bed of river and flow
of stream. Washington Water Power CO. v.
United States, 135 F. 2d 541 (9th Cir.
1943).
In condemnation
proceedings
for the
acquisition of lands for the Grand Coulee
dam, the defendant Continental Land Company claimed compensation
for the inherent adaptability
of its uplands for
dam-site purposes for the production of electrical power. On appeal the Circuit Court
affirmed the lower court holding that the
Columbia River was a navigable stream
and that the Company had no inherent
right in the uplands for speciaf use as
against the Government’s dominant right to
the river bed for navigation; that the Company was limited to the reasonable market
value of the upland for any purpose to
which the lands may reasonably be adapted
now or in a reasonable time in the future,
and that the Continental Land Cornp+y
had produced no proof of any posslblhty,
reasonably near or remote, or at any time,
that the land would be or could be used for
dam-site purposes. Continental Land Co. v.
United States, 88 F. 2d 104 ( 9th Cir. 1937 ).
21. —Noncompensable
clahns
The Secretary has no authority under
the seventh section of this Act to compensate
settlers upon lands wittiln the limits of a
withdrawal made in connection with an
irrigation project, unless they have in good
faith acquired an inchoate right to the
land by complying with the requirements
of law up to the date of the withdrawal and
have such a claim as ought to be respected
by the United States. Op. Asst. Atty. Gen.,
34 L.D. 155 (1905).
Where a lease provides that the lessor
can terminate it on 30 days’ written notice
and that lessee’s improvements remaining
on the premises after expiration of the 30
day period shall become the property of
the lessor, its successors or assigns, and
where lessor after conveying the property
to the United States, gives the required
notice 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 improvements. Dec. Comp. Gen., A-14629
(June 24, 1926). [Ed. note: Relief was subsequently granted the lessee throu,gh a
private relief act dated March 3, 1927, 44
Stat. 1844.]
The United States does not impliedly

June 17, 1902
THE

RECLAMATION

promise to compensate persons engaged in
stock raising for the destruction of their
business, or the loss sustained through the
enforced sale of their cattle, the result of the
inundation of their lands by the construction of a dam which arrests flood waters.
Bothwell u. United States, 254 U.S. 231
(1920).
Where, in proceedings by the United
States to condemn land overflowed by the
construction of a dam, damages for loss
from a forced sde pf the landowners’
cattle and the destruction of their business
were denied, and the landowners brought
suit in the Court of Claims, they were in no
better position in respect to such damages
than if no condemnation proceedings had
been instituted. Bothwell v. United States,
254 U.S. 231 ( 1920), affirming 54 Ct. Cl.
203 (1918).
31. Condesrmation procee~lngs
In proceedings by the United States to
condemn right of way for a ditch under
the Reclamation Act which provides a fund
from which the damages assessed shall be
paid, it is not necessary that the damages
shall be asessed and paid before the Government 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 to
section 7, for reclamation projects, the judgment is not required to be certified to the
Congress, but may be paid from applicable
reclamation funds. Such judgments are required by the Act of Februa~ 18, 1904, 33
Stat. 41, to be paid on settlements by the
General Accounting Office. 5 Comp. Gen.
?37 (1926).
The fact that the taking of realty by the
Secretary of the Interior ;as for construction of distribution system did not require
that c~tract
with an irrigation district
precede the taking. United States v. 277.97
Acres of Lund, 112 F. Supp. 159 (D. Cal.
1953).
Government
may dismiss or abandon
petition in condemnation
proceedings
at
any time before taking property, notwithstanding owners claim for damages was in
excess 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 annotated under the Fifth Amendment, the
Sundry Civil Expenses Appropriation
Act
of March 3, 1915, and the Federal Tort
Claims Act as codified June 25, 1948. )
The authorization in section 7 of the
Reclamation Act of 1902 that the Secretary

ACT—SEG.

7

75

of the Interior may “acquire any rights or
property, “ “by purchase or by condemnation under judicid proces:,” extends to the
tding of private water rights by physical
seizure as well as by purchase or formal
condemnation. Turner v. Kings River Conservation Dist., 560 F. 2d 184, 192 (9th
Cir. 1966).
The substantial reduction in the natural
flow of the San Joaquin Mver as the result
of the impoundment and diversion of the
flow at Fnant Dam upstream constitutes a
seizure or taking, in whole or in part, of
rights which may exist in the continued flow
and use of the water; it does not constitute
a trespass against such rights. This seizure
was authorized by Congress when itauthorized the project, and any relief to which
claimants of the rights may be entided by
reason of such taking is by suit against the
United States under the Tucker Act, 28
U.S.C. ~ 1346. Dugan v. Rank, 372 U.S.
609 (1963 ). (Ed. note: The Tucker Act is
the Act of March 3, 1887, 24 Stat. 505. It
authorized suits to be brought in the Court
of Claims against the United States in certain cases? including claims founded upon
the Constitution. This includes claims based
upon the Fifth Amendment provision that
private property shall not be taken for public use without just compensation. 28 U.S.C.
~ 1346 relates to the jurisdiction of the Federal District Courts in such cases,. and 28
U. SC. $1491 relates to the jurisdiction of
the Court of Claims. These sections appear
herein in the appendix. )
United States had right to acquire by
physical seizure water rights of riparian
owners and overlying owners on river below
Government dam and was not required to
resort to judiciaf condemnation
proceedings. State of California v. Rank, 293 F. 2d
340 (9th Cir. Cal. 1961), modified on other
qrounds 307 F. 2d 96. tirmed
in Dart 372
U.S. 627, affirmed in ‘part, reversed in part
on other grounds sub. nom, Dugan v. Rank,
372 U.S. 609 (1963) .
In actions in the Court of Claims for
damages resulting from an unforeseen flooding of claimants’ soda lakes following construction and operation of a Government
irrigation
pro ject by wtilch water was
brought into the watershed, held (1) That
allegations
bat
the water
percolated
through the ground, due to lack of proper
lining k the Government’s
canals and
ditches, the manner of their construction
and the natural conditions, were not in.
tended to set up negligence, but merely to
show causal connection between the project
and the flooding, and hence did not characterize the cause of action as 6X delicto; (2)
That, as no intentional taking of claimants’
property could be implied, the Government

76

THE

RECLAMATION

was not liable ez contractu. assuminz such
causal relation. Horstmann, Co. v. United
States and Natron Soda Co. v. United
State$, 257 U.S. 138 ( 1921), affirming 54
Ct. Cl. 169, 214 (1919), 55 Id. 66 (1920).
An iniurv caused by the constructwn and
operatio; o’f a Government irrigation project? which by seepage and percolation necessar~ly influences and disturbs the ground
water table of the entire ~alley where plaintiffs’ lands are situated, s damrsum absque
injuria. Ibid.
(Editor’s
note:
The Horstmann
and
Natrona Soda cases are probably not good
law today. See cases noted under tie Fifth
Amendment. )
41. Availabilhy of funds
The authority to purchase property given
by section 7 is an authority to make such
purchases out of the reclamation fund available therefor at the time such purchases are
made, and does not include authority to
make purchases on the credit of the reclamation fund or in anticipation of a future
increment therein. 27 Comp. Dec. 662
(1921).
42. Exchanges
The Secretary has no authority to permit
the owner of lands needed for a reservoir to
be constructed under said act to select other
lands of the same area witti]n the district
that may be made susceptible of irrigation
from the proposed reservoir, in mchange for
the lands so needed for reservoir purposes.
Op. Asst. Atty. Gen., 32 L.D. 459 (1904).
But see section 14 of the Reclamation
Project Act of 1939.

