IMPERIAL IRRIGATION DISTRICT LANDS
tionate share of the costs of those facilities. Omission of land limitation provisions in the 1934 contract was no doubt based upon a ruling by Secretary of the Interior Wilbur made in 1933 in the case of the Imperial Irrigation District. Further comment upon Secretary Wilbur's ruling is made hereafter in this letter.
In connection with negotiation of the Coachella distribution contract, the Solicitor of the Department made a thorough review of the possible applicability of land limitation provisions and in an opinion dated May 31, 1945 (copy enclosed) the Solicitor held that the land limitation provisions of the Federal Reclamation laws were applicable to lands in the Coachella County Water District. Accordingly, as above indicated, land limitation provisions were included in the distribution system contract.
Currently available records indicate that of the 923 ownerships in the Coachella District larger than five acres, which comprise an aggregate total of 74,718 irrigable acres, none contain excess lands. Hence, there is no indication of violation of the acreage limitation provisions of reclamation law in the Coachella service area.
By reason of Secretary Wilbur's ruling of 1933, records have not been maintained of excess ownerships in the Imperial Irrigation District. Consequently, we are unable to advise with respect to the extent of noncompliance with excess land limitations in the Imperial District, but we would assume from general knowledge that there are considerable large holdings and that they have been increasing.
With respect to the applicability of excess land limitations to lands in the Imperial Irrigation District, as noted above, Secretary Wilbur in 1933, shortly before he left office, ruled that lands within the District did not come under the statutory restrictions. The rationale of the Solicitor's opinion of May 31, 1945, however, challenges the validity of Secretary Wilbur's view. In a letter of April 27, 1948 (copy enclosed) the then Secretary of the Interior advised the Veterans of Foreign Wars that the Department did not plan to take any action to reverse the Wilbur ruling as to the Imperial Irrigation District. This position taken by the Department in 1948 was called to the attention. of the Department of Justice by the enclosed copy of a letter from the then Solicitor of this Department to the Solicitor General of the United States, dated February 5, 1958. However, the Department of Justice in pleadings filed in the case of Arizona v. California has expressed disagreement with Secretary Wilbur's ruling. We enclose in this connection a copy of a memorandum filed by the Solicitor General
in Arizona v. California. You will find of particular interest footnote 5 commencing on page 2 and footnote 45 on page 30a in the Solicitor General's opinion.
The continuing press of other matters has caused us to defer a current study of the Imperial situation. We hope, however, to go into it in the future, as circumstances of available staff and time permit.
STEWART L. UDALL, Secretary of the Interior.
Note-See front of this volume for tables
1. The proceedings leading to the cancellation of a mining claim will not
be reopened many years after the decision has become final in the
absence of a compelling legal or equitable basis warranting recon-
sideration and an application for patent on a mining claim is
properly rejected where, more than sixteen years before the
patent application was filed, the claim had been declared null
and void and thereafter canceled__----
2. A hearing is not required by departmental practice or by the re-
quirements of due process on the rejection of an application for a
patent on mining claims which, over 25 years before the patent
application was filed, were declared null and void in adverse
proceedings or by a default decision after notice of charges
against the claims and an opportunity for a hearing thereon were
given the record title owner of the claims__
3. Administrative practice, no matter how long standing, is not con-
trolling when it is clearly erroneous..
4. The Director of the Bureau of Land Management has authority at
any time to take up and dispose of any matter pending in a land
office or to review any decision of a subordinate officer with or
without an appeal_----
5. An amendment of a departmental regulation to provide expressly
for the first time that the showing required for making a second
homestead entry must be made in cases where a homestead appli-
cation has been filed but withdrawn prior to allowance will not
be applied where the first application was filed and withdrawn
prior to the effective date of the amendment, particularly where
the practice of the land office has been not to require the
showing
6. The letter from Secretary of the Interior Ray Lyman Wilbur to the
Imperial Irrigation District, February 24, 1933, which informally
ruled that the excess land laws did not apply to lands in the
Imperial Irrigation District, was based upon clearly erroneous
conclusions of law-----
7. Administrative practice, no matter of how long standing, is not con-
trolling where it is clearly erroneous..
8. Under departmental regulations (May 31, 1910, 38 L.D. 646, para. 78;
currently, 43 CFR 230.110), a desert land entryman who owns a
ADMINISTRATIVE PRACTICE-Continued
water right can rely on his own efforts to convey his water to his
entry without assistance from a government project, thereby
avoiding the requirements of the reclamation law, or he can partic-
ipate in the project. In the latter case he must observe re-
quirements of the reclamation law, including land limitations____
ADMINISTRATIVE PROCEDURE ACT
1. Where a hearing has been held in a contest, the record made at the
hearing shall be the sole basis for a decision and evidence sub-
mitted at a later date cannot be considered in deciding the case
on the merits___
1. Where a hearing has been held in a contest, the record made at the
hearing shall be the sole basis for a decision and evidence sub-
mitted at a later date cannot be considered in deciding the case
on the merits___.
