# Appendix — Ickes v. Fox

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1943
- **Citation:** 320 U.S. 792

## Text

APPENDIX

Reclamation Act of June 17, 1902, 32 Stat. 388.

Src. 1. That all moneys received from the
sale and disposal of public lands in Arizona,
California, Colorado, Idaho, Kansas, Mon-
tana, Nebraska, Nevada, New Mexico, North
Dakota, Oklahoma, Oregon, South Dakota,
Utah, Washington, and Wyoming, begin-
ning with the fiscal year ending June thir-
tieth, nineteen hundred and one, including
the surplus of fees and commissions in ex-
cess of allowances to registers and receivers,
and excepting the five per centum of the
proceeds of the sales of public lands in the
above States set aside by law for educa-
tional and other purposes, shall be, and the
same are hereby, reserved, set aside, and
appropriated as a special fund in the
Treasury to be known as the ‘‘reclamation
fund,’’ to be used in the examination and
survey for and the construction and main-
tenance of irrigation works for the storage,
diversion, and development of waters for
the reclamation of arid and semiarid lands
in the said States and Territories, and for
the payment of all other expenditures pro-
vided for in this Act: * * * (43 U.S.C.
see. 391.)

* * * * *

Src. 4. That upon the determination by
the Secretary of the Interior that any irri-
gation project is practicable, he may cause
to be let contracts for the construction of
the same, in such portions or sections as it
may be practicable to construct and com-

RE 5

26

plete as parts of the whole project, provid-
ing the necessary funds for such portions
or sections are available in the reclamation
fund, and thereupon he shall give public
notice of the lands irrigable under such
project, and limit of area per entry, which
limit shall represent the acreage which, in the
opinion of the Secretary, may be reasonably
required for the support of a family upon
the lands in question; also of the charges
which shall be made per acre upon the said
entries, and upon lands in private owner-
ship which may be irrigated by the waters
of the said irrigation project, and the num-
ber of annual installments, not exceeding
ten, in which such charges shall be paid and
the time when such payments shall com-
mence. The said charges shall be deter-
mined with a view of returning to the
reclamation fund the estimated cost of con-
struction of the project, and shall be ap-
portioned equitably: Provided, That in all
construction work eight hours shall consti-
tute a day’s work, and no Mongolian labor
shall be employed thereon (43 U.S. C. sees.
419, 461.)

Sec. 5. That the entryman upon lands to
be irrigated by such works shall, in addition
to compliance with the homestead laws, re-
claim at least one-half of the total irrigable
area of his entry for agricultural purposes,
and before receiving patent for the lands
covered by his entry shall pay to the Gov-
ernment the charges apportioned against
such tract, as provided in section four. No
right to the use of water for land in private
ownership shall be sold for a tract exceed-
ing one hundred and sixty acres to any one
landowner, and no such sale shall be made
to any landowner unless he be an actual

27

bona fide resident on such land, or occupant
thereof residing in the neighborhood of said
land, and no such right shall permanently
attach until all payments therefor are made.
The annual installments shall be paid to the
receiver of the local land office of the dis-
trict in which the land is situated, and a
failure to make any two payments when
due shall render the entry subject to can-
cellation, with the forfeiture of all rights
under this Act, as well as of any moneys
already paid thereon. All moneys received
from the above sources shall be paid into the
reclamation fund. Registers and receivers
shall be allowed the usual commissions on
all moneys paid for lands entered under
this Act (48 U. S. C. sees. 431, 439, 381,
392).

* * * * *

Sec. 8. That nothing in this Act shall be
construed as affecting or intended to affect
or to in any way interfere with the laws of
any State or Territory relating to the con-
trol, appropriation, use, or distribution of
water used in irrigation, or any vested right
acquired thereunder, and the Secretary of
the Interior, in carrying out the provisions
of this Act, shall proceed in conformity with
such laws, 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: Provided, That the right to the use
of water acquired under the provisions of
this Act shall be appurtenant to the land
irrigated, and beneficial use shall be the
basis, the measure, and the limit of the
right (43 U.S. C. sees. 372, 383).

* * * * *

—

28

Sec. 10. That the Secretary of the Inte-
rior is hereby authorized to perform any
and all acts and to make such rules and
regulations as may be necessary and proper
for the purpose of carrying the provisions
of this Act into full force and effeet (48
U.S. C. see. 373).

Act of August 13, 1914, 38 Stat. 687.

Sec. +. That no increase in the construc-
tion charges shall hereafter be made, after
the same have been fixed by public notice,
except by agreement between the Secretary
of the Interior and a majority of the water-
right applicants and entrymen to be affected
by such increase, whereupon all water-right
applicants and entrymen in the area pro-
posed to be affected by the increased charge
shall become subject thereto. Such in-
creased charge shall be added to the con-
struction charge and payment thereof
distributed over the remaining unpaid in-
stallments of construction charges: Pro-
vided, That the Secretary of the Interior,
in his discretion, may agree that such in-
creased construction charge shall be paid in
additional annual installments, each of
which shall be at least equal to the amount
of the largest installment as fixed for the
project by the public notice theretofore
issued. And such additional installments
of the increased construction charge, as so
agreed upon, shall become due and payable
on December first of each year subsequent
to the year when the final installment of
the construction charge under such public
notice is due and payable: Provided fur-
ther, That all such increased construction
charges shall be subject to the same condi-
tions, penalties, and suit or action as pro-
vided in section three of this Act (43 U. 8S.
C. see. 469).

29

Act of March 3, 1915, 38 Stat. 861.

No work shall be undertaken or expendi-
ture made for any lands, for which the
construction charge has been fixed by pub-
lie notice, which work or expenditure shall,
in the opinion of the Secretary of the In-
terior, increase the construction cost above
the construction charge so fixed; unless and
until valid and binding agreement to repay
the eost thereof shall have been entered into
between the Secretary of the Interior and
the water-right applicants and entrymen
affected by such increased cost, as provided
by section four of the Act of August thir-
teenth, nineteen hundred and fourteen, en-
titled ‘‘An Act extending the period of
payment under reclamation projects, and
for other purposes”? (43 U. 8S. C. see. 470).

