ADVANCES TO THE RECLAMATION FUND 151 option of the United States at any time after three years from the date of their issue and to be payable five years after such date, and to bear interest, payable semiannually, at not exceeding three per centum per annum; the principal and interest to be payable in gold coin of the United States. The certificates of indebtedness herein authorized may be disposed of by the Secretary of the Treasury at not less than par, under such rules and regulations as he may prescribe, giving all citizens of the United States an equal opportunity to subscribe therefor, but no commission shall be allowed and the aggregate issue of such certificates shall not exceed the amount of all advances made to said reclamation fund, and in no event shall the same exceed the sum of $20,000,000. The certificates of indebtedness herein authorized shall be exempt from taxes or duties of the United States as well as from taxation in any form by or under State, municipal, or local authority; and a sum not exceeding one-tenth of one per centum of the amount of the certificates of indebtedness issued under this act is hereby appropriated, out of any money in the Treasury not otherwise appropriated, to pay the expense of preparing, advertising, and issuing the same. (36 Stat. 835; 43 U.S.C. § 398) EXPLANATORY NOTE Certificates Not Issued. The Treasury Department advises that the Secretary of the Treasury was not required to issue any certificates of indebtedness to secure funds for the purpose of this act, that the funds were taken from the general fund of the Treasury, and the general fund was not depleted to the point where the Secretary of the Treasury had to issue the certificates of indebtedness authorized in Sec. 2. Sec. 3. [One-half of reclamation receipts to be paid into the Treasury.]— Beginning five years after the date of the first advance to the reclamation fund under this act, fifty per centum of the annual receipts of the reclamation fund shall be paid into the general fund of the Treasury of the United States until payments so made shall equal the aggregate amount of advances made by the Treasury to said reclamation fund, together with interest paid on the certificates of indebtedness issued under this act and any expense incident to preparing, advertising, and issuing the same. (36 Stat. 836) EXPLANATORY NOTES Codification. This section originally was codified as section 399, title 43, U.S. Code, but was omitted after enactment of the Hayden-O'Mahoney Amendment in 1938. 1917 Amendment. The Act of June 12, 1917, 40 Stat. 149, amends this section by providing that reimbursement be made from the reclamation fund at the rate of $1,000,000 annually beginning July 1, 1920. The Act appears herein in chronological order. Supplementary Provisions: Moratoria on Repayment, Final Reimbursement. The Act of February 6, 1931, contains a provision granting a moratorium of two years in repayment of money advanced to the reclamation fund by the Act of June 25, 1910, as amended by the above provision. Further postponement of repayment until 1938 was made by the Acts of April 1, 1932, March 3, 1933, and June 22, 1936. A complete reimbursement to the Treasury of funds advanced to the Reclamation Fund under the provisions of the Acts of June 25, 1910, and March 3, 1931, as amended, was effected by the Act of May 9, 1938. Each of these provisions, except that contained in the 1936 Act, appears herein in chronological order. Sec. 4. [Limitation on use of fund-Order of President required for new projects.]—All money placed to the credit of the reclamation fund in pursuance 152 ADVANCES TO THE RECLAMATION FUND of this act shall be devoted exclusively to the completion of work on reclamation projects heretofore begun as hereinbefore provided, and the same shall be included with all other expenses in future estimates of construction, operation, or maintenance, and hereafter no irrigation project contemplated by said act of June seventeenth, nineteen hundred and two, shall be begun unless and until the same shall have been recommended by the Secretary of the Interior and approved by the direct order of the President of the United States. (36 Stat. 836; 43 U.S.C. §§ 400, 413) EXPLANATORY NOTE Codification. The clause beginning "here- section 413, title 43, U.S. Code. after no irrigation project" is codified as Sec 5. [No entries allowed until announcement as to units, charges and date water can be applied-Entries prior to June 25, 1910-Disposal of relinquished lands.]