Petitioners Brief — Andrus v. Idaho

‘empeseuer~a 3

Ruprems Court, U. B:

FILED

iba DEC 11 1979

Iu the Suprenw Court of the Wi aR... CLERM

OCTOBER TERM, 1979

CECIL D. ANDRUS, SECRETARY OF THE INTERIOR,

PETITIONER

VU.

STATE OF IDAHO, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR THE PETITIONER

WADE H. McCCREE, JR.

Solicitor General

JAMES W. MOORMAN

Assistant Attorney General

LoulIs F. CLAIBORNE

Deputy Solicitor General

WILLIAM ALSUP

Assistant to the Solicitor General

JACQUES B. GELIN

EDWARD J. SHAWAKER

Attorneys

Department of Justice

Washington, D.C. 20530

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Introduction and summary of argument ........

PAI oon sens secicemmeis tn scrienitnwnnennnbenniomnqnoneass

I. The plain language of the Carey Act

shows that it established no entitlement

ee een

II. The legislative history of the Carey Act

demonstrates that Congress intended no

entitlement to public lands .................-..

III. Contemporaneous construction by the

Secretary and subsequent legislative

history demonstrate that no entitle-

ment to public lands was intended ........

IV. This Court’s decision in Idaho Irriga-

tion Co. v. Gooding does not support

ep Ne I nan

NEALE RATS APE TOOT! TO

TI nc aes decnten mes inna

CITATIONS

Cases:

Anderson v. Yungkau, 329 U.S. 482........

Andrus v. Charlestone Stone Products

Fig ee I I seernnitscianactnleseneenebicacnnion

11

28

II

Cases—Continued Page

Board of Governors v. First Lincolnwood

Corp., 480 U.S. 264.....u400 ee 31

Cameron v. United States, 252 U.S. 450.. 30

Creek Nation v. United States, 318 U.S.

+ | ES 10

Farmers Bank v. Federal Reserve Bank,

262 U.S. 660 ccc 10

Idaho Irrigation Co. v. Gooding, 265 U.S.

1) |, mn 33, 34

INS v. Bagamasbad, 429 U.S. 24 ............ 9

Saxbe v. Bustos, 419 U.S. 65

State v. Marshall, 20 Mont. 510, 52 P.

6B ~ Ww. -oreecsscosutstecssuunasamienn 5, 10, 34

State v. Wright, 17 Mont. 565, 44 P. 89.. 34

State of Wyoming, 36 Pub. Lands Dec.

| mare 9, 28, 29

Twin Falls Land & Water Co. v. Twin

Falls Canal Co., 7 F. Supp. 288 ............ 34

Udall v. Tallman, 380 U.S. 1 .................... 30

United States v. Midwest Oil Co., 236

US. 460 ge 26

United States v. Rutherford, No. 78-605

(June 18, 1979) ccc 31

United States v. Wilbur, 288 U.S. 414.... 10

Yakima Development Co. v. State of —

Washington, 34 Pub. Lands Dee. 453.... 28

Statutes and regulation:

Act of Mar. 3, 1875, ch. 160, 18 Stat.

407% .............-<scocssssensgniaiaaen 12

Act of Oct. 2, 1888, ch. 1069, 25 Stat.

1] aR 14

Act of Aug. 30, 1890, ch. 837, 26 Stat.

|} NCNM 14

mm

Statutes and regulation—Continued Page

Act of June 11, 1896, ch. 420, 29 Stat.

A ws iclateny bostigpenninmeinienibeionnnnnre 3

Act of May 27, 1908, ch. 200, Section 1,

85 Stat. 347, 43 U.S.C. 646 .................. 3, 30

Act of Feb. 18, 1909, ch. 150, Section 1,

35 Stat. 688, 48 U.S.C. 646 ................. 30

Act of Feb. 24, 1909, ch. 178, Section 1,

35 Stat. 644, 43 U.S.C. 647 .................. 30

Act of Mar. 15, 1910, ch. 96, 36 Stat. 237,

43 U.S.C. (1970 ed.) 648 ..................-... 2,4,5

Act of Feb. 16, 1911, ch. 90, 86 Stat. 913.. 30

Act of Mar. 4, 1911, ch. 285, Section 1,

36 Stat. 1417, 43 U.S.C. 645 ~.............. 30

Act of Dec. 29, 1916, ch. 9, 39 Stat. 865,

43 U.S.C. (1970 ed.) 300 ...................... 5

Act of Feb. 14, 1920, ch. 74, 41 Stat. 407,

I I ch nciniinciiatimticesensbnerka 31

Act of Jan. 6, 1921, ch. 10, 41 Stat. 1085.. 31

Carey Act of Aug. 18, 1894, ch. 301, Sec-

tion 4, 28 Stat. 422, 48 U.S.C. 641........ 2, 3, 5,

Desert Land Act of 1877, 48 U.S.C. 321.. 12

Federal Land Policy and Management Act

of 1976, Pub. L. No. 94-579, 90 Stat.

2748:

Section 204, 48 U.S.C. 1714 .............. 4,5

Section 704(a), 90 Stat. 2792 _........ 2,4, 5

Homestead Act of 1862, ch. 75, 12 Stat.

Se NEESER Snr en 12

Pickett Act, 43 U.S.C. (1970 ed.) 141... 5, 26

Pub. Res. 28, $5 Stat. S77 ........................ 3

Reclamation Act of 1902, ch. 1093, 32

ARES Ra 15

IV

Statutes and regulation—Continued Page

Taylor Grazing Act, Section 7, 43 U.S.C.

NE carsioteasiaacinatakabelauunuaeeriadcaummsigeeteiiews 5

Rev. Stat. 2479-2484, 43 U.S.C. 982-986.. 22

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ee NN ID. ci ccecsaseachintalecatdcsesnedeatnidees chien 30

ER RE eon act eee 30

RP I IE sdb sactavedetodaciadhucecoueeapddiecaiancdans 11

ee PEE sence siete ar 11

45 U.BAn (TOTO O6.) OB6 onus cescce: 11

ao USA. (i970 of.) O66 .......................... 11

43 U.S.C. (1970 ed.) 956 20. 11

43 U.S.C. (1970 ed.) 957 -......-.....--..-0..-0. 11

43 U.S.C. (1970 ed.) 959 .......................... 11

43 U.S.C. (1970 ed.) 961 0... 11

43 U.S.C. (1970 ed.) 962 00... 11

43 U.S.C. (1970 ed.) 966 ..0000. 11

A NR I Sica cicathictceeintacenceastsdpudeliinnohans 11

Ie Ws, GD sitiicctnconinensllansoneinnieemserecinceiness 11

ee RS ee ee 5

Miscellaneous:

Annual Report of the Commissioner of

the General Land Office (1884) .......... 13

Cong. Globe, 40th Cong., 3d Sess. (1869). 12

26 Cong. Rec. (1894) :

8 BREESE SO an Feit ine 19

ie aire h Rca Lite el ee 5, 17

iy IE Uh sini eulebaniveaiacerti aiden 18

MI Uaccsiedcccessrcicsinaniaecbicies aerate 17, 18, 19, 36

NEN aathiinslonisspsicrmshtoesetsladiiobeacateclectate aed, 19

LENSER a Nien MORN TTT 19

NII cetteceie arora eoastiiaitomiaiamcucnes 9, 20, 24

Miscellaneous—Continued Page

i TDD sicicsicctivcnissctesbinieetcteigelaaane 23, 24

ips TI esi neecscetneennnen 24

OD. TR FI neces wvinucitnneecteonsunsiesiniaiiaats 24

>, GERD nicsececncacownstlanesspadaaceaanaaaaaal 23

| aE see eT 23, 24

teen 23

mY EN 24

1; GUI iosecicciskinssicnieneniendicionen ene 24

SE RRO TNO eke cee 24

hy TEED wis sisciceciernaceeaniaeia ae 24

Sy”, Peer ena 24

DR: DET OUD oscces: nevsisicnerencnetlanmaian 24 .

