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

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ICHAEL RODAK, JR., CLERK

IN THE ”

Supreme Court of the United States

OcToBER TERM, 1979

No. 79-435

IMPERIAL IRRIGATION District, ET AL., Petitioners,

Ben YELLEN, ET AL., Respondents.

BRIEF OF PETITIONER

IMPERIAL IRRIGATION DISTRICT

Of Couns. !: REGINALD L. KNox, JR.

Horton, KNox, CARTER

CHARLES E. CoRKE N, KNOX, CARTE

"419 : : & Foote

4128 55th Avenue, N.E. 7 ay Building, Suite 101

T .

Seattle, Washington 286 Breadeer

(208) 523 9964 El Centro, California

a ae 92243

(714) 352-2821

NortTHcuTt Evy

FREDERICK H. RITTs

Rosert F.. Prerrowskl, JR.

WituiaM H. BURCHETTE

Rap J. GILLIS

Law OFFICES OF

Nortucutt Ey

Watergate 600 Building

Washington, D.C. 20037

(202) 342-0800

Attorneys for Imperial

Irrigation District

January 17, 1980

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

ay eer Yaw.

AL a ad le, 7 a on 2:

TABLE OF CONTENTS

Page

SINE: Sree nys to base dh obscene oredenieenees 1

GI ec Nadine thea Neh eiecee hina ncaa enenanns 2

Statutory Provisions INVOLVED .............00e000: 2

I-III ici cae deveeibacendéecwens ten 3

STATEMENT OF THE OABR 20... ccc ccc cccccccccces 4

I CE 6 tras direc ne ek uenn ehakne een 4

The Relationship of This Case to Arizona v. Cali-

agli. Seas Or aera ey ane rk Aa mee aoe 6

ee eee 9

Historical Background: The origin of Imperial Ir-

rigation District’s presented perfected rights 10

The Colorado River Compact .................. 12

~The Boulder Canyon Project Act .............. 13

The All-American Canal Contract and the Hewes

NGL cs vebackuswd cd abieunucadesccucess 15

er 17

ARGUMENT

I. The Boulder Canyon Project Act Does Not Author-

ize Acreage Limitations on Present Perfected

Rights sane e eee eee ence ence ence rece ceeeeeees 25

A. The plain language of the Project Act specific-

ally requires the satisfaction of present per-

WE IN Gu eitare blake 5540 a5 6KG cee kas owe 25

1. The § 6 Requirement that Present Perfected

PPT eee 25

2. The Incompatibility of §6 and Acreage

EE HAA 5S eh ovis 4b ebaraesd babar’ 30

. ew

II.

IIT.

Table of Contents Continued

Page

B. The legislative history of the Boulder Canyon

Project Act confirms that § 14 was not intended

to imply an authority to limit water deliveries

to 160 acres of private land in single ownership

©. Thirty-one years of consistent administrative

construction by six secretaries confirms that the

Project Act does not authorize acreage limi-

tations in Imperial Valley ..................

D. Congress has ratified administrative construc-

tion to the effect that the Project Act does not

authorize limitations in the District .........

The Decisions Not To Apply An Acreage Limita-

tion To The Privately Owned Lands In Imperial

Irrigation District Have Become Final And Irre-

I bao bata tks enue ks ce ees aneneee ran

pene hemes er errr

Be SOR kc akdv chad enseeseceak>adakeues a5

C. Validation by judicial proceeding ............

D. The attempted destruction of established values

The Court of Appeals Erred In Applying Consti-

tutional ‘‘Case and Controversy’’ Requirements

By Allowing Respondents, Ben Yellen, Et Al., To

Participate As Parties Based On Conjectural

Harm and Speculative Relief ..................

A. The constitutional tests of standing .........

How the respondents got into court .........

The lack of particularized injury ............

ree Cee ery ree

BOQ

Even if it is assumed arguendo that Dr. Yellen,

et al., once had standing, that standing would

necessarily have ceased when one-half the con-

struction costs of the All-American Canal were

EY 5c Gi vince) p 440 bamed connor tiwnsweas

ST sie os cow ek * owe vaiaklut APE Cee PO

TABLE OF AUTHORITIES ill

Court CasEs:

Adams v. United States, 319 U.S. 312 (1943) ........ 57

American Book Company v. Kansas, 193 U.S. 49 (1895) 86

Andrews v. Lilian Irrigation District, 66 Neb. 458,

92 N.W. 612 (1902), rehearing, 97 N.W. 336 (1903) 71

Ashton v. Cameron County Water District, 298 U.S.

TL I Ee 73

Arizona v. California, 283 U.S. 423 (1931) .......... 68

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

Arizona v. California, 376 U.S. 340 (1964) ..7, 26, 27, 28, 30

Arizona v. California, 439 U.S. 419 (1979) ..... 7, 18, 27, 28

Bayside Enterprises Inc. v. NLRB, 429 U.S. 298 (1978) 57

Bekins v. United States, 304 U.S. 27 (1938) .......... 73

Board of Governors v. First Lincolnwood Corp., 439

eG EEO 57

California v. United States, 438 U.S. 645 (1979) ....10, 21,

29, 38

Chicot County Drainage District v. Baxter State Bank,

ee a ceca nc scescces 71

De Funis v. Odegaard, 416 U.S. 312 (1974) .......... 86

Duke Power Co. v. Carolina Environmental Study

FUOUN, BI i OOD ooo c nc ccc c ccc cc cccse 82

Gladstone Realtors v. Village of Bellwood, 47 U.S.L.W.

RE Ee 76, 81

Hanson v. Kittitas Reclamation District, 75 Wash. 297,

a ive cc cence 71

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

perial County (1933) ............. 15, 16, 47, 50, 64, 69

Ickes v. Fox, 300 U.S. 82 (1987) ........... ccc cee. 35

Ickes v. Fox, 137 F.2d 30 (D.C. Cir. 1943) on remand .. 36

In re Imperial Irrigation District, 10 F. Supp. 832

(1934), rev’d, 87 F.2d 355 (1936) ...............

iv Table of Authorities Continued

Page

Ivanhoe Irrigation District vy. All Parties & Persons,

47 Cal. 2d 597, 306 P.2d 824 (1957) ........ 69, 70, 71

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

(| errerrree reer errr Tear. to passim

Merchants’ National Bank of San Diego v. Escondido

Irrigation District, 144 Cal. 329, 77 P. 937 (1904) 33

Mills v. Green, 159 U.S. 651 (1895) .......-....0 ee . &

Missouri v. Ross, 299 U.S. 72 (1936) .........-eee eee 37

NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974) ....° 57

North Carolina v. Rice, 404 U.S. 244 (1971) ......... 86

Norwegian Nitrogen Products Co. v. United States,

968 UB. BO4 (1GEB) oon ccc cece cecvicctecccude 57

Palmer v. Railroad Commission, 167 Cal. 163, 138 P.

8) re rere rrmrrs Tr yer ters ste 35

Perrine v. Chesapeake & D. Canal Co., 50 US. (9

A: Bi | een eee e eT rer eee

Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969 57

Saxbe v. Bustos, 419 U.S. 65 (1974) ..........-.0008- 61, 62

Senior v. Anderson, 138 Cal. 716, 72 P. 349 (1903) .... 35

Stanislaus Water Co. v. Bachman, 152 Cal. 716, 93 P.

a errr errr rere err ree eee 35

Tacoma v. Taxpayers of Tacoma, 357 U.S. 320 (1958) 72

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

coe Gf | rrr Tre rere rear 81

Udall v. Tallman, 380 U.S. 1 (1965) ............ 57, 58, 59

United States v. Imperial Irrigation Dist., 559 F.2d

509 (9th Cir. 1977), reh. denied, 595 F.2d 525

: . ) rer Ore Prt Ser hore ir Te cee passim

United States v. Imperial Irrigation Dist., 322 F. Supp.

11 (S.D. Cal. 1971), rev’d, 559 F.2d 509 (9th Cir.

1977), reh. denied, 595 F.2d 525 (1979) ....... passim

United States v. Midwest Oil, 236 U.S. 459 (1915) .... 60

Table of Authorities Continued Vv

Page

United States v. Northern Pacific Railway Co., 242 U.S.

ar ek i Oe el ea ce Vurie eres becuase onc 59

United States v. Rutherford, 442 U.S. 544 (1979) ...56, 57

United States v. Tulare Lake Canal Company, 535 F.2d

1093, cert. denied, 429 U.S. 1121 (1977) ..... 24, 25, 84

Wright v. Best, 19 Cal. 2d 368, 121 P.2d 702 (1942) .. 35

Wyoming v. Colorado, 259 U.S. 419 (1922) .......... 67

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

| TEPTES READ Bar oS Rr ey eto pepe eNO Qe re ni 6

Yellen, et al. v. Hickel, 352 F. Supp. 1300 (S.D. Cal.

oo BEES Ee Te ee oe Pn hanno oe Meee ea 6

Zemel v. Rusk, 381 U.S. 1 (1965) ...... ccc ccccccecs 57

STATUTES AND Compacts:

Act of February 2, 1911, 36 Stat. 895, 43 U.S.C. 4374 4

Act of July 24, 1912, 37 Stat. 200, 43 U.S.C. §449.... 4

Act of August 9, 1912, 37 Stat. 266

Section 3, 43 U.S.C. §§ 543, 544 ................ 4

Act of August 13, 1914, 38 Stat. 689

Section 12, 43 U.S.C. $418 .......... cc cece cece 4

Act of August 11, 1916, 39 Stat. 508

SUN a WEE, DOIE oo bess kaa vee csevd cas 4

Act of January 25, 1917, Sections 1-4, 39 Stat. 868 .... 4

Act of May 20, 1920, 41 Stat. 605, 43 U.S.C. §375.... 4

Act to Provide for the Application of the Reclamation

Law to Irrigation Districts, 42 Stat. 541, Section 1,

ee Ie EE hc lnc sd < ch ¥o ook ok bane passim

Act of October 14, 1941, 54 Stat. 1119, 16 U.S.C.

DEINE oo act cl cote re coo ee os 4

Boulder Canyon Project Act, 45 Stat. 1057

Section 1, 43 U.S.C. $617 ....... Sia ek song en 2, 6, 13, 15

Section 2(a), 43 U.S.C. §617a ..............000 14

vi Table of Authorities Continued

Page

Section 2(b), 43 U.S.C. § 617a 2.0... .- cece ee eee 14, 15

Section 4(a), 43 U.S.C. § 617c(a) .......-0-+-- 2,7, 13

Section 4(b), 43 U.S.C. § 617ce(b) ...... 2, 14, 15, 23, 46

Section 5, 43 U.S.C. § 617d ......- eee e eee ees passvm

Section 6, 43 U.S.C. $617e 2.02... . cece ees passim

Section 8, 43 U.S.C. § 617g ..... cece eee ee ees 2,.7, 13

Section 9, 43 U.S.C. § 617h ....... cece eee eee passim

Section 13, 43 U.S.C. § 6171 ...... 2, 7, 12, 13, 19, 28, 35

Section 14, 43 U.S.C. § 617m ........e eee eee passim

Section 18, 43 U.S.C. § 617q .....-. eee eee eeees 2, 32

Boulder Canyon Project Adjustment Act, 54 Stat. 779

Section 14, 43 U.S.C. §618m ............-- 32, 35, 62

Cad; Civ. Ondle $008 v0... 5 os cceicenssenses eee 34

Cal. Civ. Code $668 onic ccctedccsesieseenscedenees 33

Cal. Water Code Ann. §§ 22250, 22251 (West 1971) ... 34

Colorado River Basin Project Act, 82 Stat. 886, 887

Section 301(b), 43 U.S.C. § 1521(b) .......... 3, 27, 62

Colorado River Compact, 70 Cong. Rec. 324 (1922) .. 2,7,

12, 22, 26, 36, 65

Desert Land Act, 43 U.S.C. §§ 321 et seg. .......+---- 10

Jutlicial Code, 62 Stat. 689, 928

Section 1254(1), 28 U.S.C. § 1254 ............0-- 2

Section 1738,°28 U.S.C. $1738 ...........eceeees 3, 22

Omnibus Adjustment Act of 1926, 44 Stat. 649, as

amended, 70 Stat. 524

Section 46, 43 U.S.C. §423(e) ........... passim

Reclamation Act of 1902, 32 Stat. 388

Section 1, 43 U.S.C. $301 .... ..cccccccccceces 14, 35

Section 3, 43 U.S.C. §§ 416, 432, 434 ............. 3, 4

Section 5, 43 U.S.C. §§ 392, 431, 439 ..... 3, 6, 31, 48, 67

Section 8, 43 U.S.C. §§ 372, 383 ........ . 8, 19, 35, 38

Table of Authorities Continued vii

Page

Warren Act, 36 Stat. 926

Section 2, 43 U.S.C. § 524 .......... 0... cc cccee. 4

Ee 10

We I OD CRED occ ccc cscccvccccccvcccccs 63

ci cc cnc cscccccesscctecece 63

ee 63

cc cenesccstecvecsces 63

rr 63

IR I END gone as cnccsccccccvececas 63

OO femmes Com, Gees (10GB) wc. cece ccc ccccccces 63

Re Weis Oy PE CRUE) co ccc ccc ccccccccncccccs 63

58 Stat. 463, 489-90 (1944) ...... ccc cee eee 63

er 63

Oo tent. GER, GAS (1945) 25... ccc ccc cece cece 63

re 63

ee 63

63 Stat. 765, 782 (1949) 2.0.0... eee cece ees Fe pre 63

ee 63

TD ncn isan cnnvsecacvessccucs 63

| ee COG 47

ha oS 60k a Voda vac ccs cecssecse 47

MISCELLANEOUS:

Acreage Limitations in Bureau of Reclamation Proj-

ects: Hearings Before Subcomm. on Public Lands

and Development of the Sen. Comm. on Energy

and Natural Resources, 95th Cong., 2d Sess., pt. 3

I ee essa. ogy bu ski dc donee 61

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

H.R, 9826 Before the House Comm. on Irrigation

and Reclamation, 69th Cong., 1st Sess., pt. 1 (1926) 40

Vili Table of Authorities Continued

Page

Colorado River Basin: Hearings on S. 728 and S. 1274

Before the Senate Comm. on Irrigation and Recla-

mation, 70th Cong., Ist Sess. (1928) .........+.- 44

Hearings Pursuant to S. Res. 320, Before the Sen.

Comm. on Irrigation and Reclamation, 68th Cong.,

DE Hts. CARED: ck cave cee civcwesevedscreesensts

Hearings on H.R. 13710 Before a Senate Subcomm. on

Appropriations, 72d Cong., 2d Sess. (1933) ...... 61

Hearings on H.R. 3961 Before a Subcomm. of the Sen.

Comm. on Commerce, 78th Cong., 2d Sess., pt. IV

COED bk panGb a Coad hekendncd REDPER PE REEEES «0 51, 61

Hearings on S. 295 Before a Subcomm. of the Sen.

Comm. on Irrigation and Reclamation, 78th Cong.,

eS) ere eee ee tee 61

Hearings before a Subcomm, of the Sen. Military

Affairs Comm., 78th Cong., 2d Sess. (1944) ..... 61

Hearings on H.R. 6335 Before a Subcomm., of the Sen.

Appropriations Comm., 79th Cong., 2d Sess. (1946) 6)

Hearings on Irrigation and Reclamation Before a Sub-

comm, of the House Comm. on Public Lands, 80th

CON, TRE TOE. CERT oc ck eck ctcecevisinenss 61

Hearings on S. 912 Before a Subcomm. of the Sen.

Comm. on Public Lands, 80th Cong., 1st Sess.

| I Serer es Pore re eee Ty ee ee 61

Hearings on S. 1385 Before the Sen. Comm. on Interior

and Insular Affairs, 81st Cong., lst Sess. (1949) .. 61

Hearings on S. 1425, S. 2541, and 8. 3448 Before the

Subcomm. on Irrigation and Reclamation of the

Sen. Comm. on Interior and Insular Affairs, 85th

i ae SS) eae ere ee) oe

H. Rep. No. 1657, 69th Cong., 2d Sess. (1926) ........ 42

Interior Department Appropriation Bil, 1937: Hear-

ings Before Subcomm. of the House Comm. on

Appropriations, 74th Cong., 2d Sess. (1936) ..... 51

Table of Authorities Continued ° ix

Page

Reclamation Reform Act of 1979: Hearings Before

the Subcomm. on Energy Research and Develop-

ment of the Sen. Comm. on Energy and Natural

Resources, 96th Cong., 1st Sess. (1979) ......... 61

Sen. Comm. on INTERIOR AND INsuLaR Arratrs, ACREAGE

Limitation Potricy, 88th Cong., 2d Sess. (1964) .. 61

S. Rep. No. 592, 70th Cong., Ist Sess., Part 2 (1928) .. 44

Water Policies for the Future, Final Report to the

President and to the Congress of the United States

by the National Water Commission (1973) ...... 61

The Hoover Dam Documents, House Document No.