-No entry shall be hereafter made and no entryman shall be permitted to go upon lands reserved for irrigation purposes until the Secretary of the Interior shall have established the unit of acreage per entry, and water is ready to be delivered for the land in such unit or some part thereof and such fact has been announced by the Secretary of the Interior: Provided, That where entries made prior to June twenty-fifth, nineteen hundred and ten, have been or may be relinquished, in whole or in part, the lands so relinquished shall be subject to settlement and entry under the reclamation law. (36 Stat. 836; Act of February 18, 1911, 36 Stat. 917; § 10, Act of August 13, 1914, 38 Stat. 689; 43 U.S.C. §§ 436, 437) EXPLANATORY NOTES 1915 Modification. The Act of March 4, 1915, 38 Stat. 1215, authorizes the selection by entrymen of lieu farm units in cases of nonirrigability notwithstanding the provisions of section 5 of this Act. The 1915 Act appears herein in chronological order. 1914 Amendment. Section 10 of the Act of August 13, 1914, 38 Stat. 689, the Reclamation Extension Act, amended the Act of February 18, 1911, which was an amendment of section 5, so that the section read as it appears above. Section 5 originally read as follows: "No entry shall be hereafter made and no entryman shall be permitted to go upon lands reserved for irrigation purposes until the Secretary of the Interior shall have established the unit of acreage and fixed the water charges and the date when the water can be applied and made public announcement of the Additional entry 4 Purpose 1 same." Both the 1911 and 1914 Acts appear herein in chronological order. 1911 Amendment. The Act of February 18, 1911, 36 Stat. 918, amended section 5 by adding to the original text of the section the following proviso: "Provided, That where entries made prior to June twentyfifth, nineteen hundred and ten, have been or may be relinquished in whole or in part, the lands so relinquished shall be subject to settlement and entry under the homestead law as amended by an act entitled 'An act appropriating the receipts from the sale and disposal of the public lands in certain States and Territories to the construction of irrigation works for the reclamation of arid lands,' approved June seventeenth, nineteen hundred and two (Thirty-second Statutes at Large, page three hundred and eightyeight)." The 1911 Act appears herein in chronological order. ADVANCES TO THE RECLAMATION FUND 153 1. Purpose This act was designed to withhold lands within a reclamation project from entry of every character until public announcement of the date when the water could be applied. Roberts v. Spencer, 40 L.D. 306 (1911). 2. Existing rights Existing entries are not affected by this act, and where settlements have been effected in good faith, prior to June 25, 1910, on lands embraced within second-form withdrawals, persons showing such settlement will be allowed to complete entry thereof in the manner and within the time provided by law. General Land Office Instructions, 39 L.D. 202 (1910). A homestead entry of land within a reclamation project, allowed subsequent to this act, upon an application in all respects regular filed prior to the act, and upon which action was delayed only because of pressure of business in the local office, is not in violation of the provisions of this section. Charles C. Conrad, 39 L.D. 432 (1910). 3. Contests A successful contestant of an entry within a reclamation withdrawal is not barred of his preference right by this section. The section has the effect to postpone the exercise of such right until the project is so far completed that water can be applied to the land and the Secretary of the Interior has made public announcement of that fact. Joseph F. Gladieux, 41 L.D. 286 (1912). Where prior to the regulations of October 15, 1910 (39 L.D. 296), a contest was properly initiated, under then-existing laws and regulations, against an entry within a second-form withdrawal under the reclamation act, and the entry was canceled as a result of such contests after the passage of this act, either prior or subsequent to October 15, 1910, the contestant thereby acquired a preference right of entry to the lands involved, notwithstanding the limitations contained in this act, as to entries thereafter allowed for lands within secondform withdrawals, and notwithstanding the said regulations of October 15, 1910, which preference right he is entitled to exercise upon the lands again becoming subject to entry; but contests heretofore dismissed under said regulations will not be reopened where third parties have acquired rights under such adjudications. Long v. Lee, 41 L.D. 326 (1912). 