Petition — IMPERIAL IRRIGATION DISTRICT v. BEN YELLEN (Nos. 79-435, 79-421, 79-425)

Supreme Court, U.S.

‘ j)

IN THE SEP 14 1979

Supreme Court of the United States

ICHAEL RODAK, JR., CLERK

OctToBER T'ERM, 1979

No. A-1105

IMPERIAL IRRIGATION DistRICT, ET AL., Petitioners,

V.

Ben YELLEN, ET AL., Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

REGINALD L. Knox, JR.

Horton, Knox, CARTER

& Foorr

Law Building, Suite 101

Of Counsel: 895 Broadway

Ce 2 Ccome or be California

4128 55th Avenue, N.E. (714) 359-2821

Seattle, Washington belied

98105

(206) 523-9264 NortHucutr Ey

FREDERICK H. Rirts

Rosert EF’. PrerrowskI, JR.

WiLuiAM H. BurcHeETTE

LAW OFFICES OF

NorrucuttT Eny

Watergate 600 Building

Washington, D.C. 20037

(202) 342-0800

Attorneys for Imperial

Irrigation District

September 14, 1979

Press or Byron S. ADAMS PRINTING, INC., WASHINGTON, D. C.

TABLE OF CONTENTS

Page

EIR. DE 1

EE EEE 3

dea h sess sceccccccces 4

EEE Peer EEE EEE 4

Statutory Provisions INVOLVED ............eeeeeees 6

STATEMENT OF THE CASE ......... ccc cece cece eee eces 7

IIS OEE TTTETETETE 9

ceca nesccccescccees 11

Reasons ror GranTING THE WRIT ...............0-- 4

I. The Court of Appeals’ Decision Conflicts With

This Court’s Opinion and Decrees in Arizona

a ice sn ceecccncese 14

A. As to ‘‘present serfected rights’’ decreed by

ead wwe sae os s0osce 14

B. As to water decreed by this Court in addi-

tion to ‘‘present perfected rights’’ ........ 19

II. The Retroactive Decision of the Court of Ap-

peals Conflicts with the Principles of Finality

of Judicial and Administrative Determinations

Which Have Been Laid Down by this Court ... 20

Actions by the Department .................. 20

Judicial Determination: The Hewes Case ..... 25

III. The Decision Below Expands the Concept of

‘*Standing’’ on an Unjustifiable Scale, to Include

All Persons in the United States Who Might

Profit From the Secretary’s Power to Fix Prices

of ‘‘ Excess Lands’’ at Less Than Market Value

on Forced Sale. If Such Authority Ever Existed

as to Lands in the District, It Terminated on

cies e ese cccccece 29

ii Table of Contents Continued

Page

A. The Court of Appeals’ opinion would expand

the concept of standing on an unjustifiable

NR! oe oe eg a) hdc sk de ek oe 30

B. More than one-half of the construction

charges against all lands have been repaid... 31

CD i chaos Gu ek een CEASA CALERA 33

TABLE OF AUTHORITIES

Court CasEs:

American Book Company v. Kansas, 193 US. 49

fey ner rs Prey ee reer eee eee 32

Arizona v. California, 373 U.S. 546 (1963) ..13, 14, 18, 19, 21

Arizona v. California, 376 U.S. 340 (1964) . .5, 13, 17, 19, 20

Arizona v. California, —— U.S. —— (1979), 99 S.

A err Crees rr re coe PRU ee 4, 13, 14, 20

California v. United States, 438 U.S. 645 (1979) ...... 18

DeFunis y. Odegaard, 416 U.S. 321 (1974) .......... 32

Foz v. Ickes, 137 F.2d 30 (D.C. Cir. 1943) ........... 19

Fresno v. California, 372 U.S. 627 (1963) ............ 18

Hewes v. All Persons, No. 15460, Superior Court, Im-

perianal Courity, 1055 2... cc. cc shccecees 5, 23, 24, 25, 28

Ickes v. Fox, 300 U.S. 82 (1987) ....... ey Cre 18, 19

Ivanhoe Irrigation District v. All Parties & Persons,

47 Cal.2d 597,306 P.2d 824 (1957) ooo. cen see 27

Ivanhoe Irrigation District v. McCracken, 357 U.S. 275

t: peewee oe Perr e rt Serr sy ree 18, 23, 27, 31

Merchants’ National Bank of San Diego v. Escondido

Irrigation District, 144 Cal. 329, 77 P. 397 (1904) .15, 16

Mills v. Green, 159 U.S. 651 (1895) ............008- 32

North Carolina v. Rice, 404 U.S. 244 (1971) ......... 32

Norwegian Nitrogen Products Co. v. United States, 288

ik Me Sy | Peer eT Tere TT eee eee 21

ee eT NT nn tae

Table of Authorities Continued ill

Page

Tacoma v. Taxpayers of Tacoma, 357 U.S. 320 (1958) 28

Turner v. Kings River Conservation District, 360 F.2d

BO CHE Ts SOND ods vik d choca sh édoks Cilsc. 31

United States v. District Court for Eagle County, 401

Rn UE se ce oh yur ces noha coe 28

United States v. Gerlach Live Stock Co., 339 U.S. 725

IER OP see eae lee Darabont Fae 19

United States v. Midwest Oil Co., 236 U.S. 459 (1915) °24

Statutes AND Compacts:

Act to Provide for the Application of the Reclamation

Law to Irrigation Districts, 42 Stat. 541

Section 1, 43 U.S.C. §511 ............ 8, 25, 28, 29

Bor'der Canyon Project Act, 45 Stat. 1057

Section 4(b), 43 U.S.C. RPO. oc in bcc udaaeees 21

peetion G, 43 U.8.0. 46174 | oo. oes cokes uacc.. 21

Section 6, 43 U.S.C. §617e .............. 10, 12, 17, 21

Section 9, 43 U.S.C. §617h ................055. 21, 23

Section 13, 43 U.S.C. $6171 ................ 17, 19, 21

Section 14, 43 U.S.C. §617m ...... 10, 11, 12, 18, 19, 22

Boulder Canyon Project Adjustment Act, 54 Stat. 779

Section 14, 43 U.S.C. §618m ................... 17

Sa OW, a oo hee 17

Cal. Water Code Ann. §§ 22250, 22251 (West 1971) .. 16

Colorado River Compact, 70 Cong. Ree. 324 (1922),

Article VIII, H. Doe. 717, 80th Cong., 2d Sess.,

rete toe ee oe 10, 21, 22

Judicial Code, 62 Stat. 689

Section 1738, 28 U.8.0. §.1738 J. i... sks. scone. 26

Omnibus Adjustment Act of 1926, 44 Stat. 636, as

amended, 70 Stat. 524

Section 46, 43 U.S.C. § 423(e) ...... d, 7, 12, 23, 31

Reclamation Act of 1902, 32 Stat. 388

Section 5, 43 U.S.C. §§ 392, ey GO cesses 12, 23, 31

Section 8, 43 U.S.C. §§ 372, 388 ....... 3, 17, 18, 19, 22

iv Table of Authorities Continued

Page

MISCELLANEOUS :

S. Rep. No. 592, 70th Cong., Ist Sess., pt. 2, at 26 (1928) 11

Colorado River Basin: Hearings on H.R. 6251 and H.R.

9826 Before the House Committee on Irrigation

and Reclamation, 69th Cong., 1st Sess., 32-33

CWMRED os. i secngnascsuaeusees dee 11

69 Cong. Rec. 7634, 9451, 10471, and 19405 (1928) .... 11

70 Cong. Rec. 289 (1928) ........--- ee re il

OPE. 4 MOM... 0. -.s6sccamaseeeeee 22, 23

TN OPP TeRE Nr ee 22

Annual Report of the Secretary of the Interior, F.Y.