» 00 oe ee 9, 20, 25

i, TRUE ccccudseecse aes RR mo 5 26

42 Cong. Rec. (1908)

Bi, I ncocirssanressnostusconsctninatlansiaraan aan 32, 33

. GOS soci 31

p O00F un 27

Exec. Order No. 10,355, 17 Fed. Reg.

GBA CUTER) sccciiemendtinisoneeeee 5

42 Fed. Reg. 18100 (1977) ...................... 3

P. Gates, History of Public Land Law

Development (1968) ......000022002220.2---- 12, 18, 14

General Land Office, Regulations Concern-

ing the Selection of Desert Lands Un- ~™

der the Act of Congress Approved Au-

gust 18, 1894, 37 Pub. Lands Dec. 624

CGPI nniasssconscshenonecvemaiih oesanuamneaeniamnnne 28

B. Hibbard, A History of the Public Land

Policies (1989) cecoccco-ccccceeeseegecseeesesse 12,138,714 °

H.R. Rep. No. 569, 52d Cong., Ist Sess. _

eT IE oe 15

VI

Miscellaneous—Continued Page

H.R. Rep. No. 662, 61st Cong., 2d Sess.

CRRA) nnvssenscnisstnchasienateiemnsnnlaanlaaeanaenn 4

H.R. Rep. No. 1152, 58d Cong., 2d Sess.

€ ZIG D ssnconennsnnuisistininisadlgueneieuiguaaanan anne 17,18

H.R. Rep. No. 1915, 60th Cong., 2d Sess.

( IBID .<iccensvsesnivisseniesiopesiinessisiiiaiiaiis disatin nnn 33

H.R. Rep. No. 2904, 56th Cong., 2d Sess.

(RIE J a<ccscssssiinsiinepscinennmmendengicges anna 33

III Kinney on Irrigation and Water

Rights (2d ed. 1912) ..00..2.. 28

Report of the Director of the Bureau of

Land Management (1952) -................... 4

S. 1591, 538d Cong., 2d Sess. (1894) ........ 17

S.J. Res. 34, 62d Cong., 1st Sess. (1911).. 30

S.J. Res. 51, 60th Cong., 1st Sess. (1908). 30

S. Rep. No. 332, 58d Cong., 2d Sess.

BIE D - cccecsicecteseonensdiisiacanslictusecan ae ee 17, 25

S. Rep. No. 367, 61st Cong., 2d Sess.

(BBD ssicxssisscinnciusstncsensanieeneiaeanaaiae enn 4

S. Rep. No. 1020, 60th Cong., 2d Sess.

(SOUND acssiectiseseccrsnmnecsnesekansuniaesia ialasianananann 33

Superintendent of Documents, Catalogue

of the Public Documents of the Fifty-

Third Congress (Mar. 4, 1893 to June

50, 1806) (7 ommend 18

In the Supreme Court of the United States

OCTOBER TERM, 1979

No. 79-260

CECIL D. ANDRUS, SECRETARY OF THE INTERIOR,

PETITIONER

Vv.

STATE OF IDAHO, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR THE PETITIONER

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a)

is reported at 595 F.2d 524. The opinion of the dis-

trict court (Pet. App. 2a-29a) is reported at 417 F.

Supp. 873. The opinion of the Interior Board of

Land Appeals (Pet. App. 30a-38a) is reported at 21

I.B.L.A. 210.

JURISDICTION

The judgment of the court of appeals (Pet. App.

43a) was entered on April 19, 1979. Mr. Justice

(1)

2

Stevens subsequently entered an order enlarging the

time in which to petition for a writ of certiorari to

August 17, 1979, and a petition was filed on August

16, 1979. On October 15, 1979, this Court granted

certiorari (A. 32). The jurisdiction of this Court

is invoked under 28 U.S.C. 1254(1).

QUESTION PRESENTED

Whether the Carey Act, 48 U.S.C. 641, requires

the Secretary of the Interior indefinitely to reserve

from appropriation for other public or private uses

some 2.4 million acres of desert land within Idaho

for the eventuality that the State may be able and

willing to select all or any part of such acreage for

irrigation and reclamation under the Act.

STATUTES INVOLVED

The Carey Act of Aug. 18, 1894, ch. 301, Section

4, 28 Stat. 422, 43 U.S.C. 641, and the Act of Mar.

15, 1910, ch. 96, 36 Stat. 237, 43 U.S.C. (1970 ed.)

643, repealed by Section 704(a) of the Federal Land

Policy and Management Act of 1976, Pub. L. No. 94-

579, 90 Stat. 2792, are set forth at Pet. 2-5.

STATEMENT

1. In order to reclaim and populate arid lands of

the West, the Carey Act, Section 4 of the Act of Aug.

18, 1894, ch. 301, 28 Stat. 422, 43 U.S.C. 641, “au-

thorize[s] and empower[s] the Secretary of the In-

terior with the approval of the President,” to con-

3

tract to grant and patent “desert lands” to any state

in which there are such lands, in exchange for the

state’s agreement, among other things, to cause the

land to be irrigated, reclaimed, cultivated, and settled.’

After a state’s application for a grant has been ap-

proved, the land is segregated from the public domain

for a period of from three to 15 years for the pur-

pose of allowing the state to cause an adequate irriga-

tion system to be constructed and a sufficient water

supply to be made available. Upon satisfactory proof

that the conditions of the contract have been fulfilled,

patents must be issued to the state or its assigns for

the land reclaimed.2 Originally, no state could re-

ceive more than one million acres of land for Carey

Act development. In 1908, however, Congress raised

the ceiling for Idaho to three million acres. Act of

May 27, 1908, ch. 200, Section 1, 35 Stat. 347, 43

U.S.C. 645;* Pub. Res. 28, 35 Stat. 577; see generally

42 Fed. Reg. 18100 (1977) (proposed Carey Act

regulations).

1 “Desert land” is land which will not yield an agricultural

crop without irrigation. See 43 U.S.C. 322, 641.

2The Carey Act requires that the land conveyed to the

States be used for actual settlement by individuals. In the Act

of June 11, 1896, ch. 420, 29 Stat. 413, 434-435, however,

Congress permitted the Secretary to patent land to states

prior to actual settlement and cultivation, provided that water

had been furnished to the land. This statute also authorized

liens against the land prior to patent.

3This statute also raised the limitations for Colorado,

Nevada, and Wyoming to two million acres.

4

In 1910, the Secretary was authorized to with-

draw desert lands temporarily from the public do-

main, upon request by a state, but prior to its sub-

mission of a formal plan under the Carey Act. Act

of Mar. 15, 1910, ch. 96, 36 Stat. 287, 43 U.S.C.

(1970 ed.) 643.* This legislation was added to pre-

vent speculative filings under entry statutes on land

contemplated by a state for a Carey Act project. S.

Rep. No. 367, 61st Cong., 2d Sess. (1910); H.R.

Rep. No. 662, 61st Cong., 2d Sess. (1910).

No state has reached its ceiling of land permitted

under the Act. To date, Idaho has received approxi-

mately 600,000 acres of land under the Act. See Re-

port of the Director of the Bureau of Land Manage-

ment Table 114 (1952) (the most current report on

the Carey Act). Most patents under the Carey Act

were issued in the early years of this century when

ready water sources were more conveniently located

to arid land. As water sources became increasingly .

unavailable to arid lands, new Carey Act projects be-

gan to dwindle and by 1952 were all but nonexistent.

Recent improvements in technology for pumping

water from deep wells and river canyons, however,

have revived interest in Carey Act developments.

4 After the district court’s decision and judgment, this

provision was repealed by Section 704(a) of the Federal

Land Policy and Management Act of 1976 (FLPMA), Pub. L.

No. 94-579, 90 Stat. 2792. Section 204 of FLPMA, 43 U.S.C.

