LEASING PUBLIC LANDS WITHDRAWN FOR IRRIGATION

PURPOSES.

The authority to lease for summer recreation purposes land around Bumping Lake withdrawn for irrigation uses but not required for the irrigation project, which land constituted part of the area previously withdrawn for the Rainier National Forest, is in the Department of Agriculture, and the rentals should be covered into the Treasury as miscellaneous receipts. But in recognition of the needs of the reclamation service, and to forestall any contracts detrimental to the reclamation project, all leases should be subject to the prior approval of the Secretary of the Interior. DEPARTMENT OF JUSTICE,

November 28, 1916.

SIR: You have requested my opinion upon a question which has arisen in the administration of the Rainier National Forest in the State of Washington. On August 16, 1907, the Department of the Interior withdrew for irrigation purposes a strip of land around Bumping Lake 1 mile in width from the normal high-water line of the lake. The land withdrawn for irrigation purposes constituted a part of the area previously withdrawn for the National Forest by proclamation of February 20, 1893 (27 Stat. 1063). The Reclamation Service of the Interior Department has completed the construction of a storage reservoir at Bumping Lake on the lands withdrawn, by reason of which the waters of the lake have been raised so that during the time of impounding the water for storage purposes the lake extends partly over the mile-wide strip. A portion of the mile strip which is not covered by water the Reclamation Service proposes to lease, for a period of 10 years, for summer cottages, summer hotels, and other recreation uses. The land which it is proposed to lease lies 300 feet in width and three-fourths of a mile in length along the shores of the lake..

A dispute has arisen between the Forest Service of your Department and the Reclamation Service of the Department of the Interior as to which has authority to make the lease, and it is this question which has been submitted to me for opinion.

The reclamation act of June 17, 1902 (32 Stat. 388), authorizes the withdrawal of public lands for two pur

poses, namely, first, those required for irrigation works contemplated under the provisions of the act, and, second, the withdrawal from all forms of entry, except under the homestead laws, of lands in the project believed to be susceptible of irrigation thereunder. The withdrawal for irrigation works is known as the first form of withdrawal, and it was under that provision of the statute that the withdrawal in question was made.

Section 3, of the act of 1902, which contains the authority for the withdrawal of public lands, further provides that the Secretary of the Interior "shall restore to public entry any of the lands so withdrawn when, in his judgment, such lands are not required for the purposes of this act."

The reclamation fund provided for in the act of 1902 consists of all moneys received from the "sale and disposal of public lands" in the States named, among them the State of Washington, including the surplus of fees and commissions and excess of allowances to registers and receivers and excepting the 5 per cent of the proceeds of the sales of public lands in the States named, which are set aside by law for educational and other purposes (sec. 1). The subsequent legislation in regard to this fund is found in the following acts:

Act of March 3, 1905 (33 Stat. 1032), which declares that there shall be covered into the reclamation fund the proceeds of the sales of material utilized for temporary work and structures and other condemned property purchased under the reclamation act, and any moneys refunded in connection with operations under the act.

Act of April 16, 1906 (34 Stat. 116), as amended by the act of February 24, 1911 (36 Stat. 930), providing for the establishment of town sites on reclamation projects, the sale of town lots, the sale of water to municipalities, the leasing of power and power privileges in connection with the reclamation projects, the proceeds of which are to be covered into the reclamation fund.

Act of February 2, 1911 (36 Stat. 895), authorizing the sale of lands which have been acquired under the reclamation act, but are not needed for the purpose for which they

were purchased-the proceeds to be covered into the reclamation fund.

The laws mentioned above constitute all of the legislation to which my attention has been called, making provision for the reclamation fund.

Prior to February 1, 1905, the forest reserves, or national forests, as they are now called, were under the control of the Secretary of the Interior, and all laws in regard to their administration were, of course, executed by him. On the date named, however, Congress passed an act (33 Stat. 628), providing for the transfer of forest reserves from the Department of the Interior to the Department of Agriculture, and imposed upon the Secretary of Agriculture the duty of executing all laws affecting public lands theretofore or thereafter reserved for forest purposes, "excepting such laws as affect the surveying, prospecting, locating, appropriating, entering, relinquishing, reconveying, certifying, or patenting of any of such lands."