BI nnn ccccdeccucectaweseeusnen@euseeeeweas 24

iN THE

Supreme Court of the United States

OcToBER TERM, 1979

_—__—___

No. A-1105

es

IMPERIAL Irrigation District, Ev AL., Petitioners,

Vv.

Ben YELLEN, ET AL., Respondents.

_—_ -——_—__

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Petitioner Imperial Irrigation District (‘the Dis-

trict’’) respectfully prays that a writ of certiorari issue

to review the judgment of the United States Court of

Appeals for the Ninth Circuit in this case.

INTRODUCTION

The Court of Appeals’ decision as to the powers and

duties of the Secretary of the Interior in the admin-

istration of the Boulder Canyon Project Act, 45 Stat.

1057, 43 U.S.C. § 617 et seq., is in serious conflict with

the opinion and decrees of this Court in Arizona v. Cali-

fornia, ordering the satisfaction of water rights per-

2

fected under state law prior to the effective date of the

Project Act, and determining their quantities and

priorities.

This Court has directed that the Secretary shall so

operate Hoover Dam and the All-American Canal as

to deliver water in satisfaction of rights in Colorado

River water which were perfected under state law

prior to enactment of the Project Act. It has further

determined that, in the case of Imperial Irrigation Dis-

trict, the area so irrigated (for at least 50 years now)

is 424,145 acres, and that the quantity of water di-

verted, under appropriations made at least 78 years

ago, was 2,600,000 acre-feet annually at the time when .

the Project Act became law. This water is now supplied

by the United States through the All-American Canal,

pursuant to the Project Act.

But the Court of Appeals’ decision, if allowed to

stand, would have the effect of requiring the Secre-

tary to reduce his deliveries to the District to far less

than 2,600,000 acre-feet per year, for the irrigation of

much less than 424,145 acres. This is because he is

told to refuse to deliver water for the irrigation of land

in excess of 160 acres per landowner, unless the owner

agrees to sell at prices fixed by the Secretary of the

Interior. (See the Appendix at p. 244a for the affidavit

of the principal respondent, a potential buyer, which

gives an idea of the windfall he is expecting. ). The court

quotes an estimate that 233,000 acres are in this cate-

gory. It concedes that the Secretary cannot compel the

landowners to sell (and neither can the District), but

believes that many will do so.

The Court of Appeals believes that under California

law the landowner has no vested right appurtenant to

3

the land (we think that this confliets not only with

California law but also with § 8 of the Reclamation Act

of 1902), and therefore the District ean ‘‘redistribute”’

the water taken away from lands that were irrigated

before there was a Project Act. Aside from the legal

barriers to doing so, there is no place where the District

can put any of the water so ‘‘redistributed,’’ because

all irrigable land in the District is already being

watered.

The Court of Appeals’ decision would not only over-

turn 34 years of administrative practice, during the

administrations of six successive Secretaries of the

Interior, and four Presidents, to the effect that the

excess land restrictions in the reclamation laws do not

apply to present perfected rights under the Project

Act; it would also overturn the Department’s more

general practice throughout the 17 Western States,

adhered to until recently, that § 8 of the Reclamation

Act of 1902 requires that water be permitted to ‘flow

through” reclamation works to supply water rights

previously vested under state law, irrespective of acre-

age.

OPINIONS BELOW

The principal opinion of the Court of Appeals is

reported at 559 F.2d 509 (9th Cir. 1977), and is re-

produced in the Appendix at p. la. The opinion of

the Court of Appeals modifying its principal opinion

and denying the District’s petition for rehearing is

reported at 595 F.2d 524 (9th Cir. 1979), and is re-

produced in the Appendix at p. 64a. The opinion of

the District Court is reported at 322 F. Supp. 11 (S.D.

Cal. 1971), and is reproduced in the Appendix at p.

78a. The order of the District Court denying the mo-

+

tion of respondents for leave to intervene after

judgment to prosecute an appeal is unreported and is

reproduced in the Appendix at p. 112a. The decision of

the Court of Appeals reversing that order of the Dis-

trict Court is an appendix to the opinion of the Court

of Appeals, 559 F.2d, at p. 543, and is reproduced in

the Appendix at p. 62a.

JURISDICTION

The judgment of the Court of Appeals was entered

August 18, 1977, and was subsequently modified by an

order entered April 23, 1979, which denied the Dis-

trict’s petition for rehearing. On July 3, 1979, Justice

Rvhnquist granted an extension of time to September

14, 1979, in which to file this petition for certiorari.

The jurisdiction of the Supreme Court is invoked

under § 1254(1) of the Judicial Code, 62 Stat. 928.

QUESTIONS PRESENTED

1. Whether the Boulder Canyon Project Ac. and

this Court’s decree in Arizona v. California* require

the delivery of water in satisfaction of ‘‘present per-

1The 1979 decree, — U.S. —, 99 S. Ct. 995, entered pursuant

to stipulation among the United States, Arizona, California,

Nevada, and a number of California parties, including the District,

adjudicated ‘‘present perfected rights’’ of specified entities in the

three States. The District’s present perfected rights were stated

as follows:

“The Imperial Irrigation District in annual quantities not

to exceed (i) 2,600,000 acre-feet of diversions from the main-

stream or (ii) the quantity of mainstream water necessary to

supply the consumptive use required for irrigation of 424,145

acres and for the satisfaction of related uses, whichever of (i)

or (ii) is less, with a priority date of 1901.’’ Id., at —, 99 S.

Ct., at 1000.

a

ee

H)

fected rights’’* on privately owned lands in excess of

160 acres ?

2..Whether principles of finality preclude the re-

versal of administrative * and judicial * determinations

that vested water rights are not subject to impairment

by the excess land provisions of the reclamation law ?

3. Whether an alleged ‘‘desire’’ to buy land at less

than its market value at prices to be fixed by the Sec-

retary of the Interior under § 46 of the Omnibus Ad-

justment Act of 1926 creates standing to intervene and

to appeal from a district court judgment against the

United States from which the United States did not

appeal? And, if so, whether such standing ceases upon

the termination of the Secretary’s authority to fix

prices for excess lands, during the pendency of the

appeal? °

* The 1964 decree in Arizona v. California, 376 U.S. 340, defines

‘‘perfected rights’’ and ‘‘present perfected rights’’ as follows:

‘“(G) ‘Perfected right’ means a water right acquired in

accordance with state law, which right has been exercised by

the actual diversion of a specific quantity of water that has

been applied to a defined area of land or to definite municipal

or industrial works, and in addition shall include water rights

ereated by the reservation of mainstream water for the use of

federal establishments under federal law whether or not the

water has been applied to beneficial use ;

‘“(H) ‘Present perfected rights’ means perfected rights, as

here defined, existing as of June 25, 1929, the effective date of

the Boulder Canyon Project Act... .”’ Id., at 341.

*See the determination of Secretary of the Interior Ray Lyman

Wilbur, reproduced in the Appendix at p. 218a.

*See the findings of fact, conclusions of law, and judgment of

the Superior Court of the State of California in the in rem valida-

tion proceeding, Hewes v. All Persons, reproduced in the Appendix

at p. 120a. See the Appendix at p. 247a for the administrative

practice of the Interior Department from 1931 to 1967.

* Section 46 of the Omnibus Adjustment Act of 1926, 44 Stat.