Remington’s Revised Statutes of Washington:

Sec. 7408. Hminent domain by United
States—The United States is hereby
granted the right to exercise the power of
eminent domain to acquire the right to the
use of any water, to acquire or extinguish
any rights, and to acquire any lands or other
property, for the construction, operation,
repairs to, maintenance or control of any
plant or system of works for the storage,
conveyance, or use of water for irrigation
purposes, and whether such water, rights,
lands or other property so to be acquired
belong to any private party, association,
corporation or to the state of Washington,
or any municipality thereof; and such
power of eminent domain shall be exercised
under and by the same procedure as now
is or may be hereafter provided by the law
of this state for the exercise of the right of
eminent domain by ordinary railroad ecor-
porations, except that the United States

30

may exercise such right in the proper court
of the United States as well as the proper
state court (L. ’05, p. 180, sec. 1).

Sec. 7409. Rights of United States to use
watercourses.—The United States — shall
have the right to turn into any natural or
artificial watercourse, any water that it
may have accuired the right to store, divert,
or store and divert, and may again divert
and reclaim said waters from said water-
course for irrigation purposes subject to
existing rights (L. ’05, p. 180, see. 2).

Sec. 7410. Exemptions pending federal
investigation.—Whenever the secretary of
the interior of the United States, or any
officer of the United States duly authorized,
shall notify the commissioner of public
lands of this state that pursuant to the pro-
visions of the act of congress approved
June 17, 1902, entitled, ‘An act appropriat-
ing the receipts from the sale and disposal
of publie lands in certain states and terri-
tories to the construction of irrigation
works for the reclamation of arid lands,’’
or any amendment of said act or substitute
therefor, the United States intends to make
examinations or surveys for the utilization
of certain specified waters, the waters so
described shall not thereafter be subject to
appropriation under any law of this state
for a period of one year from and after the
date of the receipt of such notice by such
commissioner of public lands; but such no-
tice shall not in any wise affect the appro-
priation of any water theretofore in good
faith initiated under any law of this state,
but such appropriation may be completed
in accordance with the law in the same man-
ner and to the same extent as though such
notice had not been given. No adverse

31

claim to any such waters initiated subse-
quent to the receipt by the commissioner
of public lands of such notice shall be reeog-
nized, under the laws of this state, except
as to such amount of the waters described
in such notice or certificate hereinafter pro-
vided as may be formally released in writ-
ing by a duly authorized officer of the
United States. If the said secretary of the
interior or other duly authorized officer of
the United States shall, before the expira-
tion of said period of one year, certify in
Writing to the said commissioner of publie
lands that the project contemplated in such
notice appears to be feasible and that the
investigation will be made in detail, the
waters specified in such notice shall not be
subject to appropriation under any law of
this state for the further period of three
years following the date or receipt of sueh
certificate, and sueh further time as the
econmissioner of public lands may grant,
upon application of the United States or
some one of its authorized officers and no-
tice thereof first published once in each
week for four consecutive weeks in a news-
paper published in the county where the
works for the utilization of such waters are
to be constructed, and if such works are to
be in or extend into two or more counties,
then for the same period in a newspaper in
each of such counties: Provided, That in
case such certificate shall not be filed with
said commissioner of publie lands within
the period of one year herein limited there-
for the waters specified in such notice shall,
after the expiration of said period of one
year, become unaffected by such notice and
subject to appropriation as they would have
been had such notice never been given: And

AVSIM

EET Os ith TRA ROS, ANT oeg

32

provided further, that in case such certifi-
eate be filed within said one year and the
United States does not authorize the con-
struction of works for the utilization of
such waters within said three years after
the filing of said certificate, then the waters
specified in such notice and certificate shall,
after the expiration of said last named
period of three years, become unaffected by
such notice or certificate and subject to
appropriation as they would have been had
such notice never been given and such cer-
tificate never filed (lL. ’05, p. 180, see. 3).
Sec. 7411. Appropriation—Title to beds
and shores.—Whenever said secretary of
the interior or other duly authorized officer
of the United States shall cause to be let a
contract for the construction of any irriga-
tion works or any works for the storage of
water for use in irrigation, or any portion
or section thereof, for which the with-
drawal has been effected as provided in
section 7410, any authorized officer of the
United States, either in the name of the
United States or in such name as may be
determined by the secretary of the interior,
may appropriate, in behalf of the United
States, so much of the unappropriated
waters of the state as may be required for
the project, or projects, for which water
has been withdrawn or reserved under the
preceding section of this act, including any
and all divisions thereof, theretofore con-
structed, in whole or in part, by the United
States or proposed to be thereafter con-
structed by the United States, such appro-
priation to be made, maintained and _per-
fected in the same manner and to the same
extent as though such appropriation had
been made by a private person, corporation

SSE SERRY AREY TENT OE

UE ARBITRATE Gg ER ene roe eT ye

33

or association, except that the date of prior-
ity as to all rights under such appropriation
in behalf of the United States shall relate
back to the date of the first withdrawal or
reservation of the waters so appropriated,
and in case of filings on water previously
withdrawn under said section 7410, no pay-
ment of fees will be required. Such appro-
priation by or on behalf of the United
States shall inure to the United States, and
its successors in interest, in the same man-
ner and to the same extent as though said
appropriation had been made by a private
person, corporation or association. The
title to the beds and shores of any navigable
lake or stream utilized by the construction
of any reservoir or other irrigation works
created or constructed as a part of such
appropriation hereimbefore in this section
provided for, shall vest in the United States
to the extent necessary for the maintenance,
operation and control of such reservoir or
other irrigation works (L. ’29, p. 183, see. 1;
Cf. L. ’05, p. 182, see. 4).

U.S. GOVERNMENT PRINTING OFFICE: 1948

SPQ PP RT

Bi at

IN THE Eee

Supreme Court of the Qnited States

Octoser Term, 1943.

Harotp L. Ickes, Secretary of the Interior, Petitioner,
v.

Mazine Z. Fox, et a.

Haro.p L. Ickes, Secretary of the Interior, Petitioner,
v.