717, 80th Cong., 2d Sess. (1948) ............ 10, 51, 52

ey CS, Se ho hows bed dbawnaccerae. 43

SP Ss Be Ws WOON oh idee cecsovncnnceonuess 45

aoe eS re ener ae 45

RET SOU, TO, GH CEE oko onc hie dukwciccvandes 5

Se I ois Eve io hoods calle ea run 48, 67

er ON Fike kasd osnos a ee 9, 24, 85

ca en SE ee ee ROMER IO PIN «7 48

a 5 eee: Sakis bax arcane tees 54

oe I Nis 6 Kens oer et higke le eee 47

SE a revel ria hee be Wl dred ieee te whee 74

U.S. Department or THE Inrertor, Toe Hoover Dam

he ee ee A Ek 46

2 K. Davis, Apminisrrative Law Treatise 98 (2d ed.

PE Ur pire hn GLE kerr gee rt Men PEM ost tult 67

1 W. Hurcuins, Water Ricuts 1n Nineteen WESTERN

SE: A OUTED oc bah i dkb db sdu Ges cecedees ct 34

IN THE

Supreme Cowt of the United States

OctoBer TERM, 1979

No. 79-435

IMPERIAL IRRIGATION DistRIct, ET AL., Petitioners,

Vv.

BEN YELLEN, ET AL., Respondents.

BRIEF OF PETITIONER

IMPERIAL IRRIGATION DISTRICT

OPINIONS BELOW

The principal opinion of the Court of Appeals is

reported at 559 F.2d 509 (9th Cir. 1977), and appears’

at App. la.’ The opinion of the Court of Appeals modi-

fying its principal opinion and denying the District’s

petition for rehearing is reported at 595 F.2d 524 (9th

Cir. 1979), and appears at App. 64a. The opinion of

the District Court (Turrentine, District Judge) is re-

ported at 322 F. Supp. 11 (S.D. Cal. 1971), and is

printed at App. 78a. The order of the District Court

*In this brief, ‘‘App.’’ is used to designate the appendix to

Imperial Irrigation District’s Petition for Certiorari. References to

the Consolidated Appendix are indicated ‘‘Con. Apx.’’

denying the motion of respondents Ben Yellen, et al.,

for leave to intervene after judgment to prosecute an

appeal is unreported and is reproduced at App. 112a.

The decision of the Court of Appeals reversing that

order of the District Court is an appendix to the opin-

ion of the Court of Appeals, 559 F.2d, at 543, and

appears at App. 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 Imperial

Irrigation District’s petition for rehearing. The juris-

diction of the Supreme Court was invoked under

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

petition for certiorari filed September 14, 1979. Cer-

tiorari was granted December 3, 1979.

STATUTORY PROVISIONS INVOLVED

Relevant extracts from the statutes and compact

involved are printed in the Appendix to Imperial

Irrigation District’s Petition for Certiorari 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, c(a), ¢(b), d, e, 8; h, k, J, m,

and q. (App. 155a.)

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

Art. VIII. (App. 168a.)

Act to Provide for the Application of the Recla-

mation Law to Irrigation Districts, 42 Stat.

541, § 1, 43 U.S.C. $511. (App. 169a.)

Colorado River Basin Project Act, 82 Stat. 886,

§ 301(b), 43 U.S.C. § 1521(b). (App. 171a.)

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

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

and 439. (App. 172a.)

Omnibus Adjustment Act of 1926, 44 Stat. 649, as

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

(App. 174a.)

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

§ 1738. (App. 176a.)

QUESTIONS PRESENTED

1, Whether the Boulder Canyon Project Act and

this Court’s opinion and decrees in Arizona v. Cali-

fornia require the delivery of water in satisfaction of

‘present perfected rights,’’ as defined therein, on pri-

vately 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 lands 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

Adjustment Act of 1926 created standing to intervene

and appeal from a District Court judgment against

the United States from which the United States did

not appeal? And, if so, whether such standing ceased,

upon the termination of the Secretary’s authority to

fix prices for excess lands, during the pendency of the

appeal?

STATEMENT OF THE CASE

The Decisions Below

This suit was instituted by the United States against

Imperial Irrigation District (‘‘the District’’) at the

request of the Secretary of the Interior (‘‘the Secre-

tary’’) in 1967. The Secretary sought a declaratory

judgment that the acreage limitation.’ provisions of

the reclamation law, particularly §46 ofthe Omnibus

Adjustment Act of 1926, 44 Stat. 649, 46 U.S.G, § 423

(e), apply to privately owned ‘lands inthe District

which receive Colorado River water through the All-

American Canal. Specifically, he asked for a declara-

tion that water should not be delivered to lands in

excess of 160 acres per landowner unless and until

the landowner agrees to sell the excess lands at prices

approved by the Secretary.

The State of California intervened in the District

Court proceedings as parens patriae and as owner of

lands in a waterfowl reserve.

* 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 terms. 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

USC. § 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(c¢) (5).

ee a es

John M. Bryant and certain other landowners inter-

vened as defendants on their own behalf and as repre-

sentatives of a class comprised of all persons (some

800 in number) owning more than 160 acres of irri-

gable land within the District.

Ben Yellen, M.D., and the other individual respond-

ents, intervenors after judgment, alleged a desire to

buy land from the present owners at prices substan-

tially 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 by the Secretary.

The District Court, after trial, entered judgment

against the United States, holding that the acreage

limitation provisions of reclamation law have no ap-

plication to privately owned lands within the District.

322 F. Supp., at 11.

Respondents applied for leave to intervene to appeal

in the event the United States decided not to appeal.

The District Court denied leave to intervene for this

purpose. App. 112a. The United States decided not to

appeal.’ Respondents appealed the order denying leave

to intervene.

In the meantime, respondents, in a separate case,

obtained a District Court decision (by another judge)

* Solicitor General Griswold explained:

‘IT considered the matter carefully and thoroughly, 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 it. In this situa-

tion, I came’ to the conclusion that it was my duty as a

responsible officer of the government not to authorize an ap-

peal.’’ 117 Cong. Rec. 46228 (1971).

that the ‘‘residency requirement’’* of §5 of the

Reclamation 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).

In the ‘‘residency case,’’ respondents alleged that they

would be able to buy land at prices they could afford

if the residency requirement of §5 of that Act were

applied. The Court of Appeals then reversed the order

denying intervention in the present case (the ‘‘acreage

case’’) on the basis that there might be two conflicting

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

The two eases (‘‘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

ease for lack of standing," id., at 519, but reversed

the District Court’s judgment in the acreage case as to

both standing and the merits. Jd., at 523-524, 542.

The Relationship of This Case to Arizona v. California

The central issue in this case involves the conflict of

the decision of the Court of Appeals below with the

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

fornia construing the authority of the Secretary under

the Boulder Canyon Project Act (‘‘Project Act’’),

45 Stat. 1057, 43 U.S.C. $§ 617 et seq.

***'N]o such sale [ofa 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, 43 U.S.C. § 431.

5See App. 14a-16a, and p. 77 of this brief, for the Court of

Appeals’ discussion of the curious history of the standing issue in

the residency case.

at tte

fa = ss (lel lta io

DE A MORE lit rete DNL ip A ale tr aac athe i ARAB A RED SEIN si

The opinion of this Court in Arizona v. California,

373 U.S. 546 (1963), held that the Secretary is required

by $6 of the Project Act, read in conjunction with

other references in that act (e.g., §§ 4(a), 8, and 13) to

the Colorado River Compact, to deliver water in satis-

faction of ‘‘present perfected rights’? pursuant to

Article VIII of the Compact, which requires that such

rights shall be unimpaired. ‘‘ Present perfected rights’’

as defined by this Court in its original decree in Ari-

zona Vv. California, 376 U.S. 340 (1964), are water

rights perfected under state law or reserved under

federal law prior to June 25, 1929—the effective date

of the Project Act.

This Court has described the §6 requirement that

present perfected rights be satisfied as ‘‘one of the most

significant limitations’’ on the Secretary’s discretion to

deliver water under authority of the Project Act. 373

U.S., at 585.°

This Court’s supplemental decree in Arizona v.

California, 439 U.S. 419 (1979), which adjudicated the

magnitudes and priority dates of present perfected

rights in Arizona, California, and Nevada, requires

the Secretary to deliver to the District the lesser of

(i) 2,600,000 acre-feet of annual diversions or (ii) the

amount of water required to irrigate 424,145 acres,

with a priority date of 1901—these being the District’s

“present perfected rights’’ established by actual use of

water in that quantity on that area of land prior to the

effective date of the Project Act.

° The opinion contains ten references to the Act’s protection of

present perfected rights, at pages 566, 567, 581, 582 n. 83, 584 (two

references), 585, 588, 594, 600.

. 8

On the other hand, the Court of Appeals’ opinion

would require the Secretary and the District to with-

-hold delivery of water from some 60 percent of the

decreed area, 233,000 acres,’ characterized as ‘‘excess

lands’’ (areas in excess of 160 acres per owner), unless

the owner agrees to sell those lands at prices to be

fixed by the Secretary. It is conceded by the Court of

Appeals that owners cannot be compelled to sell.

Thus, the Court of Appeals’ opinion, if given effect,

would stop the delivery of water to some 233,000 acres

that were being irrigated from the Colorado River,

without federal assistance, more than a half century

ago (and in some cases three quarters of a century

ago), long before there was a Boulder Canyon Project,

unless their owners agree to sell them at prices to be

fixed by the Secretary at less than their value.

As the Court of Appeals’ opinion on rehearing can-

didly put it, ‘‘Those who own excess lands will be

required to sell the excess at below-market prices, or

will no longer receive water for irrigating those

lands,’’ notwithstanding that ‘‘it is also clear from the

record in this case that land in the Imperial Valley

has long been devoted to agricultural use, that the

entire economy of the Valley is based on agriculture

and agricultural support industries, that the particular

233,000 acres involved constitutes some of the finest

agricultural land in the world, and that federal irriga-

tion facilities provide the only assured source of water

in the Valley.’’* 595 F.2d, at 528.

’ This figure appears in the Court of Appeals’ opinions, 559 F.2d,

at 522, 595 F.2d, at 528, 530 n. 6.

* Federal irrigation facilities became ‘‘the only assured source

of water in the valley’’ under the Project Act which, in § 6, as-

Land Speculation

If water should be denied to the present owners of

these lands, speculators would be the newly enriched

beneficiaries of the decision. The principal respondent,

Dr. Yellen, is on record with an affidavit in which he

says that if the government were to prevail in this

action he and persons similarly situated anticipate be-

ing able to purchase land worth $1200 to $1500 per acre

(as of 1971) for $25 to $50 per acre. App. 245a. Thus,

Dr. Yellen, et al., if they prevail in this suit, will be

able to use § 46, which was intended by Congress to

prevent speculation, to achieve windfall profits. The

Department of the Interior has conceded as much. In

proposed regulations published some 10 years after

this litigation commenced, the Department stated its

intention to reverse ‘‘the current practice of allowing

an excess land purchaser to realize the windfall profits

represented by low-priced federal water in an imme-

diate resale.”* App. 219a. Unfortunately, however,

these regulations, if ever enacted, would not prevent

Dr. Yellen, et al., from reaping windfall profits because

they limit price controls on resale only until one-half

of the project’s costs are repaid—an event which has

already occurred with respect to the All-American

Canal, by the efforts of the landowners who, according

to the Court of Appeals, remain subject to the Secre-

tary’s power to fix prices notwithstanding that re-

payment.

sured the satisfaction of the preproject water rights of these same

lands. See p. 25, infra.

* The proposed regulations were published August 22, 1977, but

the date for receipt of comments has been postponed to the end of

1980, with the expectation of putting them into effect in July 1981,

nearly four years after initial publication. It is not certain that

the regulations will ever be promulgated in the form proposed, or

at all.

Historical Background: The origin of Imperial Irrigation District's

present perfected rights

At the outset we wish to dispel any notion that this

case involves rights to use ‘‘low-priced federal water.’’

The water rights at stake here are not—and never have

been—owned by the federal government. The District’s

present perfected rights came into existence without

federal assistance, financial or otherwise, by the efforts

of pioneer settlers who succeeded, despite enormous

hardships, in converting one of the world’s most in-

hospitable deserts into one of its most productive

agricultural areas.”

The following is a condensation of the narrative

given in the opinion of District Judge Turrentine: ™

‘‘The initial appropriations and diversions of

water from the Colorado River were made by the

California Development Company, a privately

owned corporation organized in 1896 and the pre-

decessor in interest of defendant District, which

was organized in July of 1911. These appropria-

2° All of the lands in the decreed area of 424,145 acres in Imperial

Valley were acquired from the United States prior to or soon after

the turn of the century, by entry under the Desert Land Act, 43

U.S.C. §§ 321 et seq., or other homestead laws, 43 U.S.C. §§ 161 et

seq. All of these laws required the applicant to have lived on these

desert lands for a specified period of years. The Desert Land Act

required proof of acquisition of a water right under state law by

bona fide prior appropriations. The history of the homestead laws,

in relation to federal laws concerning irrigation, is summarized in

California v. United States, 438 U.S. 645, 655-663 (1979).

1 See also Arizona v. California, 373 U.S. 546, 552-553. The his-

torical material on the development of Imperial Valley, and on

the Colorado River Compact and the Project Act, is voluminous.

It is cited and summarized in The Hoover Dam Documents, House

Document No. 717, 80th Cong., 2d Sess., at 1-31 (1948). The evo-

lution of the Project Act in the four successive Swing-Johnson

bills is traced there at 32-59.

tions and diversions laid the foundation for the

present perfected water rights which have admit-

tedly existed within the boundaries of the District

from and after June 25, 1929, the effective date of

the Boulder Canyon Project Act.

‘*The first water from the Colorado River was

diverted and brought to the Valley in J uly of 1901.

This water, which was diverted about one mile

north of the international boundary with Mexico,

was carried by the Alamo Canal through Mexican

territory and back into the United States at Im-

perial Valley to avoid the high mesa and sandhill

country north of the international boundary, For

most of its 50 mile course in Mexico, this canal

made use of an ancient overflow channel known as

the Alamo River, which formerly led into the

Salton Sea.

* * * * *

“By 1903, through the distributive facilities

constructed by the local mutual water companies,

approximately 25,000 acres of valley lands were in

irrigated cultivation, all as a result of diversions

from the River. By the following winter, the irri-

gated acreage was increased to 100,000. 181,191

acres were irrigated by 1910, 308,009 in 1916, 413,-

440 in 1919, and 424, 145 in 1929, the year when the

Boulder Canyon Project Act took effect.

* * * * *

‘At the time of the taking effect of said Project

Act, the District had a distribution and drainage

system which was wholly financed, constructed,

maintained and operated by local means. The dis-

tribution system then, as of June 25, 1929, com-

prised approximately 1,700 miles of main and lat-

eral canals, providing for the irrigation by waters

diverted by it from the Colorado River of ap-

proximately 424,000 privately owned acres, com-

puted on a single cropping basis. All of this acre-

age was, as of June 25, 1929, being irrigated by

and with Colorado River water, carried through

the Alamo Canal. In 1966, just prior to the bring-

ing of this action, there were approximately 438,-

000 acres irrigated with water transported

through the All-American Canal.’’ 322 F.Supp.,

at 12-14.

The Colorado River Compact

On November 24, 1922, the Colorado River Com-

pact, an interstate agreement relating to allocations

and rights in the waters of the River, was signed by

commissioners representing the States of Arizona,

California, Colorado, Nevada, New Mexico, Utah and

Wyoming, and by Herbert Hoover, as representative

of the United States. It became effective June 25,

1929.” ;

Under the Compact, quantities of consumptive use

were apportioned in perpetuity to the Upper Basin

and the Lower Basin. The four upper States (Colo-

rado, New Mexico, Utah, and Wyoming), in return,

agreed not to deplete the flow of the river at a

division point (Lee Ferry, Arizona) below stated ag-

gregates in ten-year periods, and both groups agreed

to share the burden of any future treaty with Mexico.

The protection of prior vested rights was dealt with in

Article VIII, which provided:

‘*Present perfected rights to the beneficial use

of waters of the Colorado River System are un-

impaired by this compact. ...’’*

**The Colorado River Compact was authorized by an Act of

Congress dated August 19, 1921, 42 Stat. 171, and by the acts of

the legislatures of the participating states. Congress approved it

in §13 of the Project Act, 43 U.S.C. § 6171. See also, § 4(a)

thereof.

** The full text of Article VIII appears at App. 168a.

———— ee ae ~

The Boulder Canyon Project Act

The Project Act was signed by President Coolidge

on December 21, 1928." It was the last of the four

‘‘Swing-Johnson”’ bills, considered in as many Con-

gresses. The Act inter alia (i) in §§4(a) and 8 gave

consent to the Colorado River Compact, and in $$ 8

and 13 subjected the United States and those claiming

under it to that compact; (ii) in §1 authorized con-

struction of a storage dam (now named Hoover Dam)

and power plant, mandating in § 6 that the dam and

reservoir be used ‘‘[f]irst, for river regulation, im-

provement of navigation, and flood control; second, for

irrigation and domestic uses and satisfaction of present

perfected rights in pursuance of Article VIII of said

Colorado River compact; and third, for power’’; (iii)

directed in §5 that no one should have the use of the

stored water except by contract with the Secretary ;

and (iv) in § 1 authorized the construction of the All-

American Canal.

