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1911, authorizes the Secretary of the Interior to withdraw any public notice issued theretofore and to modify any water right application or contract made on the basis thereof. The Act appears herein in chronological order.

Editor's Note, Annotations. Annotations of opinions are not included that deal with

Charges 36-45 Apportionment 40 Collection 43 Contracts 37

Generally 36

Increase 38

Items included 39 Payment 41

1-10

the large mass of litigation involving contract disputes or matters that fall under the traditional subject of Government procurement policies and contracts. Also omitted are opinions dealing with the eight-hour work day, as this subject is covered by other statutes of general application to all Government agencies.

Waiver, extension and other relief 42 Construction of projects Availability of funds 3 Discretion of Secretary 2 Generally 1

Lands, exclusion of 4

Status pending completion 5
Public notice 26-35
Amendment of 29
Generally 26

What constitutes 27

When required 28

Water service

11-25

Rentals of water 22
Servicemen 14

States and other public bodies 13
Water users' association 15

1. Construction of projects-Generally

Irrigation works for the reclamation of arid and semi-arid lands perfectly and comprehensively fill the idea of "public works of the United States." 26 Op. Atty. Gen. 64 (1906).

This Act contemplates the irrigation of private lands as well as lands belonging to the Government, and the fact that a scheme contemplates the irrigation of private as well as a large tract of Government land does not render the project illegal, so as to prevent the condemnation of land necessary to carry it out. Burley v. United States, 179 Fed. 1, 102 C.C.A. 429 (Ida. 1910), affirming 172 Fed. 615.

Under the authority conferred upon the Secretary by the Act he may, in his discretion, enter into contracts for the con

struction of irrigation works or construct such works by labor employed and operated under the superintendence and direction of Government officials. Op. Asst. Atty. Gen., 34 L.D. 567 (1906).

The contract with the Orchard Construction Company, owners of the stock of the Grand Mesas Company, which had certain rights of irrigation in the Grand Valley, whereby the Government abandoned a certain part of its project and permitted the company to construct a private irrigation ditch through an area south of the Grand River, the company transferring one-half of its stock to the United States to secure it against any claim on the part of the company or its associates for an excessive use of the waters of Grand River, the stock to be returned if the United States did not proceed with its Grand Valley project, may be regarded as void, and the stock should be returned. 27 Op. Atty. Gen. 360 (1909). 2. -Discretion of Secretary

The Secretary of the Interior is not required to proceed with the construction of the Baker project, Oregon, even though Congress has appropriated funds therefor, if he is unable to find that the project is feasible and that the costs will be repaid to the United States, as required by subsection B, section 4, of the Act of December 5, 1924, 43 Stat. 702, and section 4 of the Act of June 17, 1902, 32 Stat. 389, and unless a contract has been executed and confirmed as required by the Act of May 10, 1926, 44 Stat. 479. 35 Op. Atty. Gen. 125 (1926); 34 Op. Atty. Gen. 545 (1925). See also Solicitor's Opinions dated June 11, 1926, and July 20, 1925.

3. Availability of funds

The National Irrigation Act of June 17, 1902, gives the Secretary of the Interior authority to let contracts for the construction of reclamation works only when "the necessary funds *** are available in the reclamation fund," and if these funds are not available and sufficient, no such authority exists. 27 Op. Atty. Gen. 591 (1909).

Regulations authorizing the engineers of the Reclamation Service to enter into contracts with water users or water users' asso

ciations, or with representative committees of the settlers to advance moneys and perform work in the construction of irrigation works, certificates to be issued therefor, redeemable at face value in part or full payment of the charges against the lands of the holders of the certificates, were unauthorized by Act of June 17, 1902, and the Secretary of the Interior had no authority to enter into such contracts, and certificates so issued cannot be used by the original payee or transferee as a discharge pro tanto of his indebtedness upon the land, but the certificates are evidence of work performed, and the work may be paid for, as upon a quantum meruit, if the money is available in the reclamation fund. 27 Op. Atty. Gen. 360 (1909).

The objection raised in 27 Op. Atty. Gen. 360, was not that the money subscribed by the water users' association was not in the reclamation fund, but that the fund contemplated by the Act of June 17, 1902, was to be created from the proceeds of the sale of Government lands, and there was no provision for augmenting it by private enterprise, and that the power of the Secretary of the Interior to let contracts for reclamation projects was specifically restricted to the amount of money available in the reclamation fund as constituted by law. 27 Op. Atty. Gen. 591 (1909).

There is no statute authorizing the Secretary of the Interior to enter into contracts contemplating a cooperative plan whereby the United States enters into an agreement with a water users' association, by which the association undertakes to perform certain work within certain maximum prices, the work to become the property of the United States upon acceptance, payment therefor to be made by the association in certificates of work performed, which certificates are to be accepted by the United States in reduction of charges against particular tracts, as an equitable apportionment thereof. 27 Op. Atty. Gen. 591 (1909).