Purr Louis Parks, ET AL.

Hanotp L. Ickes, Secretary of the Interior, Petitioner,
v.

Curistina Mariea Eper, Executrix of Last Will and Testa-
ment of Jacob F. Ottmuller, Deceased.

ANSWER TO PETITION FOR WRITS OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA.

Srepuen E. Cuarree,
Attorney for Respondents,
Sunnyside, Washington.
Ww. G. FErety,
Mills Building,
Washington, D. C.
November, 1943.

|

Press or Byron S. ApaMs, Was HINGTON, D. O.

ie... RASS

Ua go eas,

Page
IE as Svavaew cue eh oh uwauese Geen sauce decane 2
Purpose of Notice of October 17, 1930............... 8
Reasons for Denying Writ—Law of the Case........ 11

Decision of Lower Court—In Harmony with State Law 12
Decision of Lower Court—In Harmony with Acts of

Congress and State Statutes ................... 15
Beneficial Use of Water ......6060660ccccccccccccn, 17
Findings of District Court ................c.c0005. 18
Commas om POU ng ons ee soe no vv wna de kne 19
PED 65655 45004 it nay cbs Penne cade se 21

CITATIONS.
CasEs:
Arizona v. California, 283 U. S. 423................ 19
California Oregon Power Co. v. Beaver Portland
RNS Th, TOO We BO eo oe ciccl cs 12

bates cag Boca SM ee es Pee oy 12
semen ¥. Om, OBB. (0d) GOA. ovcik co ccvccks ccc dcc 9
BOD. SR Oe Pe ee ede et 9
Ickes v. Fox, 137 Fed. (2nd) 30.................... 11

& Power Company, 97 Fed. (2d) 38.............. 13
Yuma County Water Users v. Schlect, 262 U. S. 137,

Fi Oe & 6 0504 ec a eae ee eke 5

STaTuTEs:

Reclamation Act of June 17, 1902 (43 U.S. C. A. See.

ara; O20. BO. A, Bee. B08) o.oo cn cvccs 5c... ... 2
Reclamation Extension Act of August 13, 1914 (43

re es Ms MRS Sv uns cage ov kwh case ks 2
Warren Act of February 21, 1911 (43 U. S. C. A.

peop hE IE EE MERE HE 2,16
Act of 1866 (43 U.S. C. A. Sec. 661) ...............
Statutes of the State of Washington (Sec. 39, Chap.

FONG OWE BOOED «8s. cud ith ka keden selene 2,17

iB

IN THE

Supreme Court of the Gnited States

AQUI ET ER

Ocroser Term, 1943.
No. 402. ‘,
é
Haroxp L. Ickes, Secretary of the Interior, Petitioner, :
v. F
Mazine Z. Fox, ev A. i
No. 403. ‘

Harowp L. Ickes, Secretary of the Interior, Petitioner,
v.
Purp Louis Parks, ET AL.
No. 404.
Harotp L. Ickgs, Secretary of the Interior, Petitioner,
v.

Curistina Maries Ever, Executrix of Last Will and Testa-
ment of Jacob F. Ottmuller, Deceased.

ANOLE EKG REITERATE PEE AIEEE EN ICES

ANSWER TO PETITION FOR WRITS OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA.

The respondents, Fox, Parks and Eder, pray that writs
of certiorari be denied herein for each and all of the follow-
ing reasons, to-wit:

CLES AEE EE OL TRE

2
1. The decision by this court on former appeal (Ickes y,
Fox, 300 U. S. 82) fixing beneficial use as the measure of
respondents’ water rights became the law of the case to be
followed by the lower court and this court.

2. The decision of the lower court is in harmony with
the statute (Sec. 39, Chapter 117, Laws 1917), and court
decisions (Lawrence v. Southard, 192 Wash. 287) of the
State of Washington and the Secretary of Interior ‘‘shall
proceed in conformity with such laws.’’ (43 U.S. C. A. 383.)

3. The decision of lower court is in harmony with the Act
of 1866, 43 U. S. C. A. Sec. 661; Reclamation Act of 1902,
Sec. 8, 32 Stat. 390; 43 U. S. C. A., See. 372 and 383; War-
ren Act of 1911, 36 Stat. 925; 43 U.S. C. A. Sec. 523; Recla-
mation Extension Act of August 13, 1914, 38 Stat. 686; 43
USCA See. 469, See. 39, Chap. 117, Laws 1917 of the State
of Washington and decisions of both Federal and state

courts.
STATEMENT.

On December 3, 1890, 1,000 second feet of the water of the
Yakima River was appropriated to irrigate lands now
served by the Sunnyside Canal, including respondents’
lands. (R. II 669.) Prior to 1906 the Sunnyside Canal and
distribution system of sufficient size had been constructed
to irrigate 40,000 acres of land which included the Parks
land. (R. II 691.) On June 23, 1906, the United States
acquired by purchase the water appropriation, canal, and
distribution system. (R. II 684.) On May 7, 1906, a con-
tract was entered into between the Government and the
Water Users Association on behalf of the respondents and
others, which provided that the determination of the Secre-
tary as to the number of acres capable of irrigation was ‘‘to
be based upon and measured and limited by the beneficial
use of water.’’ (R. II 680.)

On December 2, 1907, the Secretary of Interior and Di-
rector of Reclamation, pursuant to Reclamation Act, re-
ported to Congress and stated the measure of the water

. ill

rights of respondents and other water users in the Sunny-
side Division as follows:

‘As the new lands (Fox and Eder) are entitled to as
much water as may be required for their crops, * * *
this would entitle the old lands to a sufficiency of water.
*** A special form of contract (Parks) was prepared
whereby the water user is to be furnished all the water
his land may require for irrigation.’’ (R. II 691-2.)

3

The Secretary, pursuant to the act, estimated the cost of
the project including sufficient reservoir capacity to supple-
ment natural flow and to furnish respondents and others
with the amount of water required under the contract of
May 7, 1906, and as stated in his report to Congress on
December 2, 1907, to be $52.00 per acre for the Eder and
Fox lands, and $10.00 per acre for supplemental water right
for Parks land.