1714, however, gave the Secretary general authority to make

withdrawals. The Secretary construes his authority under

Section 204 to allow him to withdraw public lands from entry

pending submission of a formal plan under the Carey Act.

5

2. In 1974, respondent State of Idaho, invoking

Section 648, requested that the Secretary withdraw

temporarily a specified tract of 27,400 acres in Idaho

pending the State’s submission of a proposed develop-

ment plan under Section 641 (Pet. App. 3la-32a). On

January 24, 1975, the Bureau of Land Management

rejected the application for a temporary withdrawal

because the land had been withdrawn for other pur-

poses including, as to some of the land, stock-drive-

way purposes (id. at 3la, 38a).° The State appealed

BLM’s action to the Interior Board of Land Appeals

only with respect to the lands withdrawn for stock-

driveway purposes (id. at 33a). The State simul-

taneously petitioned the Board, pursuant to Section

7 of the Taylor Grazing Act, 48 U.S.C. 315f, to

classify the tract as suitable for development under

the Carey Act (id. at 34a).

The State argued that the Carey Act gave Idaho

the right to three million acres of public land for

Carey Act developments and that this right vested

in 1894 when the Act became law and takes prece-

dence over subsequent withdrawals and uses (Pet.

App. 36a). Accordingly, the State contended that the

Secretary has no discretion under Section 6438 to deny

5 Under the authority of 43 U.S.C. (1970 ed.) 141; Exec.

Order No. 10,355, 17 Fed. Reg. 4831 (1952), the Secretary

withdrew the lands in 1955 for driveways for stock. See Act

of Dec. 29, 1916, ch. 9, Section 10, 39 Stat. 865, 43 U.S.C. (1970

ed.) 300, repealed and replaced by the Federal Land Policy

and Management Act of 1976, Pub. L. No. 94-579, Sections 204,

704(a), 90 Stat. 2792, 48 U.S.C. 1714; 43 C.F.R. 2313.1(c)

(stock driveways).

6

Idaho’s request so long as the lands requested were

desert lands (Pet. App. 36a). On July 31, 1975, how-

ever, the Board held that Section 641 “is couched in

discretionary language authorizing and empowering—

not requiring—the Secretary to contract and agree

with the states to donate, grant, and patent lands”

(ibid.). The Board affirmed the refusal to withdraw

the lands and directed the petition for classification to

the BLM for initial consideration (id. at 38a).

3. On February 21, 1975, several months before

the Board’s decision, the State filed the present action

in the United States District Court for the District

of Idaho against the Secretary of the Interior. The

complaint alleged that the Secretary had notified the

State (i) that he would not allow “requests for seg-

regation or withdrawal under the Carey Act as a

matter of right” and (ii) that he had the authority

to refuse to convey lands under the Carey Act even

though they are in fact desert lands and suitable for

agricultural use (A. 5-6). The complaint sought

a declaratory judgment that the Secretary’s policy

violated the Carey Act.® The Secretary’s answer ad-

mitted that he would not allow requests for segrega-

tion or withdrawal under the Carey Act as a matter

of right (A. 24).

On cross motions for summary judgment (A. 28-

31), the district court agreed with the Secretary that

6The complaint also alleged that another policy of the

Secretary concerning the amount of acreage available to a

family violated the Act (A. 6-22). The courts below decided

this issue against the Secretary, and the Secretary did not

seek certiorari on this issue (see Pet. App. 28a).

7

the Carey Act did not make a grant in praesenti to

the State, and that the State did not have a right to

select any particular desert lands for Carey Act de-

velopment (Pet. App. 18a). The court, however, con-

cluded that the Carey Act ‘‘conferred upon the State

of Idaho a right of entitlement to three million acres

of desert land suitable for irrigation, cultivation and

settlement” and that the Secretary must preserve

enough desert land to satisfy this right (id. at 18a-

19a; emphasis added) :

The State is guaranteed a maximum entitle-

ment of three million acres of suitable desert

land for Carey Act development to select from

time to time, which it cannot be deprived of by

the Secretary of the Interior, if the State meets

the conditions of the Carey Act. However, the

State may not perfunctorily select acreage pre-

viously withdrawn for other purposes such as

in this case a withdrawal for stock-driveways.

The Secretary is under an obligation to preserve

enough desert land suitable for Carey Act de-

velopment to fulfill the State’s right of entitle-

ment, which the Federal Government must con-

tract to donate to the State in accordance with

the Act.

The court also held that if the State is denied an ap-

plication for land for Carey Act development because

that land has been withdrawn for some other use, the

State’s remedy is to petition the Secretary to open

that land for Carey Act development, and that the

Secretary’s decision, once final, is reviewable in the

courts (id. at 19a).

8

The district court entered a judgment against the

Secretary that “ordered, adjudged and declared’”’ that

Idaho “is entitled to have withdrawn and patented

three million acres of the desert lands in the public

domain (as reduced by prior patents issued pursuant

to the Carey Act) situate in the State of Idaho for

entry under said Act, providing that there are suf-

ficient lands of such kind, quality and character with-

in the State of Idaho, and providing that the State

of Idaho satisfies all of the terms and conditions of said

Act * * *” (Pet. App. 40a). The Secretary and the

State both appealed. On April 19, 1979, the Ninth

Circuit affirmed in a one-sentence opinion (id. at 1a).

INTRODUCTION AND SUMMARY OF ARGUMENT

The Secretary objects to that portion of the judg-

ment of the district court declaring that the State has

an entitlement to an additional 2.4 million acres and

that the Secretary must hold for eventual disposition

under the Carey Act approximately 2.4 million acres

of unappropriated desert lands.

Our submission is that the Carey Act establishes no

entitlement to any public lands. The Carey Act merely

“authorize[s] and empower[s]” the Secretary of the

Interior, in his discretion and subject to the approval

of the President, to enter into contracts to grant desert

land to the states upon the condition that they re-

claim it. The Act does not require the Secretary

and the President to grant the maximum acreage au-

thorized for each state. The plain language of th:

9

statute is permissive, not mandatory, and is thus

different from the unmistakable language used by

Congress in making grants of public lands to other

statutes. Moreover, the legislative history is quite

clear on this point. The congressman who introduced

the language on behalf of the House conferees stated

on three separate occasions in the House of Repre-

sentatives that the Act ‘does not make any grant,

but only authorizes the Secretary of the Interior with

the approval of the President to make a contract * * *

for the reclamation of not exceeding a million acres

in each State” or words to this effect. 26 Cong. Rec.

8391, 8431 (1894). Finally, the consistent adminis-

trative interpretation has been that acceptance or re-

jection of a contract offered by a state under the

Act “is a matter wholly within the discretion of the

Department.” State of Wyoming, 36 Pub. Lands Dec.

399 (1908). This settled construction by the agency

charged with administering the Act is sufficiently

contemporaneous with its enactment that it is dis-

positive of any residual doubt concerning the mean-

ing of the Act.

ARGUMENT

I. The Plain Language of the Carey Act Shows That It

Established No Entitlement to Public Lands

The decisive language of the statute is permissive

—not mandatory. The Secretary is “authorized and

empowered” to contract to grant desert land to the

state upon certain conditions. To “authorize” ad-

ministrative action is not to require that it be taken.

See, e.g., INS v. Bagamasbad, 429 U.S. 24, 26 ( 1976) ;

10

Anderson v. Yungkau, 329 U.S. 482, 485 (1947);

Creek Nation v. United States, 318 U.S. 629, 639

(1943) ; United States v. Wilbur, 283 U.S. 414, 418-

419 (1931) ; Farmers Bank v. Federal Reserve Bank,

262 U.S. 649, 662-663 (1923). That Congress used

“authorized” in the permissive sense is all the more

apparent from the fact that the Act uses the manda-

tory “shall” in connection with other responsibilities

under the statute (Pet. 3-4).’

Other features of the Act confirm our interpreta-

tion. Congress in the same breath used the word

“binding” to describe the contract. It is clear that the

contract, once made, was to be binding, but, equally

clearly, the Secretary was given discretion whether

or not to enter into such a contract in the first place.