649, as amended, 70 Stat. 524, 43 U.S.C. § 423(e), under which this

6

STATUTORY PROVISIONS INVOLVED

Relevant extracts from the statutes and compact in-

volved are printed in the Appendix beginning at page

155a. They are:

Boulder Canyon Project Act, 45 Stat. 1057, §§ 1,

4(a), 4(b), 5, 6, 8, 9, 12, 13, 14 and 18, 43.

U.S.C. §§ 617, e(a), e(b), d, e, g, h, k, 2, m, and

q.

Colorado River Compact, 70 Cong. Rec. 324 (1922),

Art. VIII, H Doe. 717, 80th Cong., 2d Sess.,

p. Al19.

Colorado River Basin Project Act, 82 Stat. 885,

§ 301(b), 43 U.S.C. § 1521(b).

Act to Provide for the Application of the Recla-

mation Law to Irrigation Districts, 42 Stat.

541, §1, 43 U.S.C. § 511.

Reclamation Act of 1902, 32 Stat. 388, §§ 3, 5 and

8, 43 U.S.C. §§ 372, 383, 392, 416, 431, 432, 434,

and 439.

Omnibus Adjustment Act of 1926, 44 Stat. 636, as

amended, 70 Stat. 524, § 46, 43 U.S.C. § 423(e).

Judicial Code, 62 Stat. 689, § 1738, 28 U.S.C.

§ 1738. |

action was brought, provides that ‘‘[U]ntil one-half the construc-

tion charges against said lands shall have been fully paid no sale

of any such lands shall carry the right to receive water unless and

until the purchase price involved in such sale is approved by the

Secretary ....’’ More than one-half of the construction charges

had been fully paid by March 1, 1978, while this case was being

considered by the Court of Appeals, and the court was so advised.

See the Appendix at p. 243a.

ee ee ee ee Le re ee er pe ee, ie ne ele ee, eee

Be hae ON ed nen.

eee Seon

7

STATEMENT OF THE CASE

This suit was instituted by the United States against

Imperial Irrigation District at the request of the Sec-

retary of the Interior in 1967. The Secretary sought a

declaratory judgment that the acreage limitation * pro-

visions of the reclamation law apply to privately owned

lands in the District which receive Colorado River

water through the All-American Canal. Relying partic-

ularly on § 46 of the Omnibus Adjustment Act of 1926,

44 Stat. 699, as amended, 70 Stat. 524, 43 U.S.C. § 423e,

he asserted authority to refuse delivery of water to

such lands in excess of 160 acres per individual land-

owner, unless the land owner would agree to sell at

prices fixed by the Secretary.

In bringing this action, the United States sought to

reverse a determination made 34 years earlier by Secre-

tary Pe, Lyman Wilbur. During the negotiation of the

contract between the United States and the District for

delivery of water and repayment of the cost of the All-

American Canal, Secretary Wilbur determined that

* The term ‘‘acreage limitation’’ is a species of statutory limita-

tion on the amount of irrigable land in single ownership that is

eligible to receive project water from federal reclamation projects.

Various statutes provide for acreage limitations in overlapping and

sometimes inconsistent te.ms. These include: the Reclamation Act

of 1902, §§ 3, 5, 32 Stat. 388-89 (1902), 43 U.S.C. §§ 416, 432, 434;

Act of February 2, 1911, 36 Stat. 895, 43 U.S.C. § 374; Warren

Act, § 2, 36 Stat. 926, 43 U.S.C. § 524; Act of July 24, 1912, 37

Stat. 200, 43 U.S.C. § 449; Act of August 9, 1912, § 3, 37 Stat. 266,

43 U.S.C. §§ 543, 544; Act of August 13, 1914, § 12, 38 Stat. 689,

43 U.S.C. § 418; Act of August 11, 1916, § 5, 39 Stat. 508, 43 U.S.C.

§ 627; Act of August 11, 1916, § 6, 39 Stat. 508, 43 U.S.C. § 628;

Act of January 25, 1917, §§ 1-4, 39 Stat. 868; Act of May 20, 1920,

41 Stat. 605, 43 U.S.C. § 375; Omnibus Adjustment Act of May 25,

1926, 44 Stat. 649, 46 U.S.C. § 423e; and Act of October 14, 1941,

54 Stat. 1119, 16 U.S.C. § 590z-2(¢) (5).

8

federal law does not authorize the application of acre-

age limitations to privately owned lands in the District

having vested water rights. This determination was sub-

sequently embodied in a formal ruling by the Secre-

tary.’ It was confirmed in a final judgment of a Cali-

fornia state court of competent jurisdiction in pro-

ceedings to validate that contract. These validation pro-

ceedings were required by federal statute. 42 Stat. 541,

43 U.S.C. §511. The District Court found that this

ruling had been adhered to by six successive Secretaries

in the administrations of four Presidents.*

John M. Bryant and certain other landowners in-

tervened as defendants on their own behalf and as

representatives of a class comprised of all persons

(some 800 in number) owning more than 160 acres of

irrigable land within the District.

Ben Yellen and the other individual respondents re-

side within the District but own no farmland. They

allege a desire to buy land from the present owners

at prices substantially below market values, and that

they would be able to do so if the present owners were

denied water from the All-American Canal unless they

agreed to sell their excess lands at prices established

7 Secretary Wilbur’s determination (reproduced in the Appen-

dix at p. 213a), the validation proceedings (reproduced in the Ap-

pendix at p. 120a), and the administrative practice of successive

Secretaries (see the Appendix at p. 247a) are reviewed in Part II

of ‘‘ Reasons for Granting the Writ.’’

®The District Court identifies them as Secretary Ickes under

Presidents Roosevelt and Truman; Secretaries Krug and Chapman

under President Truman; Secretaries McKay and Seaton under

President Eisenhower. It added: ‘‘During his tenure under Presi-

dent Kennedy, Secretary Udall did not disturb the interpretation.’’

322 F. Supp., at 26, n.30.

9

by the Secretary.’ Respondents do not allege that they

have any statutory preference as against other po-

tential purchasers, wherever resident, arising from

respondents’ residence in Imperial Valley. Nor do they

allege that excess landowners can be compelled to sell,

or that, if landowners do sell, they would be obliged to

deal with respondents. Theirs is not a class action.

Historical Background

Imperial Irrigation District, an agency of the State

of California, is located in the southeastern corner of

California, adjacent to the Mexican border.

Irrigation commenced in Imperial Valley in 1901.

The water was diverted from the Colorado River at a

point in California, and transported via the privately

owned Alamo Canal through Mexico and back into In-

perial Valley.” This water was delivered from the

Alamo Canal through 1,700 miles of privately owned

°)r. Yellen filed an affidavit in the District Court in support

of his motion to intervene in which he said:

‘‘5 If the Government had prevailed in this litigation, the

Applicants and persons similarly situated would attempt to

purchase the excess lands under the terms and conditions set

by the Secretary of the Interior.

‘<6. I am acquainted with the cost of land within the Impe-

rial Irrigation District. Land that is without water has a mar-

ket value and sells for approximately $25.00 to $50.00 per acre.

Land that is irrigated with federal reclamation water by the

Imperial Irrigation District has a value and sells for between

$1200.00 to $1400.00 per acre.’’ Record, p. 169-170. This affi-

davit is reproduced in the Appendix at p, 244a.

10'The history of irrigation in Imperial Valley is summarized in

the District Court’s opinion, 322 F. Supp., at 12-15, and in this

Court’s opinion in Arizona v. California, 373 U.S. 546, 553 (1963).

