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tions were made without respect to whether the stream was navigable. In no instance, except that referred to in the next paragraph, has settlement for such conflicting rights been refused because of the stream's navigability. For example, in connection with the American Falls Reservoir on the Snake River, the United States acquired lands and appurtenant water rights by purchase and condemnation for the American Falls Reservoir and acquired certain water rights (power) of Idaho Power Company under contract dated June 15, 1923. It continues to recognize those rights as evidenced by the contract of October 1, 1934, and by its operation of American Falls Reservoir in conformity with the contract of June 15, 1923, as modified by the contract of October 1, 1934. The latter two contracts dealt primarily with the Company's rights for power production and consideration involved was substantial. In connection with the Boise Project, the United States acquired at least one power right. On both the Payette and Yakima Rivers existing water rights are acquired or recognized through limiting agreements. In the case of the Columbia Basin Project, acquisitions of land for reservoir involved no water rights of any consequence. On all of the above projects, operations of Bureau have been in recognition of other existing water rights.

The only instance of which the Regional Counsel is aware that water rights have not been acquired is that as yet unsettled situation involving Washington Power Company's Little Falls plant on the Spokane River which is now in litigation and involves several novel and debatable issues of both fact and law.

Authorizations of above projects, however, except in case of Anderson Ranch (flood control), Palisades (flood control), Columbia Basin, and Hungry Horse, do not make any reference to navigation.

REGION 2

Which includes the Central Valley Project, in California, the Orland Project, California, and the Klamath Project, in California and Oregon)

In region 2, section 8 of the Reclamation Act of 1902 has been construed to include rights in navigable as well as non-navigable streams and that region has proceeded under section 7, where applicable, to acquire the rights necessary for the Central Valley Project until requested to cease at the request of the Department of Justice on November 10, 1949. In the latter part of 1945, the Department of Justice recommended to the Bureau that no further steps be taken toward purchasing water rights from owners of lands similarly situated to those then in litigation. The Bureau then ceased to acquire any water rights on the San Joaquin River similarly situated to certain lands then in litigation.

Acquisitions of water rights along the San Joaquin River were started in negotiations having been in progress long before that time. Acquisitions were accomplished by contract and by appropriations under State law. The principal points on the San Joaquin River, with relation to which the Unitd States has acquired water rights, are below Friant Dam. Those acquisitions were essential to the establishment of the legal privilege to operate Friant Reservoir, the Madera Canal, and the Friant-Kern Canal in the manner planned.

For convenient reference, the points along the San Joaquin River below Friant Dam, at which water is and historically has been used, were divided into seven sections and are listed progressively downstream as follows:

A. Friant Dam to Gravelly Ford Canal;

B. Herminghaus land of Edison Securities Company;

C. Land and water rights of Miller & Lux and its affiliated companies;
D. Chowchilla Farms;

E. Kings River or Fresno Slough area;

F. Land along the east side of the San Joaquin River between Chowchilla Farms and Stevenson Colony;

G. Area below the mouth of the Merced River.

The negotiations involving the interests reflected in the above list are reviewed below in what is regarded as the order of their importance.

Rights of Miller & Lux and Affiliated Companies and the Madera Irrigation

District

In 1939, after extended negotiations, the United States entered into the Miller & Lux purchase and exchange contracts and deed. Miller & Lux and its affiliates were the outstanding potential adversaries of the United States.

The Madera Irrigation District owned the Friant damsite, certain water rights and portions of the reservoir area. On May 24, 1939, the United States entered into a contract with the District, under which the United States purchased the reservoir site and agreed to deliver certain quantities of water to the District under certain conditions. The agreement provided, also, for the District to transfer to the United States its rights to the District's filings and permits to appropriate water.

Chowchilla Farms

Chowchilla Farms, Inc., owned many thousands of acres of land, which received their principal supply of water via the Chowchilla Canal, which, in turn, takes water from the right bank of the San Joaquin River. It owned certain riparian, appropriative, and prescriptive rights to water from that river. On October 2, 1939, the United States entered into a contract and deed with the Company for the purchase of these rights and secured the consent of Chowchilla Farms to operate the project as planned.