ACT—SEC.

8

43. Option to pur&ase

The act does not authorize the ex~ense
of procuring mere options to purchase ~ghts
of way, water rights, or lands. 9 Comp. Dec.
569 (1903).
44. State hws
A state, though it can bestow on citizens
property rights which the United States
must respect, cannot take from the United
States power to acquire such property
rights. State of California v. Rank, 293 F.
2d 340, modified on other grounds 307 F.
2d 96, affirmed in part 372 U.S. 627, affirmed in part, reversed in part on other
grounds sub. nom. Dugan v. Rank, 3?2 U.S.
609 (1963).
The power conferred on the Secretary of
the Interior by the Reclamation
Act to
condemn lands necessary for use in constructing irrigation works is not subject to
fimitation by State statutes relating to the
exercise of the power of eminent domain of
the State nor is its exercise governed by a
State procedure requiring the necessity of
the taking in each particular case to be
determined by a local commission, but such
necessity is a matter to be determined by
the Secretary, whose decision is not reviewable by the courts. United States v. 0’Nei[l,
198 F.677 (D. CO1O.lg12).
Where the Government acquires an irrigation system held in private ownership,
for use in connection with a reclamation
project under the Act of June 17? 1902, it
takes the same free from any obhgation or
control of State authority theretofore etisting. Op. Asst. Atty. Gen., 37 L.D. 6 ( 1908).

Sec. 8. [Irrigation laws of States and Territories not affected-Interstate
stream*Water
rights.] —Nothing in this aot shd be construed as affecting or
intended to affect or to in any way interfere with the the laws of any State or
Territo~ relating to the control, appropriation, use, or distribution of water used
in irrigation, or any vested right acquired thereunder, and the Secretary of the
Interior, in carrying out the provisions of this act, shall proceed in confotity
with such laws, and nothing herein shall in any way affect any right of any
State or of the Federal Government or of any landowner, appropriator, or user
of 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 act
shall 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
section 372, title 43 of tie U.S. Code. The

preceding portion of the section is codified
in section 383.

June

17, 1902
THE

RECLAMATION

ACT—SEC.

8

77

NOTES OF OPINIONS
Stite laws 1-10
Adoption of Federd law 5
Generally 1
Navigable waters 2
Procedures 4
Pubfic lands 3
Rights-of-way to United States 6
Interstate conflic~nerdly
11
Klghts of United States l&25
Generally 16
Seepage

19

Suits against the United States 18
Suitsbv United States 17
R,gktz of’water users” 2&35
Appurtenant to land 28
Beneficial use 27
Generally 26
Power purposes 29
Warren Act 30
1. State laQener*y
In choosing between users witi~n each
state and in settling the terms of his contracts for the use of stored Colorado River
water, the Secretary is not bound, either
by section 18 of the Boulder Canyon Project Act, or by section 8 of the Reclamation
Act, to follow State law. Although section
18 allows the States to do things not inconsistent with the Project Act or with
federal control of the river, as for example,
regulation of the use of tributary water and
protection of present perfected rights, the
general saving language of section 18 cannot bind tie Secretary by state law and
thereby mdfify the contract
power expressly conferred upon him by section 5.
Arizona v. California, 373 U.S. 546, 58%
90 (1963).
Section 8 of the Reclamation Act does
not mean that state law may operate to
prevent the United States from exercising
the power of eminent domain to acquire
the water rights of others. Rather, the effect
of section 8 in such a case is to leave to
~tate law the definition of the property
interests, if any, for which compensation
must be made. City of Fresno v. California,
372 U.S. 627,630 (1963) .
Section 8 of the 1902 Act does not override the excess land provisions of section
5, nor compel the United States to deliver
water on conditions imposed by the State.
It merely requires the United States to
comply with state law when, in the construction and operation of a reclamation
project, it becomes necessary for it to acquire water rights or vested interests therein. But the acquisition of water rights must
not 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 as
one of the purposes of the Central Valley
Project,
Congress realistically elected to
treat Friant Dam not as a navigation project but as a reclamation project, with reimbursement to be provided for the taking
of water rights recognbed under State law,
in accordance with section 8 of the Reclamation Act, and this election is confirmed
by administrative
practice.
Accordingly,
the judgment of the Court of Claims will
be upheld granting compensation
to the
owners of so-called
“uncontrolled
grass
lands” alons the San Joaquin River which
depend for water upon suonal
inundationz resultins from ovefiows of the river.
United States v. Gerlach Live Stock Co.,
339 Us. 725 (1950) .
Section 8 of the Reclamation Act of 1902
requires federal officers to recosnize statecreated water rishts and pay for them if
taken, but it does not Hmit the authority of
federal officers to take such rishts for just
compensation. Turner v. Kings River Conservation Dist., 360 F. 2d 184, 19+95 (9th
Cir. 1966).
Section 8 of the Reclamation Act of 1902
does not compel the United States either to
acquire or to deliver water on conditions
imposed by the State. Turner v. Kings Riner
Conservation Dist., 360 F. 2d 184, 197–98
(9th Cir. 1966).
There is nothing in the IanguaSe of this
section to indicate that the intent of Congress was to go further than to recognize
and prevent interference with the laws of
the State relatins to the appropriation, controi, or distribution of water. San Francisco
v. Yosemite Power Co., 46 L.D. 89 (1917).
2. —Navigable waters
Where the Government has exercised its
right to regulate and develop the Colorado
River and has undertaken a comprehensive
project for improvements of the river and
for the orderly and beneficial distribution of
water, there is no room for inconsistent state
laws. Arizona v. California, 373 U.S. 546,
587 (1963).
The privilege of the States throush which
the Colorado River flows and their inhabitants to appropriate and use the water is
subject to the paramount power of the
United States to control it for the purpose
of improvins navigation. Arizona v. California, et al., 298 U.S. 558, 569 ( 1936), rehearing denied, 299 U.S. 618 ( 1936).
The Secretary of the Interior is under no