Had the statute itself created a binding right to arid

lands, it would have been unnecessary to provide for

any contract. The Secretary, moreover, may grant

“not exceeding” three million acres to the state. Had

Congress intended to confer an inchoate right to three

million acres, subject only to the availability of “suit-

able” land, Congress would have qualified the acreage

with a proviso such as “to the extent such lands are

available” rather than the phrase “not exceeding.”

7 As the Court said in Anderson, supra, 329 U.S. at 485:

The word “shall” is ordinarily “the language of com-

mand.” Escoe v. Zerbst, 295 U.S. 490, 4938. And when

the same Rule uses both “may” and “shall,” the normal

inference is that each is used in its usual sense—the one

act being permissive, the other mandatory. See United

States v. Thoman, 156 U.S. 353, 360.

11

“Not exceeding” reflects discretion to grant less

than three million acres even where the statutory con-

ditions are met.

Furthermore, the President must “approve” all

contracts under the Act. No criteria, however, are

specified to guide the President. Inasmuch as it is un-

likely that the President’s approval was required

simply to confirm the Secretary’s factual determina-

tion that the statutory requirements are met, the

provision for the President’s concurrence must have

been intended to insure that, considering all rele-

vant factors of public policy, release of the land is

in the public interest.

The plain language of the statute thus defeats any

claim of right to select up to three million acres of

suitable desert land. Certainly, there is nothing in

the Carey Act that overcomes the presumption against

statutory grants of the public domain. See Andrus

v. Charlestone Stone Products Co., 486 U.S. 604, 617

(1978).°

II. The Legislative History of the Carey Act Demonstrates

That Congress Intended No Entitlement to Public

Lands

a. By 1875 it was apparent that virtually all of

the public Jands in the West blessed with readily

accessible water had been settled, chiefly under the

8 For other examples of statutes in which Congress used

express granting language, see 43 U.S.C. (1970 ed.) 934, 946,

962, 966; 43 U.S.C. 857, 858, 982, 983. Contrast these with, e.g.,

43 U.S.C. (1970 ed.) 956, 957, 959, 961, in which Congress

used the words “authorized and empowered” to give discre-

tionary authority to the Secretary.

ne)

12

Preemption Acts and the Homestead Act of 1862,

ch. 75, 12 Stat. 392. P. Gates, History of Public

Land Law Development 637-638 (1968) (hereafter

“Gates’’); B. Hibbard, A History of the Public Land

Policies 144-170, 347-409, 424-426 (1939) (hereafter

“Hibbard”). Yet vast reaches of desert and arid lands

remained unreclaimed, unsettled and unproductive.

At the same time, Western rivers, swollen annually

by the melting mountain snows, flowed uninterrupted

to the sea. One solution to this anomaly was to divert

sufficient water to irrigate the deserts. Western in-

terests, galvanized by “irrigation conventions” held

throughout the West, increasingly urged Congress to

undertake and to promote reclamation projects. See

Gates at 635-654; Hibbard at 424-429; and note 12,

infra.”

One obvious obstacle to reclamation effort, however,

was its substantial cost. Reluctant to undertake the

cost at national expense, Congress at first attempted

to rely on private capital to finance irrigation projects.

The Desert Land Act of 1877, 43 U.S.C. 321, was the

first general reclamation statute." It authorized im-

mediate entry by individuals on up to 640 acres (later

320 acres) of desert lands (defined as lands exclusive

® As early as 1869 Utah asked for public lands to be used in

promoting irrigation projects. Cong. Globe, 40th Cc. g., 3d

Sess. 781 (1869).

10 In 1875, a statutory experiment for disposing of desert

land in Lassen County, California, provided that unsurveyed

tracts not to exceed a section would be sold to certain settlers

who should undertake to irrigate and reclaim it within two

years. Act of Mar. 3, 1875, ch. 160, 18 Stat. 497.

13

of timber and mineral lands which will not, without

irrigation, produce some agricultural crop) and the

eventual sale to them upon proof of irrigation of the

land.

Unfortunately, although a considerable amount of

acreage was entered under the Desert Land Act, little

was actually irrigated and patented. Annual Report

of the Commissioner of the General Land Office 8

(1884) ; Hibbard at 428. A major difficulty was that

ordinarily it was not possible for a single settler to fi-

nance the construction of canals and pipes over long

distances and hills merely to water a small tract. Col-

lective action and expensive capital outlays were nec-

essary to take advantage of the Desert Land Act. See

Gates at 651-652. The Act also invited many abuses.

Hibbard at 428-480. For example, numerous filings

under the Act by speculators who had no intention of

irrigating it during the three-year period allowed for

installing irrigation ditches set aside millions of acres

of land that might otherwise have been settled. Large

economic groups and land speculators, it has also been

contended, used the Act to acquire title to the best

of the arid lands with little or no serious effort to

irrigate them and, with title in hand, turned their

efforts to obtaining federal or state aid to finance

irrigation works. Gates at 647-648.

As the difficulties under the Desert Land Act

mounted, the Western States stressed two further

solutions to the problem of reclamation. One was for

the federal government to plan and to finance large-

scale reservoirs and irrigation projects and to sell

14

the reclaimed land to settlers.’ It was also proposed

that the federal government cede all or virtually all

public lands to the States so that the States could

provide for the prompt reclamation of the land. Gates

at 647-651." Eventually, at the urging of President

11 Jn 1888, Congress withdrew from entry or sale all public

lands designated by the Geological Survey as suitable for

reservoirs, canals or susceptible to reclamation by irrigation.

Act of Oct. 2, 1888, ch. 1069, 25 Stat. 527. All such lands

were later restored to entry in 1890 save those sites sug-

gested by the Geological Survey for reservoir sites. Act of

Aug. 30, 1890, ch. 837, 26 Stat. 391; see Hibbard at 430-431;

Gates at 641-642.

12In support of this proposal, Representative Lanham

stated in his report in 1892 for the Select Committee on Irri-

gation of Arid Land on an unsuccessful bill to give virtually

all public lands to the western states:

[T]he people of [the western] States and Territories,

recognizing the prevailing sentiment and realizing fully

all the difficulties which encompass the situation, have

reached the conclusion that the General Government will

never [undertake to reclaim the arid lands]. They despair

of any such prospect.

It would prolong this report too much to attempt an

elaborate and detailed review of all the National Govern-

ment has already done, the labor and money it has ex-

pended, the investigations it has conducted, the explora-

tions it has made, the reconnaissances it has projected,

the differentiations of irrigable lands it has disclosed, and

the useful information and scientific data it has furnished

in relation to the subject of irrigation and the recla-

mation of arid lands.

It has maintained bureaus. It has employed experts. It

has made surveys, topographic and hydrographic. It has

measured rainfall. It has gauged streams. It has defined

catchment and drainage areas. It has located reservoir

sites. It has investigated storm waters and their utiliza-

15

Theodore Roosevelt, an advocate of reclamation and

conservation, Congress undertook a program of fed-

erally managed and financed reclamation in the Re-

clamation Act of 1902 (also known as the Newlands

Act), ch. 1098, 32 Stat. 388."

b. The Carey Act was enacted in 1894 when the

further usefulness of the Desert Land Act seemed

in doubt. The problem and policy alternatives were

described in 1894 in a report of the House Committee

on Irrigation of Arid Lands on a bill to require sur-

veys for possible federal reclamation:

There are three ways in which to [reclaim

the arid lands.] [O]ne is to conduct the work

tion, torrential flows and their conservation, the waters

upon the earth and the waters under the earth, condi-

tions of climate, the best methods of cultivating the

soil by irrigation, and the agricultural results and possi-

bilities which follow. It has even bombarded the skies

and sought through explosives to wring waters from the

reluctant clouds. * * *

* * * * ea

Why should the Government desire to longer retain

proprietorship of this arid region? Why, for that matter,

should it now have a vast domain of unappropriated

public land? It only holds lands as a trustee and until

they can be suitably settled and occupied, and is pre-

sumptively interested only to the extent that actual, bona

fide settlers may be accommodated. It is not supposed

that it wants to retain them in order that they may be

donated to corporations or given away as subsidies.