Herminghaus Land of Edison Securities Company

Report No. 8 of the Water Project Authority of the State of California shows that some 17,150 acres of the Herminghaus ranch lands, then owned by the Edison Securities Company, were adjacent to the San Joaquin River and Fresno Slough, of which 16,230 acres were claimed to be riparian to the San Joaquin River, to sloughs that take water therefrom, or to Fresno Slough. By contract dated September 5, 1944, the United States purchased the rights of the Company. Land Along the East Side of the San Joaquin River Between Chowchilla Farms and Stevenson Colony

In this area there is a group of large ranches and the water rights of each were appraised. Contracts were entered into with a number of the landowners and the right to use of approximately 8,820 acre-feet of water per year was acquired. It is in this area that actions were filed in the Court of Claims by Gerlach and others resulting in the litigation now pending in the Supreme Court.

Friant Dam to Gravelley Ford Canal

There are about 230 small holdings in this area and in those instances where it was found that there would be an invasion of rights by reason of project operations the Bureau has attempted to contract with the landowners. Some contracts were executed and others were in process of settlement when the Department of Justice on November 10, 1949, requested the Bureau to enter into no contracts from the settlement of any water rights in the San Joaquin River or any other river in Central Valley.

Kings River or Fresno Slough Area and Area Below the Mouth of the Merced River

No settlements have been made in this area although some 17 actions have been filed in the Court of Claims on behalf of certain owners in the area.

Certain applications filed by the California State Director of Finance for appropriation of water of the San Joaquin River have been assigned to the United States and the United States has filed applications on certain tributaries. In connection with water-right acquisitions along the Sacramento River certain applications filed by the California State Director of Finance were assigned to the United States. Other such applications have no been assigned to the United States and most of these appropriations are for unauthorized features of the Central Valley Project. Investigations are being continued by the Bureau. If such investigations disclose the necessity for making further applications for the appropriation of water, it is expected that the applications will be filed. On the Orland and Klamath Projects filings were made in conformance with State law.

36-961-64——21

REGION 3

(Which includes southern California, Arizona, and southern Nevada and, in particular, the Boulder Canyon Project)

The Regional Counsel reports that under date of July 8, 1905, a notice of appropriation of 3,000 second-feet of water of the waters of the Colorado River was posted on the left bank of the Colorado River, under the provisions of the Act of June 17, 1902, and under date of July 8, 1905, a notice of appropriation of 6,000 second-feet of the waters of the Colorado River was posted on the right bank of the Colorado River. In both instances the source of supply was the Colorado River and the means of diversion-Laguna Dam.

In a report dated December 22, 1904, to the Secretary of the Interior, on the joint resolution passed April 23, 1904 (33 Stat. 591), the Director of the Geological Survey stated that it was generally conceded that because of the navigability of the lower part of the Colorado River its waters were not subject to appropriation, and notices filed in conformity with the customs of Arizona and California were invalid. This report was transmitted to the Congress by the Department with a letter dated January 6, 1905. The opinion of Assistant Attorney General Campbell, dated February 6, 1905 (33 L.D. 391), to which reference has been made, concurred with the above view.

Section 25 of the Act of April 21, 1904 (33 Stat. 189, 244), authorized the Secretary of the Interior to divert the waters of the Colorado River for the purpose of irrigating the land of the Yuma and Colorado River Indian Reservations in California and Arizona. Laguna Dam, on the Colorado River, was constructed pursuant to that authority.

By a deed dated March 15, 1907, the Colorado Valley Pumping and Irrigating Company for a consideration of $6,000 conveyed to the United States its canal which had its head or point of diversion on the Colorado River, and all appurtenances to said canal, including all water locations, filings, or water rights, theretofore made by the Company.

No filings have been made under State law on the lower Colorado River in connection with structures in the Colorado River authorized by the Boulder Canyon Project Act, and related works subsequently authorized. The facts relating to this project are commented upon in some detail subsequently in this memorandum (ante, p. 15).

By a deed dated February 3, 1908, the Yuma Valley Union Land and Water Company and F. L. Ingraham, assignee, for a consideration of $17,000, conveyed to the United States its canal systems and appurtenances and its water rights in the Colorado River.