Section 14 declared the Act to be deemed a supple-

ment to the reclamation law, ‘‘which said reclamation

law shall govern the construction, operation, and man-

agement of the works herein authorized, except as

otherwise herein provided (emphasis added).’’ The

Act in §9 contained a specific acreage limitation, but

** It did not become effective until June 25, 1929, in consequence

of delays of the States in meeting the requirements of § 4(a)

for their ratification of the Colorado River Compact as a seven-

state agreement, or, in the alternative, as a six-state agreement (in

the event that Arizona refused to ratify), accompanied, in the

latter event, by the enactment by California of an act limiting her

rights to water, including ‘present perfected rights and all other

rights which may now exist,’’ to specified quantities. The accom-

plishment of the latier alternative was proclaimed by President

Hoover on June 25, 1929.

that limitation in explicit terms applied only to public

lands that the Secretary might open to entry (there

are no public lands open to entry in the District).

The exception to the reclamation law provided for

in § 14 reflected the innovative character of the Project

Act. This was the first great multiple-purpose project.

The Project Act differed from all previous water re-

source project authorizations in almost every respect.

The Boulder Canyon Project was to be financed from

the general treasury, not the Reclamation Fund."

The amount authorized to be appropriated in § 2(b),

$165,000,000, was in excess of the combined total of

all previous reclamation projects. In lieu of the

Reclamation Fund, a new fund in the Treasury, the

Colorado River Dam Fund, was created in §2/a),

into which all federal appropriations, and all future

revenues, were to be paid, and out of which all dis-

bursements were to be made. Disposition of the reve-

nues of this fund bore no relation to the disposition -

of revenues of the Reclamation Fund.

The Secretary was required by § 4(b) of the Project

Act to have in hand contracts assuring the repayment

of the whole federal investment, plus operation and

maintenance, before any money could be appropriated. '

In this respect, the Project Act differed drastically

from the Omnibus Adjustment Act, enacted two years

earlier, which only required that reclamation project

** The Reclamation Fund, created by § 1 of the 1902 Reclamation

Act, 32 Stat. 388, 43 U.S.C. § 391, is a fund into which certain

federal revenues from the western states, e.g., certain proceeds from

the sale of public lands, oil and mineral royalties from public lands,

ete., are paid. Initially, all appropriations for reclamation projects

were made out of this fund, and the aggregate amount of such

appropriations was limited to the fund’s income.

repayment contracts be in hand before commencement

of delivery of water, not before construction. As to

flood control (usually a non-reimbursable item), while

an allocation of $25,000,000 was made to this function,

this amount was required by § 2(b) to be repaid out

of revenues in excess of those required for amortiza-

tion of the investment in the dam and power plant.

Contracts for storage and delivery of water under

§ 5 were to be ‘‘for permanent service,’’ whereas simi-

lar contracts under the reclamation law are for a fixed

period.

The All-American Canal Contract and the Hewes Decision

The contract between the United States and the

District combines in one document the functions of a

water storage contract, pursuant to § 5 of the Project

Act, and a repayment contract, pursuant to § 4(b).

Negotiation of the contract providing for the con-

struction of the All-American Canal commenced in

1930. During this negotiation, the District took the

position that it would not contract with the United

States for construction of the All-American Canal and

repayment of the costs thereof if delivery of water

from the canal would be limited to any maximum

acreage in single ownership. Thus, while an early draft

of the contract would have limited deliveries of water

to 160 acres per landowner, the contract as finally

executed contained no acreage limitation provision as

to privately owned lands.

Following signature of the contract and approval by

the District’s electors, the District instituted an in rem

proceeding, Hewes v. All Persons, in the Superior

Court of California to validate the contract as required

by 43 LU S.C. §511, by state law, and by Article 31 of

the contract. One of the defendants in the validation

proceedings, an owner of more than 160 acres named

Charles Malan, filed an answer attacking the validity

of the contract on the ground that it would make the

acreage limitation provisions of the reclamation law

applicable to deliveries of water from the All-American

Canal, and would thereby deprive him of the right to

receive water for his lands in excess of 160 acres. In

response to Malan’s claim, Secretary Wilbur, who

signed the 1932 contract on behalf of the United States,

issued a letter-ruling that the acreage limitation pro-

visions of the reclamation law were not applicable to

privately owned lands in the District. App. 213a. On

July 5, 1933, following the Secretary’s ruling, judg-

ment was entered in the Hewes case confirming the

legality of the contract. App. 150a. In reaching its

ultimate holding that the contract was valid, the court

held that neither the contract nor any applicable law

required that water deliveries to private lands within

the District be limited to any maximum acreage held

in single ownership.

Construction of the All-American Canal commenced

on August 8, 1934, with funds allocated by Secretary

Harold L. Ickes, who was also Public Works Adminis-

trator. The first official delivery of water through the

canal to the District occurred on October 13, 1940. The

District’s entire supply of irrigation water has been

transported by the Canal since March of 1942.

From 1933 until 1964, the Department of the Interior

consistently adhered to Secretary Wilbur’s ruling that

the 160-acre limitation did not apply to privately

owned lands in the District. During this period, Con-

gress was kept advised of the fact that the 160-acre

limitation was not being applied in the District. Yet

Congress appropriated large amounts for construction

of the project each year from 1936 through 1950.

Moreover, Congress on three occasions has amended or

supplemented the Project Act, and on none of these

occasions did it insert an acreage limitation provision

in the Act.

On December 31, 1964, Frank J. Barry, then Solici-

tor of the Department of the Interior, issued an opinion

that purported to reverse Secretary Wilbur’s ruling of

1933. Con. Apx. 182a. Barry’s opinion reasoned that

the 160-acre limitation of the reclamation law was

applicable to the District because § 14 of the Project

Act incorporates the reclamation law.

Subsequent to the Barry opinion, the Department

of the Interior for several months attempted to nego-

tiate a new contract with the District which would

have incorporated the 160-acre limitation. When the

District refused to negotiate a new contract, insisting

on its rights under the existing contract, the United

States brought this action for declaratory relief.

SUMMARY OF ARGUMENT

The opinion in Arizona v. California construed the

Project Act as excluding water rights perfected under

state law prior to the effective date of that Act from

the powers vested in the Secretary to allocate the use

** The District Court noted that the Wilbur ruling had been

adhered to by six subsequent Secretaries in four Presidential

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

of water stored by Hoover Dam. Indeed, it said that

the Act ‘‘fettered’’ his powers in that respect. 373 U.S.,

at 581. It read the Act as requiring the delivery of

stored water to satisfy those rights, saying:

‘‘One of the most significant limitations in the Act

is that the Secretary is required to satisfy present

perfected rights, a matter of intense importance

to those who had reduced their water rights to

actual beneficial use at the time the Act became

effective.’’ Id., at 584.

The Court’s 1979 decree recognized the fact that,

prior to the authorization of the Boulder Canyon

Project, pioneer settlers in the Imperial Valley in the

period 1901-1929 had succeeded in diverting 2,600,000

acre feet of water annually from the Colorado River to

irrigate 424,145 acres, by means of the privately owned

Alamo Canal. All of the lands involved in this contro-

versy are part of that 424,145 acres.

But if the opinion of the Court of Appeals is given

effect, notwithstanding the opinion and decrees of this

Court in Arizona v. California, the Secretary will de-

liver much less than the decreed quantity of 2,600,000

acre feet annually, to irrigate much less than the

decreed area of 424,145 acres. This is because (if the

court’s figures are right) 233,000 acres of the de-

ereed area will be ineligible to receive water unless

the owners thereof agree to sell the excess lands at less

than market value at prices fixed by the Secretary.

The Court of Appeals concedes that the Secretary

cannot compel them to sell, but thinks that some will

do so.

The Court of Appeals argues that the District, not

the landowners, owns the decreed present perfected

rights, and, therefore, the District can ‘redistribute’?

the water that is taken away from excess lands. This

contention is quite untenable, both factually and

legally. The fact is that all lawfully irrigable land in

the District is now receiving water. There is no place

within the District to put the water withheld from

excess lands. Moreover, as a matter of California law,

the District is merely the trustee of water rights for

the landowners, who are the beneficial owners, and

their beneficial interest is a constitutionally protected

property right which is appurtenant to the land irri-

gated. Section 6 directs that these rights be satisfied;

there is no authority for taking them. As a matter of

federal law, § 8 of the Reclamation Act of 1902 stipu-

lates that rights to use of water supplied through

federal works shall be appurtenant to the land irri-

gated, and § 13(d) of the Project Act prescribes that

the ‘‘covenants’’ in §13(c) (which subject all rights

of the United States and water users to the Colorado

River compact) shall ‘‘run with the land.’’ This in-

cludes, by definition, the Compact term ‘present

perfected rights,’’ as adopted by the Project Act.

The Court of Appeals’ holding hinges entirely on

§14 of the Project Act, which provides that the

Act shall be deemed a supplement to the reclamation

law, ‘‘which said reclamation laws shall govern the

construction, operation, and management of the works

herein authorized, except as otherwise herein pro-

vided (emphasis added).’’ The Court ignored the ex-

ception. The specific requirement of §6, which man-

dates the satisfaction of present perfected rights,

controls the general reference to the reclamation law

in §14. The only land limitation appearing in the

Project Act is in $9, which is specifically limited to

desert public lands. The legislative history of the Proj-

ect Act shows six efforts, at a time when the § 14 lan-

guage was in the bill, to impose acreage limitations

on private lands, even though previously irrigated.

All of these efforts were eventually unsuccessful. And

if § 14, standing alone, imported into the Project Act

the acreage limitation provisions of the reclamation

law, of course the proposed restrictions, as well as

§ 9, which imposed acreage limitations on public lands

opened for entry, would have been surplusage. More-

over, the legislative history does not contain a single

statement to the effect that §14 authorizes acreage

limitations.

The District Court, in construing the relative effect

to be given §§ 6 and 14 of the Project Act, gave pri-

macy to § 6. It said:

‘*‘Under the decree in Arizona v. California con-

struing the Project Act, the application of a spe-

cific quantity of water to a defined area of land is

an essential element of a perfected right. It was

held in the court’s opinion that the Secretary is

required to satisfy present perfected rights. This

duty of the Secretary to supply water to an area

where present perfected rights exist is repugnant

to the concept that the United States may at the

same time shut off water deliveries destined for

lands, be they excess or not, entitled to the benefi-

cial use of Colorado River water in the exercise

of = rights (footnote omitted). 322 F.Supp.,

at 18.

* * * * *

‘“The combined effect of §§ 6, 8(a) and 13 of

~ the Project Act is to express Congressional intent

that the present perfected rights be protected

from interference by any contrary provision of

the Project Act or reclamation law. The specific

and repeated guarantees found in these sections

indicate that any provision such as acreage limita-

tion which would curtail such rights would be de-

tailed in correspondingly exact language. Neither

the references to reclamation law contained in

§$ 1, 4(b), 12 and 14 of the Project Act, nor any

other term thereof demonstrate Congressional in-

tention that acreage limitation[s] apply to pri-

vately owned lands in the District.’’? 322 F.Supp.

at 18-19.

In holding that the Project Act authorizes acreage

limitations, the Court of Appeals relied heavily on this

Court’s opinion in Ivanhoe Irrigation District v. Mc-

Cracken, 357 U.S. 275 (1958), which held that acreage

limitations were required by the various acts authoriz-

ing the Central Valley Project in California. The Court

of Appeals’ reliance on Ivanhoe, as though that case

were authority for the curtailment of present per-

fected rights by subsequent imposition of acreage limi-

tations, is misplaced in four essential respects: (i)

Ivanhoe did not involve the Project Act; (ii) the land-

owners in Ivanhoe did not have vested water rights;

(111) in Ivanhoe the statute did not require the satis-

faction of vested or perfected rights; and (iv) in

Ivanhoe the district and the Secretary agreed that

acreage limitations applied and the contract so pro-

vided, whereas here the District and the Secretary

agreed that acreage limitations did not apply, and the

contract did not contain an acreage limitation provi-

sion. Moreover, the dictum in Ivanhoe, relied on by

the Court of Appeals in this case, to the effect that the

operation of $8 of the Reclamation Act of 1902 is

limited to the acquisition of water rights and does not

extend to operation of the dam, was recently disavowed

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

645, 674-75 (1979).

Principles of finality require that the decision not

to apply acreage limitations to the District be recog-

nized as irreversible.

Article VIII of the Compact and the Project Act

required the Secretary to make a number of decisions

in carrying out the intent of Congress. Amc others,

he relocated Hoover Dam to Black Canyon rather than

Boulder Canyon, and he determined that the acre-

age limitations should not apply within the District.

Hoover Dam will remain in Black Canyon and acre-

age limitations should not now apply in the District.

Every available legal device was used to make these

decisions final for all time.

The regulations of the Department of the Interior,

in force since 1910, permitted water to pass through

works constructed by the United States to satisfy

vested rights for ownership in excess of 160 acres.

Those regulations are still in effect.

The Secretary contracted with the District in an

attempt to make clear what the rights and obligations

of the parties were. The contract was for permanent

service as required by the Project Act and the parties

agreed that the contract did not require an acreage

limitation.

The Court of Appeals’ decision failed to give full

faith and credit, required by 16 U.S.C. § 1738, to a

1933 judgment of a State court of competent jurisdic-

tion, in proceedings required by 43 U.S.C. § 511, to

validate the contract between the United States and

the District, whereby the United States agreed to

deliver water through the All-American Canal, and

the District agreed to repay the cost of that canal. The

contract required this validation proceeding, repeating

the language of 43 U.S.C. §511. The State Court,

deciding pleaded adversary issues, held that neither

the Project Act nor the contract required acreage

limitations on private lands in Imperial Valley, and

that the contract was valid. The Department acquiesced

in the judgment, and submitted the contract to Con-

gress as conforming to §4(b) of the Project Act,

which required assurance of the repayment of the

government’s investment, as a precondition to the

appropriation of funds for construction. The appro-

priations were made.

The validation decree, after it became final, was thus

accepted by the Secretary and by Congress as the

trigger to proceed with and finalize the project.

For more than 30 years the District relied on the

repeated and explicit understanding that acreage limi-

tations did not apply within its boundaries.

The Court of Appeals’ opinions would extend the

concept of standing on an unjustifiable scale. This

is not a class action. There is no allegation of an

injury to a particular respondent, as distinguished

from the public in general, caused by any party to this

action, which a judgment in this suit could redress.

Respondents do not allege, and could not allege, any

preference against other potential purchasers of excess

lands dwelling anywhere in the United States. Even if

the Secretary should be held to possess the power to

refuse delivery of water to excess lands possessing

present perfected rights unless and until the owners

authorize him to sell those lands at below-market

prices fixed by the Secretary, there is no assurance at

all that any landowner, if he decided to sell at the

Seeretary’s price, would choose to sell to these particu-

lar respondents. The Secretary cannot compel land-

owners to sell, and cannot choose the buyers if sales

are made. Dr. Yellen, et al., are merely members of the

general public, seeking to second-guess the Solicitor

General of the United States in his perception of the

merits of the case, after he had withdrawn the United

States from it.

This action was brought under § 46 of the Omnibus

Adjustment Act of 1926, which provides that ‘‘untzl

one-half the construction 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 of the Interior . .. (emphasis added).”’

The event which terminated the Secretary’s author-

ity occurred on March 1, 1978, when the District com-

pleted repayment of more than one-half of the con-

struction charges against all lands in the District. App.

243a. The Court of Appeals, in its opinion on rehear-

ing, acknowledged the occurrence of this event but

held that the Seeretary’s authority continues ‘‘regard-

less of the fact that construction charges for the irri-

gation project have been repaid.’’*’ 595 F.2d, at 527.

The only authority cited by the court for this statement

was its own decision in United States v. Tulare Lake

Canal Company, 535 F.2d 1093, cert. denied 429 U.S.

To the contrary, the proposed regulations publish 1 by the

Department on August 22, 1977, construe § 46 of the 1926 Act as

only requiring price approval until one-half of the total construc-

tion costs allocated to irrigation have been paid. § 426.9, App.

236a ; § 426.10, App. 237a.

1121 (1977). It went on to say “‘[t]his decision ex-

pressly applies to all federal reclamation projects sub-

ject to Section 46.’’ Ibid. The holding in the present

case is in flat contradiction of the statute. To the extent

that the holding by the Court of Appeals in the Tulare

case supports its holding here, we respectfully suggest

that the Tulare decision should be disavowed by the

Supreme Court.

ARGUMENT

The Boulder Canyon Project Act Does Not Authorize Acreage

Limitations On Present Perfected Rights

A. The plain language of the Project Act specifically requires the

satisfaction of present perfected rights

1. The § 6 Requirement That Present Perfected Rights

Be Satisfied

Section 6 of the Project Act expressly requires that

the Boulder Canyon Project be operated so as to sat-

isfy ‘‘present perfected rights’’:

‘‘The dam and reservoir provided for by section 1

hereof shall be used: First, for river regulation,

improvement of navigation, and flood control; sec-

ond, for irrigation and domestic uses and satisfac-

tion of present perfected rights in pursuance of

Article VIII of said Colorado River compact; and

third, for power.”’

As will be shown, this explicit provision, as construed

in Arizona v. California, cannot be given effect if the

Project Act is construed to imply authority to limit

water deliveries on private lands in the District to

160 acres per landowner.

The’ term ‘‘present perfected rights’’ is not defined

in the Project Act, but has been defined by this Court

as follows:

‘“*(G@) ‘Perfected right’-means a water right ac-

quired 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 created by the reservation of main-

stream 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 _per-

fected rights, as here defined, existing as of June

25, 1929, the effective date of the Boulder Canyon

Project Act....’’ Arizona v. California, 376 U.S.