4. Additional entry Under the Act of June 25, 1910, as subsequently amended, lands reserved for irrigation purposes are not subject to settle 267-067-72—vol. I—13 ment or entry until the Secretary of the Interior shall have established the unit of acreage per entry and announced that water is ready to be delivered, and no exception to the rule can be made in favor of an applicant who seeks to make an additional entry of such lands in the exercise of a preference right acquired by contest. The prior holding in Henry W. Williamson, 38 L.D. 233 (1909), that a person holding an original homestead entry for less than 160 acres could be permitted to make additional homestead entry for land embraced in a second-form withdrawal where farm units had not been established is no longer applicable under the Act of June 25, 1910. Bert Scott, 48 L.D. 85 (1921); see also 48 L.D. 113. 5. Withdrawals In letter of July 8, 1933, to the Commissioner of Reclamation the Secretary ruled that until lands have been opened to entry there is no reason why they may not be leased, the form of withdrawal being unimportant. Statement was made that the distinction formerly made between the two classes of withdrawals was greatly modified by the act of June 25, 1910, which provided that no entry should be made upon lands withdrawn under the reclamation act until the unit of acreage has been established, water charges fixed, and water has become available, etc. Decision re Milk River project. The distinction between "forms of withdrawals", that is, between "first form withdrawals" (for irrigation works) and "second form withdrawals" (for irrigable land), was made administratively to recognize the distinction that in the latter case, irrigable lands so withdrawn under section 3 of the Reclamation Act could be entered under the homestead laws in advance of the availability of water from the project. This distinction was no longer pertinent after the enactment of section 5 of the Act of June 25, 1910, 36 Stat. 835, which precluded entry until after the Secretary had established the unit of acreage, fixed the water charges and the date of water availability, and made public announcement of the same. For this reason, the Bureau of Reclamation has abandoned the use of second form withdrawals. Associate Solicitor Fisher Opinion, M-36433 (April 12, 1957), in re disposal of lands, Guernsey Reservoir, North Platte Project. 6. Relinquishment-Purpose of proviso The proviso applies to all entries embracing lands reserved for irrigation purposes made prior to June 25, 1910, which have been or may be relinquished, where the 154 ADVANCES TO THE RECLAMATION FUND entrymen, by means of the provisions of the Act of June 25, 1910, prohibiting entries for such lands until public notice of water charges, etc., has been issued, have been or may be prevented from realizing the value of the improvements placed by them on their entries by selling such improvements to others desiring to make entry for the lands upon relinquishment of the existing entries therefor. Fredrek Steebner, 43 L.D. 263 (1914). 7. What constitutes The proviso contemplates only entries legally made prior to the Act of June 25, 1910, and afterwards relinquished, and has no application where the former entry was one in-form only and in legal contemplation a mere nullity, having been erroneously allowed while the lands were embraced in a first form wtihdrawal under the reclamation act. Annie G. Parker, 40 L.D. 406 (1911). The proviso has no application where cancellation of the entry was the result of a contest and not of a relinquishment. Fred V. Hook, 41 L.D. 67 (1912). The proviso is applicable only to entries under the reclamation act and cannot be invoked as to entries canceled prior to the reclamation act or made before, and afterwards canceled for fraud. Ethel M. Catron, 42 L.D. 7 (1913). Where a homestead entry covering lands within a reclamation withdrawal is conformed to a farm unit, the lands thereby uncovered are not relinquished within the meaning of the proviso and are not subject to entry thereunder. Robert H. Williams, 41 L.D. 68 (1912). This homestead entry of lands within a reclamation withdrawal, allowed after the entryman had in good faith purchased the relinquishment of a prior entry for the same land under this act, is permitted to remain intact, notwithstanding the prior entry had been canceled though not noted as canceled upon the records of the local office at the time the relinquishment was filed and the entry in question allowed, it appearing that the transaction was in entire good faith and neither the prior entryman, the present entryman, nor the local officers had actual knowledge of the cancellation at that time. Fredrek Steebner, 43 L.D. 263 (1914). 