-

June 17, 1902
THE

78

RECLAMATION

obligation to submit the plans and specificationsfor Boulder Dam ?nd Reservoir to the
State Engineer as required by Arizona law
because the United Stites may perform its
functio~s without conforming to the, police
regulations of a State. A7azona u. Cdzfornia,
283 U.S. 423,451
(1931).
Where reclamation projects are involved
on navigable waters, even though power
element is absent, federal government will
not brook interference by the States. United
States v. Fallbrook Public Utility Dist., 165
F. Supp. 806 (D. Cal. 1958).
Congress
has control
over navigable
streams and the waters thereof, and no claim
based upon appropriation
of such waters
for irrigation purposes, made without the
sanction of Congress, should be recognized
by the Secretary of the Interior as valid.
~~~~)nia
Development Co., 33 L.D. 391
3. —PubEc bnds

In a suit for the equitable apportionment
of the waters of the interstatenon-navigable
North Platte River among three States, it
is not necessaryto pass upon the contention
of the United States that it owns all the unappropri~t~d water in the river by virtue
of lts orlgmal ownership of the water as
well as the Iand in the basin, where the
rights to the waters required for the reclamation projects on the river have been
appr?pria}ed under State law pursuant to
the dlrect~ve of section 8 of the Reclamation
Act, where the individual landowners have
become the appropriators of the water rights
appurt~nant to their land, and where the
decree m the case is limited to natural flow,
not storage water, and does not involve a
conflict between a Congressionally provided
system of regulation for Federal projects and
an inconsistent State system. Neb7mka v.
Wyoming, et al., 325 U.S. 589, 611-16,
629-30 ( 1945).
There” is no authority to make such executi~e withdrawal of public lands in a State as
Wll reserve the waters of a stream flowing
over the same from appropriation under the
laws of the State, or will in any manner interfere 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).

ACT—SEC.

(

8

Genersd held that since the furnishing of the
bond and the continued validity of the permit were necessary in order to assure the
Government its priority in the water rights,
the premiums on the bond could be paid
as a necessa~ incident to the construction
and operation and maintenance of the Boise
project. Dec. Comp, Gen., B–10509 (Febrnary 3, 1941).
In order to conform as nearly as possible
to the laws of Wyoming, tie Farmers Irrigation District should submit to the United
States proof of beneficial use of water delivered to it by the United States under its
Warren Act contract, and the United States,
acting *rough the Secretary of the Interior,
should make such proof of beneficial use in
Nebraska of Pathfinder reservoir water as
may be required by the Wyoming laws, attaching to such proof Warren Act contracts
of all contractors who are entitled to the
use of any Pathfinder storage and any proof
of beneficial use they may have submitted to
the United States. Soficitor’s decision, April
17, 1936.
Under section 8 of the Reclamation Act
of June 17, 1902, the 5-year period for
completion of irrigation appropriations fied
by the State law for the development of a
water supply for a reclination
project in
Idaho is applicable to the United States.
Pionee7 lrri~ation
District v. American
Ditch Associ~tion, et al., 1 Pac. 2d 196, 52
Idaho 732 (1931).
The Reclamation Act not ordy rec~nizes
the constitution and laws of the stat= providing for the appropriation of its waters
and the reclamation of its arid lands, put
it requires that the Secreta~ of the Interior,
in carrying out the provisions of this
chapter, shrdl proceed in conformity with
such 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 law

The 160-acre fimitation is a basic part of
federal reclamation policy, and the state
legislature has adopted this concept as state
policy for federd projects by authorizing
irrigation districts to cooperate and contract
with the United States under reclamation
law. Ivanhoe Irr, Dist. v. All Parties, 53
Cal. 2d 692, 3 Cd. Rptr. 317, 330, 350 P.
2d 69,82 (1960).

4. —Procedures

6. —Rights of way to United S~tes

The bureau made application for storage
of additional water in Arrowrock reservoir.
The laws of the State of Idaho specifically
require that a bond be furnished in support
of such an application and provide that
failure to file the bond would be an aban-

[Ed. Not*The
Act of September 2,
1964, as amended by the Act of October 4,
1966, authorizes the Secretary of the Interior to pay just compensation for utitiation
of rights of wav reserved to the Unitec

donment

of the permit.

The

Comptroller

State; under State law.]
Under a stitute of Wyoming

(Laws 1905

June

17, 1902
THE

RECLAMATION

ch. 85) granting rights of way over dl
hinds of the State for ditches “constructed
by or under the authority of the United
States/’
and pr~viding that reservations
thereof sha~ be inserted in dl State conveyances, patents of school land issued by
the State to private parties expressly subject
to rights of way “resemed to the United
are subject to the right of the
States:
United States thereafter to cons-et
and
operate irrigation ditches for a recbmation project over the lands conveyed by
the patents. This right may be mercised by straighte+ng
and using as a
ditch, a natural ravine to collect waters appertaining to the Federd project which
have been used in irrigating its lands and
are found percolating where they are not
needed. and to conduct them elsewhere for
furthe~use upon the project. Ide v. United
States, 263 U.S. 497 ( 1924),
firming
United 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 the
United States, the United States was authorized to construct an irrigation canal
across land sold by State subsequent to the
enactment of the statute. The contention
of the Iandowner that under the State Constitution, the Board of Land Commissioners,
and not the legislature, was authorized to
dispose of State lands was admitted by the
court, which, however, held tiat the constitutional provision related only to disposition and sale and not to the mere grant
of an easement which could be effectuated
by 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 includes
the right to operate a fifty foot Klgh boom
for cleaning the canfl, and the cost to a
utility comQany in raising its transmission
lines to accommodate such bmm is not compensable. United States u. 3.08 Acres of
~;[~{. etc., 209 F. Supp. 652 (D. Utah

-__-,
A 1905 Washington
statute providing
that in the dlsposd of lands granted by the
United States, the State “shall reserve for
a right-of-way
for
the United
States”
ditches, etc., for irrigation worke, constituted a present, absolute grant to the
United States, and such grant could not be
defeated by a subsequent conveyance of the
rights+f-way -d
without actual notice to
the grantee. United States v. Anderson, 109
F. Supp. 755 (E.D. Wash. 1953). Contra:
United States v. Pruden, 172 F. 2d 503
(10th Cir. 1949), construing an Oklahoma
statute.

ACT—SEC.

8

79

11. Interstate conflict~nerdly
As to the words “and nothing herein shall
in any way affect any right of any state or
of tie Federal Government or of any Iandowner, appropriator, or user of water in, to,
or from any interstate stream or the waters
thereof” in this section, the U.S. Supreme
Court in Wyoming v. Colorado, 259 U.S.
419 (1922) said: “The words * * * constitute the only instance, so far as we are
advised, in which the legislation of Congress relating to the appropriation of water
in the arid l?nd region has contained any
distinct mention of interstate streams. The
explanation of this exceptional mention is
to be found in the pendency in this court
at that time of the case of Kansas v. Colorado, wherein the relative rights of the two
states, the United States~ certain Kansas
riparians and certain Colorado appropriators and users in and to the waters of the
Arkansas river, an interstate stream, were
thought
to be involved.
