IMPERIAL IRRIGATION DISTRICT LANDS

December 31, 1964

Where such provisions are not sufficiently drastic, Congress has enacted a special excess land law designed to meet the particular situation, as in the Columbia Basin Antispeculation Act. But where reasons of policy militate against the application of the excess land provisions, Congress provides express exemption, as in the Colorado-Big Thompson project.

When the pertinent parts of the Boulder Canyon Project Act are analyzed, it becomes apparent that Congress incorporated therein neither special excess land provisions nor exemption from the excess land provisions generally. Instead, it showed clearly that it intended these provisions to be applicable to irrigable lands within the project. Section 14 reads:

This Act shall be deemed a supplement to the reclamation law, which said reclamation law shall govern the construction, operation, and management of the works herein authorized, except as otherwise herein provided.

Section 12, which is definitive, reads in part:

"Reclamation law" as used in this Act shall be understood to mean that certain Act of the Congress of the United States approved June 17, 1902, entitled "An Act appropriating the receipts from the sale and disposal of public land in certain States and Territories to the construction of irrigation works for the reclamation of arid lands," and the Acts amendatory thereof and supplemental thereto.✶✶✶

These sections will now be analyzed in the light of the general structure of the Boulder Canyon Act, its relationship to the reclamation law, its legislative history, and the few court decisions which have endeavored to interpret it.

When Congress in section 14 made the Boulder Canyon Act "a supplement to the reclamation law," it incorporated into the former statute the 160-acre limitation of the act of June 17, 1902. Webster defines the word "supplement" as "that which completes, or makes addition to, something already organized, arranged, or set apart.” (Webster's New International Dictionary, First Edition, 2083.) Thus, the word "supplement," as used in the Boulder Canyon Act, means an addition to legislative enactments already existing.

With the exception of one unpublished decision by an inferior State court in California-which will be analyzed in detail subsequently—

A 160-acre limitation on lands for homesteads within the project is expressly stated in section 9 of the Boulder Canyon Act, as follows: "That all lands of the United States found by the Secretary of the Interior to be practicable of irrigation and reclamation by the irrigation works authorized herein shall be withdrawn from public entry. Thereafter, at the direction of the Secretary of the Interior, such lands shall be opened for entry, in tracts varying in size but not exceeding one hundred and sixty acres, as may be determined by the Secretary of the Interior, in accordance with the provisions of the reclamation law.

the only case found in which the relationship between the Boulder Canyon Act and the reclamation law was considered is Six Companies, Inc. v. DeVinney, 2 F. Supp. 693 (D.C. Nev. 1933).

The legal problem in this case may be stated simply. The Six Companies, Incorporated, sought to enjoin a county assessor in Nevada from collecting State taxes on its personal property and from demanding the payment of poll taxes from its employees. The plaintiff's principal contention for avoiding tax liability was that all of its property and the homes of its employees were inside the Boulder Canyon Project Federal Reservation, to which territory the State of Nevada was alleged to have ceded jurisdiction.

In dismissing the bill, the Federal District Court for Nevada observed, in part:

The statutes referred to are the Reclamation Law and the Boulder Canyon Project Act. The latter act, as before pointed out, is supplementary to the Reclamation Law, except as otherwise therein provided.

The Boulder Canyon Project Act clearly discloses that the dam and incidental works therein referred to are of a permanent character, and specifically provides that "the title to said dam, reservoir, plant and incidental works shall forever remain in the United States." *** There is no specific provision in the Boulder Canyon Project Act authorizing the Secretary of the Interior to establish any reservation, and if such authority may be inferred it would be limited to the area covered by the expression last above quoted, including any additional area necessary for administrative purposes.

While, "except as otherwise herein provided," the Project Act is deemed a supplement to the Reclamation Law, a reference to the latter law * * * discloses nothing which the national government might be said to intend the retention of control beyond the consummation of the purposes of the law-the reclamation by means of irrigation of portions of the arid domain. This law comprehends the acquisition by citizens of the United States of the land and water rights. The law generally comprehends that its purposes will be carried out under national direction, but, subject thereto, always without relinquishment of state jurisdiction. * * *

Only in the Reclamation Law is there any provision for the establishment of town sites within reclamation projects or under the authority of the Bureau of Reclamation. Sections 561-570 (43 USCA). These provisions of the law clearly indicate the intention of Congress that the towns so established will be and remain subject to local state jurisdiction, and lots therein acquired by individual residents, and parks, playgrounds, community centers, and school grounds acquired by the public. (Italics supplied.)