340, 341 (decree) (1964).

The concept of ‘‘present perfected rights”’ had its ori-

gins in Article VIII of the Colorado River Compact:

‘*Present perfected rights to the beneficial use

of waters of the Colorado River System are un-

impaired by this compact. Whenever storage ca-

pacity of 5,000,000 acre-feet shall have been pro-

vided on the main Colorado River within or for the

benefit of the Lower Basin, then claims of such

rights, if any, by appropriators or users of water

in the Lower Basin against appropriators or users

of water in the Upper Basin shall attach to and be

satisfied from water that may be stored not in con-

flict with Article ITI.

‘‘All other rights to beneficial use of waters of

the Colorado River System shall be satisfied solely

from the water apportioned to that Basin in which

they are situate.”’

Although the Article VIII requirement that present

perfected rights not be impaired applies to all seven

of the Basin States, Article VIII was drafted specifi-

cally to protect landowners in Imperial Valley. Delph

Carpenter, one of the authors of the Compact, testified

as follows:

‘During the deliberations of the Colorado River

Commission in Santa Fe, and after 10 days’ work,

a sketch or outline of the progress was released to

the press, stating what had happened and the pro-

posed terms of a treaty... . The Imperial Valley

representatives were immediately responsive.

They came before the Commission and presented

their claims with great vigor. ...

‘In view of that claim, coming as it did from

people who cultivated upward of half a million

acres of very valuable land, Article VIII of the

Compact was drawn at the last session of the pro-_

ceedings.’’ Hearings Pursuant to S. Res. 320, Sen.

Comm. on Irr. & Recl., 68th Cong., 2d Sess., at p.

678 (1925).

The term ‘‘present perfected rights” appears in both

the Project Act (§6) and the Colorado River Basin

Project Act (§ 301(b)), 82 Stat. 886, 43 U.S.C. §§ 1501

et seq., where it is used to limit the Secretary’s discre-

tion to allocate waters between states and to deliver

waters within individual states. And it appears in this

Court’s opinion and decrees in Arizona v. California,

which construed the Project Act’s allocation of main-

stream water among the three Lower States (Arizona,

California and Nevada) and adjudicated present per-

fected rights within those states."* Expressed in terms

of acre-feet of diversions * annually, present perfected

8 373 U.S. 546 (opinion) (1963) ; 376 U.S. 340 (decree) (1964) ;

439 U.S. 419 (supplemental decree) (1979).

** For purposes of illustrating the magnitude of the present per-

fected rights decreed in the Lower Basin states, we have shown

rights in the Lower States as decreed by this Court

are as follows:

Arizona 1,059,565

California 2,9 4,451

Nevada 13,034

The importance of the District’s present perfected

rights to the scheme of the Compact and the Project

Act is evident from their magnitude: 2,600,000 acre-

feet of diversions annually—64 percent of the total

present perfected rights decreed by this Court, and 59

percent of the 4,400,000 acre-feet of consumptive use

‘apportioned to California of the first 7,500,000 acre-

feet available.

The requirement of the Project Act that present

perfected rights be satisfied is not limited to interbasin

or even interstate allocations; it extends to intrastate

deliveries of water from the Boulder Canyon Project.

Thus, this Court in Arizona v. California decreed

2,600,000 acre-feet of annual diversions, not to the

Lower Basin and not to California, but to the District.

Section 13(d) of the Project Act, in providing that

conditions and covenants subjecting water deliveries

to the Compact shall be for the benefit of the states

‘Cand the users of water therein,’’ in effect requires

that the rights assured by the Compact, including

present perfected rights, attach to intrastate deliveries

of water. In Arizona v. California, this Court, in four

separate places in its opinion and original decree, con-

these rights only in terms of acre-feet of diversions, For the alter-

native expressions of the decreed rights (i.e., quantities of water

necessary to irrigate stated amounts of acreage), where applicable,

the Court is referred to its decrees at 376 U.S, 340 (1964) and 439

U.S, 419 (1979).

firmed that the § 6 requirement that present perfected

rights be satisfied applies to such intrastate deliveries.

In its opinion, the Court said:

‘*. . . Congress intended the Secretary of the In-

terior, through his § 5 contracts, both to carry out

the allocation of the waters of the main Colorado

River among the Lower Basin States and to decide

which users within each State would get water.[*]

... Significantly, no phrase or provision indicating

that the Secretary’s contract power was to be con-

trolled by the law of prior appropriation was sub-

stituted either then or at any other time before

passage of the Act, and we are persuaded that had

Congress intended so to fetter the Secretary’s

discretion, it would have done so in clear and

unequivocal terms, as it did in recognizing ‘present

perfected rights’ in § 6.

* * * * *

| ‘“‘The argument that Congress would not have

| delegated to the Secretary so much power to ap-

portion and distribute the water overlooks the

ways in which his power is limited and channeled

by standards in the Project Act. ... One of the

most significant limitations in the Act is that the

| Secretary is required to satisfy present perfected

rights, a matter of intense importance to those who

had reduced their water rights to actual beneficial

use at the time the Act became effective. § 6.

4 * * * * *

‘*... It will be time enough for the Courts to inter-

vene when and if the Secretary, in makitig appor-

tionments or contracts, deviates from the stand-

7°Our footnote: the disavowal of the foregoing dictum in Cali-

fornia v. United States, 438 U.S. 645, 674 (1978), reinforces the

argument that Congress did not authorize the Secretary to impair

rights previously perfected under state law by prohibiting delivery

of water to areas theretofore served under those rights.

ards Congress has set for him to follow, including

his obligation to respect ‘present perfected rights’

as of the date the Act was passed (emphasis

added).”’ 373 U.S., at 580-581, 583-584, 594.

The Court made the point again in its 1964 decree:

‘“‘If insufficient mainstream water is available

for release, as determined by the Secretary of the

Interior, to satisfy annual consumptive use of

7,500,000 acre-feet in the aforesaid three States,

then the Secretary of the Interior, after providing

for satisfaction of present perfected rights in the

order of their priority dates without regard to

state lines ... may apportion the amount remain-

ing ... (emphasis added).”’ 376 ULS., at 342.

In other words, the Secretary’s authority under $5 of

the Project Act to determine which users within each

state shall get water and to contract with such users is

limited by the § 6 requirement that present perfected

rights within each state be satisfied.

2. The Incompatibility of § 6 and Acreage Limitations

While § 9 of the Project Act expressly limits entries

on public lands (cn which there are no present per-

fected rights) to 160 acres, the Act makes no mention

whatever of acreage limitations with respect to private

lands. For this, there is good reason: the Secretary

could not possibly satisfy present perfected rights as

required by § 6 if he were required to limit deliveries

of the water subject to such rights to 160 acres per

landowner, because most of the District ’s present per-

fected rights were perfected on—and have always been

used on—excess lands, to which such rights are appur-

tenant. |

Although there is no specific provision in the Project

Act which requires the application of acreage limita-

tions to private lands, the Court of Appeals inferred

such a requirement from § 14 which provides:

‘This act shall be deemed a supplement to the

reclamation law, which said reclamation law shall

govern the construction, operation, and manage-

ment of the works herein authorized, except as

otherwise herein provided.”’

Since the ‘‘reclamation law’’ includes § 5 of the Rec-

lamation Act of 1902 and § 46 of the Omnibus Adjust-

ment Act of 1926—both of which contain acreage limi-

tation provisions—the Court of Appeals reasoned that

§ 14 of the Project Act by implication requires that

deliveries of water to private lands be limited to 160

acres per landowner. The court reconciled this reason-

ing with the explicit § 6 requirement that present per-

fected rights be satisfied on the ground that the Dis-

trict, rather than the landowners, is the owner of the

present perfected rights. From this premise, the court

concluded that the Secretary could satisfy §6 by de-

livering all of the water subject to the District’s

present perfected rights to the District, and that the

District could then withhold water from excess lands

and redistribute it to non-excess lands without impair-

ing present perfected rights. 559 F.2d, at 529-30. This

conclusion is wrong for reasons both practical and

legal.

First, as to the practical impossibility of what the

Court of Appeals has proposed: there is simply no

place within the District to put the water which the

Court of Appeals would have the District withhold

from excess lands and redistribute. All lawfully irri-

gable private land—some 438,000 acres—is already

under irrigation (424,145 acres of this is in decreed

present perfected rights). Thus, as a practical matter,

it is physically impossible to redistribute water within

the District.

Second, as to the legal impossibility of redistributing

water subject to present perfected rights: by defini-

tion, a present perfected right is a right ‘‘acquired in

accordance with state law ... by the actual diversion

of a specific quantity of water that has been applied to

a defined area of land .. .’’ prior to the effective date

of the Project Act.” Thus, the attributes of present

perfected rights are defined by state law and are iden-

tical to the attributes of other perfected appropriative

water rights in the particular state except that the

right must have existed as of June 25, 1929, and is

recognized only to the extent that water had been put

to use by that date. Under California law, (i) the land-

owners within an irrigation district are the equitable

owners of the water rights—including present per-

fected rights—held by the district, and have a consti-

tutionally protected interest therein, and (ii) water

rights—including present perfected rights—are appur-

*1 The significance of state law is confirmed by § 18 of the Project

Act which provides:

‘*Sec. 18. [Rights of States to waters within their borders.]

—Nothing herein shall be construed as interfering with such

rights as the States now have either to the waters within their

borders or to adopt such policies and enact such laws as they

may deem necessary with respect to the appropriation, control,

and use of waters within their borders, except as modified by

the Colorado River compact or other interstate agreement.’’

For the relation of this section to present perfected rights, see the

opinion in Arizona v. California, 373 U.S., at 588. Section 18 was

reenacted in 1940 as § 14 of the Boulder Canyon —— Adjust-

ment Act, 54 Stat. 779, 43 U.S.C. § 618m.

tenant to the land on which the water is used. Both

of these aspects of a present perfected right would

necessarily be impaired if the Secretary or the District

were to withhold water subject to such rights from

excess lands within the District’s boundaries.

First, as to the ownership aspect of a present per-

fected right: California law as articulated by the

California Supreme Court is to the effect that the

district holds the rights in trust for the landowners:

‘“TT he beneficiaries of the trust, who, upon fa-

miliar 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, 18. 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 of the similar provision of

section 1 of the fourteenth amendment to the

Constitution of the United States.’? Merchants’

National Bank of San Diego v. Escondido Irriga-

tion District, 144 Cal. 329, 334, 77 P. 937, 939

(1904).

Thus, the equitable ownership of the present per-

fected rights which the Secretary must satisfy under

§ 6 of the Act is vested in the landowners, not in the

District. And the landowner consequently has a statu-

tory right to use a definite, proportional share of the

water distributed by the district:

‘‘ Basis of apportionment among landowners. All

water distributed by districts for irrigation pur-

poses shall except when otherwise provided in this

article be apportioned ratably to each landowner

upon the basis of the ratio which the last assess-

ment against his land for district purposes bears

to the whole sum assessed in the district for dis-

trict purposes.’’ Cal. Water Code Ann. § 22250

(West 1971).

This right may be assigned, not by the District, but

by the individual landowner: —

‘*Assignment of right. Any landowner may as-

sign for use within the district his right to the

whole or any portion of the water apportioned to

him pursuant to Section 22250.” Id., at § 22251.

Second, the present perfected right is appurtenant

to the land on which the water is used. As Hutchins

has written:

‘*The concept of appurtenance of an appropri-

ative right to the land on or in connection with

which the water is used received early acceptance

in California.’? 1 W. Hutchins, Water Rights in

the Nineteen Western States 454 (1971).

The concept of appurtenance is enshrined in the Cali-

fornia Civil Code™ and has been confirmed by Cali-

22 The California Civil Code provides:

‘‘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

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

rf _ from or across the land of another.’’ Cal. Civ. Code,

fornia courts on a number of occasions. See, e.g., Pal-

mer Vv. Railroad Commission, 167 Cal. 163, 173, 138 P.

997, 1001 (1914); Stanislaus Water Co. v. Bachman,

152 Cal. 716, 724, 93 P. 858, 862 (1908); Senior v.

Anderson, 138 Cal. 716, 723, 72 P. 349, 351 (1903).

The concept of appurtenance is also found in the

Project Act. Section 13(d) in effect provides that

rights assured by the Colorado River Compact (such

as present perfected rights) ‘‘run with the land,’’ and

‘*shall be deemed to be for the benefit of and be avail-

able to”’ the states of the Basin and ‘‘the users of the

water therein ... by way of suit, defense, or otherwise,

in any litigation respecting the waters of the Colorado

River ....’’* And § 14, which incorporates the recla-

mation law ‘‘except as otherwise herein provided,”’

presumably incorporates § 8 of the Reclamation Act of

1902, which provides:

‘TT |he 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.’’

Mr. Justice Harlan called attention to this, dissenting

in Arizona V. California, 373 U.S. 546, 623 (1963).

It is true that, under California law, an appropria-

tive water right may be severed from the land. See,

e.g., Wright v. Best, 19 Cal.2d 368, 380, 121 P.2d 702,

709 (1942). However, this Court, in Ickes v. Fox, 300

U.S. 82 (1937), rejected the notion that an appropria-

tive right may be severed by the trustee rather than the

equitable owner. In Ickes, the United States was the

appropriator and legal owner of the water right, as the

23 This provision was re-enacted in the Boulder Canyon Project

Adjustment Act, 54 Stat. 779, § 14.

District is here. The United States diverted, stored

and distributed the water for use by others, just as the

District does here. Nevertheless, this Court held that

the water rights were appurtenant to the land and were

enforceable by the landowner, not the trustee. See, on

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

From all this it follows that, if water is withheld

from excess lands in the District, as required by the

Court of Appeals’ decision, the equitable owners of

present perfected rights will be denied the use of the

water subject to those rights, as will the lands to

which the rights are appurtenant. A more obvious

impairment of present perfected rights, violating Ar-

ticle VIII of the Compact—and a more obvious failure

to satisfy such rights, violating § 6 of the Project Act—

is difficult to imagine.

Judge Turrentine put it this way:

‘*This duty of the Secretary to supply water to an

area where present perfected rights exist is re-

pugnant to the concept that the United States may

at the same time shut off water deliveries destined

for lands, be they excess or not, entitled to the

beneficial use of Colorado River water in the exer-

cise of these rights.’’ 322 F.Supp., at 18.

Since it is apparent that the Secretary cannot sat-

isfy present perfected rights and impose acreage limi-

tations within the District, the plain language of § 14

—‘‘except as otherwise herein provided’’—must mean

that the acreage limitation provisions of the reclama-

tion law are not incorporated by § 14. This interpre-

tation finds support in the well-settled rule of statu-

tory construction that:

‘‘An interpretation of the statute which would

... render different sections inconsistent with each

other, cannot be the true one.’’ Perrine v. Chesa-

peake & D. Canal Co., 50 U.S. [9 How.] 172, 187

(1850).

Also, because § 6 is a specific provision, and § 14 is a

general provision, a construction which in effect makes

§ 14 override § 6 violates the related rule that:

‘‘[S]pecial provisions prevail over general ones

which, in the absence of the special provisions,

would control.”’ Missouri v. Ross, 299 U.S. 72, 76

(1936).

In holding that the Project Act authorizes acreage

limitations, the Court of Appeals relied heavily on this

Court’s opinion in Ivanhoe Irrigation District v. Mc-

Cracken, 357 U.S. 275 (1958), which held that acreage

limitations were required by the various acts authoriz-

ing the Central Valley Project in California. The

Court of Appeals’ reliance on Ivanhoe, as though that

case were authority for the curtailment of present

perfected rights by subsequent imposition of acreage

limitations, is misplaced in four essential respects:

(i) Ivanhoe did not involve the Project Act; (ii) In

Ivanhoe, as the Court said, ‘‘It 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. Here, the water rights which would be impaired

are not only vested under state law, but have been

perfected by actual use, thus meeting the federal

statute’s definition of present perfected rights. (iii)

In Ivanhoe, the federal statute was construed as au-

thorizing the federal taking of state-generated water

rights. Here, the statute directs that such rights be

satisfied, not taken. (iv) In Ivanhoe, the district agreed

that the acreage limitation should apply, the contract

so stated, and the voters authorized the contract on

that understanding. Here, the reverse is true. Court of

Appeals, 559 F.2d, at 37, relies upon a dictum in Ivan-

hoe which attributes § 8 of the Reclamation Act of 1902

only a restricted mandate to recognize state law in the

acquisition of water rights, not in the operation of a

dam, a dictum which this Court, in California v. United

States, 438 U.S. 645, 674-75 (1979), said ‘‘went further

than was necessary”’’ in restricting the scope of that

section. In any event, that dictum in Ivanhoe is inop-

erative here: §6 of the Project Act unquestionably

controls the Secretary in the operation of the dam and

reservoir, directing that they shall be so operated as

to satisfy rights theretofore perfected under state law.