By section 5 of that act it was provided that all money received from the sale of any products or the use of any land or resources of the forest reserves should be covered into the Treasury of the United States and for a period of five years should constitute a special fund, available until expended, as the Secretary of Agriculture might direct, for the protection, administration, improvement, and extension of forest reserves. By the act of March 4, 1907 (34 Stat. 1256, 1270), it is provided that all money received after July 1, 1907, by or on account of the Forest Service for timber, or from any other source of forestreservation revenue, shall be covered into the Treasury of the United States as a miscellaneous receipt.

By the act of March 4, 1915 (38 Stat. 1086, 1101), the Secretary of Agriculture is authorized, upon such terms as he may deem proper, to permit responsible persons or associations to use and occupy suitable spaces or portions of ground in the national forests for the construction of summer homes, hotels, or other structures needed for recreation or public convenience, not exceeding 5 acres to any one person or association.

The reclamation act clearly authorizes the Secretary of the Interior to withdraw public land for the construction of irrigation works, and it has been construed to authorize a withdrawal for the purposes named of lands previously set aside for national forests. See opinion of July 3, 1915, addressed to you in regard to the administration of the Teton National Forest in Wyoming.

In that opinion it was said that a designation of forest lands by the Secretary of the Interior for immediate or prospective reclamation uses would withdraw them from the operation of the general laws which look to the acquisition of private rights or privileges within the national forests just as a similar designation of public lands would withdraw them from the operation of the laws permitting rights or privileges to be obtained in the vacant unappropriated public domain; but that it did not follow that lands might be eliminated from a national forest by a reclamation withdrawal; that preliminary withdrawals of that kind made through caution or necessity often exceeded the area ultimately required for the operation and protection of the irrigation works, and that whenever it becomes apparent that a withdrawal is in whole or in part unnecessary, it should be modified or revoked so that lands not needed for the reclamation use may be restored to the status that they formerly occupied.

Under this authority it would seem that the Secretary of the Interior must determine what lands are necessary for the purpose desired, and in the case of a reservoir, it may well be that he should control not only the area covered by water but also a reasonable area adjoining for the purpose of protecting the banks, preventing pollution of the water and other similar purposes. It seems that the débris accruing from falling timber is dangerous to the reservoir and dam; and that a certain amount of protection against storms is necessary. It is true that the determination of the Secretary of the Interior as to the extent of the land adjoining Bumping Lake necessary for irrigation purposes must be within the exercise of reasonable discretion. But on the facts submitted I can not say that the

strip of land now proposed to be leased for summer recreation purposes is not necessary for the irrigation project. The question as to necessity is a technical one to be resolved by expert engineers. Leases, if made, might well contain express provisions reserving such power of control to the Secretary of the Interior as will enable him to insure proper protection of the reservoir and its waters from injurious acts of the lessees.

This does not mean, however, that the Secretary of the Interior has power to lease forest lands thus reserved and covered the rentals into the reclamation fund. My opinion is that he has no such power. As was indicated in my opinion to you of July 3, 1915, the forest lands withdrawn for irrigation purposes should be administered by the Department of Agriculture, subject to the necessities of the reclamation use. Moreover, as has been seen, the statute of 1915 specifically grants authority to the Secretary of Agriculture to lease forest lands for summer recreation purposes.

In the present case, authority to lease the strip proposed is in the Department of Agriculture, and the rentals should be covered into the Treasury as miscellaneous receipts. But in recognition of the needs of the reclamation service, and to forestall any contracts detrimental to the reclamation project, all leases should be subject to the prior approval of the Secretary of the Interior.

Very respectfully,

JOHN W. DAVIS, Acting Attorney General.

TO THE SECRETARY OF AGRICULTURE.

TITLE TO LANDS WITHIN FORT D. A. RUSSELL TARGET AND MANEUVER RESERVATION.

Where lands within the Fort D. A. Russell Target and Maneuver Reservation were offered in exchange for other public lands outside the reservation, under the exchange provisions of the act of June 4, 1897 (30 Stat. 36), but the lieu selections were disapproved and cancelled by the Land Department, the full equitable title, at least, to the lands tendered in exchange, remains in the selector, and the Government has no right whatever to the pos session or use of the lands tendered in exchange.

NOTE. Opinion of November 28, 1916, relating to International Harvester Co., p. 601.