In a word, then, the court, in order to find the answer to this question of tax liability, was required to revert to the reclamation law, of which the Boulder Canyon Act is a supplement. The answer clearly was not in the Boulder Canyon Act proper. Therefore, is it not logical to conclude that, if the provisions for the establishment of town sites carried over from the reclamation law to the Boulder Canyon Project

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Act, the excess-land limitation of 160 acres one of the most basic provisions of the reclamation law carried over in like fashion? While the following State court decision concerns the original Homestead Act and the Enlarged Homestead Act rather than the reclamation law and the Boulder Canyon Project Act, it is sufficiently in point to merit discussion:

First State Bank of Shelby v. Bottineau County Bank, 56 Mont. 363, 185 Pac. 162 (1919).

In that case, one Charles R. Wilbur, on July 25, 1913, made final proof upon 320 acres of land which he had entered under the Enlarged Homestead Act of February 19, 1909 (35 Stat. 639). On July 30 of the same year, the Bottineau County Bank recovered judgment against Wilbur. In January 1914, Wilbur received his patent and on April 15, 1914, he conveyed the land by warranty deed to the First State Bank of Shelby, Montana. In November 1914, the Bottineau Bank attempted to levy execution on the land in satisfaction of its judgment, whereupon the First State Bank sought to restrain the sheriff from making the levy.

The question was whether the provisions of the original Homestead Act of May 20, 1862 (12 Stat. 392), [containing a 160-acre limitation], exempting the land from the past debts of the patentee, carried over to the Enlarged Homestead Act, supra [containing a 320-acre limitation]. The language in the original statute provided flatly that no land acquired thereunder could "in any event become liable to the satisfaction of any debt contracted prior to the issuing of the patent therefor." The "enlarged" statute was silent in the matter. If the provision of the original statute carried over to the latter act, the attempted levy of the Bottineau Bank was without legal sanction.

The Supreme Court of Montana so held. It reviewed in detail the history and policy of the two statutes. It then summarized the six sections of the Enlarged Homestead Act and concluded:

** It will be seen at once that the Enlarged Homestead Act does not in terms change any of the provisions of the original act. The determination of the principal question before us, therefore, depends upon the proper construction of the Enlarged Homestead Act with reference to the original act.

Was it intended as an independent statute, or was it meant to become a part of the original homestead act as it existed at the time this new measure went

How thoroughly the 160-acre limitation permeates both the homestead and the reclamation laws is emphasized in 34 Stat. 116, 43 U.S.C. § 561, cited by the court, as follows: "The Secretary of the Interior may withdraw from public entry any lands needed for town-site purposes in connection with irrigation projects under the reclamation law, not exceeding one hundred and sixty acres in each case, and survey and subdivide the same into town lots***." (Italics supplied.)

into effect? Aside from any other consideration, the bare reading of the act of 1909 would seem to be sufficient to convince one that it could not have been intended as an independent act.

If the Enlarged Homestead Act was intended as an amendment to the prior homestead laws, then the acts are to be construed as one-as originally in the amended form. The history of this act is fairly conclusive that it was never intended to be construed otherwise than as a part of the original homestead law as it was then in force. Without quoting from the committee reports or the debates in the Congress, we think it is apparent from them that it was the intention of the lawmakers by this act to supplement the existing statutes-to improve the homestead laws and encourage the settlement of the vast areas of public lands in the semiarid regions, by increasing the amount of land subject to entry ✶✶✶

A supplemental act is one designed to improve an existing statute, by adding something thereto without changing the original text ***. Supplemental statutes include every species of amendatory legislation which goes to complete a legislative scheme ***.

Our conclusion is that the Enlarged Homestead Act is merely supplementary to the original homestead law, and is to be construed as a part of it. If follows that land acquired under it becomes subject to the provisions of section 2296 of the United States Revised Statutes *** and that the land in controversy in this action could not in any event become liable to the satisfaction of any debt contracted by Wilbur prior to the date his patent was issued. (Italics supplied.)

