13. Construction with other laws

The provisions of reclamation law of general application dealing with land limitations include section 5 of the Act of June 17, 1902, sections 1 and 2 of the Warren Act of 1911, section 3 of the Act of August 9, 1912, section 12 of the Reclamation Extension Act of 1914, and section 46 of the Omnibus Adjustment Act of 1926. Solicitor Barry Opinion, 71 I.D. 496, 501 (1964), in re application of excess land laws to private lands in Imperial Irrigation District. Accord: Solicitor Harper Opinion, M-33902 (May 31, 1945), in re application of excess land laws to private lands in Coachella Valley.

Section 46 of the 1926 Act and section 12 of the 1914 Act deal specifically with the breakup of pre-existing holdings, while the 1902 and the 1912 Acts are relevant to the issue of the effect of excess land limitations on the coalescence of holdings. Solicitor Barry Opinion, 68 I.D. 372, 375, 376, 390, 404 (1961), in re proposed repayment contracts for Kings and Kern River projects.

Section 46 is an extension of the policy embodied in section 12 of the Reclamation Extension Act of 1914. Solicitor Barry Opinion, 68 I.D. 372, 394 (1961), in re proposed repayment contracts for Kings and Kern River projects.

Section 46 of the Omnibus Adjustment Act of 1926 is a part of reclamation law made applicable by section 8 of the Flood Control Act of 1944 to flood control projects of the Department of the Army. Solicitor Bennett Opinion, 64 I.D. 273, 274 (1957) in re proposed contract with Kings River Conservation District.

Where a federal statute provides that the reclamation laws shall govern the construction, operation, and management of project works, the excess land provisions of the reclamation laws are thereby carried into effect unless the terms of the statute provide otherwise. Solicitor Barry Opinion, 71 I.D. 496, 501-08 (1964), in re application of excess land laws to private lands in Imperial Irrigation District.

Sections 1 and 4(b) of the Boulder Canyon Project Act, which require the costs of the main canal connecting with Imperial Valley and appurtenant structures to be repaid pursuant to reclamation law, carry into effect the excess land provisions of section 46 of the Omnibus Adjustment Act of 1926. Solicitor Barry Opinion, 71 I.D. 496, 500-01 (1964), in re application of excess land laws to private lands in Imperial Irrigation District.

The Warren Act standing alone requires the application of acreage limitations where

381

the United States cooperates with an entity in the construction of irrigation facilities even where no Federal subsidy is extended to the lands served. However, in connection with the State service area served by the San Luis joint-use facilities, Congress did not intend to apply the Warren Act since Federal reclamation policy does not require application of acreage limitations where there is no Federal investment involved, and since application of Federal law would clash with another basic national policy to leave the States free where Federal interests are not impaired. Solicitor Barry Opinion, 68 I.D. 412, 423-27 (1961), in re agreement with State of California for construction of San Luis Unit, Central Valley Project.

14. State laws

Under California law, irrigation districts have authority and capacity to enter into contracts with the United States calling for delivery of water in accordance with federal law, including the 160-acre limitation, as an alternative to the requirements of section 22250 of the state Water Code that water distributed by the districts shall be apportioned ratably to each landowner in proportion to the assessment against his land. Ivanhoe Irr. Dist. v. All Parties, 53 Cal. 2d 692, 3 Cal. Rptr. 317, 327-29, 350 P. 2d 69, 79-81 (1960).

The 160-acre limitation is a basic part of federal reclamation policy, and the state legislature has adopted this concept as state policy for federal 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 Cal. Rptr. 317, 330, 350 P. 2d 69, 82 (1960).

Private lands cannot be forced into an irrigation district which would operate under a contract with the United States devised to compel the owner to dispose of some of his property whether he wishes to or not, and at valuations which may meet his emphatic disapproval and concerning which he would have nothing to say; but such privately owned lands of all objectors should be excluded from the area of the proposed district. In re Owl Creek Irr. Dist., 71 Wyo. 30, 253 P. 2d 867, 882-83 (1953), aff'd on rehearing, 71 Wyo. 70, 258 P. 2d 220 (1953).