Thereafter, the Secretary caused to be constructed res-
ervoir and carrying capacity sufficient to meet the water
requirements of all lands served by the Sunnyside Canal
on the basis of the contract and report, approved a classifi-
cation of the public notice (Fox and Eder) lands, ‘‘accord-

ing to water requirements’’ (R. II 837), and issued public
notice authorizing the delivery of 4% acre-feet to the Fox

and Eder lands and such additional amount as the Project
Superintendent found was beneficially used thereon, pro-
vided that ‘‘the deliveries will be contingent on beneficial
use, as determined by the Project Superintendent.’’ (R. II
948.) The Irrigation Manager and Project Superintendent
issued rules and regulations relative to water deliveries
which provided that ‘‘the delivery must be limited at all
times to the amount beneficially used.’’ (R. II 974.)
Watermaster Chrestenson, who had charge of water de-
liveries to the Fox and Eder lands for 28 years, testified
positively and his testimony was not contradicted, that he
followed these rules and regulations and that no one ever
made a request for additional water deliveries to either the

Se

—

Fox or Eder tracts (R. I 456), and that when a request
elsewhere in the District was made:

4

‘*T go on the place and ask the man what the complaint
may be. I also go over the land as a general thing, and
make up my mind whether he is making proper use of
his water, or whether he has taken care of what he has
got, and that goes a long way in determining whether
I will grant him any more or not.’’ (R. I 454.)

Watermaster Cheyne, who had been in charge of water
deliveries to the Parks land for 28 years, testified postively
that he followed these rules and regulations and that in only
one instance did he ever see any evidence of improper irri-
gation on the Parks land, and further testified when addi-
tional water deliveries were requested that:

‘‘T go on the land and have a conference with him
(water user) and find out just what his complaints are.
If it is a request for more water I look the place over
thoroughly, examine the use he is making of it (the
water), the condition of his ditches, * * *. If I am un-
decided about the condition of the ground I usually
have a shovel in my automobile. I examine the ground
and I examine the crops. If justified and we have the
water to spare, I endeavor to help him out.’’ (R. I
458.)

In 1931, Irrigation Manager, M. D. Scroggs, reported
that:

‘‘The practice in administering water deliveries under
these contracts has been to supply on the basis of 3
acre-foot duty in all cases where requests for larger
deliveries were not made. In the event that such re-
quests were made the ditch riders were authorized to
increase deliveries up to 25% above the 3 acre-foot
measurement, provided the water was available and
there is reasonable evidence that such excess was
needed. tn the event that a still larger amount is de-
sired the approval of the Watermaster or the Irriga-
tion Manager is required. The last statement applies
particularly to the old supplemental lands (Parks)
*** The determination of the amount needed in excess

—_—

5)

of 3 acre-feet has been a matter of determination in
the field at the time when excess was requested and has
been based upon the appearance and needs of the crop
at that time. As the years have passed, it has come to
be recognized that certain tracts needed more than
others so that re-examination has not always been nec-
essary. Generally speaking, however, the above proce-
dure has been followed.’’ (R. II 959.)

The total amount to be paid by the parties who contracted
with the United States for repayment of construction costs
in the Sunnyside Division is $4,103,306.00. The actual cost
of all the irrigation works in the division, excluding storage
reservoirs constructed in the Yakima River, was $3,491,-
003.00, thus, leaving $612,303.00 to be applied upon reser-
voir construction costs. (R. I 615.)

The Kachess reservoir with a capacity of 220,000 second
feet at a cost of $750,226.00 was completed prior to 1912.
The Keechelus reservoir with a capacity of 152,000 aecre-
feet at a cost of $2,004,198.00 was completed prior to 1915.
The Sunnyside Canal was enlarged to a capacity of 1300
second-feet prior to 1916. The average cost of storage con-
struction per acre-foot in the Kachess and Keechelus reser-
voirs was $7.40. (R. I 438, 446, 447. R. IT 831.)

The average amount of stored or impounded water used
on lands in the Sunnyside Division from 1917 to 1936, both
inclusive, save and except 1918, was 63,143 acre-feet per
annum. (R. II 801-A to 818.) The cost of constructing
this reservoir capacity in the Kachess and Keechelus reser-
voirs was $467,258.06 which left a profit to the United
States of $145,045.00 because the actual cost was less than
the estimated cost, and under the decision in Yuma County
Water Users v. Schlect, 262 U. S. 137, 67 L. Ed. 909, the
United States became entitled to that profit.

At all times prior to 1930, the Secretary made water de-
liveries to respondents and other water users in the Dis-
trict served by the Sunnyside Canal on the basis of the
contract of May 7, 1906, and the Secretary’s report to Con-

a

6

gress, December 2, 1907, and sufficient to furnish all lands
served by said canal with the amount of water required to
fully irrigate the land to the full extent of the soil for agri-
cultural purposes. The average amount delivered to all
lands was 4 acre-feet, per annum. The amount delivered
from year to year, and month to month varying dependent
upon the amount of spring moisture and rainfall during the
summer, the amount delivered to the public notice lands
varying from .67 to 9.58 acre-feet per acre, per annum, de-
pendent upon the amount required to irrigate each tract to
the full extent of the soil, and to deliver on an average for
ten years to the community lateral serving the Fox lands
5.43 acre-feet, to the Parks land an average of 5.93 acre-
feet, and to the Eder lands an average of 6.08 acre-feet,
per acre, per annum. (R. IT 838 to 898, 901 to 906, 1035-6-8.)

In 1930 Commissioner Mead decided to construct the Cle
Elum réservoir at an estimated cost of $3,500,000.00 to
store water to irrigate new lands to be brought under
irrigation and cultivation. The estimated cost was
$1,000,000.00 more than would be returned from contracts
theretofore entered into with the new divisions. Without
consulting the respondents or officials of the District, he
attempted to charge $1,000,000.00 of the cost of the con-
struction of this reservoir to the lands in the Sunnyside
Division. In this connection Mr. Clark, a director whose
testimony was not contradicted, testified:

‘““Dr. Mead made the statement that he had allocated
all the money he could to the various projects and that
there was still lacking one million dollars; he knew of
no other place from which to derive this million dollars.
He allocated it to the Sunnyside Division of the
Yakima Project. He said he had certified this to the
Seeretary and the Secretary in turn would certify it
to the President, which process had to be done before
the dam could be completed or the work could be
started, and that he could not make any change with-
out a court order.’’ (R. I 608.)

