Findings of Fact 141 C. Cls. office of Solicitor, to a final disposition of the Colonial Realty Company matter, in accordance with existing law and in the light of the best interests of the United States." On receipt of this communication he conferred with the Colonial Realty Company and it was agreed that in order that proper consideration be given to any additional information either as to law or fact disclosed by the hearing before Mr. Frank C. Wright that this matter be referred to Mr, C. H. Carter of the Bureau of Reclamation and Mr. F. K. Kirgis of the Solicitor's office. These gentlemen have reached the conclusion, after full consideration of the facts disclosed at the hearing and additional information contained in the files of this Bureau, that the areas shown on the accompanying schedule as exchangeable are eligible for exchange under the provisions of the Act of March 23, 1933. The schedule is based primarily on the classification made in 1935 by Professor W. L. Powers, who is considered well qualified as a soil scientist. These conclusions were concurred in by Dr. Mead and he recommended their acceptance by the United States. The Colonial Realty Company has made a tentative selection of lieu lands in sections 5, 6, 7 and 8, T. 47 N., R. 4 E., M. D. B. & M., California, Tule Lake division of the Klamath project. It is agreed that patent be issued to the Colonial Realty Company conveying an approximately equivalent area of land of the above selection, subject to the following conditions: 1. The selected lands shall be retained in the sump area of Tule Lake by limiting the top of the protective dikes to elevation 4039 which is 2 feet below the top of the Tule Lake dike protecting the homestead lands. This stipulation would result in flooding the lieu lands to protect the homestead lands in case of excessive runoff and it appears necessary to make reservations in the patent to adequately protect the United States from damages resulting from such flooding. 2. The Colonial Realty Company has submitted a selection of approximately 1,400 acres which leaves a strip of land approximately 60 rods wide between the east boundary of the tentative selection and the present dike. This feature is objectionable to the United States. The applicant has therefore agreed to prepare a new selection, the boundaries of which shall extend to the borrow pits adjacent to the present dikes on the north and east of the lieu lands. 211 Findings of Fact 3. Water for irrigation will be delivered at the present end of the J-1 lateral near the northwest corner of the lieu lands. For this water the following charges are to be made: (a) A water right necessary for beneficial use at $34 per acre, payable in equal annual payments over a period of 40 years. This amount is the same as is charged pump lands supplied water from the same lateral. (b) Operation and maintenance charges are to be identical with such charges to the Tule Lake homestead lands; this charge being announced each year by the Secretary of the Interior. 4. All ditches, drains and dikes necessary for irrigation, drainage and protection of the lieu lands lying within the sump area shall be constructed and maintained by the owners of said land. Encl. 770343 The enclosure referred to above is not in evidence. 16. Thereafter on February 27, 1936, Nathan R. Margold, Solicitor, submitted to the Secretary of the Interior an 18page opinion as to the exchangeability of the lands offered for exchange by Colonial Realty Company and in which he passed upon certain questions as to title. The opinion reads in part as follows: With the foregoing propositions in mind, as well as the basic provisions of the statute that all unproductive land is exchangeable and that if more than 50 percent of any legal subdivision is unproductive the entire subdivision is exchangeable, a table has been prepared showing the acreage, classification and acceptability of the land offered to the United States by the Colonial Realty Company. That table is attached to this opinion and is, I believe, sufficiently self-explanatory to require no further detailed comment. The acreage figures are those contained in the files of the Klamath project office of the Bureau of Reclamation. The classification is that prepared by Dr. Powers, a soil scientist of the Oregon State College, who was designated by Commissioner Mead as an able and disinterested expert on whose report the Secretary of the Interior might rely in determining what lands are unproductive as he is required to do by the statute. The classification of lands 489380-59- 17 Findings of Fact 141 C. Cls. used by Dr. Powers corresponds to that traditionally used by the Bureau of Reclamation. Classes 1 to 4, inclusive, embrace productive lands having varying degrees of productivity. Classes 5 and 6 embrace unproductive lands, those in class 6 being considered as permanently unproductive while those in class 5 are considered as having a possibility of being productive at some future time. In my opinion lands of class 5 as well as those of class 6 are exchangeable under the statute because of their present character, and they have been so treated in the attached table. It is also my opinion that the areas designated as acceptable in the table have been properly designated and that they are eligible for conveyance to the United States in exchange for an approximately equivalent area of land in the Tule Lake Division of the Klamath project in accordance with the terms of the Act of March 23, 1933, supra. The total area exchangeable is 1202.9 acres. The deed already tendered to the United States will have to be revised to exclude those lands which are not acceptable. So that the lands which are acceptable may be appropriately described by legal subdivisions and by aliquot parts of legal subdivisions I recommend that the file in this case and a copy of this opinion be referred to the General Land Office for further action looking toward the completion of the exchange in accordance with this opinion. A copy of Dr. Powers' classification report is included in the file and will serve to identify as far as possible the particular areas designated in the attached table as acceptable. In identifying those areas with particularity it is to be borne in mind that, by the terms of the statute, the expense of additional surveys is to be avoided. The table referred to above is set forth in the following two pages: |