15. —Administrative practice

Repeated action by the Congress since the inception of the Central Valley Project constitutes ratification of the administrative construction that the excess land laws apply to the project and confirmation and approval of the contracts executed by the Sec

382

retary thereunder. Ivanhoe Irr. Dist. v. McCracken, 357 U.S. 275, 292–3 (1958).

The Secretary has no authority under section 46 to provide administrative relief from the excess land provisions of the section as originally enacted. Solicitor Bennett Opinion, 64 I.D. 273, 277 (1957), in re proposed contract with Kings River Conservation District.

16. Standing to sue

There is nothing in the excess land statutes to indicate that Congress intended to confer a litigable right upon private persons claiming injury from the Secretary of the Interior's failure to discharge his duty to the public. Turner v. Kings River Conservation Dist., 360 F. 2d 184, 198 (9th Cir. 1966).

17.

Inverse condemnation

If the enforcement of excess land provisions impairs any compensable property rights in water, then recourse for compensation is open in the courts. Ivanhoe Irr. Dist. v. McCracken, 357 U.S. 275, 291 (1958).

18. Payout, effect of

The Federal reclamation laws do not authorize the Secretary of the Interior to enter into a contract with a water-user organization which provides that the excess land provisions relating to pre-existing holdings are set aside by lump-sum or accelerated payment of construction charges. Solicitor Barry Opinion, 68 I.D. 372 (1961), in re proposed repayment contracts for Kings and Kern River projects. Accord: Letter of Attorney General, 68 I.D. 370 (1961).

The memorandum opinion by Associate Solicitor Cohen, M-35004 (October 22, 1947), concluding that "upon full payment of construction obligation under a jointliability repayment contract, the lands receiving water under such contract are, under the provisions contained in section 3 of the Act of August 9, 1912, relieved of the statutory excess-land restrictions," and Administrative Letter 303 of December 16, 1947, based on the opinion, are in error. Solicitor Barry Opinon, 68 I.D. 372, 376, 395 (1961), in re proposed repayment contracts for the Kings and Kern River projects.

Department excess land regulations applying to individual water right applications (43 CFR 230.65, 230.80) and public land entries (43 CFR 401.9) do not indicate that payout affects the requirement for disposal of pre-existing excess holdings. Solicitor Barry Opinion, 68 I.D. 372, 398 (1961), in re proposed repayment contracts for Kings and Kern River projects.

Payout is not relevant to the recordable

contract requirements of section 46. Solicitor Barry Opinion 68 I.D. 372, 404 (1961), in re proposed repayment contracts for Kings and Kern River projects.

The Secretary of the Interior lacks statutory authority to permit individual holders of excess lands in the Kings River Conservation District to pay the reimbursable costs administratively allocable to those holdings and thereby be relieved from the limitations on supplying water to excess lands. Solicitor Bennett Opinion, 64 I.D. 273 (1957), in re proposed contract with the Kings River Conservation District.

The Act of August 9, 1912, relates to individual contracts, in contrast to the joint liability contract specifically required by section 46 of the Omnibus Adjustment Act of 1926; and the provisions of the former relating to the effect of payout on excess lands cannot be infused with a new life for the purpose of implementing the latter, which contains no comparable provisions. Solicitor Bennett Opinion, 64 I.D. 273, 275-6 (1957), in re proposed contract with Kings River Conservation District.

Except in the case of contracts approved by Act of Congress, contractual provisions relieving lands of the operation of the excess land laws upon payout by the individual or by the district do not, as a matter of law, operate to bind the parties. Letter of Secretary Udall to Chairman Wayne Aspinall, House Committee on Interior and Insular Affairs, August 27, 1962.

A contract containing a clause terminating excess land limitations upon payment of construction charges is considered not to be affected by the 1961 Solicitor's Opinion holding that payout does not suspend application of excess land laws to preexisting holdings if such contract has been approved by Congress, even though it was submitted to Congress for some other reason such as under section 7 of the Reclamation Project Act of 1939. Letter from Secretary Udall to Chairman Wayne Aspinall, House Committee on Interior and Insular Affairs, April 11, 1962, note No. 2. 19. -Vested water rights

Neither the existence nor non-existence of a vested water right is itself determinative of whether the excess land laws are applicable in any given case. Solicitor Barry Opinion, 71 I.D. 496, 513 (1964), in re application of excess land laws to private lands in Imperial Irrigation District.