H.R. Rep. No. 569, 52d Cong., Ist Sess. 3-4 (1892).

13 The statute authorized the Secretary of the Interior to

use receipts from the sales of public lands and to withdraw

lands from entry as necessary for the construction of irriga-

tion works.

16

under the authority and direction of the Na-

tional Government; another is to transfer these

lands to the States in which they are situated,

under certain restrictions, looking to the protec-

tion of the homesteader, but leaving the duty of

reclaiming the land and protecting the settler

to the State. The other is to leave the whole

question to private enterprise, trusting that

combinations of capital will construct canals and

reservoirs, and furnish the settler with water at

such rates as will enable him to prosper.

* * * * *

* * * Those who have had no practical experi-

ence in an arid country will readily understand

that one who owns the water, with an unrestricted

right to charge the owner of the land for its use,

is the complete master of the situation. Farmers

who have been buying water of syndicates own-

ing canals have been in a state of constant tur-

moil from the first. While they have been unable

to pay the prices charged for water, it is a fact

that in most instances those who have constructed

canals and ditches have realized but little out of

their investment.

* x * * *

* * * These facts make it evident that either the

nation or the State should at once take charge

of the settlement and reclamation of these lands.

It is probable that a majority of the settlers,

perhaps owing to past experiences, favor national

reclamation. They are afraid that the expendi-

ture of the large sums of money necessary to

reclaim the land situated in different States

would result in debauching legislatures, if not

17

in materially injuring the financial credit of the

States interested, even if it were found that all

of the new States were equal to the task imposed.

There is, however, a very strong sentiment in

the West favoring the gift by the General Gov-

ernment of these lands to the States wherein

they are situated. But it is probable that this

sentiment arises from the prevalent belief that

the Government will not undertake the work of

reclamation.

H.R. Rep. No. 1152, 538d Cong., 2d Sess. 3 (1894).

On April 17, 1894, Senator Carey of Wyoming, on

behalf of the Committee on Public Lands, reported

S. 1591 to the Senate. S. Rep. No. 332, 538d Cong., 2d

Sess. (1894). This measure would not have gone so

far as to cede all public lands to the states but it would

have permitted each State covered by the Desert Land

Act to select up to one million acres of surveyed

desert lands for reclamation. Upon selection, the

land would have been immediately reserved from en-

try by operation of the statute. Patents would have

been issued upon subsequent proof of reclamation.

The right of selection and reservation would have

been subject to a reversion to the United States to the

extent such lands were not reclaimed within five

years. See S. Rep. No. 332, 53d Cong., 2d Sess.

(1894).* The Senate approved the bill on July 18,

1894. 26 Cong. Rec. 7613 (1894) ; see 26 Cong. Rec.

8123 (1894). The House referred the Senate bill to

the House Committee on Irrigation of Arid Lands,

14 The text of S. 1591, as passed by the Senate, is reprinted

in the Appendix, infra.

18

26 Cong. Rec. 7751 (1894). That committee, however,

never reported the bill to the House.”

ce. Senator Carey, desiring prompt passage so that

the legislatures of the affected states could enact

enabling legislation during the coming winter ses-

sions, moved on August 2, 1894, that the same bill

be enacted as an amendment to an appropriations

bill pending in the Senate. 26 Cong. Rec. 8123

(1894). The Senator advised the Senate that “[t]here

must be something done in the arid-land States and

Territories” and that “the Treasury of the United

States will [not] be in a condition for some years to

come where the Government would be willing to ap-

propriate money for the reclamation of lands in the

arid States and Territories (ibid.). He regarded his

bill as “an experiment” under which “[n]o one can

lose anything” because “title of not an acre of land

[would pass] out of the Government until its reclama-

tion, and then upon the actual payment and the ac-

tual disposal of the land to the settler” (ibid.). His

amendment to the appropriations bill was adopted by

15On August 2, 1894, Senator Carey advised the Senate

that “I understand a favorable report has been agreed upon

by the Committee on Irrigation in the House of Representa-

tives.” Although members of the House Committee may have

informally endorsed the measure, we can find no formal

report. See Superintendent of Documents, Catalogue of the

Public Documents of the Fifty-Third Congress (Mar. 4, 1893

to June 30, 1895) 153, 296-297 (1896). That committee’s

only report on the subject of irrigation in that Congress was

on a bill to provide for further surveys of lands and estimates

of national reclamation. H.R. Rep. No. 1152, 53d Cong., 2d

Sess. (1894) (see pages 15-17, supra).

19

the Senate without further debate (26 Cong. Rec.

8123 (1894) ).

The appropriations bill had already passed the

House when Senator Carey’s amendment was adopted.

26 Cong. Rec. 3155 (1894). The amended bill then

went to the conference. The House conferees were

unfamiliar with the public-land issues implicated by

the Senate amendment and “concluded that it was

the better plan to bring it back to the House so that

gentlemen with a fuller understanding of the land

systems of the United States might have an oppor-

tunity to make known their objections to the legisla-

tion” (id. at 8388 (Rep. Sayers)). Before the full

House, Representative Pickler of South Dakota moved

that the House recede and accept the Senate amend-

ment (ibid.). Representative McRae of Arkansas,

however, on behalf of the House conferees moved as

a substitute for that motion “that the House conferé€5

sprees be instructed to strike out the Senate amend-

ment and insert” different language (7bid.). The sub-

stitute language proposed by the House conferees dif-

fered markedly from the Senate amendment, among

other ways, in that it eliminated the right of selection.

Representative Pickler, although “prefer[ing] the

measure reported by the Senate,” withdrew his mo-

tion and adopted McRae’s motion for a substitute.

The House then considered whether to substitute the

House conferees’ language for that of the Senate

amendment (id. at 8389). Significantly, it was the

substitute offered by Representative McRae that was

finally passed as the “Carey” Act.

20

Representative McRae explained the differences be-

tween the Senate amendment and the House substi-

tute and stated on three separate occasions during

the debate Gn the two conflicting proposals that the

House proposal would not make any grant (26 Cong.

Rec. 8391, 8431 (1894) ; emphasis added) :

Now, Mr. Speaker, I want to state briefly

what I understand to be the main difference

between the two propositions. The Senate prop-

osition makes a reservation outright for the

States and will make it possible for the States

to put a million of acres in each State in reser-

vation for an indefinite period. It leaves the

question of irrigation to be determined under

rules and regulations to be made by the States

themselves. In short, the States will decide

whether they have complied with the conditions

as to irrigation. The pending proposition does

not make any grant, but only authorizes the

Secretary of the Interior with the approval of

the President to make a contract with any States

in which any of these lands may be situated for

the reclamation of not exceeding a million acres

in each State, the question of irrigation to be

finally determined by the Executive officers of

this Government. No reservation or withdrawal

is permitted except for temporary purposes until

the plan is approved; and no title is to pass until

thorough irrigation is accomplished and shown

to the satisfaction of the Interior Department.

If an experiment of this sort is to be made I

desire to put around it all the conditions and

limitations necessary to insure the irrigation of

the land. This will give ample power to the

21

Secretary to secure it. As the gentleman from

South Dakota has said there are five or six hun-

dred million acres of desert land—land worthless

without irrigation, and very valuable with it.

The United States owns the lands, but has no

inclination to enter upon its reclamation. We

want settlers upon all our public lands. This is

simply an experiment by which it is proposed to

aid the States in their efforts to reclaim the land,

by remitting the price and cost of survey. We

charge the individual settler $1.25 an acre for

desert land when irrigated. One of the condi-

tions of this measure is that not exceeding 160

acres shall be sold by the State to any one indi-

vidual.