Where necessary canals, laterals, and structures, properly a part of a Federal irrigation system, cannot be constructed by the United States because funds are not available, a landowner may advance the needed moneys to the United States, and he may be later reimbursed, without interest, by credits upon his water charges as they become due. Departmental decision, October 8, 1919, Milk River project.

4. Lands, exclusion of

Under this section, articles of incorporation of Salt River Valley Water Users' Association and its contract with the United States in construction of the Salt River project, Secretary of the Interior had au

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thority to exclude lands lying within reclamation district and to cancel stock of owners thereof in the association, on determining that area of lands included in district was greater than could be watered from supply stored and developed by works constructed or to be constructed. Salt River Valley Water Users' Ass'n v. Spicer, 236 Pac. 728, 28 Ariz. 296 (1925).

Determination of the Secretary of the Interior, in approving survey board's exclusion of certain lands within Salt River Reclamation District, after determining that area of land included in District was greater than could be watered from supply stored and developed by works constructed or to be constructed, was not a ministerial act, but exercise of discretion, and not subject to review by the courts. Ibid.

Secretary of the Interior's approval of survey board's exclusion of certain lands within Salt River Reclamation District, whose owners had subscribed for stock in association, formed to co-operate with United States in construction of the project, and who had paid all assessments levied, until their lands were excluded, after determining that area of land included in District was greater than could be watered from supply stored and developed by works then constructed or to be constructed, was valid, since, under association's articles of incorporation and its contract with the United States government, discretion of Secretary in excluding land was to be based on water to be impounded and raised by works specifically built or definitely determined to be built at time of his action. Ibid.

5. -Status pending completion

During the construction of a Government project the temporary use of the canals of an irrigation system purchased by the Government for conveying to lands water that would otherwise be allowed to go to waste, is not incompatible with the purpose, but is directly in pursuance of the object for which the property was acquired. Departmental decision, December 6, 1906.

The Reclamation Service cannot, while construction of a project is in progress, and prior to the laying out of its canals, undertake to reexamine, at the instance of individual claimants, particular tracts falling within the project to ascertain whether or not such tracts are capable of service from its projected canals. Lewis Wilson, 42 L.D. 8 (1913). See also 48 L.D. 153, amending paragraph 13 of General Reclamation Circular of May 18, 1916.

Contracts by a water users' association to receive additional subscriptions to stock and to grant water rights were not unauthorized,

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on the ground that the reclamation project had been completed, and that the lands proposed to be taken into the project were not included in the area fixed and limited by the Secretary of the Interior, under this section, where the capacity of the project to supply water for irrigation had been substantially enlarged, and such contracts had been approved by the Secretary of the Interior under this section. Bethune v. Salt River Valley Water Users' Ass'n., 227 Pac. 989, 26 Ariz. 525 (1924).

11. Water service-Generally

The provision in section 5 of the Reclamation Act of 1902 that "no right to the use of water for land in private ownership shall be sold" for more than 160 acres means that the use of project facilities shall not be made available to a single owner for service to more than 160 acres. Sections 4 and 5 of the 1902 Act, read together, indicate that the "sale" referred to is not merely a commercial transaction, but is the contract by which the government secures repayment and the water user obtains benefits resulting from construction of the federal project. Solicitor Barry Opinion, 71 I.D. 496, 501 (1964), in re application of excess land laws to private lands in Imperial Irrigation District.

It is not optional with an entryman of lands within a reclamation project to take or refuse water service from the project; but he is compelled to take the water service and to pay the charges fixed therefor. Mangus Mickelson, 43 L.D. 210 (1914).

Agreements for the purchase of lands, for water rentals, for conveyance of water rights, and similar instruments, contractual in form, relating to the adjustment of vested water rights, executed in behalf of the United States by some officer of the Reclamation Service for purposes within the purview of Act of June 17, 1902, are unlawful when a member of Congress is a party to or interested therein. 26 Op.Atty. Gen. 537 (1908).

12. -Corporations

No applications will be received from corporations on reclamation projects. That Congress did not intend that the reclaimed lands upon which the Government is expending the money of all the people should be the subject of corporate contract is conclusively established by the fact that the Secretary is authorized to fix the farm unit on the basis of the amount of land that will support a family. These lands are to be the homes of families. But existing corporations to which water rights have heretofore been granted should be permitted to continue without interference, and in view of

past departmental decisions applications by corporations pending at this date may be allowed. Departmental decision, July 11, 1913, 42 L.D. 250. Pleasant Valley Farm Co., 42 L.D. 253 (1913).

Religious, educational, charitable, and eleemosynary corporations are excepted from the decision of July 11, 1913. Departmental decision, December 5, 1916.

If an individual owns lands for which he makes water-right application duly accepted by the United States and the land is later in good faith transferred to a corporation, the corporate owner is entitled thereafter to the same treatment as other landowners on a project. Departmental decision, December 6, 1916, in re The Santaquin Lime and Quarry Co., Truckee-Carson.

There is no statute which prohibits a corporation from taking a reclamation entry by assignment and there would be no objection to accepting the water-right application of the corporation in such a case where its intention is to protect its security in a loan transaction and not to hold and cultivate the land in competition with families. Great Western Insurance Co., A-16335 (February 8, 1932).