7

Secretary O. W. Hoffman, whose testimony was not con-
tradicted, testified :

‘‘Commissioner Mead made the statement when asked
how he allotted this money to the Sunnyside Project,
that it was necessary to have a million dollars for the
construction of the Cle Elum Dam, and that he didn’t
know where else to place it so he placed it on the Sunny-
side Project.’? (R. I 497.)

U. S. District Counsel Stoutemyer, spokesman for the
Secretary and Commissioner, urged the District Board to
enter into contract to pay a million dollars. In connection
with these negotiations, Director Roady, whose testimony
was not contradicted, testified:

Q. Did he, (Stoutemyer) make any statement as to
the method they would use in getting this money from
the district?

A. He said he would eall it excess waters to the land
that needed it, and if we didn’t buy the water it would
be collected anyway, and that we wouldn’t get any
credit for it.

Later , after it was ascertained that the Cle Elum reser-
voir cost approximately a million dollars less than the esti-
mated cost, Mr. Fyfe, whose testimony was not contra-
dicted, testified:

‘It was a conversation that I heard while in Mr.
Stoutemyer’s room, between him and Mr. Chaffee as
to the charges of the Cle Elum Dam, and Mr. Stoute-
myer stated that the new districts had underwritten
the cost of the Cle Elum Dam, and if he did not get the
money out of us, they would have to pay for it.’’

Q. What statement, if any, did I make pertaining to
the cost of the dam, and what reply did he make?

A. You had made the statement to Mr. Stoutemyer
that the estimated cost of the Cle Elum Dam was three
million dollars and they had saved a million dollars in
the construction of the dam, and you spoke about eut-
ting that off, or why charge us a million dollars as long
as they had saved that amount there, and Mr. Stoute-

8

myer stated that the government could always use a
million dollars.’’ (R. I 614.)

For the purpose of collecting the million dollars which
the Commissioner and Secretary had levied against the
water users in the Sunnyside Division, the Secretary, on
October 17, 1930, without giving respondents or other water
users or officials of the District a chance to be heard, issued
public notice which had a three-fold purpose, to-wit:

1. To deprive respondents of the use of the carrying
capacity (over 3 acre-feet for Fox and Eder, and 3% acre-
feet for Parks lands) of the Sunnyside Canal and distribu-
tion system, and storage capacity in reservoirs which the
United States had constructed for them, and for the pay-
ment of which construction costs it held a lien upon their
lands, which lien Eder and Parks had fully paid, and the
carrying and storage capacity so constructed permanently
attached to their lands.

2. To deprive respondents of a portion of their right to
the use of the natural flow and stored waters of the Yakima
River which they acquired ‘“‘by appropriation of and from
the State of Washington, under the Reclamation Act”
(Lawrence v. Southard, 192 Wash. 287).

3. To rent to respondents water when there was a sur-
plus, above the limited amounts and to apply the rental
money to pay a portion of the one million dollars levied by
the Secretary against the Sunnyside Division, for the Sec-
retary stated that the re-payment of the costs of the Cle
Elum reservoir would be made by ‘‘one million dollars by
rentals from the Sunnyside Division of the Yakima Proj-
ect.”’ (R. IT 951-955.)

On May 5th the Secretary issued public notice attempt-
ing to deprive the Parks land of the use of water in excess
of 3% acre-feet. (R. II 957.) For the purpose of enforce-
ment of the collection of the million dollar charge so made,
the Secretary advised Fox and Eder that they would be
deprived of water in excess of 3 acre-feet and Parks in ex-

9

cess of 3% acre-feet, unless they signed a water rental ap-
plication. (R. I 79.) The respondents and other water
users refused to sign the same.

On June 1, 1932, when more than 2,800 second-feet of
natural flow water was running over the Sunnyside Dam
to the ocean unused, the Secretary caused the main head-
gate to the Sunnyside Canal and the headgates to the com-
munity laterals serving respondents’ lands to be partially
closed so as to deprive respondents of the use of water
above the limited amounts, and diverted the water above
the limited amounts down the Yakima River and through
wasteways into the river and completely destroying the
same.

These suits were brought to vacate the public notice of
October 17, 1930, and May 5, 1932, and for other equitable
relief. The petitioner moved to dismiss the suits, which
motion was denied by the trial court. Petitioner took an
appeal to the United States Court of Appeals for the Dis-
trict of Columbia, Ickes v. Fox, 85 F. (2d) 294, which court
sustained the judgment of the trial court and this court
sustained the lower courts. Ickes v. Fox, 300 U. 8. 82, 57
S. Ct. 412.

Copies of water right applications in the Fox and Eder
cases and supplemental water right contract in Parks case
were attached to the amended complaints, (R. I 26, 64, 87.)
This court construed the contract with the Water Users
Association of May 7, 1906, the water right applications
in the Eder and Fox cases, and water right contract in the
Parks case, Reclamation Act of 1902, and State Statute, and
stated :

‘*Respondents had made all stipulated payments and
complied with all obligations by which they were bound
to the government, and, long prior to the issue of the
notices and orders here assailed, had acquired a vested
right to the perpetual use of the waters as appurte-
nant to their lands. Under the Reclamation Act, supra,
as well as under the law of Washington, beneficial use
was the basis, the measure, and the limit of the right.

10

And by the express terms of the contract made between
the government and the Water Users Association in
behalf of respondents and other shareholders, the de-
termination of the Secretary as to the number of acres
capable of irrigation was to be based upon and meas-
ured and limited by the beneficial use of water. Appro-
priation was made not for the use of the government,
but, under the Reclamation Act, for the use of the land-
owners; and by the terms of the law and of the contract
already referred to, the water rights became the prop-
erty of the landowners, wholly distinct from the
property right of the government in the irrigation
works.