* * * * *

If this substitute be adopted it will only au-

thorize contracis which will lapse in ten years

after their date. It is not a legislative grant; it

does not require any action of Congress for its

forfeiture. It does not even put the land in a

state of reservation until a map is filed and the

plan of irrigation is approved.

Mr. Speaker, I repeat what I stated yesterday

—that I am opposed to legislating upon appro-

priation bills. This proposition ought to be con-

sidered by the proper committee of this House,

and subjected to the same treatment as other

measures are under our rules; but as it has been

attached by the Senate to one of the most impor-

tant of the great money bills of this House which

must be acted upon by us, I think it should at

least be fairly discussed and properly understood.

The Senate amendment is in my judgment ex-

tremely dangerous, and should not be adopted.

22

[Only] yesterday I pointed out some of the

objections to it, but since the gentleman from

South Dakota has abandoned it and is satisfied

to adopt the substitute which I offered, it is not

now necessary to discuss it further. I would

prefer to see no legislation at this time and in

this way, but if the question can not be post-

poned for a more careful consideration then we

should proceed with all the caution and care

that is possible under the circumstances, for the

legislation is important and far reaching. The

amendment does not appear to be understood by

some who have opposed it. It has veen likened

to the swamp-land grant of September 28, 1850.

That was a grant in presenti and passed the

title as of the date of the grant. This is no grant

at all, but only gives authority to the Secretary

of the Interior and President to make contracts

binding the United States to donate the land to

the States when reclaimed. That act passed the

title to the whole of the swamp and overflowed

lands which were unfit for cultivation and unsold

at that time to the States."*! This grants nothing

and authorizes no conveyance until reclama-

tion.

No members of Congress disagreed with these

statements. Representative McRae’s substitute was

adopted by the House as an instruction to the conferees

(26 Cong. Rec. 8486 (1894)). The conference then

adopted the House substitute in the final enactment.

28 Stat. 422. These clear-cut statements set forth

above by the sponsor of the statutory language in ques-

16 Rev. Stat. 2479-2484, 43 U.S.C. 982-986.

23

tion establish beyond question that Congress did not

intend to grant any entitlement to public lands.” Con-

gress only went so far as to authorize the Secretary

and the President to grant public lands under the Act.

To be sure, the House debate contains comments

that suggest out of context that an outright “grant”

to the states was intended Thus, some legislators

referred ambiguously to “ine proposition” or “the

question” before the House as involving a “grant,”

or “gift” of arid lands to the States (26 Cong. Rec.

8392, 8398, 8419, 8420 (1894) ). In context, however,

it is evident that such loose language was the product

of a ventilation of fundamental issues of reclamation

policy—a debate that transcended the differences be-

tween the Senate amendment and the House substitute.

By the mechanism of an appropriations-bill rider, the

Senate had placed before the House a fundamental

concept—cession of public lands to the States—that

the House had not previously considered. In these cir-

cumstances, the House could hardly be expected to

confine its discussion to only the differences between

the Senate amendment and the proposed substitute.

The broader question was whether the United States

should donate land to the states under any circum-

stances. Both opponents and advocates of the general

scheme of cessions to the states thus advanced argu-

17 The district court erroneously suggested Representative

McRae was an opponent of the House measure. See Pet.

App. 12a.

24

ments that went to the larger issues, ignoring the

differences in the two measures."

In this context, it is evident that the occasional

allusions to “grants” and “donations” were not in-

18 Thus, Representative Bretz complained that cessions

would lead to the same abuses that had befallen cessions un-

der the swamp-land acts (26 Cong. Rec. 8421 (1894)), that

the chief advocates of the cessions to the States were “the land

syndicates of the West * * * who expect to hold still more

[land] if they can get Congress to cede the lands to the States”

(id. at 8422), that, in any event, the States could ill-afford to

finance suitable projects (id. at 8421). Representative Cannon

of Illinois felt the issues were of too much importance to be

considered in “hasty legislation” and that the matters should

be referred to “one or more of the great committees of this

House * * *” (id. at 8392). On the other hand, Western

legislators stressed the need for reclamation of arid lands

of the benefits that would flow from reclamation (id. at 8393-

8394, 8427-8429), that the proposal would give to the States

only land that was then worthless (id. at 8419), that state

authorities were better situated to develop arid lands than

federal authorities (id. at 8423), although Representative

Kem of Nebraska argued that federal development and

financing of reclamation works were preferable to state de-

velopment because private interests would obtain control

from the states over the available water and require settlers

to pay exorbitant rates (id. at 8397-8398).

Moreover, it is clear in context that most of the references

to “the proposition” as “granting”, “donating”, or “ceding”

desert lands to the states were made with regard to the Senate

amendment rather than the proposed House substitute be-

cause the speaker either stated that he was commenting on

the Senate proposal (26 Cong. Rec. 8391 (1894) (Pickler) ;

id. at 8420-8421 (Hepburn)) or because he referred to the

requirement that the State expend at least $3 per acre for

reclamation, a requirement that was only in the Senate

amendment (id. at 8421, 8422 (Bretz); id. at 8427 (New-

lands) ).

25

tended as precise comments on the meaning of the

first sentence of the House substitute that “authorized

and empowered” the Secretary of the Interior to enter

into contracts for the donation of land. These broader

comments were not intended to modify the very pre-

cise observations of the sponsor of the language at

issue here that “[t]his is no grant at all, but only

gives authority to the Secretary of the Interior and

President to make contracts binding the United

States to donate the land to the States when re-

claimed” (26 Cong. Rec. 8481 (1894) ).

d. It will be said that, even if there is no absolute

grant, the Secretary, as the district court held, must

manage public land so as to leave sufficient desert

land to allow Idaho to eventually acquire three mil-

lion acres. It is true hat no statement in the leg-

islative history explicitly addresses this precise point.

In 1894 that there was so much unappropriated

desert land*® and reclamation was in such demand

that it would have been unrealistic to entertain

the idea the Secretary would disapprove any well-

conceived plan under the Act. Nonetheless, Con-

gress plainly realized that not all lands selected by

the State would be approved by the Secretary. The

whole point in deleting any right of selection was to

make it clear that the Act was “no grant at all, but

19 In 1894, the Commissioner of Lands estimated that there

were 529,000,000 acres of available desert lands in 12 western

states affected by the Act. The Carey Act concerned only 12

million acres. See S. Rep. No. 382, 53d Cong., 2d Sess. 4

(1894).

26

only [gave] authority to the Secretary of the Interior

and President to make contracts * * *.” 26 Cong.

Rec. 8481 (1894). Authority to approve applications

necessarily implies authority to disapprove applica-

tions, even at the risk of falling short of the statutory

ceiling. Had Congress intended to confer an entitle-

ment to the statutory maximum it would have been

natural in these circumstances to say so.

That Congress did not intend to establish any float-

ing entitlement to desert lands is also evident in its

decision not to impede reclamation under the Desert

Land Act. In 1894 it was possible for settlers to ac-

quire all of the reclaimable desert lands in a state

by entries under the Desert Land Act, carried through

to patent. The Secretary had no authority to with-

draw desert lands from such entry.” Had Congress

intended to preserve indefinitely a million acres of

desert lands for each state for Carey Act projects, it

would have been necessary to withdraw desert lands

from entry under the Desert Land Act. Representa-

tive McRae, however, stated that his substitute would

not “in the least interfere with individuals who may

wish to proceed under” the Desert Land Act (26

Cong. Rec. 8432 (1894) ).

20 The President had authority to reserve public lands from

entry or selection. See United States v. Midwest Oil Co., 236

U.S. 459, 467 (1915). But, except for the establishment of

Indian and military reservations, the power had been rarely

used before enactment of the Pickett Act in 1910, 43 U.S.C.

(1970 ed.) 141.

27

Similarly, even though federal reclamation projects

were not immediately foreseeable in 1894, Congress

had authorized surveys for such projects in anticipa-

tion of their eventuality (see page 14, note 11, supra).