13. States and other public bodies

Agencies of a State government are entitled to become takers of water under a reclamation project for the lands benefited. Departmental decision, May 12, 1909.

An incorporated town organized as a city of the sixth class under the laws of the State of California (General Laws, 1909, ch. 7, p. 843) is entitled to make water-right application on the usual form to secure water from a Federal reclamation project for irrigating and beautifying a small tract of land which it owns, located outside the city limits and occupied by the septic tanks of the municipality. Departmental decision, July 13, 1917, Orland.

14.-Servicemen

The status of one qualified to make waterright application under the reclamation act of June 17, 1902 (32 Stat. 388), is not changed by a temporary service away from home in the Army, Navy, or Marine Corps of the United States, and a water-right application executed by any such person at any point where he may be engaged in the line of duty may be received and approved if otherwise found acceptable. Departmental decision, December 22, 1917, C.L. 720.

15. Water users' association

Where defendants over whose land certain irrigation ditches belonging to a government irrigation project were located

became members of a water users' association which owned the project prior to its incorporation in the government work, and one of the by-laws of the association provided that such rules and regulations as the Secretary of the Interior might promulgate relating to the administration and use of the water should be binding on the stockholders of the association, and the Secretary put into effect certain rules prohibiting water users from cutting the banks of any canals or laterals and from taking water therefrom except at places designated by the government, defendants estopped to claim the right to break down the banks of a lateral ditch and take water therefrom at a point not so designated, on the ground that, because they owned the fee in the soil of the ditch, they were entitled to take water at whatever point they desired. United States v. Bunting, 206 Fed. 341 (D. Ore. 1913).

were

Where a water users' association organized for the purpose of guaranteeing payment of the construction cost of a Federal irrigation project, having executed a contract with the United States for that purpose, makes assessments against its members to raise a fund with which to conduct litigation to avoid paying project costs, the United States will not assist the association in collecting such assessment by requiring prospective water users to show as a condition precedent to acceptance of water right applications that such assessments have been paid. Departmental decision, May 4, 1918, Boise.

Subscriptions to water users' association stock were construed in Michaelson v. Miller, 26 P. 2d 378 (Idaho 1933) which outlines the history of the Payette-Boise Water Users' Association, Boise project. Michaelson was the receiver of the association and brought actions against various stockholders of the association to foreclose liens created by assessments under stock subscription contracts to meet corporate expenses (not indebtedness to the United States). The defendants had refused to sign the "court form" of water-right application contract prescribed as a result of Payette-Boise Water Users' Assn. v. Cole, 263 Fed. 734 (D. Idaho 1919) and alleged that by so doing they had lost their status as stockholders. This contention was not sustained, and the liens were enforced, together with deficiency judgments where the land failed to sell for sufficient to pay the assessments.

16. Desert land entries

Lands held by virtue of a desert-land entry are held in private ownership within the meaning of the act, and the entryman or his assignee is entitled to the same rights and

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privileges and is subject to the same conditions and limitations, so far as right to the use of water is concerned, as any other owner of lands within the irrigable area of an irrigation project. Instructions, July 14, 1905, 34 L.D. 29. [See Act of June 27, 1906, 34 Stat. 519.]

17. -Equitable owner of land

Persons holding contracts to purchase lands from a State, on deferred payments, no conveyance of title to be made to the purchasers until full payment, are entitled, if not in default and their contracts are in good standing, to subscribe for and purchase water rights under the reclamation act for irrigation of such lands, subject to the provisions and limitations of that act. Instructions, September 11, 1911, 40 L.D. 270. 18. Carey Act lands

Individual owners of lands acquired under the provisions of the Carey Act may be supplied with such additional water from reservoirs constructed under the reclamation act as may be necessary to fully develop and reclaim the irrigable portions of such lands, subject to all the conditions governing the right to the use of water under any particular project. Op. Asst. Atty. Gen., 35 L.D. 222 (1906).

The provision in the form for water-right application by private landowner requiring applicant to agree to grant and convey to the United States, or its successors, all necessary rights of way for ditches, canals, etc., for or in connection with the project, is a proper requirement warranted by the spirit and intent of the reclamation act, and an applicant for water right will be required to conform thereto as a condition to allowance of his application. C. M. Kirkpatrick, 42 L.D. 547 (1913).

The provision in the form of water-right application by private landowner requiring him to bind himself not to convey the land voluntarily to any person not qualified under the reclamation law to purchase a water right, upon condition that the application and any "freehold interest," sought to be conveyed shall be subject to forfeiture, is a reasonable and proper requirement, and an application from which such provision has been eliminated will not be accepted. Ibid.

The provision in the form of water-right application by private landowner requiring applicant to agree that the United States, or its successors, shall have full control over all ditches, gates, or other structures owned or controlled by applicant and which are necessary for the delivery of water, is in accordance with departmental regulations, and being a necessary incident to the proper