B. The legislative history of the Boulder Canyon Project Act

confirms that § 14 was not intended to imply an authority to

limit water deliveries to 160 acres of private land in single

ownership

The legislative history of the Project Act spanned a

period of some 10 years.” During that time, the sub-

ject of acreage limitations was thoroughly debated in

the committees and on the floors of Congress. Bills

which contained the same limited incorporation of the

reclamation law (1.e., ‘except as otherwise herein pro-

vided’’) that appears in § 14 of the Project Act were

repeatedly attacked by proponents of acreage limita-

tions on the ground that these bills did not limit de-

liveries of water on private lands to a maximum of

#¢ The first ‘‘Kettner Bill,’’ H.R. 6044, authorizing construction

of a canal connecting the District’s irrigation system to Laguna

Dam, was introduced on June 17, 1919. The Project Act was signed

into law by President Coolidge December 21, 1928, and became

effective June 25, 1929. ;

160 acres per landowner. Various amendments were

proposed to provide for acreage limitations, and the

first bill to pass the House contained such an amend-

ment. But, in the end, Congress elected not to limit

water deliveries from the project on private lands to

160 acres, and the bill passed by both houses and signed

by the President contained no acreage limitation pro-

vision, except as to public lands.

The bills that ultimately passed the House and Sen-

ate in 1928 were the fourth in a series of bills intro-

duced by Congressman Swing and Senator Johnson of

California.” The provisions of § 14 of the Project Act

originated in the third set of Swing-Johnson bills.

These bills provided:

‘‘This act shall be deemed a supplement to the

reclamation law, which said reclamation law shall

govern the construction, operation, and manage-

ment of the works herein authorized, except as

otherwise herein provided.”’

As introduced, the third Swing-Johnson bills did not

contain express acreage limitation provisions. These

bills were referred to the Department of the Interior

*° The first Swing-Johnson bills were S. 3511, 67th Cong., 2d

Sess., 62 Cong. Rec. 5929 (April 25, 1922), and H.R. 11449, 67th

Cong., 2d Sess., 62 Cong. Ree. 5985 (April 25, 1922); the second

Swing-Johnson bills were S. 727, 68th Cong., Ist Sess., 65 Cong.

Ree. 146 (Dec. 10, 1923), and H.R. 2903, 68th Cong., Ist Sess.,

65 Cong. Ree. 217 (Dee. 10, 1923) ; the third Swing-Johnson bills

comprised S. 1868, 69th Cong., Ist Sess., 67 Cong. Rec. 1232 (Dee.

21, 1925), H.R. 6251, 69th Cong., Ist Sess., 67 Cong. Ree. 1313

(Dee. 21, 1925), S. 3331, 69th Cong., 1st Sess., 67 Cong. Ree. —

(Feb. 27, 1926); and H.R. 9826, 69th Cong., Ist Sess., 67 Cong.

Ree. 4730 (Feb. 27, 1926); and the fourth Swing-Johnson bills

were S, 728, 70th Cong., Ist Sess., 69 Cong. Rec. 341 (Dec. 9, 1927),

and H.R. 5773, 70th Cong., Ist Sess., 69 Cong. Rec. 97 (Dec. 5,

1927).

for comments. Secretary Hubert Work submitted com-

ments and suggested amendments in a letter dated

January 12, 1926. Colorado River Basin: Hearings on

H.R. 6251 and H.R. 9826 Before the House Committee

on Irrigation and Reclamation, 69th Cong., 1st Sess.,

pt. 1, 5-9 (1926). Secretary Work did not recommend

an amendment to expressly require acreage limitations

on private lands.

Congressman Swing redrafted his bill to reflect the

Interior Department’s comments and proposed amend-

ments as contained in Secretary Work’s letter, and

reintroduced the bill as H.R. 9826. H.R. 9826 contained

the limited incorporation of the reclamation law quoted

above (which appears verbatim in § 14 of the Project

Act), but no express acreage limitation. Dr. Elwood

Mead, Commissioner of Reclamation, then appeared

before the House Committee on Irrigation and Recla-

mation to explain the Interior Department’s views on

the bill. Dr. Mead and Congressman Swing both testi-

fied that there was no provision in H.R. 9826 which

would impose acreage limitations on lands receiving

water from facilities authorized by the act:

‘‘Mr. Stnnort. I would like to ask the doctor is

there any provision in the bill sponsored by the

Secretary of a farm unit on the lands to be irri-

gated?

‘‘Doctor Mrap. This bill does not go beyond the

provisions for three things. One is the dam—the

reservoir—and the second is the power plant, and

the third is the all-American canal. That is all it

deals with. It does not deal with irrigation of new

lands at all.

‘(Tp CHAIRMAN. That is reserved for future

legislation ?

‘‘Dr. Meap. Yes, sir.

‘*Mr. Sinnott. But as to the old land——

‘“Docror Map. As to the old land, it would be

sold water under a Warren contract.

‘‘Mr. Sinnott. The present owner can occupy

his present farm unit?

‘‘Doctor Meap. Yes, sir.

‘Mr. Stnnott. No matter what that might be?

‘Doctor Merap. Yes.

‘Mr. Sinnort. What is that now in the Imperial

Valley?

‘‘Doctor Mrap. Of course, it varies widely.

There is not any law. There are a good many large

holdings there.

* * * * *

‘‘THE CHAIRMAN. How was the title acquired

to these large holdings? Was it acquired from

the railroads?

‘‘Doctor Mrap. I think in the first place the

title was acquired in 640-acre tracts.

‘*Mr. Swine. That is the maximum under which

title was acquired.

‘*Mr. Stnnott. There is nothing in this bill re-

quiring the landowner to sell the surplus over a

farm unit of 160 acres at a price to be fixed by

oo Secretary, as is now in the present reclamation

aw?

‘*‘Mr. Swina. No, sir.’ Id., at 32-33.

It is to be emphasized that the bill of which Dr.

Mead and Congressman Swing were speaking con-

tained the very same provision which the Court of

Appeals held to require acreage limitations in the

District. Thus, the Court of Appeals’ interpretation

of § 14 is flatly contradicted by the author of that

provision (Congressman Swing) and by the agency

responsible for reviewing it (the Department of the

Interior). Moreover, no one suggested in the House

proceedings that the § 14 language authorized acreage

limitations on private lands.

After completion of the hearings on H.R. 9826, the

House Committee on Irrigation and Reclamation

amended the bill to include an express acreage limita-

tion provision.” The committee reported H.R. 9826, as

amended, favorably, but the bill did not come up for a

vote on the House floor.

On the Senate side, S. 3331 was referred to the

Committee on Irrigation and Reclamation, which re-

ported the bill favorably with the limited incorpora-

tion of the reclamation law now appearing in § 14, but

without an express acreage limitation provision other

than that imposed by § 9 on desert public lands.

During debates on the Senate floor, Senator Phipps

offered an amendment to § 5 of the bill, generally simi-

lar to that adopted by the House Committee, which

would have specifically limited deliveries of water on

26«*f A}ll contracts for the delivery of water for irrigation pur-

poses provided for in section 5 shall provide that all irrigable

land held in private ownership by any one owner in excess of

one hundred and sixty acres shall be appraised in a manner

to be preseribed by the Secretary of the Interior and the sale

prices thereof fixed by the said Secretary on the basis of its

actual bona fide value at the date of appraisal without refer-

ence to the proposed construction of the irrigation works

provided for by this act; and that no such excess lands so

held shall receive water from said canal if the owners thereof

shall refuse to execute valid recordable contracts for the sale

of such lands under terms and conditions satisfactory to the

Seeretary of the Interior and at prices not to exceed those

fixed by the Secretary of the Interior ....’’ H, Rep. No. 1657,

69th Cong., 2d Sess, 29-30 (1926).

private lands to 160 acres.” 68 Cong. Rec. 4766 (1927).

Senator Phipps also offered a substitute bill which

contained (i) an express acreage limitation identical

to that contained in his proposed amendment, and (ii)

the limited incorporation of the reclamation law which

originated in the third Swing-Johnson bills and was

ultimately carried forward verbatim into § 14 of the

Project Act. Id. at 4764. Neither Senator Phipps’

amendment to §5 nor his substitute bill was adopted.

Again, no one suggested that the result sought by

Senator Phipps—+.e., the application of acreage limi-

tations to private lands—could be achieved through

the language in § 14.

The fourth Swing-Johnson bills, H.R. 5773 and S.

728, were introduced in the first session of the 70th

Congress. Again, both bills contained the § 14 language

incorporating the reclamation law ‘‘except as other-

wise herein provided.’’ H.R. 5773, as introduced, con-

tained the acreage limitation provision that had been

added to the third Swing-Johnson bill by the House

Committee on Irrigation and Reclamation (for the

*7 Senator Phipps’ proposed amendment to §5 of S. 3331 pro-

vided :

‘“‘(b) All contracts for the delivery of water for irrigation

purposes shall provide that all irrigable land held in private

ownership by any one owner in excess of 160 acres shall be

appraised in a manner to be prescribed by the Secretary of

the Interior, and the sale prices thereof fixed by the said

Secretary on the basis of its actual bona fide value at the

date of appraisal, without reference to the proposed construc-

tion of any irrigation works under the provisions of this act;

and that no such excess lands so held shall receive water if the

owners thereof shall refuse to exeeute valid recordable con-

tracts for the sale of such lands under terms and conditions

satisfactory to the Secretary of the Interior and at prices not

to exceed those fixed by the Secretary of the Interior. Con-

tracts respecting water for irrigation and domestic uses shall

be for permanent service.’’

text of this provision, see n.26, supra at 42), S. 728,

as introduced, contained no such provision. It was

referred to the Senate Committee on Irrigation and

Reclamation, where Senator Ashurst proposed an

amendment that would have added the acreage limi-

tation provision contained in the House bill. Senator

Ashurst explained his amendment as follows:

‘‘T offered an amendment before the committee

that would subject the privately owned lands to

the same conditions as lands in other irrigation

projects privately owned, so that no water user

might secure water for land in excess of 160

acres.’”’ S. Rep. No. 592, 70th Cong., Ist Sess.,

Part 2 at 26 (1928).

In addition, Senator Phipps, chairman of the com-

mittee, introduced his own bill, S. 1274, which was sub-

stantively identical to S. 728 except that it contained

an express acreage limitation provision in addition to

the § 14 language.* The committee considered S. 728

and S. 1274 together. It did not adopt Senator As-

hurst’s acreage limitation amendment, nor did it re-

port the chairman’s bill, S. 1274, with the acreage

limitation provision. Instead, the Committee reported

S. 728 without an acreage limitation, other than the

present §9 provision as to public lands, and recom-

mended passage.

28 Colorado River Basin: Hearings on S. 728 and S. 1274 Before

the Senate Committee on Irrigation and Reclamation, 70th Cong.,

Ist Sess. 2-3 (1928). The acreage limitation provision proposed by

Senator Phipps in §5(b) of S. 1274 was identical to the amend-

ment to § 5 of S. 3331 which Senator Phipps proposed unsuccess-

4 in the previous Congress, and which is reproduced supra in

n.27.

When S. 728 reached the Senate floor, the propon-

ents of acreage limitations renewed their attacks on

the bill and their efforts to amend it. Senator Hayden

proposed an amendment to S. 728 on the Senate floor,

identical with that appearing in H.R. 5773 (see n.26,

supra.).

In explaining this amendment on the Senate floor,

Senator Hayden brought to the attention of his col-

leagues the existence of such a provision in the House

bill:

‘‘We find that in the companion bill to the

measure now under consideration by the Senate

that the House Committee on Irrigation and Rec-

lamation has included a provision limiting the

area in individual ownership to 160 acres. I have,

therefore, rather than copy the law as enacted with

respect to the San Carlos project in Arizona, taken

from the House bill the language of an amendment

which I now offer ... .’’ 69 Cong. Ree. 9451.

The Senate did not adopt Senator Hayden’s amend-

ment. As the debates continued, Senator Ashurst as-

sailed the absence of an acreage limitation provision

in the bill, 69 Cong. Rec. 10471, and reminded the Sen-

ate that he had unsuccessfully proposed an amendment

authorizing acreage limitations in committee. Jd., at

10495. In the closing days of debate on S. 728, Senator

Ashurst stated that he objected to the bill because:

*“*{T Jhe bill authorizes the expenditure of millions

of dollars of Federal funds to irrigate lands owned

largely by private-land speculators in California

re os) in excess of 160 acres.’’ 70 Cong. Ree. 289

At no time during the debate did any member of the

Senate suggest that the § 14 language, which appeared

in the bill, would authorize acreage limitations and

thereby dispense with the need for an amendment of

the kind proposed by Senators Ashurst, Hayden and

Phipps. The Senate passed S. 728 without an acreage

limitation provision (cther than § 9) on December 14,

1928. Id., at 603. The House passed the Senate version

on December 18, 1928, id., at 838, and President Cool-

idge signed the bill into law on December 21, 1928.

It is to be emphasized again that all of the above-

described efforts to include an acreage limitation in

the Project Act—both in the House and in the Senate

—were directed to bills which contained language iden-

tical to that of § 14 of the Project Act. If §14 im-

plicitly imposes acreage limitations, as the Court of

Appeals held, all of these efforts would have been.

superfluous. Yet not one statement appears anywhere

in the legislative history of the Project Act in either

the Senate or the House to the effect that § 14 tncor-

porates the acreage limitation provisions of the recla-

mation law.

C. Thirty-one years of consistent administrative construction by

six secretaries confirms that the Project Act does not authorize

acreage limitations in Imperial Valley

Under § 4(b) of the Project Act, before any money

could be appropriated for construction of the All-

American Canal, and before construction could com-

mence, the Secretary was required to insure, by con-

tract or otherwise, payment of construction, operation

and maintenance expenses of the canal. In addition,

§ 5 of the Project Act authorized the Secretary to enter

into contracts for the storage and delivery of water.

Accordingly, as of December 1, 1932, the United States

and the District entered into a contract which pro-

vided for the payment of construction costs of the

All-American Canal by the District, and for delivery

of the District’s water through that canal.” This con-

tract made no mention of acreage limitations with

respect to private lands in the Imperial Valley. It was

signed on behalf of the United States by Secretary

Ray Lyman Wilbur on December 1, 1932. He had ap-

proved it as to form on November 4, 1931, after a

public hearing. U.S. DEPARTMENT OF THE INTERIOR,

THE Hoover DaM Contracts 563 (1933).

As required by state * and federal” law, as well as

by Article 31 of the contract,” the contract was sub-

mitted to a state court of competent jurisdiction for a

determination of its validity. Hewes v. All Persons,

supra. Charles Malan, one of the parties to the valida-

tion proceeding, alleged that the contract was invalid

because it would limit deliveries of water on private

lands to 160 acres in single ownership. In specific

response to this allegation, Secretary Wilbur issued a

letter-ruling to the effect that neither the Project Act

nor the contract authorized the application of acreage

limitations to privately owned lands in the District:

‘Early 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

irrigated from this canal. Upon careful considera-

tion the view was reached that this limitation does

not apply to lands now cultivated and having a

*° For the text of the contract, see App. 177a.

*° 1917 Cal. Stat. 245 and 1897 Cal. Stat. 254.

51 42 Stat. 541, 43 U.S.C. § 511.

*? Reproduced at App. 203a.

present water right. These lands, having already

a water right, are entitled to have such vested

right recognized without regard to the acreage

limitation mentioned. Congress evidently recog-

nized 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.’’ 71 I.D., at 530.

It is significant that this construction of the Project

Act and of the contract was made by the individual

who negotiated and signed the contract on behalf of

the United States.

If Secretary Wilbur had decided otherwise, he

would have been acting in contravention of regula-

tions, in force since 1910 (and still in force today),

which say that the land limitation in §5 ‘‘does not

prevent the recognition of a vested right for a larger

area and protection of the same by allowing the con-

tinued flowing of the water covered by the right

through the works constructed by the Government

under appropriate regulations and charges.” 38 L.D.

637; 43 C.F.R. 230.70; App. 216a. See discussion infra

at 66-67.

Although Secretary Wilbur’s ruling specifically men-

tioned only §5 of the Reclamation Act, and not § 46 of

the Omnibus Adjustment Act, the Department of the

Interior subsequently confirmed that the ruling em-

braced § 46 as well. In a letter dated March 1, 1933,

P. W. Dent, Assistant Commissioner and Chief Counsel

of the Bureau of Reclamation, stated:

‘‘In my view the same principle discussed in the

Secretary’s letter of February 24, based upon

section 5 of the reclamation act, involves precisely

that contained in section 46 of the act of May 25,

1926. The latter act merely ties up with and em-

phasizes what has always been the law in this

respect.

‘‘The Secretary’s letter was directed to the spe-

cific allegations in the complaint, which, so far as

could be ascertained, had no direct reference to the

act of May 25, 1926. I assume, however, that re-

gardless of the allegations in the complaint, Mr.

Childers is apprehensive that argument may be

submitted based upon the 1926 act. If this is done

it seems to me the dei2nse would necessarily be

based upon the propositions, first, that the All-

American Canal work constitutes a special project

specifically authorized by the Boulder Canyon

Project Act and that this stands upon a basis quite

different from the ordinary conception of a proj-

ect. The second proposition is that the acreage

limitation in the reclamation law (including sec-

tion 46 of the act of May 25, 1926) does not apply

to the lands having a vested right.’”? Con. Apx.

179a.**

Following Secretary Wilbur’s ruling, the court in

Hewes held that neither the Project Act nor the con-

tract authorized the application of acreage limitations

to privately owned lands in the District, that therefore

the objections of Malan should be overruled, and that

the contract was valid.