10

main and lateral canals to lands “ in the Valley. These

pre-1929 appropriations in Imperial Valley, and uses

of water associated therewith, gave rise to the “‘present

perfected rights” involved in this controversy.

Since 1942, all water delivered to the District has

been delivered through the All-Américan Canal, con-

structed by the United States as a substitute for the

Alamo Canal under the authority of the Boulder Can-

yon Project Act, 45 Stat. 1057, 43 U.S.C. §§ 617 et seq.

This Act also authorized the construction of Hoover

Dam and gave the consent of Congress to the Colorado

River Compact, subjecting all rights of the United

States and those claiming under it to the Compact.

Section 6 of the Project Act expressly requires that the

Secretary operate the project so as to satisfy present

perfected rights. The Project Act makes no mention of

acreage limitations on private lands, although it ex-

pressly limits entries on public lands to 160 acres. Sec-

tion 14 incorporates by reference unspecified parts of

‘the reclamation law, but such incorporation is spe-

cifically limited to the extent that it does not conflict

with the express provisions of the Project Act. And

the Project Act’s legislative history, in which the sub-

11 These are the lands involved in this litigation. 233,000 acres, or

55 percent of the 424,145 acres irrigated prior to the Project Act,

are said by the Court of Appeals to be owned by ‘‘excess land-.

owners.’’ 595 F.2d, at 530, n.6. Respondents do not allege that

the present landowners are the same people who owned these lands

in 1929, or that there has not been a ‘‘break-up’’ of large 1929

holdings, with subsequent sales and resales of acreage in various

sizes.

12‘‘See, 14, This act shall be deemed a supplement to the recla-

mation law, which said reclamation law shall govern the construc-

tion, operation, and management of the works herein authorized,

except as otherwise herein provided (emphasis added).’’

il

ject of acreage limitations played a controversial role,

contains repeated statements by both proponents and

opponents of the Act to the effect that the language

contained in § 14 does not incorporate the acreage limi-

. tation provisions of the reclamation law. See, e.g., Colo-

rado River Basin: Hearings on H.R. 6251 and H.R.

9826 Before the House Committee on Irrigation and

Reclamation, 69th Cong., 1st Sess., 32-33 (1926); S.

Rep. No. 592, 70th Cong., 1st Sess., pt. 2, at 26 (1928) ;

69 Cong. Rec. 7634-7635, 9451, 10471, and 10495 (1928) ;

70 Cong. Rec. 289 (1928).

The Decisions Below

The District Court, after trial, entered judgment

against the United States, holding that acreage limita-

tions do not apply to private lands within the District.

332. F. Supp., at 11. Respondents applied for leave to

intervene to appeal in the event the United States de-

cided not to appeal. The District Court denied leave

to intervene for this purpose, and the United States de-

cided not to appeal. Solicitor General Griswold ex-

plained:

‘‘T eonsidered the matter carefully and thor-

oughly, and over a considerable period of time. As

a result of my consideration, I became convinced

that (a) we would not win the case in the court

of appeals, and (b) we should not win tt. In this

situation, I came to the conclusion that it was my

duty as a responsible officer of the government not

to authorize an appeal.’’ 117 Cong. Rec. 46228

(1971) (emphasis added).

Respondents appealed the order denying leave to inter-

vene. In the meantime, respondents in a separate case

obtained a District Court decision (by another judge)

12

that the ‘residency requirement” of § 5 of the Recla-

mation Act of 1902 applies to lands within the District.

Yellen, et al., v. Hickel, 335 F. Supp. 200 (S.D. Cal.

1971) ; 352 F. Supp. 1300 (S.D. Cal. 1972). There, re-

spondents alleged that they would be able to buy land

at below market value if the residency requirement of

§5 were applied. The Court of Appeals then reversed

the order denying intervention in the present case on

the basis that there might be two conflicting decisions

in the Ninth Circuit. 559 F.2d, at 543.

The two cases (“residency’”’ and ‘‘acreage’’) were

calendared for argument before the same panel. Al-

most three and one-half years after argument, the

Court of Appeals ordered dismissal of the residency

case for lack of standing, but reversed the District

Court’s judgment in the acreage case as to both stand-

ing and the merits. 559 F.2d, at 509. Its rationale was

that § 14 of the Project Act, by its references to the

reclamation law, subjected all privately owned lands

to the excess lands provisions of the reclamation law,

identifying §46 of the Omnibus Adjustment Act of

1926 as the operative statute. It held that the ‘‘ present

perfected rights’’ referred to in § 6 of the Project Act

were rights of the District, not its landowners, and that

the District could ‘‘redistribute’’ its water if excess

landowners refused to sell at prices fixed by the Secre-

tary of the Interior. As to standing, the court held that

respondents’ interest in buying land at less than market

value was sufficient to create standing. Petitions for

rehearing, filed in September of 1977, were denied 21

months later, in April of 1979. 595 F.2d, at 524. This

3**(N]o such sale [of a right to the use of water for land in

private ownership] shall be made to any landowner unless he be

an actual bona fide resident on such land... .’’ 32 Stat. 389.

13

petition for certiorari follows. Respondents in this case

have not filed a petition for certiorari in the residency

case.

In Arizona v. California, 373 U.S. 546 (1963), this

Court gave particular attention to the subject of ‘‘pres-

ent perfected rights” (pp. 566, 581, 583, 584, 588, and

594), holding them te be excluded from the Secretary’s

power to allocate water under the Project Act. The

Court, in its 1964 decree, 376 U.S. 340, defined the

term (see n. 2, supra), and required the Secretary to

so operate all federal works (e.g., Hoover Dam and the

All-American Canal) as to satisfy them. In its 1979

decree, the Court determined the present perfected

rights in Arizona, California and Nevada, including

those of the District (see n. 1, supra). Their signifi-

cance, in the present case, is that it has been adjudi-

cated that 424,145 acres in the District (97 percent of

the total area now irrigated) were being irrigated from

the Colorado River some 50 years ago, before the en-

actment of the Project Act, and the Secretary is di-

rected by this Court’s opinion and decrees to deliver the

water required to satisfy those rights. This acreage

includes all of the excess lands involved in the present

controversy.

The primary question now being litigated is whether

the Secretary is empowered to refuse to deliver water

from the All-American Canal for use on those lands,

in excess of 160 acres per landowner, unless the owner

agrees to sell the excess at prices fixed by the Secretary.

14

REASONS FOR GRANTING THE WRIT

I. The Court of Appeals’ Decision Conflicts With This Court's

Opinion and Decrees in Arizona v. California

First, the Court of Appeals’ decision cannot be put

into operation without conflicting with this Court’s

opinion in Arizona v. California, supra," and its ad-

judication of the District’s ‘“‘present perfected rights’’

in the 1979 decree. Second, the Court of Appeals’ de-

cision conflicts with this Court’s 1964 decree respecting

allocation of water in the event of shortages.

A. As to “present perfected rights” decreed by this Court

‘*Present perfected rights’’ must be satisfied from

water stored behind Hoover Dam. These rights, by defi-

nition, were perfected by actual use as of 1929 when the

Project Act became effective. The 1979 decree fixes the

amount of water which the Secretary must deliver to

the District at 2,600,000 acre-feet year or enough water

to irrigate 424,145 acres—whichever quantity is less—

with a priority date of 1901. That is to say, all of the

lands which would be denied water by the Court of

Appeals have been irrigated for more than 50 years,

pursuant to appropriations made 78 years ago.