REGION 4

(Which includes northern Nevada, Utah, western Wyoming, and western

Colorado)

The Regional Counsel reports that all water rights for projects in this region have been acquired pursuant to State law, irrespective of whether the stream is navigable or nonnavigable. He advises further that applications have been filed for appropriation of water from Utah Lake which has been declared navigable by the Utah Supreme Court and from Green River which is undoubtedly navigable although there has been no judicial determination of its navigability. There is no distinction in the statutory water law of the States in that region between the acquisition of water rights in navigable and nonnavigable streams. With respect to the acquisition of water rights acquired by purchase, the Regional Counsel reports the purchase of land with appurtenant water rights for the Hyrum Project, Utah, on the Little Bear River; for the Ogden River Project, Utah, on the Ogden River; for the Provo River Project, Utah, on the Provo River; for the Weber River Project, Utah, on the Weber River; and for the Pine River Project, Colorado, on the Pine River. He reports also that the decreed water rights in the Humboldt River, Nevada, were purchased to provide water for storage in the Rye Patch Reservoir, Humboldt Project, Nevada, and that on the Newlands Project, Nevada, the United States exchanged project water for vested water rights on the Carson River. Also, decreed water rights were purchased on the Uncompahgre Project, Colorado, with various canals and diversion works, the source of supply being the Uncompahgre River and Cimmaron Creek. Also, the United States, acting through the Department of Agriculture, purchased water rights from the Big Sandy

Creek and Little Sandy Creek for the Eden Project, Wyoming. It is not likely that the foregoing streams are legally navigable although there has been no judicial determination to the Bureau's knowledge.

REGION 5

(Which includes Texas, New Mexico, Oklahoma, and southern Colorado)

The Regional Counsel advises that for the Rio Grande Project in Texas and New Mexico, withdrawals were made under New Mexico statutes from the Rio Grande in New Mexico, defined as nonnavigable in United States v. Rio Grande Irrigation Co. (174 U.S. 690). On that part of the Rio Grande below New Mexico, which is generally acknowledged to be navigable, no filings have been made. While the Valley Gravity Canal Project was initially authorized by the Act of June 28, 1941 (55 Stat. 303, 331), no filings have been made as of this date, the Mexican Water Treaty of February 3, 1944, having intervened before construction changing the features of the project so as to require reauthorization. In other words, there has been no occasion up to this date to make filings on navigable streams in this region.

Water rights acquired under section 7 of the Reclamation Act of 1902, for the Rio Grande, Carlsbad Project, in New Mexico, and the Palmorhea Project, in Texas, involve water on legally nonnavigable streams. The same is true of water rights from the Canadian River, a tributary to the Arkansas River, acquired under New Mexico laws for the Tucumcari Project.

REGION 6

(Which includes eastern Montana, northern Wyoming, and North and South Dakota)

On December 14, 1949, the United States entered into a compromise settlement agreement with the Montana Power Company, with departmental approval, under which the United States acquired for $950,000 the Company's Canyon Ferry power plant and appurtenances on the main stem of the Missouri River and the Company's Montana water rights for power on the Missouri River in the amount necessary to operate its Canyon Ferry plant. Other than this case, we know of no instance in which existing water rights on navigable streams have been acquired but we know of no instance in this region in which the construction of a Federal project has interfered with existing water rights on a navigable stream.

Water-right appropriations on behalf of the United States have been made pursuant to State law on navigable portions of the Yellowstone and Missouri Rivers in the case of the Huntley, Buffalo Rapids, and Lower Yellowstone, Savage, Intake, and Buford-Trenton Projects in Montana. Similar appropriations have been made from the Milk River for the Milk River Project, from the Belle Fourche River for the Belle Fourche Project, from the Big Horn River for the Boysen Project, from the Cheyenne River for the Angostura Project, and from the Grand River for the Shadehill Project, but the legal navigability for these rivers may be open to question. No filings have been made for dam structures to be constructed in the main stem of the Missouri River by the Bureau of Reclamation in connection with the Missouri River Basin Project but it is anticipated that water filings will be made for irrigation water made available by these dams.

REGION 7

(Which includes eastern Colorado, southern Wyoming, Nebraska and Kansas) The Regional Counsel advises that the Bureau has acquired water rights in accordance with State laws under the provisions of section 8 of the Reclamation Act of 1902 without regard to whether such streams may be considered navigable or nonnavigable. Among the more important projects in that region are the Colorado-Big Thompson Project, involving the Blue and the Upper Colorado Rivers in Colorado; the Kendrick and North Platte Projects in Wyoming and Nebraska, involving the North Platte River; the Frenchman-Cambridge and Boston Projects, involving the Republican River in Nebraska and Kansas.

