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subdivision of the separate entry can be irrigated. Further, they contend, the Government's case was based upon water necessary to produce optimum crops during the short summer season, that the 9 g.p.m. figure used by the Government finds no support in the practices of operating farms, that plants will mature on less than peak water needs and that if water costs more than $5 per acre foot it is uneconomical to meet peak water needs, that the hearing examiner based his calculations on too low an estimate of irrigation efficiency, that 88 percent, not 75 percent, is the correct figure.

In reply the contestant says that the contestees' arguments are based on the assumption that the two crop seasons are completely separate but that their crop plans do not show the peak moisture requirements or the growing seasons of the proposed crops so that the mere citation of gross water supply is meaningless, that the hearing examiner based his conclusion on the acreage that the equipment on the entries could service and that 75 percent is not too low a measure of irrigation efficiency.

As stated in the Department's decision of April 8, 1965, the basic issue in the case is how many acres of the entries can be adequately irrigated with water from the wells, pumping plants, and distribution systems installed by the contestees within the life of the entries.

In determining this issue, we consider first the hearing examiner's conclusion that it is within the law for any entryman to harvest a crop from one portion of his entry in the summer season and from another in the winter by utilizing twice a year a water supply adequate for only one season and one portion of the entry. Despite three-quarters of a century of intensive consideration of desert land entries, the question does not appear to have been ruled upon one way or another.

The statute is not too helpful. The only pertinent provision requires that the entryman file a plan “showing the mode of contemplated irrigation, and which plan shall be sufficient to thoroughly irrigate and reclaim said land, and prepare it to raise ordinary agricultural crops.” Section 4, act of March 3, 1877, as added by sec. 2 of act of March 3, 1891, 26 Stat. 1096; 43 U.S.C. sec. 327 (1964).

In our earlier decision, we said, in speaking of the types of crops to be used in computing the acreage that could be serviced by the amount of water the entryman had developed, “The test is not whether certain crops can be produced on the land in question but whether those crops can be produced successfully in a normal reasonable agricultural production.”

The principle underlying that criterion is equally applicable to deciding the multiple seasons of growth issue. We must ask, "How does the ordinary reasonable farmer acting solely upon agricultural considerations conduct his farming operations?” We must assume that the desert land law seeks to stimulate the reclamation of otherwise unproductive lands into ordinary economically feasible agricul

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tural units. In other words, is the plan proposed by the entryman the one he would follow if he already owned the land and were seeking only the best return possible on his labor and expenditures ? While, of course, there may not be unanimity among farmers similarly situated as to the best farming policy, we must assume uniformity of motive—that is, economic gain.

If an entryman offers a farming plan composed of crops or growing seasons different from those of other like enterprises, he must be prepared to demonstrate its economic feasibility. He has, of course, four years to develop his entry and to show the practicability of his proposal. If at final proof he can show that he has operated under an economically remunerative plan, then, although he may have been an innovator, he has evidence of the practicability of his method.

If, however, he comes to final proof with only a theory to support his plans, and can offer neither his own experience nor that of other farmers in support, then he has a more difficult task. As we said in our earlier decision:

The determination of what acreage is irrigable from the systems installed by the appellants is not to be made with reference to an unorthodox or speculative crop plan or lack of plan which is completely out of step with prevailing or existing agricultural practices in the area.

The hearing examiner did not advert to this standard. He said he found no superlatives in the law such as “mainstay of the land,' 'principal crops in the area,' 'optimum crops,' or 'economically favorable crops.'” He insisted that the contestant was restricting the entrymen to crop plans based on alfalfa, which is commonly grown in the area and which would produce the greatest profit per acre, and held such a limitation had no foundation in law. The proper cri- . terion, he held, was whether the crop produced was profitable, considering the climate, the character of the land and the kinds of crops being grown.

We agree with the criterion stated by the examiner. However, we disagree if he intended to imply that, in evaluating an entryman's crop plan, it is improper to consider what crops are the mainstay of the typical farm in the area, what are the principal crops, the economically feasible crops. Experience and practice are highly significant. If 95 percent of the farmers in an area raise nothing but alfalfa, there must be some sound basis for doing so. If an entryman in the area proposes to raise some other crops, it does not mean that he will fail—witness the 5 percent of the farmers who do not raise alfalfabut he certainly bears a heavy burden of establishing that his proposed crop plan is feasible. The question here is whether the contestees' proposal of growing alfalfa on 15 of the entries in the summer and winter grains on 4% of the entries in the winter is a feasible crop plan.

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A witness for the contestant, Harlan D. McIntire, soil conservationist with the U.S. Department of Agriculture, testified that a plan of this nature would not be a typical agricultural operation (Tr. 278). He testified that alfalfa is the principal crop grown in the area of the entries and that the nearest farm had 1,000 acres in that crop and 80 acres in sudan grass and oats (Tr. 275, 285). He questioned whether grain is an economically feasible crop in the area (Tr. 279).

That alfalfa is by far the predominant crop grown in the area is established by numerous bulletins and reports introduced in evidence not only by the contestant but even more by the contestees (Contestant's Exhibits 17, 20; Contestees' Exhibits J, L (p. 19), N, O). In fact, one of contestees' exhibits, a bulletin of the University of California Agricultural Extension Service, states that production of irrigated small grains in San Bernardino County, where the entries are located, is limited almost entirely to the high desert because small grains are a very low income crop, and that the acreage in the high desert "is almost limited to that grown in rotation with alfalfa or desert land entry land development” (Exhibit K).

The exhibits, however, do list many crops other than alfalfa that can be grown in high desert areas, and appellant William Porter stated that winter crops can be grown in the area and that summer and winter crops are common in the area (Tr. 502). The contestant did not present evidence that crops other than alfalfa could not be grown with success, nor has it disputed this in its arguments on appeal.