‘¢ And in those states, generally, including the state of
Washington, it long has been established law that the
right to the use of water can be acquired only by prior
appropriation for a beneficial use; and that such right
when thus obtained is a property right, which, when
acquired for irrigation, becomes, by state law and here
by express provision of the Reclamation Act, as well,
part and parcel of the land upon which it is applied.”

The act of Congress referred to by this court fixing the
measure of the water right on a Federal Project is as
follows:

“The right to the use of water acquired under the pro-
visions of the reclamation law shall be appurtenant to
the land irrigated, and beneficial use shall be the basis,
the measure, and the limit of the right.’’ (43 U.S.
C. A. See. 372.)

The laws of the State of Washington referred to in the
court’s opinion fixing the measure of respondents’ water
rights is as follows:

‘‘To the use and enjoyment of the water of streams or
creeks * * * for the purposes of irrigation and making
said land available for agricultural purposes to the
full extent of the soil thereof.’’ (Wash. Ter. Laws
1873. Page 520.)

11
REASONS FOR DENYING THE WRIT.

I.

Beneficial use and water right is appurtenant to the land
is the law of the case.

On the former appeal the petitioner contended that the
water right applications fixed the measure of the respon-
dents’ Fox and Eder water rights at 3 acre-feet per annum,
and Parks at 3% acre-feet per acre, per annum, and if peti-
tioner’s contention was correct then this court would have
sustained his motion to strike, so the question as to the
measure of the water right was directly at issue on the
former appeal. Petitioner also contended that the govern-
ment was the owner of the waters of the Yakima River,
and the water rights and that because the government had
an interest in the subject matter it was an indispensable
party to the action. This court held that the title to the
water was in the state, and the title to the water right
vested in the respondents and was appurtenant to their
lands. The court below, Ickes v. Fox, 137 Fed. Rep. 2nd 30,
33, followed the decision of this court and held that bene-
ficial use was the measure of respondents’ water rights and
that the same were appurtenant to their lands.

Respondents have always contended and now contend
that there is no conflict between the water right applica-
tions in the Fox and Eder cases and water right contract in
the Parks case, and the act of Congress fixing beneficial
use as the measure of a water right on a federal project,
and the measure of a water right by appropriation as de-
clared by the Legislature of the State of Washington. It
is elementary that the Reclamation Act fixing beneficial
use as the measure of the water right and the state statute
fixing the measure of a water right by appropriation as the
amount necessary to make the ‘‘land available for agri.
cultural purposes to the full extent of the soil thereof’’ be-
came a part of the water right applications and contract

SEEPS RAR ARG IN RSIS LRSM

PRB ee EPIL LEER SLIT DE I ES NL : 2 SEN. Sates x LENE A heely MOREE ALR WO ARS

12

with the same force as though expressly incorporated
therein, and in the event there is any conflict the Act of
Congress and the state statute, the same will prevail over
any inconsistent provision in the applications and con-
tract. This rule is clearly stated in California-Oregon
Power Company v. Beaver Portland Cement Company, 295
U.S. 142, 162; 55 S. C. Rep. 725, 731, as follows:

‘“‘The terms of the statute, thus construed, must be
read into every patent thereafter issued, with the same
force as though expressly incorporated therein.”’

Hipp vs. Prudential Life Insurance Company, 244 N.W. 342.
II.

The decision cf the lower court is in harmony with the
statute and court decisions of the state of Washington.

Sec. 8 of the Reclamation Act, 43 U. 8. C. A., See. 383,
provides:

‘‘That nothing in this act shall be construed as affect-
ing or intended to affect or to in any way interfere
wiih the laws of any State or Territory relating to the
control, appropriation, use, or distribution of water
used in irrigation or any vested right acquired there-
under, and the Secretary of Interior, in carrying out
the provisions of this act shall proceed in conformity
with such laws.’’

In State of Nebraska v. State of Wyoming, 295 U.S. 40;
55 8. C. Rep. 568, this court stated:

‘‘Reservoirs of large capacity have accordingly been _
constructed and operated by the United States but |
solely under and subject to the irrigation and appro-
priation laws of Wyoming. * * * All the acts of the
Reclamation Bureau in operating the reservoirs so as
to impound and release water of the river are subject
to the authority of Wyoming.’’

Mason v. Tax Comr. of Washington, 302 U. S. 186.

ir

PCED VIE LON SAN CAE YS REALTY

13

In United States v. Humboldt-Lovelock Irrigation Light
& Power Co., 97 Fed. (2d) 38, 42, where the water rights
involved were located in the State of Nevada, the court
stated:

‘Whatever right appellant inay have, and the extent
thereof must be determined by the law of Nevada, 48
U. S. @. A. 383, California Oregon Power Co. v.
Cement Co., 295 U. 8. 142, 155, 162; 55 S. Ct. 725, 728,
739, 79 L. Ed 1356. We must therefore, review the
statutes and decisions of that state, to determine the
questions herein.”’

The Supreme Court of the State of Washington in Law-
rence v. Southard, 192 Wash. 287, did review the statutes,
and decisions of that court where the identical question at
issue in these cases (the title to the water right above three
acre-feet upon an application identical to the one in the
Eder ease, the one most favorable to the petitioner) was
decided and that decision is based apon grounds such that
none of the facts set up in the answer of the petitioner and
none of the findings of fact in these cases would change the
decision of that court which held that the title to the water
right above 3 acre-feet was vested in the land owner upon
three separate foundations, to-wit:

(1). Reclamation Act. It is admitted that the Bureau
of Reclamation and the United States pursuant to public
notices issued by the Secretary and rules and regulations
promulgated by the Project Superintendent and Irrigation
Manager actually delivered to the Fox lands 5.43 acre-feet,
to the Parks lands 5.93 acre-feet, and to the Eder lands
6.08 acre-feet, per acre, per annum, on an average for ten
years. The right to the use of this amount of water above
the 3 acre-feet was ‘‘acquired under the provision of the
Reclamation Law’’ which expressly declares that any right
so acquired ‘‘shall be appurtenant to the land irrigated.’’