“The significance of ‘‘present perfected rights,’’ as rights

acquired under state law, not dependent upon or subject to reduc-

tion by the Secretary’s allocations of water, received repeated

attention in this Court’s opinion in Arizona v. California, 373

U.S. 546, 566, 581, 583, 584, 588, 594 (1963). Thus, in rejecting

the argument that appropriations under state law governed the

Seecretary’s allocation of water, the Court said: ‘‘{[WJe are per-

suaded that had Congress intended so to fetter the Secretary’s

diseretion, it would have done so in clear and unequivocal terms,

as it did in recognizing ‘present perfected rights’ in § 6.’’ Id., at

581 (emphasis added).

15

The Court of Appeals says that the application of

acreage limitations to privately owned lands in the

District will not impair present perfected rights be-

cause the District can ‘‘redistribute its deliveries if

certain lands became ineligible for delivery of water.’’

d09 F.2d, at 529.

That statement is plainly wrong. The District can-

not redistribute water within its boundaries for reasons

both factual and legal. There is no place in the District

on which to put water taken away from the ‘‘excess’’

acreage now irrigated.” All irrigable private land—

438,000 acres—is already under irrigation (424,145

acres of this is in decreed present perfected rights).

The Court of Appeals makes two interlocking errors

(i) in failing to recognize that under California law

the rights of landowners to water delivered by irriga-

tion districts are property rights, not amorphous mem-

© 233,000 acres, or 55 pereent of the 424,145 acres irrigated

prior to the Project Act, are said by the Court of Appeals to be

owned by ‘‘excess landowners.’’ 595 F.2d, at 530, n. 6.

**The California Supreme Court has described the nature of

California water rights owned by an irrigation district in trust for

landowners as follows:

‘*[T he beneficiaries of the trust, who, upon familiar equitable

principles, are to be regarded as the owners of the property,

are the landowners in the district, with whose funds the

property has been acquired (Civ. Code, § 853), and in whom,

indeed, is vested by the express provisions of the statute, in

each, the right to the several use of a definite proportion of

the water of the district, and in all, in common, the equitable

ownership of its water rights, reservoirs, ditches, and property

generally, as the means of supplying water. St. 1887, pp. 34,

35, §§ 11, 13. Such rights as these cannot be distinguished in

any way from other private rights, and therefore clearly come

within the protection of the provision of section 13 of article

1 of the state Constitution—that ‘no person shall be * * *

deprived of * * * property without due process of law,’ and

16

berships in a class; and (ii) in failing to recognize that

under federal law the rights of landowners are rights

which the Project Act directs the Secretary to serve,

and precludes him from taking. This Court’s two de-

erees in Arizona v. California implement that mandate.

The court’s conclusion that the application of

acreage limitations to individual landowners (as dis-

tinguished from the District) would not impair present

perfected rights is premised on a misunderstanding of

the nature of water rights ‘‘owned”’ by irrigation dis-

tricts in California. Although it is true that the District

holds the legal title to the water rights, it holds this

title in trust for the landowners, who own the beneficial

interest. It is the individual landowner—not the Dis-

trict—who puts the water to beneficial use. Under Cali-

fornia law, each individual landowner has a statutory

right to a definite proportion of the District’s water."

And each individual landowner has a statutory right to

assign his proportionate share.** Moreover, the right to

a

of the similar provision of section 1 of the fourteenth amend-

ment to the Constitution of the United States.’’ Merchants’

National Bank of San Diego v. Escondido Irrigation District,

144 Cal. 329, 334, 77 P. 937, 939 (1904).

17“ Basis of apportionment among landowners. All water dis-

tributed by districts for irrigation purposes shall except when other-

wise provided in this article be apportioned ratably to each land-

owner upon the basis of the ratio which the last assessment against

his land for district purposes bears to the whole sum assessed in

the district for district purposes.’’ Cal. Water Code Ann. § 22250

(West 1971).

18 << Assignment of right. Any landowner may assign for use

within the district his right to the whole or any portion of the

water apportioned to him pursuant to Section 22250.’’ Zd., at

§ 22251.

17

such proportionate share becomes appurtenant to the

land on which the water is used.”

Section 6 of the Project Act requires the Secretary

to satisfy present perfected rights, and §13(d) pro-

vides specifically that the rights assured by the Colo-

rado River Compact, e.g., present perfected rights,

*‘run with the land,” ‘‘and shall be deemed to be for

the benefit of and be available to” the States of the

Basin “‘and the users of water therein ... by way of

suit, defense, or otherwise, in any litigation respecting

the waters of the Colorado River....’’

Present perfected rights are rights ‘“‘acquired in

accordance with state law.’’ 376 U.S., at 341. Thus, the

Project Act’s mandate that present perfected rights be

satisfied requires that in California such rights be

satisfied with respect to individual landowners and

their lands.

The notion that the District alone is protected

against impairment of present perfected rights, and

not the landowners who are the equitable owners of

those rights under the laws of California, is also in

collision with § 8 of the Reclamation Act of 1902, 32

Stat. 390, 43 U.S.C. §§ 372, 383. Section 8 not only re-

quires the Secretary to observe and respect rights

vested under state law, but also, in its overriding pro-

7° **A thing is deemed to be incidental or appurtenant to land

when it is by right used with the land for its benefit, as in the

case of a way, or watercourse, or of a passage for light, air, or

heat from or across the land of another.’’ Cal. Civ. Code, § 662.

*°“*This section was re-enacted in the Boulder Canyon Project

Adjustment Act, 54 Stat. 779, § 14 (1940).

18

viso, states a principle which is echoed, often in the

same words, in the law of every Western State:

‘TT Jhe right to the use of water . . . shall be ap-

purtenant to the land irrigated, and beneficial use

shall be the basis, the measure, and the limit of the

right.’’ ™

In Ickes v. Fox, 300 U.S. 82 (1937), this Court rejected

the notion that ownership of water rights vests in an

appropriator who diverts, stores and distributes water

for use by another.** There, the United States was the

2143 U.S.C. § 372. The only mention of § 8 in the Court of Ap-

peals’ opinion is in a footnote, 559 F.2d, at 528, n.37, which cites

the dictum in Arizona v. California, 373 U.S, 546, 586-587 (1963),

which this Court disavowed in California v. United States, 438 U.S.

645, 674-675 (1979). The Court of Appeals relies heavily on Jvan-

hoe Irrigation District v. McCracken, 357 U.S, 275 (1958), and

Fresno v. California, 372 U.S. 627 (1963). This Court, in California

v. United States, said that Ivanhoe, like Fresno, went ‘‘further than

was necessary’’ in restricting the scope of § 8 of the Reclamation

Act. 438 U.S., at 673. Mr. Justice Harlan, dissenting, in Arizona v.

California, 373 U.S. 546, 623-624, criticized what he called the

dictum in Ivanhoe ‘‘that §8 applies only to the acquisition of

rights by the United States and not to its operation of a dam,’’ in

terms which foreshadowed the later disavowal in California v.

United States of that dictum. 373 U.S., at 586-587. Mr. Justice

Harlan also made the point that § 14 of the Project Act, providing

‘‘that the Reclamation Act shall govern the operation of Hoover

Dam except as the Project Act otherwise provides,’’ had the effect

of incorporating § 8 of the Reclamation Act into the Project Act.

Td., at 623.