Congress was
solicitous that all questions respecting intersbte streams ,tiought to be involved in that
litigation should be left to judicid
determination untiected
by the act—in other
words, that the matter be left just as it
was before. The words aptly reflect that
purpose.”
Nebraska brought suit against Wyoming
in the Suureme Court for an eauitable aDportionm~nt
between the tw< States ~f
waters of the North Platte river, alleging
that the laws of both of these States recognize the doctrine of prior appropriation, and
that Wyoming, in spite of Nebraska’s protestations,
neglected
to control
appropriators, whose rights arise under the law
of Wyoming, from encroaching upon the
rights of Nebraska appropriators. Wyoming
on Jan, 21, 1935, 294 U.S. 693, entered a
motion to dismiss. The court, in denying the
motion, held that Nebraska had cited no
wrongful act by Colorado, and even though
the river rises and drains a Iarge area in that
State, Colorado
is not an indispensable
party; that the Secretary of the Interior, as
an appropriator under the irrigation laws of
Wyoming? will be bound by the adjudication
of Wyommg’s rights, and is not an indispensable party; that the allegations of the
bill are not vague and indefinite; and if
Nebraska’s contention that there are no
tributaries of the North Platte and the
Platte rivers between the state line and the
City of Grand Island, Nebraska, supplying
any substantial amount of water, be not a
fact, Wyoming may make this an issue to be
determined by proof. Nebrmka v. Wyoming,
295 Us. 40 (1935).
In view of the Reclamation
Act, the
Warren Act, and the legislation of Wyoming

June 17, 1902
80

THE

RECLAMATION

and Nebraska, an appropriation
by the
United States Reclamation Serv;ce for the
irrigation of lands in Nebraska was valid,
though the source of the supply was in
Wyoming. Ramshorn Ditch Co. v. United
State~, 269 F. 80 (8th Cir. 1920).
The North Side Canal Co. entered into
a contract with the United States for the
purchase of storage rights in the Jackson
Lake reservoir in Wyoming, the water stored
therein to be used in Idaho. The State of
Wyoming assessed taxes against the interest of the canal company in the reservoir and
the canal company resisted the payment
of such taxes. The trial judge held that the
taxes were properly levied. No7thside Canal
Co. v. State Board of Equalization, Wyoming, 8 F. 2d 739 (D. Wyo. 1925). The case
was appealed to the Circuit Court of Ap-

peals for the Eighth Circuit, which
reversed the decision of the District
Court of the United States for the District
of Wyoming and held that the attempted
tax is wholly null and void foq the reason
that the water rights m question are appurtenant to the lands on which the water
has been applied to beneficial use, which
lands are located in the State of Idaho and
are therefore not within the jurisdiction of
Teton County, Wyoming, for” taxation purposes. 17 F. 2d 55 ( 1926), cert. denied 274
L’.S. 740 ( 1927). Similar ru~mg in Twin
Fatl~ Canal Co. v. State of Wyoming.
Subsequently to this de~sio~ the ~egislature of Wyoming passed an act (chapter
36, Session Laws, of Wyoting,
1927), in
effect attempting to make water rights acquired under the laws of Wyoming taxable.
Thereafter
the State attempted
to levy
taxes upon the water rights, the taxability of
which was litigated in the foregoing suit.
The district court, in Twin Falls Canal Co.
v. Teton County, unpublished memorandum
decision dated November 14, 1928, held
that the nontaxability of these water rights
by Wyoming was res judicata, and the taxes
were therefore annulled.
United States’ appropriation, from territory of New Mexico, of all unappropriated
water in Rio Grande did not render such
water as found its way to Texas untouchable by poficy of water rights and appropriations under Texas law, El Paso County
Water Imp. Dist. No. 1 v. City of El Paso,
133 F. Supp. 894 (D. Tex. 1955), affirmed
in part, r{f~rmed in part on othir grmn.ds,
243 F. 2d 927 (5th Cir. 1957), cert. demed
355 U.S. 820.
of United Stit~Generally
The United States, by filing with the
State of Oregon notices of intent to appropriate and thereafter impounding waters
16. Rights

for the Klarnath project,

pursuant to State

ACT—SEC.

8

law, did not become the owner of the water
in its own right. Dec. Comp. Gen. W125866
(September 4, 1956).
In view of the compact among the states
of Texas, New Mexico, and Colorado concerning use of RIO Grande water,. and in
view of the United States’ appropriation of
water for use of water improvement district,
tie City of El Paso was not entitled to appropriate water already appropriated
for
use of the district. El Paso County Water
Imfi. Dist. No. 1 v. City of El Paso, 133 F.
Supp. 894 (D. Tex. 1955), bed
in
Dart. reformed in Dart on other grounds
~43 ‘F. 2d 927 (5th ‘Cir. 1957), cert~denied
355 U.S. 820.
By filing notices of intent to appropriate
and thereafter imDoundinE water of Rio
Grande River, pursfiant to ;uthority granted
by this section, the United States did not
become owner of water in its own right.
Hudsfieth County Conservation and Reclamation Dist. No. 1 v. Robbins, 213 F. 2d
425 (5th Cir. 1954), cert. denied, 348 U.S.
833.
Under the Reclamation Act, tie right of
tie United States as a storer and carrier is
not necessarily exhausted when it defivers
the water to grantees under its irrigation
projects. Nebrmka v. Wyoming, 325 U.S.
589 f1945).
In’ cons~ructing reclamation project the
property right in a water right is separate
and distinct from the property right in reservoir:, ditches, or canals, in that water
right ~s appurtenant to the land owned by
the appropriator,
and is acquired
by
perfecting an “appropriation”,
that is, by
an actual diversion followed by an application within a reasonable time of the water
to a beneficial use. Nebraska v. Wyoming,
325 U.S. 589 (1945).
The scope of the appropriative
water
rights in connection with a Federal reclamation project must be regarded, under the
law of Nebraskaj as the same as those in connection wifi any irrigation cansd. That is,
although the right to the beneficial use of
the water for irrigation is appurtenant to
the land and vested in the landowner, the
owner of the irrigation project also has an
interest in such appropriative rights which
entitles hlm to representatively secure and
protect the full measure of beneficial use
for the landowners as well as to effectuate
the object of the project or canal as
an enterprise. United States v. Tilley, 124
F. 2d 850, 86041
(8th Cir. 1941), cert.
denied, 316 IJ.S. 691 ( 1942).
Fedcrfl government’s diversion, storage
and distribution of water at reclamation
project pursuant to Rechunation Act and
oontracts with landowners @d not vest in
United States ownership of water rights

June 17, 1902
THE

RECLAMATION

which remained vested in owners as appurtenant to land wholly distinct from property
of government in irrigation work, while
government remained carrier and distributor of water with right to receive sums stipulated in contract for construction and annual charges for operation and maintenance
of 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 irrigation project is in the position of a carrier
of water to all entrymen in the project, and
he is not obligated to furnish any more
water 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 may
have to divert waters from a stream in Neva,da under permits issued by the state engineer as against an irrigation company and
the extent hereof must be determined by
the law of Nevada. United States v. Humboldt Loveloek Irr. Light @ Power Co., 97
F. 2d 38 (9th Cir. 1938), cert. denied 305
U.S. 630.
The Government, like an individud, can

appropriate only so much water as ii ap-

1prles to beneficial uses, and can only restrain a diversion which operates to its prejudice. West Side Irr. Co. v. United States,
246 Fed. 212, 158 C.C.A.
372 (Wash.
191 7), affirming United States v. West Side
Zrr. Co., 230 Fed. 284 (D.C. 1916).

by United States
In view of this section, requiring Secretary of the Interior to prmeed in conforsnity with state law in his administration of