Federal reclamation projects would have eventually

depleted the supply of arid lands available for Carey

Act projects through the use of such lands for reser-

voirs and the sale of formerly arid lands so irrigated.

It is inconceivable that in 1894 Congress meant to

establish an entitlement that years later would pre-

vent federal reclamation projects because it might

usurp the State’s “entitlement” under the Carey Act.”

21In fact, by 1908 the Secretary of Interior began to dis-

approve Carey Act applications on the ground that they

overlapped with applications under the Desert Land Act or

national reclamation projects and such disapprovals were

discussed in Congress without objection. When Representative

Gaines of Tennessee asked Representative French of Idaho

to explain why the Secretary had not granted all Carey Act

applications, Representative French replied (42 Cong. Rec.

6437 (1908)):

The reason is this: We have a national reclamation

law under which lands are being reclaimed; we have the

Indian reservation law; we have lands that have passed

into private ownership under the desert-land act and

other laws. Sometimes it happens that an application for

segregation under the Carey Act overlaps one or more

of these propositions or tracts of land. The Department

sometimes finds it necessary to spend several months in-

quiring of the engineers in the field or the local land-

office officials to ascertain whether or not the segrega-

tion overlaps.

28

III. Contemporaneous Construction By The Secretary And

Subsequent Legislative History Demonstrate That No

Entitlement To Public Lands Was Intended

Regulations issued by the Secretary in the wake

of the Carey Act provided the types of information

required to be submitted with Carey Act applications

and advised that applications could be rejected. See

General Land Office, Regulations Concerning the Se-

lection of Desert Lands under the Act of Congress

Approved August 18, 1894, 37 Pub. Lands Dec. 624

(1909). Even earlier, moreover, the Secretary had

expressly held that he could deny an application based

on “the best interests of the whole people.” Yakima

Development Co. v. State of Washington, 34 Pub.

Lands Dec. 453, 455-456 (1906) ; State of Wyoming,

36 Pub. Lands Dec. 399 (1908).

The State argues that the Yakima case is not in

point because the Department refused to enter into

a contract with the State only because it was not

satisfied that there was sufficient water to carry out

the reclamation plan.” A full reading of the decision

shows, however, that the grounds for refusing to

allow the application were broader than this. After

considering the extent of water resources available

22 One of the authorities relied on by the State (Br. in

Opp. 8) cites the Yakima and Wyoming decisions for the

statement that acceptance of State applications “is a matter

wholly within the discretion of the Land Department.” III

Kinney on Irrigation and Water Rights 2402-2403, n.10 (2d

ed. 1912).

29

to implement the reclamation plan, the Secretary

proceeded to consider the State’s proposal that its

Carey Act project be consolidated with a federal

reclamation project:

Not only are grave doubts entertained as to the

legality of such procedure, but it is not thought

as a matter of administrative policy that this

Department would be justified in approving this

very complicated, questionable, and perhaps im-

practicable scheme * * *.

The Secretary of the Interior is charged by

section 441 of the Revised Statutes with the

supervision of the public business relating to the

public lands. * * *

Under ali the circumstances of this case, look-

ing to what is conceived to be the best interests

of the whole people, and in the exercise of the

discretion thus vested in the Secretary of the In-

terior, I must decline to enter into the proposed

contract with the State * * *.

34 Pub. Lands Dec. at 455-456 (emphasis added).

The Wyoming decision in 1908 stated the same

position so clearly that there could be no doubt:

It is clear from the terms of the act of August

18, 1894, * * * that the acceptance of the offer

of the State is a matter wholly within the discre-

tion of the Department. The filing of the appli-

cation is preliminary to the formation of a con-

tract between the State and the United States.

It is manifest that the formation of such contract

depends upon the acquiescence of both parties

30

thereto without a right in either to insist upon

a proffer or acceptance by the other.

36 Pub. Lands Dec. at 399 (emphasis added).

This construction—which has never previously

been questioned in any litigation—by the agency

charged with the principal responsibility for “regu-

lating the acquisition of rights in the public lands”

is entitled to considerable deference. Andrus v.

Charlestone Stone Products Co., supra, 436 U.S. at

613-614; Udall v. Tallman, 380 U.S. 1, 16 (1965) ;

Cameron v. United States, 252 U.S. 450, 460 (1920).

Significantly, when Congress amended the Act several

times after the Interior Department decisions cited

above were issued, it did not disapprove Interior’s

interpretation.” We may conclude that the Secretary

23 See, e.g., Joint Resolution (S. J. Res. 51, 60th Cong.,

ist Sess.), approved May 25, 1908, 35 Stat. 577, authorizing

grants of an additional one million acres to the State of

Idaho. Act of May 27, 1908, ch. 200, Section 1, 35 Stat. 347, 43

U.S.C. 645, authorizing grants of an additional one million

acres to the State of Idaho and the State of Wyoming; Act of

Feb. 18, 1909, ch. 150, Section 1, 35 Stat. 638, 43 U.S.C. 646,

extending the provisions of the Carey Act to the States of

Arizona and New Mexico; Act of Feb. 24, 1909, ch. 178,

Section 1, 35 Stat. 644, 43 U.S.C. 647, extending the provisions

of the Carey Act to the former Ute Indian Reservation in

Colorado, Act of Feb. 16, 1911, ch. 900, 36 Stat. 913, extend-

ing the provisions of the Carey Act to the former Fort Bridger

Military Reservation in Wyoming; Act of Mar. 4, 1911, ch.

285, Section 1, 36 Stat. 1417, 43 U.S.C. 645, authorizing

grants of an additional one million acres to the State of

Nevada, Joint Resolution (S. J. Res. 34, 62d Cong., 1st Sess.),

approved August 21, 1911, 37 Stat. 38, 43 U.S.C. 645, author-

izing grants of an additional one million acres to the State of

ee ee

31

was not violating his statutory mandate. See, ¢.g.,

Saxbe v. Bustos, 419 U.S. 65, 74 (1974); Board of

Governors v. First Lincolnwood Corp., 439 U.S. 234,

248 (1978); United States v. Rutherford, No. 78-

605 (June 18, 1979), slip op. 8-9.

Subsequent legislative history confirms that Con-

gress understood, even though it sometimes used the

word “grant” loosely, that the Carey Act was not a

grant at all. In considering legislation that increased

the statutory ceilings in the amounts of land that

could be used for Carey Act projects, for example,

Representative Mondell of Wyoming observed that:

The use of the word “grant” in this legisla-

tion is somewhat of a misnomer. There is no

absolute grant of land contemplated. There is a

law—the Carey Act—under which the Secretary

of the Interior, if anyone of the States having

arid lands assures him that a certain area of

land can and will be irrigated, may temporarily

withdraw these lands for the purpose of their

irrigation. That experimental law, when it was

passed, limited the area to a million acres in

each state.

Colorado; Act of Feb. 14, 1920, ch. 74, 41 Stat. 407, 43 U.S.C.

644, giving a preference right of entry under other laws to

settlers on failed Carey Act projects; Act of Jan. 6, 1921,

ch. 10, 41 Stat. 1085, amending 43 U.S.C. 641, giving the

Secretary of the Interior discretion to extend the period of

segregation or to restore lands to the public domain upon

failure of the state to construct the necessary reclamation

works.

32

42 Cong. Rec. 6100 (1908). Representative French

also explained that the administrative procedure un-

der the Act required advance approval by the Secre-

tary (id. at 6436) .™*

Congress was well aware in the early days of the

Act that the Secretary had disapproved a large num-

ber of Carey Act applications. By 1908, of approxi-

mately 2.72 million acres applied for by States, the

Secretary had approved only 1.08 million acres for

Carey Act projects (and only approximately 200,000

acres had actually been patented). 42 Cong. Rec.

