APPENDIX L

August 7, 1961

Honorable Stewart Udall

Secretary of the Interior

Washington 25, D.C.

Dear Mr. Secretary:

I have had some complaints from Southern California that the acreage limitation provisions of the Reclamation law have not been enforced in Bureau of Reclamation Projects in the Coachella and Imperial Valleys.

Would you kindly advise me if these areas are subject to acreage. limitation provisions, and if so, the status of land ownership within them?

Sincerely yours,

CLINTON P. ANDERSON,

Chairman.

APPENDIX M

May 15, 1962

Hon. Clinton P. Anderson

Chairman, Committee on Interior and Insular Affairs
United States Senate, Washington, D.C.

Dear Mr. Chairman:

On August 7, 1961, you made inquiry as to whether lands in the Coachella and Imperial Valleys are subject to acreage limitation provisions of the Federal Reclamation laws and, if so, the status of land ownership within them. Unfortunately, your letter was misplaced.

The Coachella Valley County Water District is in compliance with the land limitation provisions of the Federal Reclamation laws. The Coachella distribution system contract of December 22, 1947, includes provisions implementing the acreage limitation provisions through recordable contracts as specified in section 46 of the Act of May 25, 1926. No acreage limitation provisions were included in the Coachella All-American Canal contract of October 15, 1934, whereby the Coachella County Water District contracted for capacity in the Imperial Dam and the All-American Canal and for the repayment of a propor

IMPERIAL IRRIGATION DISTRICT LANDS

December 31, 1964

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. Sincerely yours,

STEWART L. UDALL, Secretary of the Interior.

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INDEX-DIGEST

Note-See front of this volume for tables

ADMINISTRATIVE PRACTICE

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

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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

ADJUDICATION

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_.

HEARINGS

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___

ALASKA

HOMESTEADS

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-

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