DESERT LAND ACT shall be permitted to acquire title to more than 320 acres in the aggregate. The original Act allowed entry and patent for 640 acres. 13 Act of June 16, 1955, referred to in text, permits an additional desert land entry on certain mineral lands up to a total of 320 acres. Prior law had limited desert land entries on such lands to 160 acres. Reference in the Text. Section 3 of the Sec. 2. [Desert lands defined-Proof.]-All lands exclusive of timber lands. and mineral lands which will not, without irrigation, produce some agricultural crop, shall be deemed desert lands, within the meaning of this act, which fact shall be ascertained by proof of two or more credible witnesses under oath, whose affidavits shall be filed in the land office in which said tract of land may be situated. (19 Stat. 377; 43 U.S.C. § 322) EXPLANATORY NOTE administrative determination of what constitutes desert land. Codification. 43 U.S.C. § 322 also includes the reference from section 3 to the Sec. 3. [States to which applied.]-This Act shall only apply to and take effect in the States of California, Oregon, Nevada, Colorado, Washington, Idaho, Montana, Utah, Wyoming, Arizona, New Mexico, and North and South Dakota, and the determination of what may be considered desert land shall be subject to the decision and regulation of the Secretary of the Interior or such officer as he may designate. (19 Stat. 377; Act of March 3, 1891, 26 Stat. 1097; § 403, 1946 Reorganization Plan No. 3, 60 Stat. 1100; 43 U.S.C., §§ 322, 323) EXPLANATORY NOTES Codification. The reference to States is codified in section 323, title 43, U.S. Code. The reference to administrative determination of what constitutes desert lands is codified in section 322. States; 1891 Amendment. The State of Colorado was included by the Act of March 3, 1891, 26 Stat. 1097. The Territories referred to in the original act have now become states, and are so listed. 1946 Amendment. "Secretary of the Interior or such officer as he may designate" was substituted by section 403 of 1946 Reor Availability of water 2 1. Reclamation law ganization Plan No. 3, which also established the Bureau of Land Management. Additional Provisions Omitted. The original 1877 Act consisted of the three sections set forth above. A number of additional sections and supplementary provisions have been enacted by Congress through the years, but are omitted here. They are codified generally as 43 U.S.C. §§ 324-39. Editor's Note, Annotations. Annotations of opinions are included only to the extent deemed relevant to activities of the Bureau of Reclamation under this statute. NOTES OF OPINIONS Under departmental regulations (May 31, 1910, 38 L.D. 646, para. 78; currently 43 CFR 2226.4-6), a desert land entryman who owns a 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 participate in the project. In the latter case he must observe requirements of the reclamation law, including land limitations. Solicitor Barry Opinion, 71 I.D. 496, 513 (1964), in re application of excess land laws to private lands in Imperial Irrigation District. Where land in a desert-land entry is withdrawn under the Reclamation Act and the entry is subsequently cancelled, the withdrawal becomes effective as to such land upon the cancellation of the entry. George B. Willoughby, 60 I.D. 363 (1949). 2. Availability of water In exercise of the discretionary authority vested in the Secretary under section 7 of the Taylor Grazing Act, as amended, 49 Stat. 1976 (1936), public land in the Imperial Valley, California, may be classified as not proper for disposition under the Desert Land Act, 19 Stat. 377, as amended, on the grounds that it would be contrary to the public interest at this time to increase the pressure on the inadequate water supply available for use in California from the Colorado River. Hugh S. Ritter, Thomas M. Bunn, 72 I.D. 111 (1965). See also Stephan H. Clarkson, 72 I.D. 138 (1965). By a notice of December 2, 1965, the Secretary of the Interior repealed the suspension of a large number of desert land entries in Imperial and Riverside Counties, California, that had been pending for a number of years in anticipation of obtaining irrigation water from the Colorado River. The suspensions had been granted under the decision in Maggie L. Havens, A-5580 (October 11, 1923). The Secretary stated in the notice that it would be contrary to the public interest to increase the pressure on the inadequate water supply available for use in California from the Colorado River by permitting additional federally owned lands to be developed under the desert land laws unless clear eligibility exists or unless clear grounds for relief are shown. In certain circumstances desert land entries in Imperial and Riverside Counties affected by the notice of December 2, 1965, repealing the suspension under Maggie L. Havens, A-5580 (October 11, 1923), which have been reclaimed or are in the process of being reclaimed, will be considered in accordance with the principles of equity and justice as authorized by 43 U.S.C. § 1161, even though development was not completed within the statutory life remaining in the entry after March 4, 1952. Clifton O. Myll, A-29920 (Supp. II), 72 I.D. 536 (1965), vacating 71 I.D. 458 (1964), as supplemented by 71 I.D. 486 (1964). 