The excess lands provisions of section 46 of the Omnibus Adjustment Act apply to lands with a vested water right which receives a supplemental water supply from the Gravity Extension Unit (Gooding division) of the Minidoka project. Solicitor

Patterson Opinion, M-22401 (June 14, 1927).

20. -Supplemental water supply

Section 46 applies even where the project provides a relatively small supplemental water supply. Solicitor Bennett Opinion, 64 I.D. 273, 274 (1957), in re proposed contract with Kings River Conservation District.

21. Delivery of water

So long as project water is supplied only to the "nonexcess land" of the landowner and is not received by his "excess land," the Department is not required to object to the retention of the "excess land" or to its irrigation by means of water from another source. Solicitor White Opinion, M-36011 (September 23, 1949), in re Tulare Irrigation District contract.

Where project water is commingled with non-project water in a river channel from which water is drawn as a supplemental supply for irrigating both excess and nonexcess lands, only so much of the commingled water as represents the quantity of water supplied by the Bureau of Reclamation must necessarily be regarded as project water for the purpose of the 160-acre limitation. Solicitor White Opinion, M-36011 (September 23, 1949), in re Tulare Irrigation District contract.

Commingling of project water (from Friant-Kern canal) with non-project water in a river (Kaweah River) from which water is drawn as a supplemental supply for irrigating both excess and non-excess lands will be permitted if (a) the Bureau of Reclamation turns into the river, for transportation to the district, only enough project water to irrigate 160 acres or less for each landowner in the district, (b) an equivalent amount, at least, of the commingled water is used on the non-excess lands within the district, and (c) the commingled water is applied to excess lands only to the extent that the available supply of water might exceed the quantity of water delivered by the Bureau. Solicitor White Opinion, M-36011 (September 23, 1949), in re Tulare Irrigation District contract. [Ed. note: This is known as the "Tulare formula".]

Under the water service contract of June 5, 1963, and the proposed distribution system contract with the Westlands Water District, project distribution facilities may not be used to carry water of any kind (whether project, non-project, or pumped water) to excess lands. The "Tulare formula" (see Solicitor White Opinion, M36011 (September 23, 1949), in re proposed Tulare Irrigation District contract) applies

383

only to the use of nonproject facilities. Letter from Solicitor Barry to Senator Frank Moss, July 23, 1964, reprinted in Hearing on Westlands Water District [distribution system] Contract Before the Senate Committee on Interior and Insular Affairs, 88th Cong., 2d Sess. 157 (1964).

Any plan for supplying water from a project of the Bureau of Reclamation which involves the commingling of project water with other water would be inconsistent with the 160-acre limitation unless it encompassed measures deemed adequate, from the standpoint of engineering and administration, to ensure that an owner of excess lands will apply to his non-excess lands a minimum quantity of water equivalent to his share of the quantity of water released from the project. Memorandum of Solicitor White to Commissioner of Reclamation August 9, 1950, in re proposed water use contracts of the Conejos Water Conservancy District.

If project water, even though identifiable as such, reaches the underground strata underlying excess lands as the unavoidable result of the furnishing by an irrigation district of project water to eligible lands, and the excess landowner pumps such water, this would not constitute a "furnishing" of project water to those excess lands within the meaning of the term "furnishing" as used in the contract between the United States and the district. Letter from Secretary Krug to Board of Directors, Orange Cove Irrigation District, January 25, 1949. See also statement of Secretary Krug, February 24, 1949, printed in Hearings on First Deficiency Appropriation Bill for 1949, H.R. 2632 Before a Subcommittee of the Senate Committee on Appropriations, 81st Cong., 1st Sess. 256–59 (1949).

Where an operating agreement with the Westlands Water District provides that the District will pump from the underground and furnish to nonexcess lands an amount of water estimated to be the portion of project water reaching the underground from surface application, a clause in the water service contract relating to the unavoidable furnishing of underground water to excess lands may be deleted as surplusage. Letter of Solicitor Barry to Mr. Russell Giffen, January 26, 1965.

22. -Condemnation

Where excess land under recordable contract or otherwise is condemned for nonagricultural purposes, it should be appraised as if it were nonexcess, regardless of its classification at the time. Letter of Solicitor Barry to Assistant Attorney General Clark, July 16, 1962, and reply from Chief of

384

Land Acquisition Section, Department of Justice, July 23, 1962.