8. —Application of proviso The right to enter lands withdrawn under the reclamation act for purposes of irrigation, if the lands were covered by a prior entry, which has since been relinquished, given by act of June 25, 1910, section 5, as amended by act of August 13, 1914, section 10, is not limited to those in privity with the original entryman, through purchase of the relinquishment or otherwise. United States v. Fall, 276 Fed. 622 (D.C. Cir. 1921). The proviso of act of June 25, 1910, section 5, as amended by act of August 13, 1914, section 10, making lands reserved for irrigation purposes and relinquished from prior entries subject to entry under the reclamation act, applies only to lands withdrawn under reclamation act of June 17, 1902, section 3, as susceptible of irrigation under a proposed project, and not to lands withdrawn under the latter act, as required for the construction of irrigation works. Ibid. The proviso has reference only to lands covered by second-form withdrawals, and has no application to lands withdrawn under the first form. Annie G. Parker, 40 L.D. 406 (1911); Ernest Farrington, 40 L.D. 627 (1912); Robert H. Williams, 41 L.D. 68 (1912); Instructions, 47 L.D. 625 (1921). The proviso to section 10 of the act of August 13, 1914, which amended section 5 of the act of June 25, 1910, does not contemplate that lands entered prior to June 25, 1910, and relinquished subsequently to the creation of a second form withdrawal, shall be subject to entry before the establishment of farm units and announcement of the availability of water, except by one who had acquired an equity in the relinquished entry. William Warnke, 48 L.D. 557 (1922). Sec. 6. [Former provision for expenditures repealed.]-Section nine of said act of Congress, approved June seventeenth, nineteen hundred and two, entitled "An act appropriating the receipts from the sale and disposal of public lands in certain States and Territories to the construction of irrigation works for the reclamation of arid lands," is hereby repealed. (36 Stat. 836) EXPLANATORY NOTE Legislative History, H.R. 18398, Public Law 289 in the 61st Congress. H.R. Rept. No. 1635. H.R. Rept. No. 1729 (conference report). 155 WITHDRAWAL OF PUBLIC LANDS BY THE PRESIDENT An act to authorize the President of the United States to make withdrawals of public lands in certain cases. (Act of June 25, 1910, ch. 421, 36 Stat. 847) [Sec. 1. Temporary withdrawals of public lands by the President for irrigation or other public purposes.]—The President may, at any time in his discretion, temporarily withdraw from settlement, location, sale, or entry any of the public lands of the United States, including the District of Alaska, and reserve the same for water-power sites, irrigation, classification of lands, or other public purposes to be specified in the orders of withdrawals, and such withdrawals or reservations shall remain in force until revoked by him or by an act of Congress. (36 Stat. 847; 43 U.S.C. § 141) Sec. 2. [Mining laws applicable.]—All lands withdrawn under the provisions of this act shall at all times be open to exploration, discovery, occupation, and purchase under the mining laws of the United States, so far as the same apply to metalliferous minerals ***. (36 Stat. 847; Act of August 24, 1912, 37 Stat. 497; 43 U.S.C. § 142) EXPLANATORY NOTES Codification. The last proviso of section 2, which is not shown, provides that no additional forest reserves shall be established in certain western States without an Act of Congress. It is also codified in section 471, title 16, U.S. Code. 1912 Amendment. The Act of August 24, 1912, 37 Stat. 497, substituted "metalliferous minerals" for "minerals other than coal, oil, gas and phosphate." Sec. 3. [Reports of withdrawals to Congress.]—Repealed. EXPLANATORY NOTES 1960 Amendment. The Act of June 29, 1960, 74 Stat. 245, repealed section 3, which read: "The Secretary of the Interior shall report all such withdrawals to Congress at the beginning of its next regular session after the date of the withdrawals." The 1960 Act appears herein in chronological order. Supplementary Provision: Sale of Withdrawn Lands. The Act of January 26, 1921, 41 Stat. 1089, 43 U.S.C. §§ 145-47, provides for the sale, when no longer needed, of lands withdrawn pursuant to the above Act. Popular Name. This Act is popularly known as the Pickett Act. General authority of President 1 1. General authority of President Delegation of Authority. Executive Order No. 10355 of May 26, 1952, 43 U.S.C. § 141 note, 17 F.R. 4831, delegates the authority of the President under this Act to the Secretary of the Interior, subject to certain conditions. It supersedes Executive Order No. 9337 of April 24, 1943. Editor's Note, Annotations. Annotations of opinions are included only to the extent deemed relevant to activities of the Bureau of Reclamation under this statute. Legislative History. H.R. 24070, Public Law 303 in the 61st Congress. H.R. Rept. No. 983. NOTES OF OPINIONS The President's power to make temporary withdrawals of lands from entry is not nega tived by this Act. United States v. Midwest Oil Co., 236 U.S. 459 (1915). The President is authorized to withdraw and reserve public lands for public uses freed of the operation of the mining laws |