The answer to the question in the instant case is contained in the italic lines from the opinion of the Montana Supreme Court. If anything, our case is stronger. Section 14 of the Boulder Canyon Project Act makes that statute "a supplement to the reclamation law." There was no such express statutory connection between the original Homestead Act and the Enlarged Homestead Act. Yet the court found such a connection, even in the absence of express language, and enforced a limitation contained in the original act against land acquired under the supplemental act.8

The Montana Supreme Court had a clear precedent for its decision. Three years earlier, Federal Judge Bourquin had so held in a bankruptcy case. In re Auge, 238 Fed. 621 (D.C. D. Mont. 1916). On that occasion the court observed:

The bankrupt's contention that all said land is exempt is based on section 2296, R.S. *** which reads:

"No lands acquired under the provisions of this chapter shall in any event be

8 There are many cases which discuss the meaning of the word "supplement" in statutory construction. The prevailing opinion clearly is that the term signifies something which adds to, or completes, or extends that which is already in existence, without changing or modifying the original. McCleary v. Babcock, 169 Ind. 228, S2 N.E. 453 (1907); Lost Creek School Tp. 1, Vigo Co. v. York, 215 Ind. 636, 21 N.E. 2d 58, 60 (1939). See also Loomis v. Runge, 66 Fed. 856, 859 (C.C.A. 5th, 1895); Swanson v. State, 132 Neb. 82, 271 N.W. 264, 268 (1937); Edwards v. Stein, 94 N.J. Eq. 251, 119, Atl. 504, 507 (1923); Bradley & Currier Co. v. Loring, 54 N.J.L. 227, 23 Atl. 685, 686 (1892); Rahway Savings Institution v. City of Rahway, 53 N.J.L. 48, 20 Atl. 756, 757 (1890).

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come liable to the satisfaction of any debt contracted prior to the issuing of the patent therefore."

The chapter referred to is that of the federal original homestead law, providing for entries of 160 acres or less. Later homestead enactments *** permit entries for as much as 320 acres-enlarged homesteads-of public lands of certain quality and subject to somewhat different conditions. These latter are but additions to and amendments of the original law, and upon settled principles all form a whole, to be taken and read together as though the later enactments were part of the original law from the beginning, so far as the protection extended by section 2296 is concerned. Said section provides protection; other sections define the area protected. Changes in the latter affect not the former. Hence enlarged homesteads are "lands acquired under the provisions of this chapter," within section 2296, and are entitled to its protection, even as lesser or ordinary homesteads are. (Italics supplied.)

Even in the absence of the specific provision of section 14 of the Boulder Canyon Project Act, the general structure of this statute reveals that it was not meant to exist independently but rather as a part of the legislative scheme embodied in the Federal reclamation law. For instance, section 1 contains the authorization for the Secretary of the Interior to construct the All-American Canal. The act specifically provides "the expenditures for said main canal and appurtenant structures to be reimbursable, as provided in the reclamation law***" In order to determine the extent and mode of reimbursement, the pertinent provisions of the Federal reclamation law must. be consulted. Other reference to the Federal reclamation law are found in sections 4 (b), section 5,10 and section 9 11 of the Boulder Canyon Project Act. "It cannot be said that an act so absolutely dependent upon prior acts is an independent statute." First State Bank v. Bottineau County Bank, supra, at 164. Thus the intent of Congress, to

"Sec. 4(b) **Before any money is appropriated for the construction of said main canal and appurtenant structures to connect the Laguna Dam with the Imperial and Coachella Valleys in California, or any construction work is done upon said canal or contracted for, the Secretary of the Interior shall make provision for revenues, by contract or otherwise, adequate in his judgment to insure payment of all expenses of construction, operation, and maintenance of said main canal and appurtenant structures in the manner provided in the reclamation law." (Italics supplied.)

10 "Sec. 5. That the Secretary of the Interior is hereby authorized, under such general regulations as he may prescribe to contract for the storage of water in said reservoir and for the delivery thereof * upon charges that will provide revenue which, in addition

to other revenue accruing under the reclamation law and under this Act, will in his judgment cover all expenses of operation and maintenance incurred by the United States on account of works constructed under this Act and the payments to the United States *" (Italics supplied.)

11 "Sec. 9. That all lands of the United States found by the Secretary of the Interior to be practicable of irrigation and reclamation by the irrigation works authorized herein shall be withdrawn from public entry. Thereafter, at the direction of the Secretary of the Interior, such lands shall be opened for entry, in tracts varying in size but not exceeding one hundred and sixty acres, as may be determined by the Secretary of the Interior, in accordance with the provisions of the reclamation law * * *." (Italics supplied.)