3. Water rights In reviewing a license issued by the Federal Power Commission for a water power project on a non-navigable stream on reserved lands of the United States, it is not necessary for the court to pass upon the contention of the State of Oregon that the Acts of July 26, 1866, July 9, 1870, and the Desert Land Act of 1877 constitute an express Congressional delegation or conveyance to the State of the power to regulate the use of such waters because those Acts do not apply to reserved lands. Federal Power Commission v. Oregon, 349 U.S. 435, 446-48 (1955). The Federal Government, as owner of the public domain, had the power to dispose of the land and water composing it together or separately; and by the Desert Land Act of 1877, if not before, Congress had severed the land and waters constituting the public domain and established the rule that for the future the lands should be patented separately. Acquisition of the Government title to a parcel of land was not to carry with it a water-right, but all non-navigable waters were reserved for the use of the public under the laws of the various arid-land states. Ickes v. Fox, 300 U.S. 82, 95 (1937). By section 9 of the Act of July 26, 1866, section 1 of the Desert Land Act of 1877, and section 18 of the Act of March 3, 1891, Congress recognized and assented to the appropriation of water under State laws in contravention of the common law rules of riparian rights; but it is not to be inferred that Congress thereby meant to confer on any State the right to appropriate all the waters of the tributary streams which unite into a navigable watercourse, and so destroy the navigability of that watercourse in derogation of the interests of all the people of the United States. United States v. Rio Grande Dam and Irr. Co., 174 U.S. 690, 704-07 (1899). 15 IRRIGATION SURVEYS; RESERVOIR SITES [Extract from] An act making appropriations for sundry civil expenses of the Government for the fiscal year ending June 30, 1889, and for other purposes. (Act of October 2, 1888, ch. 1069, 25 Stat. 505) [Irrigation survey of arid region-Report of expenses-Withdrawal of lands-Opening of lands by proclamation.]-[There is appropriated] For the purpose of investigating the extent to which the arid region of the United States can be redeemed by irrigation, and the segregation of the irrigable lands in such arid region, and for the selection of sites for reservoirs and other hydraulic works necessary for the storage and utilization of water for irrigation and the prevention of floods and overflows, and to make the necessary maps, including the pay of employees in field and in office, the cost of all instruments, apparatus, and materials, and all other necessary expenses connected therewith, the work to be performed by the Geological Survey, under the direction of the Secretary of the Interior, the sum of $100,000 or so much thereof as may be necessary. And the Director of the Geological Survey under the supervision of the Secretary of the Interior shall make a report to Congress on the first Monday in December of each year, showing in detail how the said money has been expended, the amount used for actual survey and engineer work in the field in locating sites for reservoirs and an itemized account of the expenditures under this appropriation. And all the lands which may hereafter be designated or selected by such United States surveys [for sites for reservoirs * * * for irrigation purposes *** shall be segregated and reserved from entry or settlement from the date of location or selection by the United States until further provided by law: Provided, That such sites shall be restricted to and shall contain only so much land as is actually necessary for the construction and maintenance of reservoirs, excluding so far as practicable, lands occupied by actual settlers at the date of the location of said reservoirs.] (25 Stat. 526) EXPLANATORY NOTES Editor's Note. The bracketed material represents an editorial interpretation of the 1888 law as amended by the Acts of August 30, 1890, and March 3, 1891, which are set forth below. Original Text. The last sentence of the paragraph as originally enacted reads as follows: "And all the lands which may hereafter be designated or selected by such United States surveys for sites for reservoirs, ditches, or canals for irrigation purposes and all the lands made susceptible of irrigation by such reservoirs, ditches, or canals are from this time henceforth hereby reserved from sale as the property of the United States, and shall not be subject after the passage of this act, to entry, settlement, or 16 IRRIGATION SURVEYS; RESERVOIR SITES or selected shall remain segregated and reserved from entry or settlement as provided by said act, until otherwise provided by law, and reservoir sites hereafter located or selected on public lands shall in like manner be reserved from the date of the location or selection thereof." 1891 Supplementary Provision. Section 17 of the Act of March 3, 1891, 26 Stat. 1101, provides in part: "SEC. 17. That reservoir sites located or selected and to be located and selected under the provisions of [the Act of October 2, 1888], and amendments thereto, shall be restricted to and shall contain only so much land as is actually necessary for the construction and maintenance of reservoirs; excluding so far as practicable lands occupied by actual settlers at the date of the location of said reservoirs. * * *” Codification. An interpretation of the 1888 law, as amended by the 1890 and 1891 Acts, appears as 43 U.S.C. §§ 662, 663. Legislative History, 1890 Amendment. Congressional debate on the question of repeal of the 1888 provision can be found at 21 Cong. Rec. 7269-7987, 8270-9156 (1890). 