22 This Court said:

‘‘Although the government diverted, stored and distributed

the water, the contention of petitioner that thereby ownership

of the water or water-rights became vested in the United

States is not well founded. Appropriation was made not for

the use of the government, but, under the Reclamation Act,

for the use of the landowners; and by the terms of the law

and of the contract already referred to, the water-rights be-

19

appropriator, as the District is in this case, but the

water right was held to run with the land, per § 8 of

the Reclamation Act, and to be enforceable by the land-

owner. See Fox v. Ickes, 137 F.2d 30 (D.C. Cir. 1943).

This Court cited Ickes v. Fox with approval in its

opinion in Arizona v. California, supra, at 585, n.86,

as establishing the criterion for operation of the

Boulder Canyon Project.

Thus, the notion that the District alone is protected

against impairment of present perfected rights, and

not the landowners who are the equitable owners of

those rights under the law of California, conflicts with

both § 13 of the Project Act and § 8 of the Reclamation

Act of 1902.”

B. As to water decreed by this Court in addition to

“present perfected rights”

Article II(B) (3) of the 1964 decree, 376 U.S. 3490,

directs the Secretary, in the event of shortage in the

allocated quantities, to allocate the remaining available

water among three states ‘‘after providing for satisfac-

eame the property of the landowners, wholly distinct from the

property right of the government in the irrigation works.’’

300 U.S., at 94-95.

73In United States v. Gerlach Live Stock Co., 339 U.S. 725

(1950), the Court said this about § 8 of the 1902 Act:

‘By its command that the provisions of the reclamation law

should govern the construction, operation, and maintenance of

the several construction projects, Congress directed the Secre-

tary of the Interior to proceed in conformity with state laws,

giving full recognition to every right vested under those laws.’’

Id., at 734,

This is substantially the language of § 14 of the Project Act,

relied upon by the Court of Appeals in reaching the opposite con-

clusion that vested rights in excess of 160 acres per landowner are

not entitled to ‘‘full recognition.’’

20

tion of present perfected rights in the order of their

priority dates without regard to state lines.’’ Id., at

342. The Secretary manifestly cannot make any such

allocation until he first knows the magnitude and priori-

ties of the present perfected rights which must be pro-

tected, and hence how much remaining water there may

be. Present perfected rights account for about two-

thirds of California’s apportionment of 4,400,000 acre-

feet of the first 7,500,000 acre-feet available for con-

sumptive use in Arizona, California and Nevada.” But

to the extent the 424,145 acres referred to in the 1979

decree are denied a right to water, the Secretary will

be unable to satisfy the decreed ‘‘present perfected

rights’’ in the District, and the question of how much

water he must reserve for California in that category

‘becomes hopelessly muddled.

II. The Retroactive Decision of the Court of Appeals Conflicts with

the Principles of Finality of Judicial and Administrative De-

terminations Which Have Been Laid Down by this Court.

Any conceivable uncertainty over excess land laws

which might have existed after the Project Act became

effective in 1929 was explicitly resolved by resort to

all the methods which the English common law, federal

statutory law, and United States constitutional law

afford: express contract, regulation, administrative in-

terpretation, and res judicata.

Actions by the Department

It had to be decided, and was decided, before the

All-American Canal was built, whether the acreage

4 See Arizona v. California, — U.S. —, 99 S. Ct. 995, 1000-1005

(1979).

21

limitations were applicable to Imperial Valley. It is

clear beyond peradventure that the 1932 contract be-

tween the United States and the District was intended

by the parties who negotiated it to determine that

acreage limitations were not applicable to privately

owned lands in the District. The Secretary of the

Interior, who was named by Congress as the responsible

official to contract for the United States, said so in a

formal writing. His successors continued to say so in

a variety of ways.

Sécretary Wilbur had the task of ‘‘making the parts

work efficiently and smoothly while they are yet untried

and -new.’’ * He was the officer whom the Project Act

vested with responsibility and authority to negotiate

_ the contracts which §4(b), in conjunction with $5,

made prerequisites to obtaining appropriations for the

construction of Hoover Dam and the All-American

Canal. He had to construe a new statute which con-

tained directions that were not altogether consistent

with one another, as this Court’s opinion in Arizona

v. California, supra, so clearly demonstrates. It was

clear, however, as this Court later reaffirmed in

Arizona v. California, that he was required by § 6 to so

operate Hoover Dam as to satisfy present perfected

rights, and § 13 made these rights run with the land.

The history of negotiation of Article VIII of the Colo-

25 Cf. Norwegian Nitrogen Products Co. v. United States, 288

U.S. 294 (1933) where this Court said:

‘““. .. administrative practice, consistent and generally unchal-

lenged, will not be overturned except for very cogent reasons

if the scope of the command is indefinite and doubtful. .. .

The practice has peculiar weight when it involves a contem-

poraneous construction of a statute by the men charged with

the responsibility of setting its machinery in motion, of mak-

ing the parts work efficiently and smoothly while they are yet

untried and new.’’ 7d., at 315.

22

rado River Compact, in which the term ‘‘present per-

fected rights’’ first appeared, and of the Project Act,

make it clear that this language came into existence to

protect the long-standing irrigation economy of Im-

perial Valley. As to acreage limitations, the only pro-

vision in the Act is § 9, which was specifically limited

to public lands that would be newly opened to entry.

And the legislative history of the Project Act showed at

least six efforts to amend one or the other of the four

successive Swing-Johnson bills to add a land limita-

tion on private lands to the bill at a time when § 14 or

its predecessor was in the bill. All of these efforts were

ultimately unsuccessful.

Secretary Wilbur found clear directions that vested

rights must be respected when water is delivered

through federal works, even the rights of ‘‘excess”’

lands. Section 8 of the 1902 Act provided that nothing

in that act ‘‘shall be construed as affecting . . . the

laws of any State or Territory relating to the control,

appropriation, use, or distribution of water used in

irrigation, or any vested right acquired thereunder

... (emphasis added).’’ Accordingly, it had been the

Department’s practice, since at least 1905, to ‘flow

through’’ water required to satisfy vested rights which

preexisted the construction of a project. A 1910 regu-

lation of the Department on this subject was on the

books. 38 L.D. 637. It is still in force. It provides:

‘“‘The provision of section 5 of the act of June

17, 1902 (32 Stat. 389; 43 U.S.C. 381, 392, 431, 439),

limiting the area for which the use of water may

be sold, does not prevent the recognition of a

vested right for a larger area and protection of

the same by allowing the continued flowing of the

water covered by- the right through the works con-

23

structed by the Government under appropriate

regulations and charges.’’ 43 C.F.R. § 230.70.

Accordingly, Secretary Wilbur, in the negotiation of

the All American Canal contract, determined that the

contract should contain only the limitation on public

lands required by § 9 of the Project Act, and none on

private lands.

He said:

‘**Harly in the negotiations connected with the

All-American Canal contract the question was

raised regarding whether and to what extent the

160-acre limitation is applicable to lands to be irri-

gated from this canal. Upon careful consideration

the view was reached that this limitation does not

apply to lands now cultivated and having a present

water right. These lands, having already a water

right, are entitled to have such vested rights rec-

ognized without regard to the acreage limitation

mentioned. Congress evidently recognized that

these lands had a vested right when the provision

was inserted that no charge shall be made for the

storage, use, or delivery of water to be furnished

these areas.’ ’’ * 332 F. Supp., at 23. The entire

ruling is reproduced in the Appendix at p. 213a.

He went on to cite Departmental precedents.

This ruling was submitted to the court in the then

pending validation proceeding, Hewes v. All Persons.

Secretary Harold L. Ickes took office March 4, 1933,

just before the hearing in the Hewes case. The contract,

7° The Court of Appeals points out that this letter refers to §5

of the Reclamation Act of 1902, not § 46 of the Omnibus Adjust-

ment Act of 1926. But this Court, in Ivanhoe Irrigation District v.