31. Ownership of excess lands-Generally The 160-acre limitation is a limitation on the quantity of land in individual ownership that is eligible to receive project water. Solicitor White Opinion, M-36011 (September 23, 1949), in re Tulare Irrigation District contract.

The administrative practice followed by the Department has been to limit application of the excess-land provisions of reclamation law to ownerships within the boundaries of the irrigation district with which the United States contracts. Consequently, an individual's ownership of land in one district or project has not been considered in determining his eligibility to receive water for lands in another district or project. Letter from Assistant Secretary Aandahl to Representative Harlan Hagen, April 23, 1954; letter from Regional Counsel Graham to Mr. M. G. Hoffmann, March 12, 1954. 32. Coalescence of holdings

Section 46 of the 1926 Act and section 12 of the 1914 Act deal specifically with the breakup of pre-existing holdings, while the 1902 and the 1912 Acts are relevant to the issue of the effect of excess land limitations on the coalescence of holdings. Solicitor Barry Opinion, 68 I.D. 372, 375, 376, 390, 404 (1961), in re proposed repayment contracts for Kings and Kern River projects.

The prohibition of the excess land laws on the coalescence of holdings is effective only after the date of initial water delivery. Deputy Solicitor Weinberg Opinion, 72 I.D. 245 (1965), in re Westlands Water District contract.

A person who involuntarily acquires lands which become excess in his hands, cannot extend his eligibility to receive water beyond the 5-year period provided by the Act of July 11, 1956, 70 Stat. 524, by executing a recordable contract. Acting Solicitor Fisher Opinion, 68 I.D. 433, 434 (1961) (dictum), limited on other grounds, Deputy Solicitor Weinberg Opinion, 72 I.D. 245, 247 (1965).

The term "excess land" as used in the Act of July 11, 1956, an act which provides that "excess land" acquired involuntarily in certain cases may be furnished water for five years thereafter, means only lands which are excess after, but not before, the acquisition. The purpose of the Act is to prevent a sudden diminution in the privileges respecting the land as the result of the transfer, not to enlarge the estate or its privileges in the hands of the new owner over that or those of the person from whom it was acquired. Memorandum of Associate

Solicitor Fisher to Regional Solicitor, Sacramento, April 28, 1959.

For purposes of the Act of July 11, 1956, an act which allows lands that become excess by virtue of certain involuntary acquisitions to receive water for five years thereafter, the date of the "acquisition" with respect to an heir or devisee should be considered to be the date of death, whether or not the property is covered by a will and irrespective of provisions of local law relating to the estate of the decedent. Memorandum of Associate Solicitor Fisher to Regional Solicitor, Sacramento, April 28, 1959.

The Act of July 11, 1956, does not apply in a case where the death of the prior owner took place before the water service contract was executed, because the land was neither excess nor nonexcess when acquired by the heirs or devisees. Memorandum of Deputy Solicitor Weinberg, December 10, 1965, in re Orlando trusts. 33. -State ownership

The excess land laws do not apply to lands owned and managed by a state for purposes of the conservation, development, and improvement of wildlife. Memorandum of Associate Solicitor Weinberg to Acting Regional Solicitor, Denver, September 25, 1961.

34. -Trusts and multiple ownerships

A conveyance in trust by a corporation of excess lands receiving water under a recordable contract is not a valid compliance with section 46 unless the trust arrangement satisfies the following seven minimum requirements: (1) the grant is irrevocable and complete; (2) the trust property consists solely of the land granted; (3) the trust document identifies individual persons as beneficiaries and describes the interest of each; (4) the trustee named shall receive compensation only for management services and has no interest in and transacts no business with the trust; (5) the trustee makes periodic distribution of net returns; (6) if a beneficiary's undivided interest exceeds his permissible holding, the trustee must designate a specific tract as the excess land; and (7) each beneficiary has the right to partition at his option. Joint memorandum of Commissioner and Solicitor, March 19, 1962, approved by the Secretary December 21, 1962.