For the next 31 years, Secretary Wilbur’s construc-

tion of the Project Act and of the contract was con-

sistently adhered to by the United States. During that

period, the Department of the Interior did not once

refute Secretary Wilbur’s ruling, and on a number

* This Court, in Ivanhoe Irrigation District v. McCracken, 357

U.S. 275, 290 (1958), referred to § 46 of the 1926 act as a ‘‘re-

enactment’’ of § 5 of the 1902 act.

of occasions positively reaffirmed it. 322 F.Supp., at

23-27.

Secretary Wilbur was succeeded by Secretary Har-

old L. Ickes, who took office March 4, 1933, and served

until February 15, 1946. He served simultaneously as

Public Works Administrator. Secretary Ickes’ inter-

pretation of the Project Act confirmed that of Secre-

tary Wilbur. As Secretary, Ickes could have repudi-

ated Secretary Wilbur’s ruling of February 25, 1933,

that the Project Act did not authorize imposition of

acreage limitations on private land in Imperial Valley.

He did not. He adhered to it for the 13 years that he

was in office.

Secretary Ickes’ first opportunity to reverse Secre-

tary Wilbur was in the validation proceeding on the

District’s contract, to which Secretary Wilbur’s ruling

had been transmitted. Trial commenced March 16, 1933.

Judgment was not entered until July 5, 1933. Far

from repudiating Secretary Wilbur’s interpretation,

Secretary Ickes concurred in it. As Public Works Ad-

ministrator, he withheld approval of an allocation of

funds to commence construction of the All-American

Canal until an appeal by an excess landowner from

the judgment in the Hewes case was dismissed." When

the appeal was dismissed, in February of 1934, he pro-

ceeded to allocate funds. Between March 20, 1934, and

June 22, 1936, Secretary Ickes, in his capacity as Public

Works Administrator, allocated some $22 million of

P.W.A. funds for the construction of the All-American

Canal, and so advised Congress. Interior Department

* The record in the District Court shows a protest from the at-

torney for the excess landowner against Secretary Ickes’ insistence

on dismissal of his appeal. Exhibit LX-BK.

Appropriation Bill, 1937: Hearings before Subcom-

mittee of House Committee on Appropriations, 74th

- Cong., 2d Sess. 1162 (1936). After June 22, 1936, when

the All-American Canal became a line item in the

Interior Department’s budget, until 1942, when the

Canal was completed, Secretary Ickes regularly sought

congressional appropriations for construction of the

Canal.

Secretary Ickes, not Secretary Wilbur, executed the

repayment agreement with Coachella Valley County

Water District, dated October 15, 1934, covering that

district’s share of the cost of the All-American Canal.

The Hoover Dam Documents, House Document No.

717, 80th Cong., 2d Sess., at A633. The Coachella con-

tract did not include an acreage limitation clause. That

contract’s reference to the reclamation law (Art. 29)

was identical with that in the Imperial contract (Art.

30).°°

Secretary Ickes, throughout his 13-year term of

office, was firm in his opinion that the Project Act did

not impose an acreage limitation on private lands in

Imperial Valley because they possessed vested rights

antedating the Project Act. His appointee, Assistant

Commissioner of Reclamation William E. Warne (later

Assistant Secretary) so testified before congressional

committees in 1944. Hearings on H.R. 3961, 78th Cong.,

2d Sess., Subcommittee of Senate Committee on Com-

merce, pt. IV, at 599. Mr. Warne put Secretary Wil-

*® An acreage limitation was first included in a Coachella contract

in 1947, when the Department, acting through Secretary Krug,

and Coachella entered into a contract for construction and repay-

ment of the cost of a distribution system. U.S. Exhibit 10 in the

District Court. This was the occasion of Solicitor Harper’s opinion,

infra, p. 53, n.37.

bur’s letter of February 25, 1933, in the record in

support of the Ickes administration’s statement that

acreage limitations were not applicable in Imperial

Valley.

In 1941, B.P. King, an attorney in the Bureau of

Reclamation, acting pursuant to instructions issued by

Secretary Ickes, completed a comprehensive report en-

titled ‘‘The Excess Land Provisions of the Reclama-

tion Law.” This report concluded that the acreage

limitation provisons of the reclamation law were not

applicable to the District. 322 F.Supp. at 24.

In 1942, Commissioner Page of the Bureau of Rec-

lamation, Secretary Ickes’ appointee, advised the Gen-

eral Counsel of the Federal Land Bank, which was

making loans on farms in the District, that the acreage

limitation provisions of the reclamation law were not

applicable to the District. Ibid.

On May 31, 1945, Interior Solicitor Fowler Harper

issued an opinion to the effect that the acreage limita-

tion provisions of the reclamation law should be writ-

ten into the contract for repayment of the cost of new

distribution works serving Coachella Valley County

Water District, which had no present perfected rights.

Solicitor Harper’s opinion was critical of the Wilbur

ruling but did not purport to overrule it. Solicitor

Harper acknowledged the inapplicability of acreage

limitations to Imperial Irrigation District, where

6 Secretary Ickes executed four other major contracts under the

Project Act: (i) with the City of San Diego, October 2, 1934, The

Posver Dam Documents, House Document No. 717, 80th Cong., 2d

Sess., at A671; (ii) with the State of Arizona, February 9, 1944,

td., at A559; (iii and iv) with the State of Nevada, March 30,

1942, id., at A571 and January 3, 1944, id., at A579. None of these

contains an acreage limitation on private lands.

‘‘vested”’ (present perfected) rights existed, but noted

that no such rights appeared to exist in Coachella:

‘‘Although the language of the letter of Secretary

Wilbur seems broad enough to include the Coa-

chella Valley District lands, the letter was clearly

intended only to apply to the Imperial Irrigation

lands. It apparently assumes that all privately

owned land in the District was under irrigation

and has a vested water right. Nothing in the files

indicates whether such is the factual situation,

and there is strong indication that the Coachella

Valley lands are to a very large degree as yet

not irrigated.’’ *’

In 1946, the Bureau of Reclamation, under Secre-

tary J. A. Krug, issued a report entitled ‘‘Landowner-

ship Survey on Federal Reclamation Projects.”’ This

report stated that there were 402 land ownerships

larger than 160 acres per single ownership in the

District, and that the excess land provisions of the

reclamation law were not applicable to these lands.

Ibid.

In 1948, Secretary Krug reaffirmed the nonap pli-

eability of acreage limitations to the District. Follow-

ing the consummation of the Coachella supplemental

contract, which expressly required that water deliv-

eries be limited to 160 acres per landowner, the Vet-

erans of Foreign Wars requested that Secretary Krug

reverse Secretary Wilbur’s ruling so that the District

** As Judge Turrentine observed:

‘“‘There was of course ample data then available to show

that in Imperial Valley there were in excess of 400,000 acres

receiving pre-project irrigation in reliance on rights to Colo-

rado River water. The major weakness of the Harper decision

as it relates to Imperial Valley is its failure to deal with this

question of pre-project water rights.’’ 322 F.Supp., at 25.

would be treated in the same fashion as Coachella.

Secretary Krug declined. Without reaching the merits

of the question, he explained the substantial inequity

of reversing 15 years of consistent administrative

interpretation, which had been relied upon by land-

owners in the District:

‘‘T W]e have concluded that inasmuch as the Sec-

retary of the Interior then charged with the

administration of law construed the acreage limi-

tation as not being applicable to lands of the Im-

perial Irrigation District under the facts as he

then understood them, and it being clear that the

then owners and subsequent purchasers of irri-

gable lands in the Imperial Irrigation District

were entitled to rely upon advice from the Sec-

retary and thus establish an economy in the dis-

trict consistently with that advice, they should not

now be abruptly advised that the economy of the

project is to be changed under a contrary ruling

of the present officer charged with the administra-

tion of the law.”’ 71 I.D., at 515; 322 F. Supp., at

24-25.

Solicitor White concurred in Secretary Krug’s de-

cision to reaffirm the Wilbur ruling. Exhibit LX-34 in

the District Court.

In 1952, the contract between the United States and

the District was amended by a supplemental contract,

signed by Secretary Oscar L. Chapman. Solicitor Ed-

ward Weinberg, who participated in the contract

negotiations, testified that the Department had con-

sidered attempting to negotiate an acreage limitation

clause in the supplemental contract, but decided not

to do so. See the discussion of Secretary Krug’s ac-

tions, 322 F.Supp., at 25.

The Wilbur ruling was again affirmed by the Depart-

ment of the Interior in 1958, when the Special Master

in Arizona v. California requested briefs on the ques-

tion of whether the acreage limitation provisions ap-

plied to the District. The Solicitor General requested

the view of the Solicitor of the Department of the

Interior. Solicitor Elmer F. Bennett, acting under

Secretary Fred A. Seaton, replied that acreage limi-

tations did not apply to the District. He specifically

noted the history and consistency of the Department’s

practice in this respect:

‘* “The water contract between the United States

and the Imperial Irrigation District was executed

December 1, 1932, some 25 years ago. The negotia-

tions leading to the contract were lengthy and

extensively in the public view. Except at the time

of court confirmation, J am not aware of any chal-

lenge as to the legality of the contract during this

entire period. Water has been delivered to the

lands of Imperial District pursuant to the con-

tract since the early 1940’s. I am not aware that

any administrative action has been proposed or

taken either by the preceding administration or by

this one to recognize or enforce application of the

160-acre limitation to the lands of the Imperial

Irrigation District.

‘“<The United States acting through the then

Secretary of the Interior accepted the contract as

having been confirmed and acting thereon pro-

ceeded to initiate construction of the All-American

Canal and engage upon a variety of transactions

in reliance upon the validity of the contract. There

must surely arise a point of time, again I believe

long since past, wh a the contract in keeping with

the terms of Article 31 became binding upon the

United States and the District. To treat otherwise

at this date could have far-reaching effect (empha-

sis added).’ ’’ 322 F.Supp., at 26.

Judge Turrentine summed up the administrative

practice as follows:

‘‘This history of the administrative practice has

necessarily been selective, but a thorough review

of Departmental policy has failed to disclose a

departure from the interpretation initiated by Sec-

retary Wilbur until 1964. This interpretation was

followed during the incumbencies of six successor

Secretaries and four Presidential administra-

tions.’’ 322 F.Supp., at 26.

He identified the Secretaries:

‘Secretary Ickes under Presidents Roosevelt and

Truman; Secretaries King and Chapman under

President Truman; Secretaries McKay and Sea-

ton under President Eisenhower. During his tenure

under President Kennedy, Secretary Udall did not

disturb the interpretation.’’ Zd., at n.30.

Not until 1964, when Solicitor Barry issued his opin-

ion purporting to overrule Secretary Wilbur’s ruling,

did the Department of the Interior’s policy depart

from the ruling.

Subsequent to the Barry opinion, the Department of

the Interior for several months attempted to negotiate

a new contract with the District which would have

incorporated the acreage limitation provisions of the

reclamation law. When the District declined to nego-

tiate a new contract, insisting on its rights under the

existing contract, the United States brought this action

for declaratory relief.

This Court has repeatedly applied the principle of

statutory interpretation that an agency’s long-standing

construction of its statutory mandate is entitled to

great weight. E.g., United States v. Rutherford, 442

U.S. 544 (1979) ; Board of Governors v. First Lincoln-

wood Corp., 439 U.S. 234 (1978) ; Bayside Enterprises,

Inc. v. NLRB, 429 U.S. 298, 304 (1977) ; NLRB v. Bell

Aerospace Co., 416 U.S. 267, 274-75 (1974) ; Zemel v.

Rusk, 381 U.S. 1, 11-12 (1965) ; Udall v. Tallman, 380

U.S. 1, 16-18 (1965). Administrative interpretation is

particularly persuasive (i) where, as here, the admin-

istrative practice involves a ‘‘contemporaneous con-

struction of a statute by the men charged with the

responsibility of setting its machinery in motion, of

making the parts work efficiently and smoothly while

they are yet untried and new,’’ Norwegian Nitrogen

Products Co. v. United States, 288 U.S. 294, 315

(1933); (ii) where, as here, ‘‘[t]hese agencies co-

operated in developing the act,’’* Adams v. United

States, 319 U.S. 312, 314-15 (1943) ; and (iii) where,

as here, ‘‘Congress has refused to alter the admin-

istrative construction.’’ ** Red Lion Broadcasting Co.

v. FCC, 395 U.S. 367, 384 (1969).

The Court of Appeals acknowledged that, ‘‘in prac-

tice, the Department of the Interior did not enforce

the 160-acre limitation on lands in the Imperial Irri-

gation District.’’ 559 F.2d, at 540. The court concluded,

however, that this practice was not determinative be-

cause it was justified on the basis of (i) the Wilbur

ruling, which the Court of Appeals determined to be

legally incorrect, and (ii) on what the court charac-

terized as ‘‘ previous inaction’’—the Department of the

Interior had used the term ‘‘fairness’’—which, in the

% For the role played by the Interior Department in the draft-

ing of the Project Act, see supra at 39-41.

*° For a discussion of congressional ratification of the Depart-

ment of the Interior’s interpretation of the Project Act to the

effect that it does not authorize acreage limitations in the District,

see infra at 60.

court’s view, was not ‘‘an administrative determination

to which the courts should defer.’”’ Ibid.

Of course, a court may always disregard an admin-

istrative practice which is clearly contrary to the sta-

tute pursuant to which the agency purported to act.

Here, however, it would be ludicrous to assert that

Secretary Wilbur’s ruling was clearly wrong. It was

in accord with longstanding regulations and practice

(see infra at 66-67), it was confirmed by a court of

competent jurisdiction (see infra at 69-72), it was

made known repeatedly to Congress, which appro-

priated money to construct the All-American Canal

with knowledge that it was to serve lands possess-

ing vested rights, irrespective of their area, (see infra

at 60-64), and it was adhered to by Secretary Wilbur’s

successors for 31 years. The most that might be said

is that the Project Act is arguably susceptible to

an interpretation other than that ascribed to it by

Secretary Wilbur, and that the Court of Appeals

would have adopted such an alternative interpreta-

tion, instead of that adopted by Judge Turrentine

and the six Secretaries who adhered to Secretary

Wilbur’s interpretation, had the question come before

it for decision. Even if this were supposed to be the

case, however, it would not warrant judicial disregard

of administrative practice many years after the fact.

As this Court has said on numerous occasions:

‘*When faced with a problem of statutory con-

struction, this Court shows great deference to the

interpretation given the statute by the officers or

agency charged with its administration. ‘To sus-

tain the Commission’s application of this statutory

term, we need not find that its construction is the

only reasonable one, or even that it is the result

we would have reached had the question arisen in

the first instance in judicial proceedings.’ Unem-

ployment Comm’n v. Aragon, 329 U.S. 143, 153.

See also, e.g., Gray v. Powell, 314 U.S. 402; Uni-

versal Battery Co. v. United States, 281 U.S. 580,

083 (emphasis added).’’ 380 U.S., at 16.

Thus, the Court of Appeals’ disagreement with the

Wilbur ruling, considered in light of the particular

facts surrounding that ruling—namely, its subsequent

judicial, congressional, and administrative ratification

—does not justify retroactive judicial disregard of the

administrative practice based on that ruling.

As to the Court of Appeals’ contention that the

administrative practice involved here should be dis-

regarded because it was justified in part on ‘‘ previous

inaction’’: it is true that several of the later Depart-

mental explanations for the non-application of acreage

limitations to Imperial Valley were to the effect that a

reversal of prior Departmental policy and practice

would be unfair to those who had relied on that policy

and practice. But such a concern with fairness and

constancy is fundamental to the principle of adminis-

trative construction. As this Court in United States v.

Northern Pacific Railway Co., 242 U.S. 190 (1916),

said:

‘‘Statutes should be construed, as far as possible,

so that those subject to their control may, by ref-

erence to their terms, ascertain the measure of

their duty and obligation, rather than that such

measure should be dependent upon the discretion

of executive officers, to the end that ours may

continue to be a government of written laws rather

than one of official grace.’’ Id., at 195.

And with specific regard to expectations created by

long-standing administrative practice, this Court said

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

(1915):

‘‘Tt may be argued that while these facts and

rulings prove a usage, they do not establish its

validity. 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 repeated

as to crystallize into a regular practice. That pre-

sumption is not reasoning in a circle, but the basis

of a wise and quieting rule that, in determining 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.

Individuals have for years bought and sold land, built

farms, and paid ad valorem and estate taxes in the

District in reliance on the United States’ continuing

assurance that the Project Act did not authorize acre-

age limitations there.

Moreover, the administrative practice involved here

was not a failure to act or a casual disregard of a

statutory mandate. Rather, it was a deliberate and

positive interpretation of the statute. Clearly, public

reliance on such a practice is a valid reason for con-

tinuing the practice, and in no way should detract from

the importance of the practice for purposes of statu-

tory construction.

D. Congress has ratified administrative construction to the effect

that the Project Act does not authorize acreage limitations in

the District

From 1934, when Secretary Ickes first appropriated

P.W.A. funds for the construction of the All-American

Canal, until the present, Congress has been aware of

the fact that deliveries of water to the District from the

All-American Canal were not being limited to 160

acres in single ownership.” Yet Congress has never

amended the Project Act to require such limitation.