On the Colorado-Big Thompson, in addition to making filings under State law, the Bureau has purchased water rights on the North and South Forks of the Colorado River, Black Leg Creek, Stillwater Creek, Small Creek and the Big

Thompson River. On the Frenchman-Cambridge Project several small hydroelectric power plants on the Frenchman Creek, a tributary to the Republican River, have been purchased, together with all water rights and appurtenances. Also, water rights for a power plant on the Niobrara River, a tributary of the Platte River, were acquired in connection with the Mirage Flats Project in Nebraska. It is not likely that the foregoing streams are legally navigable although there has been no judicial determination to the Bureau's knowledge. Based on the foregoing reports, together with the review made in this office, I have summarized the practices of the Bureau of Reclamation under two categories: (1) those involving the initiation of appropriations pursuant to State law, and (2) those involving the acquisition of existing interests under section 7. Initiation of Appropriations Under Section 8

Appropriations have been initiated pursuant to State law on the following streams which either have been or, in the judgment of the Bureau of Reclamation, are likely to be determined to be navigable: Boise, Columbia (including Clark Fork), Flathead, Green, Missouri (in Montana), Payette, Sacramento, San Joaquin, Snake (main stem and Henry's Fork), Spokane, Yakima, and Yellowstone Rivers and Utah Lake. On the other hand, appropriations have not been initiated pursuant to State law, with one very early exception, for any project on the lower Colorado River.

It would be appropriate to examine in more detail the situation on the lower Colorado. The Bureau of Reclamation has erected in the lower Colorado River the following principal structures: Hoover Dam (authorized by section 1 of the Boulder Canyon Project Act, 45 Stat. 1057); Davis Dam (authorized pursuant to section 9 of the Reclamation Project Act of 1939, 53 Stat. 1187); Parker Dam (authorized by section 2 of the Act of August 30, 1935, 49 Stat. 1028, 1039); Imperial Dam (authorized by section 1 of the Boulder Canyon Project Act, supra); and Laguna Dam (authorized pursuant to section 2 of the Act of June 17, 1902, 32 Stat. 388). In doing so, it has not, so far as our search of the records indicates, attempted to comply with the laws of any of the States concerned with respect to the appropriation of water, except perhaps in the case of Laguna Dam.

It should be noted, however, with respect to the Hoover Dam (1) that the Act authorizing its construction specifically required that it be used first "for river regulation, improvement of navigation, and flood control" and only thereafter for storage of water for irrigation and domestic purposes and for the generation of power; (2) that this structure, like the others mentioned in this paragraph, straddles the river at a point where it forms the boundary between two States and that, at the time it was built, the opposition to the project in Arizona was such that, even if an appropriation under the laws of Arizona had been required, none could have been made; and (3) that an adequate water supply for this project was, for all practical purposes, guaranteed by the existence of the Colorado River Compact, Article III (d) of which committed the States of the Upper Division not to deplete the flow of the stream at Lee Ferry below 75,000,000 acre-feet every ten years and by section 5 of the Boulder Canyon Project Act which provides that "no person shall have or be entitled to have the use for any purpose of the water stored as aforsesaid [i.e., behind Hoover Dam] except by contract made as herein stated" with the United States.

Not only does Davis Dam serve an irrigation function only indirectly-its principal functions are the generation of power and the reregulation of water released from Hoover Dam for downstream uses in the United States and for delivery to Mexico under the treaty of February 3, 1944-but it also lies at a point on the river where the river forms a boundary between two States and its water supply is assured by the United States' control of Hoover Dam.

The Parker Dam authorizing act, cited above, validated a contract, dated February 10, 1933, theretofore entered into between the Secretary of the Interior, on behalf of the United States, and the Metropolitan Water District of Southern California. By article 15 (II) (d) of that contract it was agreed that the United States should have "the right to connect with the Parker Dam and/or the reservoir created thereby by means of a canal . . Iwith lands within the Colorado River Indian Reservation, as now constituted, and with public and other lands in Arizona or California, now or hereafter included in projects constructed under the Reclamation Law and supplementary legislation, or otherwise .. and the right to thereby divert such quantities of water as may be consistent with the Colorado River Compact and the Boulder Canyon Project Act."

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