The requirement in the joint memorandum of March 19, 1962, that the trust property consist solely of the land granted has been interpreted to permit inclusion of personal property such as farm equipment. The requirement that the trustee make periodic distribution of net returns has been

interpreted to mean that the trustee need not make precisely scheduled annual distributions so long as distributions are made on such a schedule as the trustee reasonably decides is appropriate. Nor does the trustee have to distribute all net returns if he reasonably decides to retain income for farm operations. Further, the requirement that the beneficiary have a right to partition has been interpreted to mean that so far as an incompetent is concerned he must have such a right only after he becomes sui juris. Memorandum of Associate Solicitor Hogan, Water and Power, to Regional Solicitor, Sacramento, April 27, 1965, in re the use of multiple-ownership concepts in satisfaction of the 160-acre requirement.

A conveyance of excess lands in trust does not make the lands eligible to receive water unless the arrangement can be equated to a disposition by outright sale. A trust arrangement in which the trustee bears a close relationship to the beneficiary and also participates as an owner in a portion of the land under the trust does not meet the test. Letter from Solicitor Barry to Jess P. Telles, Jr., August 12, 1963.

An arrangement is not in violation of the excess land laws whereby a corporation purchases four tracts in the Wellton-Mohawk division of the Gila project totalling 380 acres, each of which is eligible to receive water, and makes an irrevocable conveyance of the lands to an Arizona bank as trustee in the nature of a passive trust, receiving compensation only for management services, the beneficiaries of the trust being four outof-state pension funds, each of which receives regular distribution of trust proceeds and each of which has the right at any time to obtain partition and sale of the farm held for its benefit. Letter from Solicitor Barry to Tress E. Pittenger, Jr., December 18, 1963.

Where the trustee has full power to invade the corpus of a trust for appropriate purposes, to deal with all real or personal property as absolute owner for practically all purposes, and to determine the amount of income, and there is one named beneficiary who has only a life estate in the income of the trust with a power to appoint among his issue, only 160 acres of trust property is nonexcess lands. Neither the named beneficiary nor any issue has a substantial enough interest in the real estate to qualify as owner. Moreover, if the same person is trustee of three such trusts, only 160 acres in total for all such trusts may be considered nonexcess. Memorandum of Solicitor Barry, October 26, 1965, in re O'Neill

trusts.

385

Provisions in the trust instrument that an adult beneficiary has no right of alienation of his interest and that the trust property is not subject to the claim of creditors, are not commensurate with the ownership interest required of a competent person under section 46 of the 1926 Act where more than 160 acres are held in undivided interests. Memorandum of Deputy Solicitor Weinberg, November 4, 1965, in re Antle

trust.

A business trust which has all the essential characteristics of the corporation whose property is to be transferred to it, namely, association, an objective to carry on business and divide the gains therefrom, continuity of life, centralization of management, limited liability and free transfer of interests, cannot be the recipient of a disposition in compliance with the excess land laws. Letter of Solicitor Barry to Charles F. Wheatley, Jr., November 29, 1965.

Two minimum requirements for a partnership to be eligible to receive water under the excess land laws are that each competent participant has a partitionable interest in the land and that he has a right to alienate his interest. Memorandum of Deputy Solicitor Weinberg, November 29, 1965, in re Pradera Del Lago, a partnership.

A liquidation of a corporation whereby the stockholders receive the real property in the same ratio as their former shareholdings does not constitute a reorganization under section 368 of the Internal Revenue Code and each owner is entitled to own up to 160 acres as nonexcess land even though the property is leased to a partnership composed of the same individuals for management purposes. Memorandum of Deputy Solicitor Weinberg, November 29, 1965, in re Lapadula Farms.

Where a parcel of 624 acres is held in undivided one-half interests in two trusts, involving a mother and six children as beneficiaries, where both trusts are designed to give the mother the greatest beneficial interest and ownership, only 160 acres are eligible to receive water as nonexcess lands. Memorandum of Deputy Solicitor Weinberg, December 10, 1965, in re Orlando trusts.

Where a testamentary trust in California provides that the trustee holds property for a period of ten years from the date of the death of the testator, during which he distributes the income to certain named individuals and then the title passes to them, the trust is entitled to own only 160 acres as nonexcess because the beneficiaries do not own a partitionable interest during the period of the trust. Memorandum of Deputy Solicitor Weinberg, December 1, 1965, re Brockman property.