The cropping schemes proposed by the contestees thus may be technically sound. That, however, is not enough. There must also be plans that the reasonably prudent farmer would follow on lands that he owned, for otherwise the purpose of the desert land law, the reclamation of arid lands, would not be accomplished.

Of all the land in the four entries only 40 acres in each have been reclaimed through irrigation and cultivation. The remaining land is just as it was before entry. If the contestees are issued patents for all of their respective entries, they will, of course, own them in fee. As fee owners, then, they will undertake further development only in accordance with the same economic rules that govern the conduct of all reasonably prudent farmers. They will only grow crops which yield an economic return and will open up only that land which can be most profitably exploited.

After patent, an entryman assuredly would not devise a cropping plan based upon a combination of water available and crop water requirements calculated principally simply to permit the cultivation of the maximum acreage at his disposal. Therefore, if an entryman were to receive a patent for land he has not reclaimed before

January 6, 1967

patent which he would not as a reasonable farmer reclaim after patent, in all likelihood such land would not be reclaimed. If this were to occur, the purpose of the desert land law would be flouted by the very act intended to reward compliance with the terms of the statute.

Appellant William Porter offered no probative evidence to support the economic soundness of contestees' cropping plans. On crossexamination he could not identify any farm in the area where irrigated grain was the mainstay of the operation or its predominant crop (Tr. 500–551), nor did he cite any farming operations based primarily upon winter production. His only evidence was that there has been significant production of grains and crops other than alfalfa in the general or adjoining area. However, the evidence does not show how this production relates to the much more predominant alfalfa production, that is, whether the grains, etc. were grown in rotation with alfalfa, supplemental to alfalfa, or as principal crops.

On the other hand, the contestant offered no evidence to contradict the contestees' evidence that winter crops could be grown in the area, and, indeed, has not disputed this assertion in its discussion of the contestees' appeal.

We are constrained, then, to conclude, on the basis of the record in this case, that a farming operation consisting of alfalfa in the summer backed up by a winter crop of cereals or other comparatively low water duty crops could be a reasonable farming operation.

This leads us to the principal issue as to how much of the entries could be adequately irrigated upon the basis of a two cropping season operation.

The examiner found in his decision of February 25, 1966, that 200 acres of the combined entries could be irrigated each season, making a total of 400 acres for a year. He based his finding upon several factors, including a peak water requirement of 0.30 inch per acre per day, a moisture infiltration rate of 0.5 inch per hour, and an irrigation efificiency of 75 percent. He then determined that the irrigation equipment on the combined entries, consisting of six 1,320-foot lateral sprinkler lines spaced at 50-foot intervals, could irrigate 200 acres in an 11-day cycle, from which he concluded that on a two crop per year basis 400 acres could be successfully irrigated to produce a profitable crop. He did not give his calculations in detail.

When the contestees pointed out that if the water and irrigation equipment could irrigate 200 acres in the summer, it could support much more, four times they say, in the winter growing season producing crops requiring much less water, the hearing examiner replied in his supplemental decision of July 5, 1966, that the 200 acres was in fact the winter limit and that the summer limit, on a 7-day irrigation cycle, was 125 acres.

In this decision, the examiner gave his calculations in detail. They were as follows: The lateral lines will cover 396,000 square feet per setting (9.1 acres). The maximum application (infiltration) rate is 0.5 inch per hour. If 5 inches are applied at each irrigation at the rate of 0.45 inch per hour, the time required will be 11.1 hours per setting. At two settings per day 18.2 acres can be irrigated with 5 inches of water. On an 11-day cycle a total of 200.2 acres can be irrigated with the well producing 1,600 g.p.m. The 11-day cycle is for winter crops. Summer crops require a 7-day cycle, which means that 125 acres can be irrigated with two settings per day.

For the Alberta Swallow entry, he determined that two lateral lines could be constructed from the equipment stored on the entry and that therefore one-third of 200 acres, or 66 acres, could be irrigated on the basis of the same criteria as those used for the combined entries.

We are unable to accept the examiner's calculations. They appear to be based on a number of assumptions which we believe to be unsupportable and to overlook some essential factors. In our previous decision, we emphasized that the critical issue was how many acres in each entry could be supplied with the required amount of water through the well, pumping plant, and distribution system installed by the contestees. This requires a determination of how much water must be applied from the sprinkler head in order to raise a successful crop. This in turn entails a determination as to the net amount of water required by the plant and the gross amount that must be supplied to achieve the net, taking into consideration evaporation loss and seepage loss. Then it must be determined how much water can be produced at the well head with the pumping plant installed by the entryman. This is not necessarily the capacity of the well, for the pump installed may be undersized or otherwise insufficient to utilize the full capacity of the well. Determining the pumping rate at the well head, however, is not the end, for the water must travel through the distribution system to reach the sprinkler outlets. This entails a friction loss which reduces the amount that can actually be delivered by the sprinklers. There are therefore two losses that must be subtracted from the volume of water that can be pumped into the open air at the well head: the system loss (friction loss) and the irrigation loss (evaporation and seepage). The losses may be stated in terms of efficiency, say, system efficiency (friction loss) and irrigation efficiency (evaporation loss).

Starting at the pump on the combined entries we note that the examiner accepted appellant William Porter's calculation that the pump could deliver 1,600 g.p.m. at the well with a 160-foot lift (Tr. 526, 529). Contestant's witness, Crawford Reid, calculated a rate of 1,450 g.p.m. with a 190-foot lift (Tr. 574). However, although the examiner, in his decision of February 25, 1966, accepted an irrigation efficiency of 75 percent, his calculations in his supplemental decision show

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