McCracken, 357 U.S. 275, 290 (1958), characterized the latter as a

reenactment of the former.

ee

24

because of the validation requirement, had not yet gone

into effect. Far from intervening in Hewes to repudiate

Secretary Wilbur’s interpretation, Secretary Ickes

(whom President Roosevelt appointed to serve also as

Public Works Administrator), allocated P.W.A. funds

for the construction of the All-American Canal as soon

as the termination of the validation litigation permit-

ted. He so reported to the President and the Congress.

Annual Report of the Secretary of the Interior, F.Y.

1933. He continued for nine years to allocate P.W.A.

funds or to submit justifications for appropriations to

construct the All-American Canal until it was com-

pleted in 1942. For 34 years this interpretation was re-

garded as a rule of property by landowners in the pur-

chase and sale of lands, by the Department of the In-

terior, and (on the Department’s advice) by other fed-

eral agencies, including those which lent money in In-

perial Valley.

In United States v. Midwest Oil Co., 236 U.S. 459

(1915), this Court said:

“Tt may be argued that while these facts and

rulings prove a usage, they do not establish its va-

lidity. But government is a practical affair, in-

tended for practical men. Both officers, lawmakers,

and citizens naturally adjust themselves to any

long-continued action of the Executive Depart-

ment, on the presumption that unauthorized acts

would not have been allowed to be so often re-

peated as to crystallize into a regular practice. That

presumption is not reasoning in a circle, but the

basis of a wise and quieting rule that, in determin-

ing the meaning of a statute or the existence of a

power, weight shall be given to the usage itself,—

even when the validity of the practice is the subject

of investigation.’’ Id., at 472-473.

25

This criterion would seem to be fully satisfied by 34

years’ adherence by six Secretaries, in four Presiden-

tial administrations, to the ruling made by the Secre-

tary who had the responsibility for putting the Project

Act into motion.

As the District Court pointed out:

‘ “Congress for more than 30 years was fully

‘aware of the 1933 ruling and interpretation of

Secretary Wilbur and of the administrative prac-

tice predicated thereon. The Imperial Valley situ-

ation in light of such interpretation and practice

was called to its attention in appropriation hear-

ings for the construction and operation of the All-

American Canal, at the hearings on the Central

Valley and San Luis projects and at the hearings

on the Small Projects Act of 1958.’’ 322 F. Supp.,

at 27.

Congress repeatedly appropriated large amounts for

the construction and operation of the All-American

Canal, and took no action to reverse the known policy

of the Interior Department with respect to Imperial

Valley.

Judicial Determination: The Hewes Case

As required by § 1 of the Act of May 15, 1922, 42 Stat.

541, 43 U.S.C. § 511, the Imperial contract was submit-

ted to a state court of competent jurisdiction for de-

termination of the District’s authority to execute it.”

Hewes v. All Persons. An objecting landowner, in his

answer, put in issue the questions of (i) whether the

reclamation law required that the contract contain a

land limitation applicable to private owners, (ii) if so,

27 Art. 31 of the contract incorporates the language of the 1922

statute.

26

whether this contract by its cross-reference to the rec-

lamation law imposed such a limitation, (iii) whether

the District had authority to enter into such an agree-

ment, and (iv) related constitutional issues.

The state court, after trial, decided all of these

issues in favor of the validity of the contract, and

rejected the contention that the land limitations in the

reclamation law were incorporated by reference in the

contract and therefore were applicable to lands in the

District.”

It would appear to be beyond question that the state

court’s determinations must be accorded full faith and

credit in the courts of the United States. 16 U.S.C.

§ 1738. The Court of Appeals, however, refused to do so.

The court in its opinion acknowledged that the in rem

validation proceeding was res judicata and foreclosed

‘further inquiry into the matters to which the judg-

ment properly relates.’ 559 F.2d, at 525. However, it

characterized the determination with respect to acre-

age limitations as ‘‘pure dicta.’’ Jd., at 526.

The court’s premise that the contract would have

been valid whether or not the reclamation law required

the application of acreage limitations in the District

is untenable. The parties to the contract were in agree-

ment that the contract did not authorize acreage limi-

tations on privately owned lands in the District. Sec-

retary Wilbur had confirmed this. Thus, if the Hewes

court had decided that the reclamation law required

acreage limitations on private lands in the District,

it necessarily would have held the contract invalid as

28 See Appendix at p. 120a.

27

failing to conform to that law.” The Court of Appeals

purports to take its view of the effect of validation

proceedings from the California Supreme Court’s

opinion in Ivanhoe Irrigation District v. All Parties

dé Persons, 47 Cal. 2d 597, 306 P.2d 824 (1957), re-

versed sub nom., Ivanhoe Irrigation District v. Mc-

Cracken, 357 U.S. 275 (1958), declaring that a valida- .

tion proceeding ‘‘within its legitimate issues [is]...

binding on the world at large.’’ 559 F.2d, at 525. The

Court of Appeals held, however, that there can be only

one such issue, the contract’s validity.”

The Court of Appeal’s error is in the implicit as-

sumption that abstract ‘‘validity’’ can be usefully de-

cided while divorced from any determination of what,

if anything, the contract obligates its parties to do or

not to do. An opinion by a California court declaring

that ‘‘This contract is valid, and binding on all the

world, but what the contract binds any party to do or

to refrain from doing, and what if any remedy might

be available, is beyond any issue reached,’’ would be a

useless absurdity.

The purpose of the 1922 statute requiring validation

proceedings as a condition to the effectiveness of a

federal contract under the reclamation law was to

establish finality as against both parties to that con-

tract—the United States and the irrigation district

2° In Ivanhoe, which was relied on by the Court of Appeals, the

parties to the contract were in agreement that the acreage limita-

tion provisions of the reclamation law were applicable, and the

contract explicitly so stated.

30 In Ivanhoe vested water rights were not involved:

‘Tt is interesting to note that irrigators in this district receive

water diverted from the San Joaquin in which they never had

nor were able to obtain any water right.’’ 357 U.S., at 285.

28

—before the former spent money to construct a project,

and the latter became obligated to repay its cost.“ This

necessarily included the adjudication of every issue

raised in that validation proceeding against the en-

forceability of the obligations of either of them.”

Every device known to the law was employed to make

the agreement between the District and the United

States effective and certain. If they failed—and clearly

both they and the Department with whom they dealt

did fail if the Court of Appeals’ decision is allowed to

stand—there is no mechanism known to the law by

which such an agreement can be made certain. Con-

temporaneous construction, contract, long-continued

reliance, and even the strongest legal cement available

—res judicata—are all rendered ineffective retroac-

tively, decades after the fact.

The importance of finality is not confined to the

present case. It is not even confined to the many proj-

ects in Arizona, Nevada, and California served by water

“The United States has at times contended that a state court

ean have no jurisdiction to determine anything about rights in

water to which the government claims ownership and control. That

argument was conclusively disposed of in United States v. District

Court for Eagle County, 401 U.S. 520 (1971). Congress can give

a state court jurisdiction to decide whatever Congress by statute

provides. 43 U.S.C. § 511 is meaningless if it does not dispose of

any objection to a California court deciding, as expressly it did in

Hewes v. All Persons, that the District’s contract is valid and

does not limit the acreage of privately owned farms.