Indeed, Congress has three times ‘‘revisited the Act

and left the practice untouched.’’ Saxbe v. Bustos, 419

U.S. 65, 74 (1974). In 1940, after extensive hearings,

Congress enacted the Boulder Canyon Project Adjust-

9 See, e.g., Hearings on H.R. 13710 Before a Senate Subcommit-

tee on Appropriations, 72d Cong., 2d Sess., at 97 (1933) ; Hearings

on H.R. 3961 Before a Subcommittee of the Senate Committee on

Commerce, 78th Cong., 2d Sess., pt. [V at 599, 631, 764-65 (1944) ;

Hearings on S. 295 Before a Subcommittee of the Senate Committee

on Irrigation and Reclamation, 78th Cong., 2d Sess., at 184, 450,

482 (1944); Hearings Before a Subcommittee of the Senate Mili-

tary Affairs Committee, 78th Cong., 2d Sess., at 33 (1944) ; Hear-

ings on H.R. 6335 Before a Subcommittee of the Senate Appro-

priations Committee, 79th Cong., 2d Sess., at 1108-19 (1946) ;

Hearings on Irrigation and Reclamation Before a Subcommittee of

the House Committee on Public Lands, 80th Cong., Ist Sess., at 11

(1947) ; Hearings on S. 912 Before a Subcommittee of the Senate

Committee on Public Lands, 80th Cong., Ist Sess., at 159-60, 162,

166, 179, 431-32 (1947); Hearings on S. 1385 Before the Senate

Committee on Interior and Insular Affairs, 81st Cong., Ist Sess.,

at 12, 15, 50-51 (1949) ; Hearings on S, 1425, S. 2541, and S. 3448

Before the Subcommittee on Irrigation and Reclamation of the

Senate Committee on Interior and Insular Affairs, 85th Cong., 2d

Sess., at 11, 19, 85, App. C at 7 (1958) ; Acreage Limitation Policy,

Committee Print of Senate Committee on Interior and Insular

Affairs, 88th Cong., 2d Sess., at 25, 350-51 (1964) ; Water Policies

for the Future, Final Report to the President and to the Congress

of the United States by the National Water Commission (1973) ;

Acreage Limitations in Bureau of Reclamation Projects: Hearings

Before Subcommittee on Public Lands and Development of the

Senate Committee on Energy and Natural Resources, 95th Cong.,

2d Sess., pt. 3 (1978) ; Reclamation Reform Act of 1979: Hearings

Before the Subcommittee on Energy Research and Development

of the Senate Committee on Energy and Natural Resources, 96th

Cong., Ist Sess. (1979).

ment Act, 54 Stat. 779, 43 U.S.C. §§ 618 et seg., which

superseded various financial provisions of the Project

Act, and specifically reenacted certain other provisions

of that Act relating to water rights. In 1946, Congress

passed an act to amend § 9 of the Project Act, 60 Stat.

36, 43 U.S.C. §617h, which limits entries on public

lands to 160 acres. And in 1968, Congress further sup-

plemented the Project Act with the Colorado River

Basin Project Act, 82 Stat. 886, 43 U.S.C. §§ 1501,

‘et seq., enacted after this Court’s opinion and first

decree in Arizona v. California, That Act provided

inter alia that the Secretary, in making allocations

under the Project Act in time of shortage must first

satisfy present perfected rights in order of priority.

In none of these three instances did Congress take

action to require a change in the administrative prac-

tice—known to Congress—of delivering water to the

District without regard to acreage, in satisfaction of

present perfected rights.

This Court has held that, in appropriate circum-

stances, congressional acquiescence in an administra-

tive practice which is not in complete harmony with

the statutory language can have the effect of qualify-

ing that language. For example, in Sazbe v. Bustos,

supra, the Court said:

‘‘Such a history of administrative construction

and congressional acquiescence may add a gloss

or qualification to what is on its face unqualified

statutory language.’’ 419 U.S., at 74.

It is an a fortiori proposition that where, as here,

administrative construction and congressional acquies-

cence therein are in complete conformity with the ‘‘un-

qualified statutory language’’ (1.¢., the § 6 requirement

that present perfected rights be satisfied and the § 14

provision that the reclamation law applies only to the

extent that it is not in conflict with specific provisions

of the Project Act), such congressional acquiescence

should be accorded great weight in the construction of

the relevant statute.

Nor has Congress’ role been limited to mere acquie-

scence in the face of a known administrative practice.

Congress has also taken affirmative steps to ratify that

practice. Every year from 1936 through 1950, Congress

appropriated funds for the construction and/or opera-

tion of the All-American Canal with knowledge that

deliveries to the District were not being limited to

160 acres in single ownership.”

In Ivanhoe Irrigation District v. McCracken, supra,

this Court held inter alia that annual appropriation of

funds by Congress for the Central Valley Project con-

stituted ratification of an administrative construction

to the effect that the excess lands provisions of the

reclamation law applied to the Central Valley Project.

357 U.S., at 293. If the same reasoning is applied to

the circumstances of the present case, which involves a

different statute (the Project Act) and a different

administrative construction, one must conclude that

Congress, in making large, annual appropriations for

the All-American Canal, ratified administrative con-

struction to the effect that the Project Act does not

*149 Stat. 1757, 1785 (1936) ; 50 Stat. 564, 596 (1937) ; 52 Stat.

291, 223 (1938); 53 Stat. 685, 718 (1939); 54 Stat. 406, 437

(1940) ; 55 Stat. 303, 336 (1941); 56 Stat. 506, 535-36 (1942) ;

57 Stat. 451, 476 (1943); 58 Stat, 463, 489-90 (1944); 59 Stat.

318, 342 (1945); 59 Stat. 632, 648 (1945); 60 Stat. 348, 368

(1946) ; 61 Stat. 460, 476 (1947) ; 62 Stat. 1112, 1131 (1948) ; 63

Stat. 765, 782 (1949) ; 64 Stat. 275, 285 (1950) ; 64 Stat. 595, 686

(1950). Appropriations for operation were no longer required after

transfer of operation by Secretary Chapman to the District in 1952

(supra, p. 54).

authorize application of the excess lands provisions of

the reclamation law to the District.

Judge Turrentine aptly summed up the congres-

sional ratification of Secretary Wilbur’s ruling with

the following findings:

‘“‘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 Cen-

tral Valley and San Luis projects and at the

hearings on the Small Projects Act of 1958.

* + ” * ”

‘In addition to the foregoing, copies of the

Bureau of Reclamation’s excess land surveys of

1946 and 1964 were filed with Congress.

‘‘At no time from 1933 to the present has Con-

gress taken any action in derogation of the pro-

priety of the Wilbur interpretation or of the long

standing administrative practice which followed

it.’ 322 F.Supp., at 27.

This congressional ratification of administrative

construction is entirely consistent with the plain lan-

guage of §§6 and 14 of the Project Act, with the

legislative history of the Act, and with the Hewes deci-

sion, and is therefore entitled to great weight.

II.

The Decisions Not To Apply An Acreage Limitation To The

Privately Owned Lands In Imperial Irrigation District Have Become

Final and Irreversible

As with any other major project of comparable size,

Congress left many details—some quite important—

to secretarial discretion. These included, for example,

the design, the capacity, and even the location of

Hoover Dam, and the size of the All-American Canal.

Congress’ overriding intention, however, was that deci-

sions once made were not subject to being remade by

each new Secretary of the Interior. Hoover Dam is set

in cement and steel, and located in Black Canyon, not

Boulder Canyon; but it takes no argument to prove

that the Secretary’s discretion having been exercised,

and the cement poured, his decision cannot be remade

even if Boulder Canyon were now proved to be a better

location.

The legal decisions were meant to be equally irre-

voecable—as irrevocable as any aspect of the law, state

or federal, relating to the title to real property. Water

rights, indeed, are real property. In Imperial Valley,

they are the only rights, other than mineral rights and

geothermal rights, that give land its value.

Who was to receive water stored behind Hoover

Dam was a matter of overriding concern throughout

the Colorado River Basin from the first moment the

possibility of such a dam was conceived—a dam ‘‘in

or for the benefit of the Lower Basin.’’ Article VIII of

the Colorado River Compact, written in 1922, expressed

the core principle that, ‘‘ Present perfected rights’’—

water rights perfected by appropriation and use of

water—were to be unaffected by the Compact, except

in one carefully specified particular: they should at-

tach to and be satisfied by the waters stored by any

lower basin reservoir with a capacity of five million

acre-feet or more.

Disposition of the water stored behind Hoover Dam

was provided for in the legislation authorizing its

construction. That legislation incorporated and perpe-

tuated, with repeated and meticulous emphasis, the

protections for existing rights specified in the Colorado

River Compact. The dam must be used to satisfy ‘‘pres-

ent perfected rights.’’

Every device known to the law was prescribed in an

effort to put at rest and to determine conclusively any

questions about rights to the use of that water. Speci-

fically, the devices directed to be employed were (1)

general regulations to control the writing of contracts

for the use of water stored behind Hoover Dam, (ii)

contracts ‘‘for permanent service’’ which once written

could not be rewritten, except of course with the con-

sent of the parties, and (iii) the device of the valida-

tion proceeding, 43 U.S.C. § 511, to set the arrange-

ments in the cement of res judicata.

A. Regulations

Secretary Wilbur’s determination that acreage limi-

tations do not apply to privately owned lands in the

District was made in the course of discharging the

responsibility placed on him by the Project Act

in making the contract with the District. It was

a ruling adhered to by all of his successors—

six Secretaries in four Presidential administrations,

over a period of more than three decades—until this

suit was initiated.

If Secretary Wilbur had decided otherwise, he first

would have had to vacate the Department’s 1910 regu-

lation (App. 216a) which codified Departmental prac-

tice prevailing since at least 1905:

‘“‘The provision of section 5 “ of the reclamation

act 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

constructed by the Government under appropriate

regulations and charges.”’

It is axiomatic that an agency is bound by its own

regulations and that the public is entitled to rely on

those regulations. Professor Davis puts it this way:

‘‘TA] legislative rule is clearly binding on the

agency that issues it. The best single authority

may now be United States v. Nixon, 418 U.S. 683,

694-696 (1974).’? 2 K. Davis, ADMINISTRATIVE Law

TREATISE 98 (2d ed. 1979).

The 1910 regulation is clearly a legislative rule, and

has remained in force, unchanged, for 70 years. It is

now codified at 43 C.F.R. 230.70. |

Secretary Wilbur’s ruling, and the implementation

of that ruling by Secretaries Ickes, Krug, Chapman,

McKay, Seaton, and Udall (during his tenure under

President Kennedy) were made against the background

of two decisions of this Court which are foundations

to the interpretation of the law of the Colorado River.

The first was Wyoming v. Colorado, 259 U.S. 419

(1922), decided while the Colorado River Compact

*2 Our footnote: this Court, in ]vanhoe Irrigation District v. Mc-

Cracken, supra, called § 46 of the Omnibus Adjustment Act of

1926 a ‘‘reenactment’’ of §5 of the Reclamation Act of 1902, 357

US., at 290.

was under negotiation, and declaring that prior ap-

propriation is the controlling principle of interstate

adjudications of interstate water rights among western

states, except where expressly departed from. That

decision produced the Colorado River Compact. The

second was Arizona v. California, 283 U.S. 423, 459

(1931), in which Justice Brandeis articulated the

essential feature of a water right in western states,

acquired by appropriation and use: ‘‘a vested right

to take and divert from. the same source, and to use

and consume the same quantity of water annually

forever, subject only to the right of prior appro-

priations.”’ This decision upheld the authority of the

Secretary, challenged by Arizona, to construct Hoover

Dam. The Project Act was valid because it did not

interfere with those vested rights.

B. Contract

Contract has always been a central device in recla-

mation law to make clear, ‘definite, and durable the

rights, including institutional arrangements for their

satisfaction, in reclamation projects. In the beginning

(7.c., after 1902 when the Reclamation Act was passed)

eontracts arose out of water right applications by

individual farmers using water. Such an arrangement

was cumbersome, and had been largely discarded be-

fore the Project Act in favor of contracts with an

irrigation district or public entity. 43 U.S.C. § 511. The

irrigation district was a practical necessity in the

administration of projects.

There is no question as to the intention of the

parties to the contract between the Secretary of the

Interior and the District. It was just as clear here that

they did not intend to include an acreage limitation—

Secretary Wilbur said so in writing—as it was clear

in Ivanhoe that the parties intended the opposite. The

electors of the District approved the contract on that

understanding, as the court in Hewes found. App.

144a, Finding 35.

Not only was the contract a device to secure cer-

tainty ; it was a device to secure consensus and under-

standing among the water users by making clear what

they were receiving and what responsibilities they

were undertaking in exchange for those benefits.

C. Validation by judicial proceeding

The contract between the United States and the

District required judicial validation. 43 U.S.C. § 511.

Article 31 of the contract repeated the language of

that statute.

The purpose of the requirement of validation was

clear. That purpose was to give legal certainty to all

the matters which were the subject of the contract—

to set in legal cement the terms of the mutual under-

takings of the District and the United States, sealed

by the doctrine of res judicata.

The Court of Appeals says that everything deter-

mined by such a proceeding, other than ‘‘validity,”’ is

‘*oure dicta.’’ 559 F.2d, at 526. The court was led into

error by reading, in isolation, two sentences from the

California Supreme Court’s two opinions in Ivanhoe

Irrigation District v. All Parties:

(i) ‘‘The judgment [in a confirmation proceed-

ing] is limited to a determination of the validity of

the oe 47 Cal. 2d at 607, 306 P.2d at 829

(1957).

(ii) ‘This proceeding is in rem in nature. In

such an action the only issue involved is the va-

lidity of the contract.”’ 52 Cal. 2d 692, 699, 3 Cal.

Rptr. 317, 320, 350 P.2d 69, 72 (1960).

One of these utterances preceded, and one followed,

the opinion of this Court in Ivanhoe Irrigation Dis-

trict v. McCracken, 357 U.S. 275 (1958). Both sen-

tences are quoted by the Court of Appeals. 559 F.2d,

at 525.

It is clear that these sentences in isolation do not

state the effect of a validation proceeding in California.

A judgment determining solely the abstract question

of validity without reference to what the contract pro-

vided would serve no useful purpose. What is worse,

it would have all the destructive power of a loose can-

non on the pitching deck of a man-of-war in heavy

seas. Such a judgment would conclusively determine

that the contract was binding, but without regard to

how it might be construed or interpreted.

No one can read the two Ivanhoe opinions of the

California Supreme Court and the intervening opinion

of this Court without recognizing that the California

court, in the first case, determined that a contract with

an acreage limitation clause could not be valid. The

second California Supreme Court opinion determined

that the contract was valid incorporating the acreage

limitation. The state court determined, in each in-

stance, what it purported to determine. This Court

would have had no jurisdiction on certiorari to hear

the case and to reverse if the only determination had

been abstract ‘‘validity’’ or the capacity of the District

to enter into some kinds of contracts.

Validation proceedings have been an essential part

of reclamation law ever since the California legisla-

ture enacted the Wright Act in 1887. That act estab-

lished the pattern, copied in most of the states of the

west, to achieve the finality of res judicata by a judicial

proceeding.

As early as 1913, in Hanson v. Kittitas Reclama-

tion District, T5 Wash. 297, 134 Pac. 1083 (1913),

the preclusive effect of a validating judgment was

sustained. Andrews v. Lillian Irrigation District, 66

Neb. 458, 92 N.W. 612 (1902), rehearing, 97 N.W. 336

(1903). The Washington court acknowledged the Cali-

fornia Wright Act as the model for the Washington

Act and similar irrigation district laws in fourteen of

the sixteen States in which irrigation was practiced.

The court also pointed out that the in rem proceeding,

which results in a judgment against ‘‘the world,’’ is not

novel. Adjudications in bankruptcy, admiralty, and

receiverships have the same in rem nature.

The usefulness of validation proceedings is depend-

ent on the resulting judgments effectively deciding the

litigated questions. It should be remembered that res

judicata is not a technical and medieval doctrine. It is

a doctrine which it would be necessary to invent if it

did not exist. Most of the changes have been in the

direction of exterding its finality. Chicot County

Drainage District v. Baxter State Bank, 308 U.S.

371 (1940), decided by a unanimous court, illustrates

the reach of finality. In Chicot County, a judgment

based on an unconstitutional statute achieved finality.

Bonds were discharged in a municipal bankruptcy,

and their holders appealed. While appeal was pend-

ing, the bankruptcy law was held unconstitutional by

this Court in another case. The Court held in Chicot

County that the discharge was res judicata despite

unconstitutionality of the statute.

This Court, in Tacoma v. Taxpayers of Tacoma, 357

U.S. 320, 336-337 (1958), made an observation that is

particularly appropriate here. Speaking of the finality

to be accorded under the Federal Power Act to a court

of appeals decision on review of an order of the Fed-

eral Power Commission, it said:

‘‘Such statutory finality need not be labeled res

judicata, estoppel, collateral estoppel, waiver or

the like either by Congress or the courts.”’

Justice Whittaker’s language expresses very well

the purpose of Congress in enacting 43 U.S.C. 511,

requiring judicial validation of the contracts of irri-

gation districts with the United States.

Law that has been relied on as final, based on every

legal device to achieve certainty for nearly 50 years,

cannot be rewritten retroactively.

