State laws 1-10

Appurtenant to land 28

Beneficial use

Generally 26

27

Power purposes 29
Warren Act 30

1. State laws-Generally

In choosing between users within 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 the Secretary by state law and thereby nullify the contract power expressly conferred upon him by section 5. Arizona v. California, 373 U.S. 546, 58090 (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 state 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 confused with the operation of

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Federal 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 recognized 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" along the San Joaquin River which depend for water upon seasonal inundations resulting from overflows of the river. United States v. Gerlach Live Stock Co., 339 U.S. 725 (1950).

Section 8 of the Reclamation Act of 1902 requires federal officers to recognize statecreated water rights and pay for them if taken, but it does not limit the authority of federal officers to take such rights for just compensation. Turner v. Kings River Conservation Dist., 360 F. 2d 184, 194–95 (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 River Conservation Dist., 360 F. 2d 184, 197-98 (9th Cir. 1966).

There is nothing in the language 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 relating to the appropriation, control, 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 through 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 improving 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

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obligation to submit the plans and specifications for Boulder Dam and Reservoir to the State Engineer as required by Arizona law because the United States may perform its functions without conforming to the police regulations of a State. Arizona v. California, 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. California Development Co., 33 L.D. 391 (1905).

3. -Public lands

In a suit for the equitable apportionment of the waters of the interstate non-navigable North Platte River among three States, it is not necessary to pass upon the contention of the United States that it owns all the unappropriated water in the river by virtue of its original ownership of the water as well as the land in the basin, where the rights to the waters required for the reclamation projects on the river have been appropriated under State law pursuant to the directive of section 8 of the Reclamation Act, where the individual landowners have become the appropriators of the water rights appurtenant to their land, and where the decree in 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. Nebraska v. Wyoming, et al., 325 U.S. 589, 611-16, 629-30 (1945).

There is no authority to make such executive withdrawal of public lands in a State as will 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 relating 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).

4. Procedures

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 abandonment of the permit. The Comptroller

General 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 necessary incident to the construction and operation and maintenance of the Boise project. Dec. Comp. Gen., B–10509 (February 3, 1941).

In order to conform as nearly as possible to the laws of Wyoming, the 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 through 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. Solicitor'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 fixed by the State law for the development of a water supply for a reclamation project in Idaho is applicable to the United States. Pioneer Irrigation District v. American Ditch Association, et al., 1 Pac. 2d 196, 52 Idaho 732 (1931).

The Reclamation Act not only recognizes the constitution and laws of the state providing for the appropriation of its waters and the reclamation of its arid lands, but it requires that the Secretary of the Interior, in carrying out the provisions of this chapter, shall proceed in conformity with such laws. Burley v. United States, 179 F. 1, 102 C.C.A. 429, 33 L.R.A. (N.S.) 807 (Idaho 1910).

5. —Adoption of Federal law

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).

ch. 85) granting rights of way over all lands of the State for ditches "constructed by or under the authority of the United States," and providing that reservations thereof shall be inserted in all State conveyances, patents of school land issued by the State to private parties expressly subject to rights of way "reserved to the United States," are subject to the right of the United States thereafter to construct and operate irrigation ditches for a reclamation project over the lands conveyed by the patents. This right may be exercised by straightening and using as a ditch, a natural ravine to collect waters appertaining to the Federal project which have been used in irrigating its lands and are found percolating where they are not needed, and to conduct them elsewhere for further use upon the project. Ide v. United States, 263 U.S. 497 (1924), affirming United States v. Ide, 277 Fed. 373 (C.C.A. Wyo. 1921).

Under Idaho Session Laws 1905, p. 373, granting right of way over State lands for 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 landowner 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 that 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. Supp. 839 (D. Idaho 1937).

The right-of-way granted under Utah law to the United States for ditches includes the right to operate a fifty foot high boom for cleaning the canal, and the cost to a utility company in raising its transmission lines to accommodate such boom is not compensable. United States v. 3.08 Acres of Land, etc., 209 F. Supp. 652 (D. Utah 1962).

A 1905 Washington statute providing that in the disposal of lands granted by the United States, the State "shall reserve for the United States" a right-of-way for ditches, etc., for irrigation works, constituted a present, absolute grant to the United States, and such grant could not be defeated by a subsequent conveyance of the rights-of-way and 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.

11. Interstate conflicts-Generally

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As to the words "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" 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 land 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 interstate streams thought to be involved in that litigation should be left to judicial determination unaffected 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 Supreme Court for an equitable apportionment between the two States of 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 large 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 Wyoming'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. Nebraska v. Wyoming, 295 U.S. 40 (1935).

In view of the Reclamation Act, the Warren Act, and the legislation of Wyoming

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and Nebraska, an appropriation by the United States Reclamation Service for the irrigation of lands in Nebraska was valid, though the source of the supply was in Wyoming. Ramshorn Ditch Co. v. United States, 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. Northside Canal Co. v. State Board of Equalization, Wyoming, 8 F. 2d 739 (D. Wyo. 1925). The case was appealed to the Circuit Court of Appeals 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 for the reason that the water rights in 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 U.S. 740 (1927). Similar ruling in Twin Falls Canal Co. v. State of Wyoming.

Subsequently to this decision the Legislature of Wyoming passed an act (chapter 36, Session Laws, of Wyoming, 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 policy 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, reformed in part on other grounds, 243 F. 2d 927 (5th Cir. 1957), cert. denied 355 U.S. 820.

16. Rights of United States-Generally

The United States, by filing with the State of Oregon notices of intent to appropriate and thereafter impounding waters for the Klamath project, pursuant to State

law, did not become the owner of the water in its own right. Dec. Comp. Gen. B-125866 (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, the City of El Paso was not entitled to appropriate water already appropriated for use of the district. El Paso County Water Imp. Dist. No. 1 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 (5th Cir. 1957), cert. denied 355 U.S. 820.

By filing notices of intent to appropriate and thereafter impounding water of Rio Grande River, pursuant to authority granted by this section, the United States did not become owner of water in its own right. Hudspeth 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, the right of the United States as a storer and carrier is not necessarily exhausted when it delivers the water to grantees under its irrigation projects. Nebraska v. Wyoming, 325 U.S. 589 (1945).

In constructing reclamation project the property right in a water right is separate and distinct from the property right in reservoirs, ditches, or canals, in that water right is 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 Nebraska, as the same as those in connection with any irrigation canal. 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 him 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, 860-61 (8th Cir. 1941), cert. denied, 316 U.S. 691 (1942).

Federal government's diversion, storage and distribution of water at reclamation project pursuant to Reclamation Act and contracts with landowners did not vest in United States ownership of water rights