(2). Statutes and decisions of the State of Washington.
By act of the Legislature, Session Laws 1873, Page 520,

—
maine.

14

the measure of the right of appropriators were defined as
follows:

‘‘That any person * * * who may have or hold a title

or possessory right or title to any agricultural lands
* * * shall be entitled to the use and enjoyment of the
waters of the streams or creeks * * * for the purpose
of irrigation and making said land available for agri-
cultural purposes to the full extent of the soil thereof.”’

In Lawrence v. Southard, 192 Wash. 287, the court re-
viewed the former decisions and statutes of that state upon
the identical question involved in these acts and stated:

‘““The right to the use of the impounded and natural
flow waters was acquired for the land which is the sub-
ject matter of the controversy, by the beneficial use
of those waters upon the land for agricultural pur-
poses (Longmire v. Smith, 26 Wash. 439; 67 Pac. 246;
58 L. R. A. 308) and became a part thereof (Ament v.
Bickford, 139 Wash. 494, 495, 247 Pac. 952, whether
the water was from natural flow, or stored in a reser-
voir (Madison v. MeNeil), 171 Wash. 669, 675; 19 Pace.
(2d) 97) and appurtenant thereto. The water code,
See. 39, Chap. 117, Laws of 1917, p. 465, provides that
‘the right to the use of water which has been applied
to a beneficial use in the state shall be and remain
appurtenant to the land or place upon which the same
is used.’ Water in excess of three feet had been ap-
plied to a beneficial use upon the land involved in this
action for a period of six years prior to the enactment
of the water code of 1917, which expressly declares
that, where water has been applied prior to the date
of the enactment of the statue to a beneficial use, it
shall be and remain appurtenant to the land.’’

(3). Title by prescription. In the Lawrence v. Southard
ease the court said:

‘‘Respondent and his predecessors in ownership of the
land have enjoyed the beneficial use of the amount of
water necessary to beneficially irrigate the land to the
full extent of the soil thereof, for agricultural pur-
poses, for a period of twenty-five years, without let

15

or hindrance from anyone, and by such use the re-
spondent has acquired a prescriptive right which vest
title in respondent as completely as if it were conveyed
by deed. Weitensteiner v. Engdahl, 125 Wash. 106,
215 Pac. 278.”’

ITI.

Decision of lower court is in harmony with acts of Con-
gress, state statutes and federal and state court decisions.

The Act of 1866 (Title 43, Sec. 661, U. S. C. A.) provides:

‘‘Whenever, by priority of possession, rights to the
use of water for mining, agricultural, manufacturing,
or other purposes have vested and accrued, and the
Same are recognized and acknowledged by the local
customs, laws, and the decisions of courts, the pos-
sessors and owners of such vested rights shall be main-

tained and protected in the same.’’

It is admitted that respondents used the water delivered
to their lands by the Bureau of Reclamation for agricul-
tural purposes pursuant to the local customs, rules and
regulations promulgated by the Secretary of Interior, and
the respondents as ‘‘the possessors and owners of such
vested rights shall be maintained and protected in the
same’’, as against the unlawful acts of the Secretary of
Interior.

The Reclamation Act of 1902, Sec. 8, 43 U. S. C. A. See.
372 provides:

‘“‘That the right to the use of water acquired under the
provisions of this act shall be appurtenant to the land
irrigated and beneficial use shall be the basis, the
measure, and the limit of the right.’’

The Bureau of Reclamation delivered to the respondents
under the provisions of the Reclamation Act in excess of
the limited amounts of water and by the express terms of
the act the right to the use of water to the extent the same
was so delivered became ‘‘appurtenant to the land ‘‘irri-

EE POOLEY BU GE, KS
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mmeNIRCHNtine snmp
WAP SDS Rie aes

16

gated”’ and as this court has stated on the former appeal
‘‘part and parcel of the land upon which it is applied.”’

The Warren Act of February 21, 1911, 43 U. S. C. A.
Sec. 523, provides:

‘“That whenever in carrying out the provisions of the
reclamation law, storage or carrying capacity has been
or may be provided in excess of the requirements of
the lands to be irrigated under any project, the Secre-
tary of the Interior preserving a first right to lands
and entryman under the project is hereby authorized
upon such terms as he may determine to be just and
equitable to contract for the impounding, storage, and
carrying of water to an extent not exceeding such ex-
cess capacity with irrigation systems. * * s

The Secretary gave the reason for the issuance of the
public notice of October 17, 1930 that the United States
had contracted with the Kittitas Reclamation District.
The contract with that district, however, was made subject
to the ‘‘diversion rights that have been set aside for the
use and benefit of the Sunnyside.’’ (R. II 1057.)

Sec. 4 of the Reclamation Extension Act of August 13,
1914, 48 U. S. C. A. See. 469, provides ‘‘that no increase
in the construction charges shall hereafter be made, after
the same have been fixed by public notice, except by agree-
ment with the Secretary of Interior and the majority of
the water right applicants and entryman to be affected by
such increase.”’

The public notice of October 17, 1930 provided for the
rental of surplus water as follows:

‘©All money collected for the rental of such extra
water will be applied toward the payment of the un-
secured portion of the construction costs of the reser-
voir system of the Yakima Project.”” (R. II 953.)

The letter from the Secretary to the President of De-
cember 11, 1930, states that the cost of the Cle Elum reser-

17

voir is $3,500,000.00 and that of this sum there will be re-
turned to the reclamation fund:

‘*$1,000,000.00 by rentals from the Sunnyside Division
of the Yakima Project.’’ (R. II 955.)

Section 39 of Chap. 117, State Laws of 1917 provides:

‘“‘The right to the use of water which has been applied
to a beneficial use in the state shall be and remain
appurtenant to the land or place upon which the same
is used.’’

The Court in the Lawrence v. Southard case, in constru-
ing this statute said:

‘“‘Water in excess of 3 acre-feet had been applied to
a beneficial use on the land involved in this action for
a period of six years prior to the enactment of the
water code of 1917, which expressly declares that
where the water has been applied prior to the date of
enactment of the statute to a beneficial use it shall be
and remain appurtenant to the land.’’