1. The filing of an allowable homestead application in Alaska consti-
tutes an entry within the meaning of the act of September 5,
1914, so that an individual who has filed an allowable homestead
application in Alaska but withdrawn it prior to allowance by the
land office has exercised his right of entry under the homestead
law and is properly required to make the necessary showing for
a second homestead entry under the 1914 act in connection with
any subsequent homestead application_‒‒‒‒‒
2. An amendment of a departmental regulation to provide expressly for
the first time that the showing required for making a second home-
stead entry must be made in cases where a homestead application
has been filed but withdrawn prior to allowance will not be applied
where the first application was filed and withdrawn prior to the
effective date of the amendment, particularly where the practice
of the land office has been not to require the showing..........
INDIAN AND NATIVE AFFAIRS
1. Solicitor's opinion, M-36352, June 27, 1956, holding that the allotment
right of an Alaskan native under the Alaska Allotment Act, 34
Stat. 197, prior to the 1956 amendment, was limited to a single
entry and that the allotment could not embrace a grant of in-
contiguous tracts of land is correct, where the proposed allot-
ment is of tracts which are not related in any sense, or where,
his allotment having once been determined, an additional grant
to the same applicant is being considered‒‒‒‒‒
2. Congress has frequently used the word "homestead" in connection
with the allotment of land to Indians to indicate merely that the
land allotted was to be subject to special status and the use of
the word "homestead" in the Alaska Allotment Act, 34 Stat. 197,
as amended, 70 Stat. 954, is not necessarily indicative of an inten-
INDIAN AND NATIVE AFFAIRS-Continued
tion to superimpose the requirements of the general homestead
laws on the express requirements of the Alaska statute___.
3. While both the Indian Allotment Act of 1887, 24 Stat. 388, and the
Alaska Allotment Act, 34 Stat. 197, as amended, 70 Stat. 954, are
representative of the method which was used to grant land to
"uncivilized" persons in the late nineteenth and early twentieth
centuries, the specific requirements of the numerous allotment
statutes enacted during that time vary according to the particular
situations which they were intended to meet and the two acts
should not be read in pari materia to impose identical require-
ments on applicants under each statute____.
4. The historical and legislative materials out of which the Alaska Allot-
ment Act, 34 Stat. 197, as amended, 70 Stat. 954, emerged impel the
conclusion that the Secretary is authorized to make single allot-
ments of incontiguous tracts of land which, taken as a whole,
compose the single unit which is the actual home of the
applicant ---
5. The effect of the enactment of Departmental regulations in the 1956
amendment to the Alaska Allotment Act, 70 Stat. 954, was to
make mandatory under the statute the determination of use and
occupancy which, prior to the 1956 amendment, had been discre-
tionary except where the claim of a preference right was involved,
but the amendment did not bind the Department to the exclusive
consideration of the specific elements of proof which, though
listed in the regulations, were not made a part of the amendment__
6. Both Frank St. Clair, 52 L.D. 597 (1929), and Frank St. Clair (On
Petition), 53 I.D. 194, 1930, affirm the rule that occupancy of the
land sufficient to establish a preference right under the Alaska
Allotment Act, 34 Stat. 197, prior to amendment in 1956 did not
need to be continuous and that residence on the land was not
required to the exclusion of a home elsewhere__
7. The reference to residence and cultivation in Herbert Hilscher, 67
I.D. 410 (1960), if that reference was intended to imply that
other instances of occupancy expended by the native according
to his natural culture and environment would be inadequate to
show substantial actual possession and use of the land, must be
restricted to the interpretation of existing regulations and, in
view of the history of the Alaska Allotment Act, 34 Stat. 197, as
amended, 70 Stat. 954, there is no justification for treating the
reference to residence and cultivation as disclosing a limitation
on the authority of the Secretary which would prevent him from
promulgating regulations that evidence a broader policy‒‒‒‒‒‒‒
8. The Secretary of the Interior is authorized by the Alaska Allotment
Act, 34 Stat. 197, as amended, 70 Stat. 954, to promulgate regula-
tions which provide for a determination of "use and occupancy"
of the land according to the native's mode of life and the climate
and character of the land; taking these factors into consideration,
such use and occupancy requires a showing of substantial actual
possession and use of the land, at least potentially exclusive of
others which is substantially continuous for the period required..
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