The essence of a rule of property is justifiable re-

liance. The All-American Canal was constructed on the

basis of the explicit and repeated understanding, made

final by every doctrine of repose known to the law, that

it would serve the same lands as the District’s works

which it replaced. The reliance was justifiable, if reli-

ance can be placed on the pledged word of the United

States of America.

The decision of the Court of Appeals would have

been wrong in 1933, had it been substituted for that of

the court validating the agreement of the United States

and the District. It is egregiously wrong in 1980 after

at least two generations, in reliance on the 1933 adjudi-

cation, have paid taxes and land prices based on the

market value of the land irrigated.

D. The attempted destruction of established values.

Before leaving the subject of established values and

turning to the subject (in Part III) of the standing

of those who have intervened here in order to seize

those values, it may be permissible to put the contrast

between the two in sharp focus.

There was no increment of unjust enrichment to

the landowners of 50 years ago in consequence of enact-

ment of the Project Act. They were already irrigating

all but three per cent of the land now irrigated by the

All-American Canal. And if there were room for doubt,

that doubt should have been dispelled when the District

in 1934 was forced to seek the benefit of the municipal

bankruptcy law because the land irrigated could not

pay debt service on the existing bonded indebtedness,

quite aside from the new debt to the government.

The present landowners are the purchasers of the

land served by the All-American Canal. They have

nearly all paid the full market value of the land they

own, or if they acquired it by devise or inheritance,

they paid taxes based on market value. The annual ad

valorem assessments are also based on market value.

The Yellen group, if successful in establishing the law

according to their allegations, will buy that land at less

than market value, ripping off the present owners who

have paid full market value, and—the day after their

hoped-for purchase—they will be able to sell at full

market value.

“In re Imperial Irrigation District, 10 F. Supp. 832 (1934).

Reversed in 87 F.2d 355 (1936), after the Municipal Bankruptcy

Act had been declared unconstitutional in Ashton v. Cameron

County Water District, 298 U.S. 513 (1936). After a new munici-

pal bankruptcy act was sustained in Bekins v. U.S., 304 U.S. 27

(1938), the District’s reorganization plan was approved and be-

came effective.

It would be ironic if the Yellen group, who are seek-

ing a windfall, should be deemed to have acquired

standing for that effort by invoking what they describe

as the anti-speculation purposes of the reclamation

law. As noted earlier (p. 9) the Interior Department,

in proposing new regulations in 1977 (10 years after

commencing this suit) stated ore of the justifications

of these regulations to be that:

“The regulations discourage speculation by allow-

ing the Department to exercise continuing super-

vision over the sale price of land after it is sold

into non-excess status. This reverses the current

practice of allowing an excess land purchaser to

realize the windfall profits represented by low-

priced federal water in an immediate resale (em-

phasis added).’’ App. 219a.

Further irony is added by an opinion of the Solicitor

of the present Secretary, issued May 18, 1979, (M-

36913, 86 L.D. 300), interpreting the proposed regu-

lations, in which he said:

‘‘To summarize what follows, I hold that section

46 of the Omnibus Adjustment Act of 1926, 43

U.S.C. § 423e, requires the Secretary to control

and approve the purchase price of both initial

sales of excess land, and resales of this formerly

excess land until one-half of the construction

charges allocated to such land has been patd (em-

phasis added).”’ Interior Sol. Op. M-36913, Recla-

mation Law—Control of the Sale Price of Former-

ly Excess Lands, May 18, 1979, p. 1.

If the Solicitor’s language means what it says, the

consequence of the payment of one-half of the con-

struction charges by the present landowners or their

predecessors is this: (i) The present landowners, who,

with their predecessors, made these payments, must

nevertheless sell their excess lands at below-market

prices approved by the Secretary (if the Court of

Appeals decision is given effect see 595 F.2d, at 527).

But (ii) Dr. Yellen (or some other buyer at the Sec-

retary’s below-market price) can resell at once at full

market price because, and only because, his unfortu-

nate and unwilling vendor had paid off one-half of the

construction charges. In this instance, the ‘‘ present

practice of allowing an excess land purchaser to realize

the windfall profits’’ is not reversed, but reconfirmed.

This result, outrageously unfair, is what the present

Secretary’s Solicitor reads into § 46 of the 1926 act as

interpreted in his proposed regulations.

Beyond this, the Solicitor says that the proposed

regulations, insofar as they give the Secretary power

to police subsequent resales of lands sold at the Secre-

tary’s price, are not to be made retroactive, because

this would be unfair to those who have bought and

sold excess lands in reliance on past Departmental

practice. This new concern about retroactivity might

well have prevented the filing of this suit in the first

place. ,

Il.

The Court of Appeals Erred In Applying Constitutional “Case

And Controversy” Requirements By Allowing Respondents, Ben

Yellen, Et Al., To Participate As Parties Based On Conjectural

Harm And Speculative Relief

We trust that the Court will reverse the decision of

the Court of Appeals on the merits. But as this Court

may regard the issue of respondents’ standing to

appeal from the judgment against the United States

as a jurisdictional question, we are constrained to point

out to the Court the extreme frailty of their claim of

standing.

We contend that (i) the respondents, Dr. Yellen,

et al., never had standing, and (ii) assuming, argu-

endo they once had standing, it has been terminated

under the terms of § 46 of the Omnibus Adjustment

Act, because any authority in the Secretary of the

Interior to fix prices on sales of excess lands in Im-

perial Valley expired on March 1, 1978, while this

case was on appeal.

A. The constitutional tests of standing

In the recent case of Gladstone Realtors v. Village

of Bellwood, 47 U.S.L.W. 4377 (April 17, 1979), this

Court articulated the constitutional limits on standing

in federal courts as follows:

‘‘Tn recent decisions we have considered in some

detail the doctrine of standing in the federal

courts. ‘In essence the question of standing is

whether the litigant is entitled to have the court

decide the merits of the dispute or of particular

issues. This inquiry involves both constitutional

limitations on federal-court jurisdiction and pru-

dential limitations on its exercise. . . . In both

dimensions it is founded in concern about the

proper—and properly limited—role of the courts

in a democratic society.’ Warth v. Seldin, 422 U.S.

490, 498 (1975).

‘The constitutional limits on standing eliminate

claims in which the plaintiff has failed to make

out a case or controversy between himself and the

defendant. In order to satisfy Art .ITI, the plain-

tiff must show that he personally has suffered

some actual or threatened injury as a result of the

putatively illegal conduct of the defendant. Duke

Power Co. v. Carolina Environmental Study

Group, US. ’ , 98 S. Ct. 2620, 2630

(1978) ; Arlington Heights v. Metropolitan Devel-

opment Housing Corp., 429 U.S. 252, 260-261

(1977); Simon v. Eastern Kentucky Welfare

Rights Org., 426 U.S. 26, 38 (1976); Warth v.

Seldin, supra, at 499; Linda R.S. v. Richard D.,

410 U.S. 614, 617 (1973). Otherwise the exercise of

federal jurisdiction ‘would be gratuitous and thus

inconsistent with the Art. III limitation.’ Simon

v. Eastern Kentucky Welfare Rights Org., supra,

at 38.”

Dr. Yellen, eé al., fail to pass these tests, as we show

below.

B. How the respondents got into court

Dr. Yellen and his fellow respondents were allowed

by the Court of Appeals (another panel) to intervene

in the acreage case by mistake. As the Court of Ap-

peals said here:

‘‘The order allowing intervention [559 F.2d, at

543] also appears to be based on a misunderstand-

ing as to the identity of the various intervenors.

The district court allowed various interested Im-

perial Valley landowners to intervene as defen-

dants early in the proceedings. This Court’s earlier

order allowing intervention refers to the ‘inter-

ested Imperial Valley landowners’ as the group

seeking to perfect and prosecute the appeal. In

fact, this group had obtained a favorable decision

from the district court and opposed the prosecu-

tion of an appeal by parties other than the govern-

ment. It was the Yellen group, a group of non-

landowners, who had filed the protective notice of

appeal and who sought to prosecute the appeal,

and whose intervention request had been denied

by the district court.’’ 559 F.2d, at 520, n.15.

That order, 559 F.2d, at 543, mistaken as to the

identity of Dr. Yellen and his colleagu2s (believing

them to be intervening landowners, whereas their

claim of standing is based on their status as non-

landowners), was mistaken also in its assumption that

Dr. Yellen’s standing in the residency case would be

approved on appeal, and for this reason only (in order

to enable both cases to be heard on the merits in one

proceeding), their intervention on appeal in the acre-

age case was justified. As it turned out, however, the

Court of Appeals reversed the District Court’s holding

that Dr. Yellen had standing in the residency case.

The Court of Appeals concedes:

‘‘Sinee the district court decision in the residency

case must be vacated because of lack of standing

on the part of the plaintiffs therein, the basis for

the order allowing intervention in the acreage case

has disappeared.”’ 559 F.2d., at 520.

And:

‘‘It would be ironic to allow the Yellen intervenors

to use an erroneous district court ruling on stand-

ing in another case to bootstrap themselves into

a position of litigating the important question of

the enforcement of the federal reclamation laws

in this ease.’’ Id., at 521.

But the court proceeded to ‘‘once again examine the

request for intervention,’’ and held, de novo, that the

Yellen intervenors did have standing to intervene after

the judgment against the United States in the acreage

case, in order to prosecute an appeal, notwithstanding

the court’s conclusion denying them standing in the

residency case, even though they were in that case as

plaintiffs, not as intervenors.

C. The lack of particularized injury

When the constitutional requirements for standing

are properly applied, it becomes apparent that there

is no more basis for judicial action on their behalf in

the acreage case than there was in the residency case.

These respondents did not intervene in the District

Court proceedings, which lasted nearly four years.

They intervened after a judgment against the United

States, from which Solicitor General Griswold decided

not to appeal (see supra at 5, n.3). Theirs is not a class

action, but one by Dr. Yellen and others alleging that,

as individuals, they have each been caused a particular

injury by the failure of the Secretary to enforce the

excess land provisions of the reclamation law; they

say that if he did enforce those laws each of them

would be able to buy land at less than present market

prices. They do not, and could not, allege (i) that the

Secretary could force a landowner to sell, or (ii) that,

if a landowner did sell, he would select any of these

respondents as a buyer, or (ili) that any respondent

has a preference in any respect against any other citi-

zen of the United States, wherever he resides. Their

claim of standing is analogous to that which might be

asserted by members of the general public, seeking to

intervene after a judgment against the United States

in a civil antitrust suit, who might allege that, if the

government had won, the market price of the com- |

modities manufactured by the defendant would be

lower.

If these respondents had wanted to inject the par-

ticularized issues related to their own individual pock-

etbooks, as distinct from a class action of the general-

ized sort that the United States brought, they should

have done so by intervening at the trial, not after a

judgment on the issues framed by the pleadings of

the United States and the District. There was never

an opportunity, at the trial, to chalienge or rebut their

80)

assertions of fact in post-judgment affidavits, which

the Court of Appeals accepted as true.

The Court of Appeals almost conceded the point,

saying:

‘“‘TA] party possessing the standing to intervene

does not automatically have the ability to appeal

a decision which all other parties have decided

not to appeal. In order to be able to appeal, the

intervenor must have an ‘appealable interest.’

[Citation omitted.] Resolution of this question

_ turns on traditional standing analysis. [Citation

omitted.] Mere interest in the establishment of a

legal precedent is not sufficient. [Citation omit-

ted.]’’ 559 F.2d, at 521.

But the court went on to decide, in result if not in

words, that Dr. Yellen, et al. would have had standing

to intervene in the District Court to participate in the

trial (which they failed to do), and therefore these

respondents had standing to intervene to appeal from

the judgment against the United States, thus substi-

tuting their own value judgment for that of the Solici-

tor General, who had decided that the decision of

District Judge Turrentine was right and should not

be appealed. All parties to the proceedings in Judge

Turrentine’s court were satisfied with the outcome.

Only the newcomer, surfacing after judgment, was not.

The Court of Appeals applied the Article III con-

stitutional: case and controversy requirements cor-

rectly to Yellen v. Andrus, the residency case, saying

that respondents lacked standing because ‘‘the relief

sought by the plaintiffs in this case would not come

through the government action they seek’’ 559 F.2d,

at 518, and that ‘‘any relief that could appropriately

be ordered in this case would not redress plaintiffs’

alleged injuries.’’ /d., at 519. Moreover, plaintiffs in

the residency case had suffered no particularized harm:

‘‘The injury plaintiffs allege—the inability to

purchase farming land at prices they can afford—

is neither particularized nor does it flow ‘con-

eretely and demonstrably’ from the government’s

activities, or lack of activity, challenged in the

ecomplaint.”’ Id., at 519.

The Court of Appeals properly cites Turner v. Kings

River Conservation District, 360 F.2d 184, 198 (9th

Cir. 1966), in the residency ease for the proposition

that plaintiffs ‘‘cannot claim injury from any failure

of the government to discharge its duty to the public.”

559 F.2d, at 518, n. 10. The same reasoning should

control in the acreage case between the same parties.

Respondents present only a question ‘‘of broad social

import where no individual rights would be vindi-

cated ....’’ Gladstone Realtors v. Village of Bellwood,

47 U.S.L.W. 4377, 4879 (1979).

If there is a distinction between the residency and

acreage cases, it is a distinction without a difference.

Here, as in the residency case:

‘*('T ]here is nothing in the record to indicate what

price any plaintiff could afford to pay for any

particular farm or that enforcement of the resi-

dency requirement of 43 U.S.C. § 431 will lead to

a decline in farm land prices sufficient to bring

those prices into a range where plaintiffs could

afford to purchase a particular farm.” Jd., at 518.

In the residency case, these same respondents alleged

an injury which is described by the Court of Appeals

as follows:

‘The essence of their case is that their ownership

desires have been blocked because the government,

by failing to enforce the residency provision of

43 U.S.C. § 431, permits irrigation water to be

received by nonresident owners of farm land and

that enforcement of the law will result in making

farm land available for purchase at prices plain-

tiffs could afford.’’ Jd., at 518.

This was found not to be enough. If this speculative

parlay would not work in the residency case, it should

have been held just as unworkable in the acreage case

now at issue.”

D. Redress

On rehearing in the acreage case, the court made a

concession and stated an assumption:

‘‘While it is true that landowners cannot be

forced to sell their lands, it is only reasonable

to assume that some land will become available for

sale rather than being put into other than agricul-

tural uses.’’ 595 F.2d, at 527.

This assumption, in a nutshell, is the whole basis

for Dr. Yellen’s ‘‘standing.’’ And, at that, the formula

lacks, of necessity, an essential ingredient: there is not

a shadow of a claim that if an excess landowner should

decide to sell at the Secretary’s below market price,

rather than put his land into ‘‘other than agricultural

uses,’’ he could be compelled to sell to Dr. Yellen or

another of the respondents, instead of electing to sell

to some stranger to this suit. The absence of that ele-

ment of standing, 7.e., that the requested remedy would

redress the claimed injury to a particular individual,

44In Duke Power Co. v. Carolina Environmental Study Group,

438 U.S. 59, 72 (1978), this Court stated that there must be “‘ ‘a

fairly traceable’ causal connection between the claimed injury and

the challenged conduct.’’

is fatal here, because this is not a class action, but a

suit in strictly an individual capacity. Consequently,

both injury and redressability must be shown as to

these particular individuals, and this they have not

done and cannot do.

E. Even if it is assumed arguendo that Dr. Yellen, ef al., once had

standing, that standing would necessarily have ceased when

one half the construction costs of the All-American Canal were

repaid.

The standing of respondents 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 termina-

tion date on the Secretary’s price-fixing authority in

these terms:

‘*TU |ntil one-half the construction 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 of the

Interior. . . . (emphasis added).’’

‘“s This is a suit to enforce § 46 of the 1926 Act, not a suit to

enforce § 5 of the Reclamation Act which also imposes a land limi-

tation. 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 resideney requirements of § 5. See 559 F.2d, at 517. It would

have strained the imagination tv 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 §5 of the 1902

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

On March 1, 1978, the District completed repayment

of more than one-half of the construction charges

against all lands in the District. The court, on re-

hearing, acknowledged this, 595 F.2d, at 527, but held,

on the authority of its decision in United States v.

Tulare Lake Canal Co., 535 F.2d 1093 (1977), that

the Secretary’s authority to fix the sale price ‘‘on

initial break up of excess lands’’ applies ‘‘regardless

of the fact that construction charges for the irrigation

project have been repaid. This decision [Tulare] ex-

pressly applies to all federal reclamation projects sub-

ject to Section 46.’’ 595 F.2d, at 527. The holding here

flies so directly in the face of the statute as to require

no argument. To the extent that Tulare supports it, we

respectfully suggest that this Court disavow that deci-

sion as a precedent.

Moreover, the Department is on record at least twice

with official interpretations of § 46 as terminating the

Secretary’s power to fix prices when half of the con-

struction charge is paid.

Regulations published August 22, 1977 (not to be-

come effective until July 1981), provide that price ap-

proval, with reference to ‘‘involuntary acquisition of

excess land’’ (by foreclosure, inheritance, etc.) will

be required ‘‘until one-half of the total construction

costs allocated to irrigation have been paid in regular

scheduled installments”’ § 426.5(b), App. 232a. So also

to lands which become excess in consequence of the

death of a spouse. § 426.5(c), App. 232a.

And as recently as May

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