24 Representative French explained (ibid.; emphasis

added) :

The reclamation under the Carey Act is done in this

manner: The whole body of the million acres is not given

en bloc to the State, but rather when individuals or when

a company makes application to the State for the purpose _

of developing an irrigation project—-the location of the

irrigation canal, reservoir sites, or dams—they submit

to the State a proposition with their bid, setting forth

the manner of acres that they propose to reclaim, the

total amount of money that they will ask for putting

in the irrigation work, and the amount per acre which

they will charge to the individual settlers.

The State land board then passes upon this applica-

tion. If the State land board grants it, it indorses the

application and applies to the Department of the In-

terior. The Department of the Interior then passes upon

the question, the feasibility of it, the reliability oj the

company, the character of the work, and the land that

will come under the irrigation canal. If the Department

approves the project, it so notifies the State, and the

State is authorized to enter into a contract with the in-

dividuals or company for the reclamation of the land by

the building of the approved system of irrigation works.

cn ne a ato

33

6100 (1908) (Report of Secretary of Interior to

House Committee on Irrigation of Public Lands). As

Representative French explained (see note 21, supra),

one reason the Secretary had disapproved Carey Act

projects was that the same lands were being consid-

ered for federal reclamation under the Reclamation

Act of 1902 or the Desert Land Act. See also H.R.

Rep. No. 2904, 56th Cong., 2d Sess. 1 (1901) ; S. Rep.

No. 1020, 60th Cong., 2d Sess. 2 (1909); H.R. Rep.

No. 1915, 60th Cong., 2d Sess. 2 (1909).

IV. This Court’s Decision in Idaho Irrigation Co. v. Gooding

Does Not Support The Holding Below

The district court did not offer any specific basis

for its conclusion that the Secretary is obliged to

preserve enough land in each state to meet the maxi-

mum statutory limits for Carey Act developments.

The court evidently placed some reliance on this

Court’s statement in Idaho Irrigation Co. v. Gooding,

265 U.S. 518, 521 (1924), that “[b]y the Carey Act

the United States binds itself to donate” desert lands

to states. This, however, was not even a dictum and

was simply part of a brief statement of the back-

ground of Gooding. The Court in Gooding plainly did

not intend to address the issue presented by our peti-

tion, and in any event did not clearly contradict our

position.

Gooding was brought by individuals who had pur-

chased water rights (and corresponding shares of

stock) from a company formed for the purpose of

reclaiming land under the Carey Act. This water

34

was provided by the company’s irrigation project and

the individuals sued to prevent the company from

selling additional rights since, as they claimed, the

project could not supply sufficient water. The Court

ultimately agreed and prevented the sales of addi-

tional rights. While the Court had cause to mention

generally the scheme of the Carey Act (see 265 U.S.

at 521), the Court gave no consideration to the issue

presented here.”

25 The other authorities 4relied on by the State are like-

wise inapposite. State v. Wright, 17 Mont. 565, 44 P. 89

(1896), was an action brought by a commissioner of the

state arid land board, which administered the state’s duties

under the Carey Act, against the state treasurer. The

treasurer claimed that he lacked authority to register the

warrant for the commissioner’s salary. The Supreme

Court of Montana held to the contrary, and ordered

the warrant registered. That decision had no relevance to

the issue here. State v. Marshall, 20 Mont. 510, 52 P. 268

(1898), was brought by the state attorney general against the

arid land board, attacking the board’s proposal for a Carey.

Act project. The board desired to permit the company build-

ing the irrigation system for the project to build a larger

system than was necessary for the public arid lands, and

sell water to a railroad for its arid lands which were “checker-

boarded” with the public land. The court found no objection

to this project. Although these decisions do allude to the

Carey Act as a conditional “offer” that could be “accepted”

by the States, the allusion was merely part of a background

discussion of the facts of the case. These cases presented no

occasion from the Montana courts to consider the extent to

which, if at all, the Secretary most indefinitely keep available

lands for Carey Act projects. Twin Falls Land & Water Co.

v. Twin Falls Canal Co., 7 F. Supp. 238 (D. Idaho 1933), was

a complicated action brought by a company which built an

irrigation system for a Carey Act project, against the com-

35

CONCLUSION

For the foregoing reasons, the judgment of the

court of appeals should be reversed.

Respectfully submitted.

WADE H. MCCREE, JR.

Solicitor General

JAMES W. MOORMAN

Assistant Attorney General

LouIs F. CLAIBORNE

Deputy Solicitor General

WILLIAM ALSUP

Assistant to the Solicitor General

JACQUES B. GELIN

EDWARD J. SHAWAKER

Attorneys

DECEMBER 1979

pany which ultimately operated the project. The construction

company would have profited if the operating company could

have sold any additional rights to water from the project,

and it claimed that the operating company was improperly

withholding that water from sale. The operating company

prevailed in its claim that there was insufficient water. The

language quoted by Idaho (Br. in Opp. 11), that the Carey

Act was an “offer” by the United States which was “accepted”

by the State was an aside and was only pertinent to the de-

cision as an explanation that the state had enacted a mech-

anism for fulfilling its role under the Act.

36

APPENDIX

Senate amendment introduced by Senator Carey

on August 2, 1894 (26 Cong. Rec. 8123):

That to encourage the reclamation of arid

lands, and the cultivation and sale thereof in

small tracts to actual settlers, there is hereby

reserved for the purposes and upon the condi-

tions provided in this section in each of the

States to which the desert-land law of the United

States is applicable, and to each of the States of

Nebraska and Kansas, and to each of the States

that may be formed out the Territorities of Ari-

zona, New Mexico, Oklahoma, and Utah, 1,000,-

000 acres of the surveyed public arid lands in

said States, respectively, to be selected by each

of said States within ten years after the passage

of this act, and such reservation to take effect

from the date of such selection and approval and

be thereafter withheld from other disposal, ex-

cept as hereinafter provided: Provided, That any

lands so reserved which shall not be reclaimed

within five years from the date of their selection

and approval as aforesaid, or as to which the

State has not expended or caused to be expended

the sum of $3 per acre in works intended for the

reclamation of such lands, as now required by

the United States desert-land law from claim-

ants thereunder, shall be released from such res-

ervation and become subject to disposal as other

public lands of the United States after proclama-

tion by the President so declaring.

37

That any State accepting the conditions of

this section is hereby authorized to make all nec-

essary regulations governing the manner or ex-

tent of the reclamation, and to make all contracts

to cause said lands to be so reclaimed and set-

tled and cultivated by actual settlers in accord-

ance with such regulations; and as rapidly as

the State may furnish competent proof that any

of said lands are reclaimed and occupied by ac-

tual settlers, in accordance with its said regu-

lations, patents shall issue to the State or its

assigns for said lands so reclaimed and settled:

Provided, That said States shall not sell or dis-

pose of more than 160 acres of said lands to any

one person, and the net proceeds derived by each

State from the sale of said lands shall be held

and expended as a separate fund to aid the work

of reclaiming the lands so reserved by this sec-

tion, and the surplus, if any, shall be devoted by

the State to reclaiming other arid lands in said

State.

That all lands, exclusive of timber lands and

mineral lands, which will not, without irrigation,

produce some agricultural crop, shall be deemed

arid lands within the meaning of this section,

which fact shall be ascertained by affidavit of

two or more credible witnesses, filed in the land

office of the district in which such land may be

situated at the time of the selection thereof, as

herein provided: Provided, That this section

shall not be construed to authorize the leasing of

the lands selected or the disposal or use of them

by the States, respectively, in any way whatever

except to secure their reclamation, cultivation,

38

and settlement; and the Commissioner of the

General Land Office shall, subject to the approval

of the Secretary of the Interior, make all rules

and regulations necessary to carry out the pro-

visions of this section and to enable the Secretary

of the Interior to examine any of the lands that

may be selected under the provisions of this sec-

tion, there is hereby appropriated, out of any

moneys in the Treasury not otherwise appropri-

ated, $1,000.

W ov. 8. GOVERNMENT PRINTING OFFicE; 1979 sosies 148

aan ein p -