# Petitioners Brief — Andrus v. Idaho

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petitioners Brief
- **Published:** January 1, 1980
- **Citation:** 445 U.S. 715

## Text

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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.

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42 Cong. Rec. (1908)

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. 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.
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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 -

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0751%3A4. Public record. Not legal advice.