the Reclamation Act, the district court had
jurisdiction to review state engineefs deci17. Auiti

sion approving
voluntary appliwtion
of
United States for a change of the diversion
place of some of the irrigation waters of the
United States notwithstanding that tie law
may be different as applied to the United
States as to payment of costs, estoppelz and
abandonment.
United States v. Dzstrict
Court oj Fourth Judicial Dist. in and for
County, 238 P. 2d 1132, 121 Utah 1
(1951 ), rehearing denied 242 P. 2d 774,
121 Utah 18.
In suit by the United States to enjoin
an irrigation company from diverting irrigation water allegedly purchased and owned
by the United States, the appointment
of a water master was unnecessary, since injunction could enjoin company from interfering with diversion and storage of water by
the United Stites and cotid enjoin company from diverting and storing water, and
by such an injunction the District ,Court
could protect the ~Jnited States against un-

ACT—SEC.

8

81

lawful invasions of its rights by company
without the auDointment of a water master. United Sj~tes v. Humboldt Lovelock
Irr. Light @ Power Co., 9? F. 2d 38 (9th
Cir. 1938), cert. denied 305 U.S. 630.
The rule of comity did not require that a
suit by the United States in a federal court
to enj~n an irrigation company from diverting irrigation water allegedly purchased and
owned by the United States should await
determination of company’s suit in a Nevada court to enjoin others from interfering with its diversion and storage of water
where the United States was not a party to
that suit, United States v. Humboldt Lovelock Irr. Light & Power Co., 97 F. 2d 3a
(9th Cir. 1938) ~cert. denied 305 U.S. 630.
A suit, wherein a Nevada court adjudicated water rights allegedly owned by the
United States and 4s0 the rights of an irrigation company was no obstacle to a suit
by tie United States in a federaf court to
enjoin company from interfering with its.
rights as against contention that suit contemplated an adjudication
of water rights
and that they were in custodia legis. United
States 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 water rights in which United States intervened
by leave and did not request removal to
federal court, state court had jurisdiction to
enter decree fin~
priorities of United
States, and the United States wou!d be
bound by the decree. Pioneer Irrigation
Dist. v. American Ditch Assn., 1 P. 2d 196,
50 Idaho 732 ( 1931).
In a suit by United States to enforce
terns of contract entered into by defendant,
a mutual irrigation company, wh:ch provided that it should not divert more than
80 cubic feet per second from stream and
the Government proceeded with a reclamation project based on such contract, defendant cannot defeat the contract on the theory
that it should not be construed as abandonment of rights of its stockholders. We~t Side
Irrigation Co. v, United States, 246 Fed.
212, 158 C.C.A. 372 (Wash. 1917). For subsequent suit involving these same limit ing
agreements see Unite~ States v. Uniors Ga~
Irr. Dist., 39 F. 2d 46 (9th Cir. 1930).
The government, me an individual!, can
appropriate ody so much water as It appfies to beneficial uses, and can only restrain
a diversion which operates to its prejudice.
United States v. West Side Zrr. Co., 230
F. 284 (D. Wash. 1916).
The fact that the United States has appropriated all of the unappropriated water
of a stream in a county for an irrigation
project, as permitted by a law of the State,

June 17, 1902
82

THE

RECLAMATION

does not give it standing to maintain a suit
to enjoin a prior appropriator from using
an excessive amount of water unless it is
alleged and proved that it had acquired the
tight to such water under its own appropriation. United States v. Bennett, 207 Fed.
524 (C.C.A. Wash. 1913).
The United State~, like an individual,
can restrain a diversion which operates to
its ?rejudice and where the United States
had examined, surveyed, located and had in
operation extensive irrigation works for the
storage, diversion and development of water
from the Yakima river for the reclamation
of arid lands and it appeared that an irrigation company had appropriated and was
diverting and using quantities of water in
excess of the amounts to which it was entitled, thereby entailing great damage upon
tie United States, the United States was
entitled to an injunction to restrain the defendant from such use of the water in the
river above, as to materially lessen the
quantity at complainant’s point of diversion
which it had lawfully appropriated
and
which was necessary to the success of its
project and fulfillment of its contracts.
United States v. Union Gap. Irr. Co., 209
F. 274 (D. Wash. 1913).
18. +uits
against the United States
A suit by riparian and overlying landowners to enjoin officials of the Bureau of
Reclamation from impounding water at a
federal darn on the San Joaquin River so
as to protect plaintiffs’ vested water rights
was in fact a suit against the United Stabs
without its consent, in view of the fact that
the decree granted by the lower court to
enjoin tie action unless a physicaf solution
was provided would have interfered with
public administration, required expenditure
of public funds, and would have required
the United States, contrary to the mandate
of Congress, to dispose of irrigation water
and to deprive the United States of full use
and control of reclamation facilities. Dugan
v. Rank, 372 U.S. 609 (1963).
The substantial reduction in the natural
flow of the San Joaquin River as the result
of the impoundment and diversion of the
flow at Friant Dam upstream constitutes a
seizure or taking, in whole or in part, of
rights wtilch may exist in the continued flow
and use of the water; it does not constitute
a trespass against such rights. This seizure
was authorized by Congress when it authorized the project, and any relief to which
claimants of the rights may be entitled by
reason of such taking is by suit against the
United States under the Tucker Act, 28
U.S.C. $1346. Dugan v. Rank, 3?2 U.S. 609
( 1963). (Ed. note: The Tucker Act is the
Act of March 3, 1887, 24 Stat. 505. It au-

ACT—SEC.

8

thorized suits to be brought in the Court
of Claims against the United States in certain cases? including claims founded upon
the Constitution. This includes claims based
upon the Fifth Amendment provision that
private property shall not be taken for public use without just compensation. 28 U.S.C.
$1346 relates to the jurisdiction of the Federal District Courts in such cases,. and 28
U.S.C. S 1491 relates to the jurisdiction
of the Court of Claims. These sections appear herein in the Appendix. )
Where nparian rights of landowners along
branch channel of San Joaquin River were
subordinate to water rights of corporation
which, with its subsidiary and affiliated companies, owned rights to use very substantial
portion of flow of San Joaquin River, and
Utited States, which, in carrying out Central Valley Project for irrigation purposes,
formulated plan whereby waters of San
Joaquin River were diverted and waters of
Sacramento River were substituted therefor,
entered into contract with corporation and
its subsidiaries for such substitution? and
United States faithfully and fully ddlvered
substitute waters, and landownem’ suffered
no actual damage because of substitution,
any impairment of landowners’ rights because of substitution was at most a technicality, for which landowners could not
recover from United States, since United
States could not with impunity take away
substitute waters. Wolfsen v. United Statesj
162 F. SUPP. 403, 142 Ct. CIS. 383 ( 1958),
cert. denied 358 U.S. 907.
Where the United States in 1908 appropriated all the water of the Rio Grande
River above lands in Hudspeth County
Conservation and Reclamation District No.
1, riparian rights of owners of land in Hudspeth District were destroyed in 1908, and
their alleged right of action against the
United States for the taking of riparian
rights was barred by limitations in 1958.