Since the decision in Erie Railroad Co. v. Tomkins, 304
U. S. 54, S. Ct. 817, the Federal Courts are firmly com-
mitted to the doctrine that:

‘‘Except in matters governed by the Federal Consti-
tution or by acts of Congress, the law to be applied in
any case is the law of the state, and whether the law
of the state shall be declared by the legislature in the
statute, or by the highest court in a decision, is not a
matter of Federal concern.’’ ;

BENEFICIAL USE OF WATER.

Government records of amount of water delivered and
crop production on respondents’ lands from 1917 to 1939,
both inclusive, (R. I 1041-2-3) as explained by study of same
(R. I 1044-5-6) conclusively establish the fact that the crop
production of respondents’ lands fluctuated in direct ratio
to amount of water used in irrigating the same up to the

18

greatest amount used thereon, and that the full production
value of these lands cannot be reached and maintained only
by the application of a sufficient amount of water to irri-
gate the same ‘‘to the full extent of the soil thereof.’’

The ‘‘expert’’ Johnson, upon whose testimony the dis-
trict court based its findings, testified that he would not
be able to estimate the per cent of crop production which
could be obtained upon respondents’ lands by the use of
the limited amounts of water. (R. I 644.)

FINDINGS OF THE DISTRICT COURT.

The findings of the district court are flatly contradicted
by government records, unchallenged testimony of gov-
ernment employees, and the physical facts. To illustrate—
in order to make finding that previous Secretaries had not
made water deliveries upon the basis provided in public
notices, rules and regulations, the district court found ‘‘the
ditch riders and water masters and other local employees
of the Reclamation Bureau, who delivered excess water
under the ‘holler’ system were not qualified to determine
the amount of water needed for beneficial use on the
lands.”’

The utter absurdity of this finding is apparent because
the ‘‘expert’’ Johnson, upon whose testimony the trial
court based its findings, testified he spent at the rate of one
minute per acre in classifying the old supplemental
(Parks land (R. I 641) and that he did not classify the
public notice (Eder and Fox) lands (R. 1 642). It had been
the duty of Watermaster Chrestenson and Cheyne for a
period of 28 years to study the water requirements of re-
spondents’ lands and to make water deliveries on the basis
of beneficial use. Both testified that they followed the pub-
lic notices issued by the Secretary and the rules and regula-
tions which limited deliveries to beneficial use. (R. I 455,
460.)

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,

Another illustration of the absurdity of the trial court’s
findings is the finding that the Sunnyside Canal was de-
signed and constructed to carry only 3 acre-feet to re-
spondents’ and other water users’ lands. While, in truth

and in fact, the government records show that the canal and
distribution system had carried for many years on an av-
erage of 4 acre-feet. (R. 901-8-81.)

19

COMMENTS ON PETITION.

1. (a). Appropriation. This court on former appeal
and Washington court (Lawrence v. Southard) held re-
spondents were the owners of water rights to the extent
of past use by appropriation. Arizona v. California, 283
U. S. 423, 459.

(b). Prescription. The Act of 1866 expressly states
that the ‘‘right to the use of water’? which has vested
‘shall be maintained and protected’’. Respondents’ rights
vested when water was first used on their lands. Long-
mire v. Smith, 26 Wash. 439.

The Reclamation Act of 1902 provides that ‘‘the right
to the use of water acquired under the act ‘‘shall be ap-
purtenant to the land.’’ The right to the use of. water
above the limited amount became appurtenant to the land
under this act.

Section 39, Chap. 117, Laws of 1917 provides that the
right to the use of water ‘‘shall be and remain appurte-
nant to the land’’ and the court in Lawrence v. Southard
held this was legislative confirmation of previous holdings
of the court.

(c). The court below reversed the district court because
Congress fixed beneficial use as the measure of the water
rights.

2. Government records conclusively established the fact
that contracts have been entered into which will fully re-
pay all sums advanced by the United States for construc-
tion and leave a profit of $145,045.00 (R. II 825, 830.)

Se SOP Fe

fog EK penis OTe Ry I ae eS

Pee oe eee

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PER A AA BOP EEE

20

If decision of district court is upheld a water user in
a Federal project would have no right which the Secre-
tary would be required to recognize.

Government crop records supported by testimony of
Watermasters Cheyne and Chrestenson, and respondents’
neighbors, conclusively established the fact that the water

vas not wasted but was beneficially used in crop pro-
duction.

The decision below is in complete harmony with the
practice of the Bureau of Reclamation on the Yakima
Project at all times prior to the promulgation of the
notices sought to be vacated, and in harmony with the
practice on the Hermiston, Menindoka, Burley and
Truckee-Carson projects.

3. The respondents’ rights were acquired under and
pursuant to the custom and practice inaugurated and con-
sistently followed by previous Secretaries of the Interior
for a quarter of a century. 2800 second-feet of natural
flow water were going to waste at the time the headgates
were partially closed on June 1, 1982. There was a heavy
carry-over in reservoirs at the end of each year. (R. ll
910.) The Secretary partially closed the gates to enforce
payment of the million doliar charge.

4. The Reclamation Extension Act positively forbids
the increase of construction charges and the Act of March
3, 1915, requires the Secretary to procure binding con-
tracts sufficient to cover all costs prior to proceeding with
the construction which he failed to do.

The controlling question presented by the petition herein
is;

Does the Secretary of the Interior have the power to issue
a Public Notice which overrides the Act of 1866, Reclama-
tion Act of 1902, Warren Act of 1911, Reclamation Exten-
sion Act of 1914, Sec. 39 of Chap. 117 Laws of Washington

oa

21

for 1917, federal and state court decisions and to deprive
the respondents of their water rights in violation of both
Federal and State Constitutions without giving them a
chance to be heard?

If this question is answered in the negative then the
petitions must be denied.

CONCLUSION.

For these reasons it is respectfully submitted that the
petition for writs of certiorari should be denied.

Sreruen KE. Cuarree,
Attorney for Respondents,
Sunnyside, Washington.

Wo. G. Frety,
Mills Building,
Washington, D. C.

November, 1943.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA34086415_1834%3A2. Public record. Not legal advice.