1897 Supplementary Provision. The Act of February 26, 1897, 29 Stat. 599, provides: "All reservoir sites reserved or to be reserved shall be open to use and occupation under the right-of-way Act of March third, Construction with other laws 2 Effect of 1888 Act 1 1. Effect of 1888 Act eighteen hundred and ninety-one. And any State is hereby authorized to improve and Occupy such reservoir sites to the same extent as an individual or private corporation, under such rules and regulations as the Secretary of the Interior may prescribe: Provided, That the charges for water coming in whole or part from reservoir sites used or occupied under the provisions of this Act shall always be subject to the control and regulation of the respective States and Territories in which such reservoirs are in whole or part situate." (43 U.S.C. § 664) 1899 Supplementary Provision. The Act of March 3, 1899, 30 Stat. 1214, 1233, provides in part: "That in the form provided by existing law the Secretary of the Interior may file and approve surveys and plats of any right of way for a wagon road, railroad, or other highway over and across any forest reservation or reservoir site when in his judgment the public interests will not be injuriously affected thereby." (43 U.S.C. § 665, 43 U.S.C. § 958, and 16 U.S.C. § 525) Prior Authorization. The surveys for which this act appropriated funds were authorized by the Joint Resolution of March 20, 1888, No. 7, 25 Stat. 618. Editor's Note, Annotations. Annotations of opinions are included only to the extent deemed relevant to activities of the Bureau of Reclamation under this statute. NOTES OF OPINIONS The provision reserving from sale or entry lands designated or selected for reservoirs, ditches, or canals for irrigation purposes, and also lands made susceptible of irrigation by such reservoirs, ditches, or canals, operates as an immediate withdrawal of the lands thus described from entry and settlement. 19 Op. Atty. Gen. 564 (May 24, 1890). 2. Construction with other laws The provisions of section 18 of the Act of March 3, 1891, 26 Stat. 1101, granting a right-of-way through the public lands and reservations of the United States to canal and ditch companies, do not contemplate the allowance of such rights over lands reserved by the Government for reservoir sites under the Acts of October 2, 1888, and August 30, 1890. Blue Water Land and Irrigation Co., 23 I.D. 275 (1896). 17 RIGHTS OF WAY RESERVED TO UNITED STATES FOR CANALS AND DITCHES [Extract from] An act making appropriations for sundry civil expenses of the Government for the fiscal year ending June 30, 1891, and for other purposes. (Act of August 30, 1890, ch. 837, 26 Stat. 371) [Land patents shall reserve right of way for Government canals and ditches.]—* * * In all patents for lands hereafter taken up under any of the land laws of the United States or on entries or claims validated by this act, west of the one hundredth meridian, it shall be expressed that there is reserved from the lands in said patent described, a right of way thereon for ditches or canals con-structed by the authority of the United States. (26 Stat. 391; 43 U.S.C. § 945) EXPLANATORY NOTES 1964 and 1966 Modifications. The 1890 Act reservation of rights-of-way for canals and ditches was substantially modified insofar as the Department of the Interior is concerned by the Act of September 2, 1964, 78 Stat. 808, which directs the Secretary of the Interior to pay just compensation for private land utilized for canals or ditches in connection with any reclamation project if the construction of the ditches or canals began after January 1, 1961. The Act of October 4, 1966, extended the same remedy to rights-of-way reserved under State statute, and gave district courts jurisdiction in suits for compensation. Both the 1964 and 1966 Acts appear herein in chronological order. Popular Name. This provision is sometimes referred to as the Canal Act. Editor's Note, Annotations. Annotations of opinions are included only to the extent deemed relevant to activities of the Bureau of Reclamation under this statute. Legislative History. Debate in Congress as to right-of-way provision of Act of August 30, 1890: 21 Congressional Record, 51st Congress, 1st Sess., pages 7774, 7877, 7930, 8275, 8323, 8329, 9139, 9151, 9152, 9154, 9155. Executive Document No. 136, Senate, 51st Cong., 1st Sess. NOTES OF OPINIONS canals and By a series of acts and resolutions beginning as early as 1888, Congress unmistakably declared a purpose to reclaim arid lands. United States v. Van Horn, 197 Fed. 611 (D. Colo. 1912). This provision must be construed in the light of the known purpose of the Govern ment to reclaim its arid lands by conducting water upon them, and it is not void for indefiniteness because the right of way reserved is not specifically described, but is within the undoubted powers of Congress and valid. Ibid. Under the provisions of the Act of August 30, 1890, it was the evident intention of Congress to reserve perpetually to the Government an easement and right of way through and over any and all lands west of the one hundredth meridian that the Government might grant to settlers and purchasers subsequent to the passage of the act, and to thereby reserve the easement and right of way for the construction, maintenance, and operation of any ditches and canals the Government may construct at any time in the future for the irrigation and reclamation of arid lands. Green v. Wilhite, 14 Idaho 238, 93 Pac. 971 (1908). A contract for sale of land subject to a |