Bean v. United States, 163 F. Supp. 838,
143 Ct. Cls. 363 ( 1958), cert. denied 358
U.S. 906.
The United States is not an indispensable
party to a suit by a landowner receiving
water from the Yakima project to enjoin
the Secretary of the Interior from imposing
additional
charges
for water dehvery,
representing part of the cost of the new
Cle Elum reservoir, beyond those stated in
a repayment contract with a water users’
association and in the public notice issued
by the Secretary, because the landowner, not
the United States, is the owner of the water
right under Federal and State law and
under contract with the Secretary. This
ownership is wholly distinct from the prop
erty right of the Government in the irrigation works. The suit is to enjoin the Sec-

June

17, 1902
THE

RECLAMATION

retary from enforcing an order, the wrongful effect of which wfil be to deprive the
landowner of vested property rights, and
may be maintained without the presence
of 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, 320

Us. 792.
A judicid
apportionment
of the unappropriated waters of the Colorado River
among the states of the Colorado River
Basin cannot be made without an adjudication of the rights of the United States, to
control navigation and to impound and
control in Boulder reservoir the disposition
of surpl~s water in t+e stream not already
appropnat~d, as any right of Arizona to the
unappropriated
waters in the Colorado
Rver is subordinate to and dependent upon
the right of the United States to such waters.
Hence, the United States is an indispensable
party to such apportionment proceedings.
Arizona v. California, 298 U.S. 558 ( 1936).
The United States made application on
March 30. 1921. for a diversion ~ermit of
8,000 acre feet of the waters of ~he Snake
Klver and for a stera~e permit of 3,000;000
acre feet per annum m connection with the
Minidoka project. From 1930 to 1932 the
American Falls District obttined water from
the Government’s natural flow or diversion
permit, but in 1933 the United States required the District to use storage flow in
alternate years. The district brought an
action against the State Water Master. The
court ordered the suit dismissed on account
of the absence of the United States but on
September 28, 1936, in denying a petition
for a rehearing, modified its opinion to state
that because the United States was not made
a party to the suit, the court could not adjudicate the water rights. American Falls
Reservoir District No. 2 v. Crandall, et al.,
82 F. 2d 973, 85 F. 2d 864 (C.C.A. Idaho
1936).
The word “control”
in section 8 of the
Reclamation
Act providing that nothing
therein shall be construed to affect or interfere with State laws relating to control, appropriation,
use? or distribution of water
used in irrigation, or any vested right
acquired thereunder, held not to warrant
inference that Congress thereby intended to
relegate suit against United States or Secretary of the Interior involving right, tide, or
interest of United States, to State court for
determination, or to deny United States or
Secretarv the right of removal. North Side
Canal Co. v. T~uin Falls Canal Co., 12 F.
~d 311 (D. Ida. lg26).

19.—Seepage
Where the United States in 1906 and
i908 appropriated dl of tie unappropriated

ACT+EC.

8

83

water of the Rio Grande for operation of
the Elephant Butte Project, the United
States dso acquired the right to any incidental seepage of such waters. Hunter v.
United States, 159 Ct. Cl. 356 (1962).
The abandonment
of seepage waters
from the Rio Grande reclamation project
in the past by the United States did not
constitute abandonment of the right to use
such waters when needed in the future;
and plaintiffs’ use of such seepage waters

did not create in them rights superior to
those of the United States to control and
prescribe 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 and
carrier of project water-are not ehausted
with a single application of the water to
land, but the water may be recaptured and
reused
as developed
water.
Huds$eth
County 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 of
an irri~ation project, may ~etain control
over and re-use seepage waters from the
project, when return flows to the river are
abandoned, they become subject to appropriation down stream. Nebraska v. Wyoming, et al., 325 U.S. 589, 633-37 ( 1945).
The United States purchased, for the Vale
reclamation project, a one-half interest in
the reservoir of the Warrnsprings Irrigation
District. The district agreed, in a contract
with the United States, to accept return
flow, drainage or waste water escaping from
the Vale project and being available for
diversion by the d~trict’s canals, as a part
of the district’s share of the stored water
from Warmsprings reservoir. It was disputed
whether, under the contract, the district
must give the United States credit in Warmsprings reservoir storage only for the water
leaving the Vde project above ground, or
also for the water leaving the project by
deep percolation, and bter finding its way
mto the watercourses whence it might be
diverted into the canals of the district. It
was held by the Court, in construing the
contract? that both surface flow and deep
percolation water escaping from the Vde
project and being available for diversion
into the canals of the district could be the
bases of a contract claim by the United
States for storage in the reservoir. As the
court interpreted the law of Oregon, water
escaping from the Vale project by deep
percolation is of a public character, even
as against the United States. United States
v. Warms firings Irr. Dist., 38 F. Supp. 239
(D. Ore. 1941).
The right of the United States in water
appropriated generally for the lands of a

June 17, 1902
84

.

THE

RECLAMATION

reclamation
project is not exhausted by
conveyance of the right of user to grantees
under the project and use of the water by
them in irrigating their parcels, but attaches
to the seepage from such irrigation, tiording the Government priority in the enjoyment thermf for further irrigation on the
project over strangers who seek to appropriate for their lands. Ide v. United States,
263 U.S. 497 ( 1924),
affirming United
States v. Idej 277 Fed. 373 (1921).
Under the Warren Act a contract be~een the United States and a land company for the delivery to the latter of water
which escaped by seepage from the canal
of a reclamation project was a valid contract which gave the United States the right
to conserve and deliver water thereunder.
Ramshorn Ditch Co. v. United States, 269
Fed. 80 (8th Cir, 1920), affirming 254 Fed.
842 (D. Neb. 1918). Accord: United States
o. Tilley, 124 F. 2d 850, 858-63 (8th Cir.
1941 ), cert. denied 316 U.S. 691 (1942).
Where waste water arising from a Federal
irrigation project, after percolation, is recovered by the Government by means of
drainage ditches, with the intention of ‘wnserving and applying it to a beneficial use,
the Government has a superior right to the
water. Grifiths v. Cole, 264 Fed. 369 (D.
Ida, 1919).
Landowners within a Federal irrigation
project cannot avail themselves of waste
and seepage water arising in connection
with the operations of the project when such
water is claimed by the Government. Memorandum decision June 26, 1918, by State
District Judge Isaac F. Smith, in re petition
Nampa-Meridian Irrigation District for confirmation of contract with the United States.
Boise project.

26.Nights of water use-nerdly
Where interest of United States in proceedings to obt?in adjudication of water
rights for irrigation and other purposes was
only that of carrier or trustee in behalf of
owners of water, title to which was sought
to be adj~dicated, United States immunity
as sovere~gngovernment coyld not be extended to the water users. Ctty and County
of Denver v. Northern Colorado
Water
Conservancy Dist., 276 P. 2d 992, 130
Colo. 375 ( 1954).
Where United States and water conservancy district failed in their duty to take dl
necessary steps to protect rights of consumers of water of which United States was