%2In Tacoma v. Taxpayers of Tacoma, 357 U.S. 320 (1958), this

Court, speaking of the finality to be accorded under the Federal

Power Act to a court of appeals review of an order of the Federal

Power Commission, said: ‘‘Such statutory finality need not be

labeled res judicata, estoppel, collateral estoppel, waiver or the

like either by Congress or the courts.’’ Jd., at 337.

29

stored in Hoover Dam under the Project Act.* It ex-

tends to all projects in the 17 Western States in which

43 U.S.C. § 511 was thought to have brought about a de-

termination of the validity of contractual provisions

before the project was built.

What might have been achieved under a limitation

beginning in 1932 need not now be decided. It is clear

that all who have acquired lands in Imperial Valley

since the Project Act was authorized 50 years ago

have paid prices determined by a market in which

the value of the project to the land has been fully

capitalized. Taxes and mortgage interest have been

paid for several decades on values which include

value added by the project. If a wrong has been com-

mitted, it is a wrong to today’s generation which has

paid excess prices, taxes, and interest. If there were

speculators, they were speculators of the 1930s, not of

the 1970s, who sold and took the windfall with them.

Today’s landowners paid full value. The United States

suit to deny today’s irrigators water served by the

Project is like imprisoning the victim of a robbery

rather than the robber.

III. The Decision Below Expands the Concept of “Standing” on

an Unjustifiable Scale, to Include All Persons in the United

States Who Might Profit From the Secretary's Power to Fix

Prices of “Excess Lands” at Less Than Market Value on

Forced Sale. If Such Authority Ever Existed as to sends 3 in

the District, It Terminated on March 1, 1978

We contend that (i) the respondents never had

standing, and (ii) if they ever had standing, it ended

33 Palo Verde Irrigation District and the Metropolitan Water

District are both contractees under the Project Act, and neither

has ever been held subject to any excess land law.

30

with the termination of the Secretary’s authority to fix

prices on the sale of excess lands, which occurred in

this case, March 1, 1978.

A. The Court of Appeals’ opinion would expand the concept of

standing on an unjustifiable scale

Respondents’ only interest is that of citizens in gen-

eral. They do not allege, and could not allege, any pref-

erence as against potential purchasers anywhere else

in the United States. Inasmuch as respondents had no

more direct interest in the case than, say, residents of

Chicago who might, like them, see a chance for a wind-

fall at the expense of the landowners, their status is

somewhat less than that of private attorneys general

secking to second-guess the Solicitor General of the

United States in his perception of the merits, after he

had withdrawn the United States from the case.“

’)

“4 In the companion ‘‘resideney’’ case the Court of Appeals, in

the same opinion that is addressed by this petition for certiorari,

held that these same respondents lacked standing. It gave as its

reasons :

‘‘I’urthermore, any relicf that could appropriately be

ordered in this case would not redress plaintiffs’ alleged

injuries. The most that could be ordered is a discontinuance

of deliveries of water to lands owned by nonresidents. Non-

resident landowners could not be forced to sell their lands.

Some lands owned by nonresidents might be turned to indus-

trial or residential uses. . . . Land placed for sale by non-

residents could be purchased by residents other than the

plaintiffs or by nonresidents who wished to move to the area

in order to obtain farm land. These two groups of prospective

purchasers would compete with plaintiffs for the purchase of

available farm lands and drive up prices.’’ 559 F.2d, at 519.

The difference in the court’s decisions in the residency and

acreage cases is explainable only because the Secretary was be-

lieved to be empowered to fix sale prices in the acreage case, but

not in the residency case. He lost this authority when the District

completed payment of half of construction charges.

31

The Court of Appeals might well have quoted its

own language in T'urner v. Kings River Conservation

District, 360 F.2d 184 (9th Cir. 1966) :

‘*Moreover, the statutes [§46 of Omnibus Ad-

justment Act of 1926 and § 5 of Reclamation Act of

1902] imposed a duty upon the Secretary of Inte-

rior in the interest of the public at large, and there

is nothing in the statutes to indicate that Congress

intended to confer a litigable right upon private

persons claiming injury from the Secretary’s fail-

ure to discharge his duty to the public.’’ Jd., at 198.

B. More than one-half of the construction charges against all

lands have been repaid

The standing of respondents—intervenors after

the District Court’s judgment went against the United

States—was predicated wholly on the allegation that

these particular people would benefit if the Secretary

were enabled to fix prices at less than market value on

the foreed sale of excess lands.” But the Secretary’s

authority to fix prices, if he ever had it with respect to

lands in the District, expired on March 1, 1978. Section

46 fixes a termination date on the Secretary’s price-

fixing authority in these terms:

‘*[U |ntil one-half the construction charges against

said lands shall have been fully paid no sale

8° This a suit to enforee § 46 of the 1926 Act, not a suit to enforce

§5 of the Reclamation Act which also imposes a land limitation.

The Court of Appeals was careful to make this distinction. 559

F.2d, at 537. The distinction was necessary because the court held

that these same respondents lacked standing to sue to enforce the

residency requirements of § 5. See 559 F.2d, at 517. It would have

strained the imagination to discover that respondents had standing

nevertheless to enforce the acreage limitation in that same section.

But see /vanhoe Irrigation District v. McCracken, which referred

to the 1926 Act as a ‘‘reenactment’’ of See. 5 of the 1902 Act.

357 U.S. 275, 290 (1958).

32

of any such lands shall carry the right to

receive water unless and until the purchase price

involved in such sale is approved by the Secretary

of the Interior .... (emphasis added.)”’

On March 1, 1978, the District completed repay-

ment of more than one-half of the construction charges

against all lands in the District. Counsel for the Dis-

trict informed the Court of Appeals, in the petition for

rehearing, that this event was imminent.”

The Secretary’s authority to set prices for land hav-

ing terminated when the District repaid 50 percent of

the costs, the controversy became moot as to these re-

spondents since the remedy which they sought was no

longer available. The rule that the federal judiciary

will not review moot cases is derived from the Article

III requirement that the exercise of judicial power de-

pends upon the existence of a case or controversy.

Courts are guided by the familiar propositions that

‘federal courts are without power to decide questions

that cannot affect the rights of Jitigants in the case be-

fore them,’’ North Carolina v. Rice, 404 U.S. 244, 246

(1971), and ‘‘when, pending an appeal from the judg-

ment of a lower court ...an event occurs which renders

it impossible for this court ... to grant him any effec-

tual relief whatever, the court will not proceed to a

formal judgment, but will dismiss the appeal.’’ Ameri-

can Book Company v. Kansas, 193 U.S. 49, 52 (1904),

quoting Mills v. Green, 159 U.S. 651, 653 (1895). Cf.

DeFuns v. Odegaard, 416 U.S. 312 (1974).

%° The petition for rehearing en bane was filed September 8, 1977.

The amounts involved are stated in the affidavit of Robert F.

Carter, reproduced in the Appendix at p. 248a.

33

CONCLUSION

For the foregoing reasons, it is respectfully re-

quested that the petition for writ of certiorari be

granted.

Respectfully submitted,

_ Reainabp L. Knox, JR.

Horton, Knox, CARTER

& FoorTe

Law Building, Suite 101

Of Counsel: 895 Broadway

Cusmas &. Coucm oo California

Seattle, Washington (714) ,

98105 NortHcurt ELy

(206) 523-9264 FREDERICK H. Ritts

Rosert F'. PIeTROWSKI, JR.

WiuuiAM H. BuRCHETTE

Law OFFICES OF

Nortucutt ELy

Watergate 600 Building

Washington, D.C. 20037

(202) 342-0800

Attorneys for Imperial

Irrigation District

September 14, 1979