carrier or trustee in behalf of water owners,
beneficiaries of such trust became proper
necessary parties to proceeding to obtain
adjudication of water rights for irrigation
“and other purposes and had right to appear
and present their case in such proceedings.

ACT—SEC.

8

City and County of Denver v. Northerv
Colorado Water Conservancy Dist., 276 P.
2d gg2, 130 Colo. 375 (lg54).
Where water rights on which Federal
water project rested pursuant to this chapter had been obtained in compliance with
state law, and pursuant to government’s
action individual landowners had become
the appropriators of the water rights, the
United States being the storer and carrier,
the rights acquired by landowners were as
definite and complete as if they were obtained by direct cession from the Federal
Government, so that even if the government
owned unappropriated rights, they were acquired by landowners in manner contemplated by Congress. Nebraska v. Wyoming,
325 U.S. 589 ( 1945).
In constructing a declamation project, the
property right in water right is separate and
distinct from” property right in reservoir:,,
ditches, or canals, in that water right 1$
appurtenant t? land, th~ owner of which
1s the appnoprlator, an~ Is acquire~ by perfecting an “appropriatlon~
ttiat Is, by an
actual diversion followed by an application
within a reasonable time of the water to a
beneficial use. Nebrmka v. Wyoming, 325
U.S. 589 (1945).
Although the ‘doctrine of prior appropriation fixes priorities among individual appropriators in the use of water according to
maxim, qui prior in tempore, prior in jure
es!, it confers no right to waste water upon
prior appropriator whose right is qualified
by limitation, made i: favor of subsequent
approprlato~s and widest pssible
use of
water on arid lands, that all of water he uses
must be beneficially applied and with rea.
sonable economy in view of conditions under
which application must be made. Burley
Irr. 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 indispensable
party to a suit by ? landowner receiving
water from the Yaklma proJect @ enjoin
the S:cretary of the Interior fr:m imposing
additional charges for water dehvery, repre.
senting part of the oost of the new Cle Elum
reservoir, beyond those stated in a repay
ment contract with a water users’ associa.
tion and in the public notice issued by tht
Secretary, because the landowner, not tht
United States, is the owner of the wate!
right under Federal and State law anc
under contract with the Secretary. Thi
ownership is wholly distinct from the p:op.
erty right of the Government in the irrlga
tion works. The suit is to enjoin thl
Secretary from enforcing an order, th
wrongful effect of which will be to depriv
the landowner of vested property rightt
and may be maintained without the present

June

17, 1902
THE

RECLAMATION

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 use
A beneficial use of waters alone gives user
no vested right to them, and preceding $e
beneficial use there must have been a filing
of 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 from
Rio Grande project have a d,efeasible interest, which is always at risk of loss by unjustifiable delay in m~ing
or continuing
beneficial use. El Paso County Water Zmp.
Dirt. No. I v. City of El Paso, 133 F. Supp.
894 (D. Tex. 1955), affirmed in part, reformed in part on other grounds 243 F. 2d
927, cert. denied 355 U.S. 820.
N’otwithstandlng the quantities of water
stated in water right contracts, the measure
of the water right of a water user on a
Federal reclamation project is the amount
that can be put to beneficial use. Fox v.
Zckes, 137 F. 2d 30 (D.C. Cir. 1943), certiorari denied, ,320 U.S. 792.
There is an important distinction between
beneficial use and economical use of water.
.4 nroperty ri~ht once acquired by the benefic~al use of water is not burdened by the
obligation of adopting methods of irrigation more expensive than those considered
reasonably 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 does
not constitute appropriation
thereof, but
water must be applied to beneficial use to
constitute appropriation. Zckes v. Fox, 85 F.
2d 294, 66 App. D.C. 128 (1936), affirmed
300 U.S. 82, rehearing denied, 300 U.S.
640.
By the provisions of this section the right
to the use of water acquired must be appurtenant to the land and the beneficial
use is the basis, the measure, and the limit
of the right. Zmfierial WateT Co. No. 5 v.
Holabird, 197 F, 4, 116 C.C.A. 526 (Cal.
1912 ). See also Gutierres v. Albuquerque
Land & Irr. Co., 188 U.S. 545 ( 1903);
United States u. Bennett, 207 F. 524, 525,
125 C.C.A.
186 (Wash.
1913) ; United
States v. Conrad Znv. Co., 156 F. 123 (C.C.
Mont.
1907),
affirmed 161 F. 829, 88
C.C.A. 647; San Joaquin @ Kings River
C. @ Z. Co. u. Stanislaus County, 191 F.
875 (C.C. Cal. 1911), reversed on ,other
grounds 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

ACT—SEC.

8

85

for irrigation until it is actually applied to
reclamation of the land. The final and only
conclusive test of reclamation is production.
This does not, perhaps, necessarily mean
the maturing of a crop, but certainly does
mean the securing of actual growth of a
crop. Departmental decision, February 5,
1909.
28. —Appurtenant to land
This section providing that Rio Grande
project water should be appurtenant to land
irrigated must be construed consistently with
provision 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 in

part on other grounds 243 F. 2d 927, cert.
denied 355 U.S. 820.
In Nevada and in the states of the arid
region generally, water for irrigation is
appurtenant to the land irrigated, and hence
1s the property of the landowner, United
States 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 thereof to beneficial use on appropriator’s land,
becomes part of and appurtenant to the
land. Z.kes v. Fox, 85 F. 2d 294, 66 App.
D.C. 128 ( 1936), affirmed 300 U.S. 82, rehearing denied 300 U.S. 640.
Upon the issuance of a water-right certificate the right evidenced thereby becomes
appurtenant. to the land, subject to forfeiture for falIure to pay the annual installments at the time and in the manner prescribed by law and the regulations, and a
subsequent purchaser of the land succeeds
to the rights and status of the original
owner, subject to the same charges and conditions. Fleming McLean,
39 L.D. 580
(1911),
29. —Power purposes
Where a canal drop is not developed for
power purposes as a part of a Federal reclamation project, the water users do not
acquire a property interest in the energy
of the fal~ng water either as an incident of
their right to the use of project water or as
an incident of their obligation to repay
the costs of the irrigation works which made
the power drop possible; and therefore the
United States may make development of the
site available to a Warren Act contractor
without the concurrence of the water users
or the irrigation district which executed the
contract.
Sohcitor
Margold
repayment
Opinion M–28725 (October 6, 1936), in re
use of power site at C drop, Klamath
project.

June 17, 1902

86

THE

RECLAMATION

30.—Warren Act
Land in the Hudspeth County Conservation and Reclamation District No. 1 is not
a part of the Rio Grande Irrigation Project
of the United States, and waters of the Rio
Grande River d~livered to landowners in
the Hudspeth District were delivered, not
pursuant to notices of appropriation of 1906
and 1908 filed by the Bureau of Reclamation of the Department of the Interior, but
Sec. 9. [Allocation

of finds

ACT—SEC.

9

pursuant to contracts entered into under
the Warren Act, between the Hudspeth
District and Bureau of Reclamation, and
such contracts gave landowners no vested
rights to the use of the water, and landpwners codd not recover fmm Utited
States for taking of alleged water rights.
Bean v. United States, 163 F. Supp. 838,
143 Ct. Cl. 363 ( 1958), cert. denied 358
U.S. 906.

to States and Territories

of origin. ]—RePealed.

EXPLANATORY NOTE

Repealed. Section 9 was repealed by
section 6 of the Act of June 25, 1910, 36
Stat. 836, which appears herein in chronological order. As originally enacted, the
section read as follows: “That it is hereby
declared to be the duty of the Secretary of
the Interior in carrying out the provisions
of this act, so far as the same may be practicable and subject to the existence of
feasible irrigation projects, to expend the
major portion of the funds arising from the
sale of public lands within each State and
Territory hereinbefore named for the benefit of arid and semiarid lands within the
limits of such State or Territory: Provided,

That the. Secretary may temporarily use
such portion of said funds for the benefit
of arid or semiarid lands in any particular
Stite or Territory hereinbefore named as
he may deem advisable, but when so used
the excess shall be restored to the fund as
soon as practicable, to the end that ultimately, and in any event, within each 10year period after the passage of this act,
the expenditures for the benefit of the said
States and Territories shall be equalized
according to the proportions and subject to
the conditions as to practicability and
feasibility aforesaid?’

Sec. 10. [Necessary and proper acts and regulations. ]-The
Secretary of the
Interior is hereby authorized 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 this act into full force and effect. (32 Stat. 390; 43 U.S.C.
~ 373)
EXPLANATORY NOTES
Administrative
Organization.
The Reclamation Service was established within the
Geological
Survey of the Depar~ent
of
the Interior in July, 1902. In March, 1907,
the Service was given bureau status under
a director. The name of the Reclamation
Service was changed to Bureau of Reclamation on June 20, 1923, and the position of
Commissioner of Reclamation
was established. The Ac! of May 26, 1926, which
appears herein m chr?nologlcd
order, provldes that the Commissioner of Reclama-

tion shall be appointed by the President.
Previous Bills. A large volume of original
bills were introduced in the Congress prior
to the enactment of the Reclamation Act—
22 Senate bills, 54 House bills, 2 Senate
joint resolutions aud 2 House joint resolutions. Unpublished volume entitled “Reclamation Act, Original BUS, 1899-1901”,
Engineering files, Bureau of Reclamation.
Legislative History. S. 3057, Pubfic Law
161 in the 57th Congress. S. Rept. No. 254.
H.R. Rept. No. 1468.

NOTESOF OPINIONS
Reclamation Act 1-5
Constitutionality 2
Generally 1
Powers of Secretary 615
Generally 6
Leasesand permits 7
Overseasprojects 8
Rules and regulations
Generally 16

1. Reclamation Act—Generally
A reclamation project is desi~~~
------- to
-benefit people, not land. Ivanhoe! Irr. Di$t.
v. McCracken, 357 U.S. 275, 29’‘7 (1958).
The history of the Reclamati( on Act of
1902 shows that it was the intent of Con.qess that the cost of each irrigation project
should be assessed against the property
benefited and that the assessments as fast

June 17, 1902
THE

RECLAMATION

as collected should be paid back into the
fund for use in subsequent projects without diminution. This intent cannot be carried out without charging the expense of
maintenance during the Government-held
period as well as the cost of construction.
Swigurt V. Baker, 229 U.S. 187 ( 1913).
Subsequent legislative construction of a
prior act may properly be examined as an
aid to its interpretation. The repeated and
practical construction of the Reclamation
Act of 1902 by both Congress and the
Secretary of the Interior, in charging cost
of maintenance
as well as construction,
accords with the provisions of the act taken
in its entirety and is followed by the court.
Swigart v. Baker, 229 U.S. 187 ( 1913).
The Federal reclamation law is contained
in the Reclamation Act of June 17, 1902,
which, togetier with acts amendatory and
supplementary thereto, forms a complete
legislative pattern in the, field. Solicitor
Harper Opinion, M–33902, at 2 (May 31,
1945 ), in re applicability of excess land
provisions to Coachella Valley Iands.
The irrigation systems on the Flathead
Indian Reservation do not constitute a reclamation project as contemplated
by the
Reclamation Act of June 17, 1902, and the
amendments thereto, Flathead Lands, 48
L.D. 475 (1921).
The project “manager ( supetitendent)
of a Federal irrigation project is the Government representative through whom the
project is managed and carried on, He is
engaged in the administration of a Federal
law and has the right to bring into the Federal courts controversies to which he is made
a party touching the validity or propriety
of acts done by him in his representative
capacity. When sued in a State court for
damages on account of his alleged negligence in operating a project canal, he can
remove the cause to a Federal court, Whifin
v. Cole, 264 Fed. 252 (D. Ida. 1919).
The Act contemplates the irrigation of
private lande as well as lands belonging to
the Government and the fact that a scheme
contemplates the irrigation of private as
well as a large tract of Government land
does not render the project illegal, so as to
prevent the condemnation
of land necessary to carry it out. Burley v. United States,
179 Fed. 1, 102 C.C.A. 429 (Ida. 1910).
Whatever may be its maximum power
under 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 of
ffhich is to reclaim public lands. Grifiths
). Cole, 264 Fed. 374 (D.C. Ida. 1919).
The Act of June 17, 1902, outlines a
comprehensive
reclamation
scheme, and

ACT+EC.

10

87

provides for the examination and survey of
lands and for construction and maintenance
of irrigation works for the storage, diversion, and development of water for the reclamation
of arid and semi-arid lands.
Henkel
v. United States, 237 U.S. 43
(1915).
In the construction of works for the irrigation of arid pubfic lands, the United
States is not exercising a governmental
function, 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 “revenue
law” within the meaning of Revised Statutes,
section 643, allowing removaf to Federal
Courts of suits brought in state courts
“against any officer appointed under or acting by authority of any revenue law of the
United 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. vol.

1——9

ACT—SEC.

the conditions may arise. Reclamation deci.
sion, March 23, 1917.
The Secretary has frdl authoritv to Durchase lands necissary for resq~oir purp~ses,
to arrange the terms of purchases;
and
to allow the vendor to retain possession
after the Government has taken possession
until the, land may be actually needed where
by so doing the purchase may be mQre advantageously made; but he has no authority
under said act to lease such purchased lands
aft er the Government has taken possession
thereof. Instructions, 32 L.D. 416 (1904).

8.—Overseas projeck
Section 10 of the Reclamation Act is to
be construed as relating only to projwts of
the United States and does not authorize
the Bureau of Reclamation engineers to review designs for two dam projects in Ceylo?,
and prepare supplemental plans and specifications therefor, with funds to be provided
in advance by the Government of Ceylon.
Dec. Comp. Gen. BA0382
(October
8,
1946).
16. Rules and regufatio~enerafly
This section gives the Secretary of the
Interior no authority or power that he
would not have if it were omitted. Op. Atty.
P,en..
Anril -97., ----190.5
—-..., --=---

Rules and regulations prescribed by the
Secretary of the Interior under statutorv
authori~ have the effect of statutes and w~l
be judicially noticed by the courti. Alford
et al. v. Hesse, 279 Pac. 831 (Cdif. 1929).
While this section authorizes the Secre.
tary of the Interior to make such regulations as maybe necessary and proper to carry
this act into full force and effect, he is not
authorized to amend, modify, or change
statutory provisions ting
rights of a successful contestan~ who has secured cancellation of. any pre-emption homestead or
timber 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 the
provisions of an act relating to the public
lands, is valid? and has the same binding
force as the law itself. Clyde u, Cummings,
101 Pm. 106, 35 Utah 461 (1909).

10

8